Law, Religion, and Conscience in a Pluralistic Society: The Case of the Little Sisters of the Poor

Abstract

In their participation as plaintiffs in Zubik v. Burwell, the Little Sisters of the Poor have appealed to the moral teachings of the Catholic Church in order to argue that the Affordable Care Act requires the organization to act against its conscience and in complicity with evil. However, this Article argues that the exigencies of litigation have required the plaintiffs to distort Roman Catholic moral teaching on cooperation with evil and the respect due to the conscience of others. John Rawls’ concept of ‘civic respect’ and Mario Cuomo’s invocation of the Golden Rule provide a framework for understanding the moral requirement to respect the conscience of others. Examining the role of the Little Sisters of the Poor as an employer and institutional citizen clarifies the moral issues surrounding this case and demonstrates the ways in which the adversarial nature of the legal process has pressed them to understand both their own obligations and those of the government in a binary manner. This distortion has prevented them from helping to discern what sorts of conscience protection are appropriate for all of us in an interdependent and pluralistic constitutional democracy.