Conscience Wars in the Americas

5 Latin American Law Review 1 (2020)

26 Pages Posted: 9 Jun 2020 Last revised: 20 Nov 2020

See all articles by Douglas NeJaime

Douglas NeJaime

Yale University - Law School

Reva Siegel

Yale University - Law School

Date Written: May 13, 2020

Abstract

A new type of religious conscience claim is appearing across the globe — in conflicts over sexuality, gender, reproduction, and the family, or what are often described as the “culture wars.” In the United States, many European countries, and parts of Latin America, conscience has emerged as an important framework for objecting to recently enacted laws or case law that confer on citizens reproductive rights and, increasingly, LGBT (or SOGIE) rights. Religious conscience claims in this setting can be asserted sincerely and with a theological basis and yet also serve as a way to limit the newly recognized rights of other citizens. Unlike in the paradigmatic scene of religious accommodation, conscience claims in the culture wars are asserted in defense of norms that the majority recently has shared and may in fact continue to share.

Unlike in the paradigmatic case, where an individual from a minority faith seeks to engage in ritual observance or religiously-motivated dress or grooming that runs afoul of generally applicable laws, accommodation of conscience claims in culture-war conflicts may inflict significant harms on other citizens. Accommodation may impose older, traditional views on citizens whose rights the law only recently has come to protect.

Our intervention is both practical and critical. We consider culture-war conscience claims across the Americas involving reproductive rights and LGBT equality and show how these more recent conscience claims resemble, and differ from, paradigmatic conscience claims involving ritual observance and dress. After surveying law across borders, we offer guidance about accommodating these conscience claims. We suggest a variety of approaches that would promote, rather than undermine, pluralism. It is often possible for the government to accommodate conscientious objectors’ claims while still protecting the rights of citizens who may be affected.

Appreciating the multiple pathways for accommodation helps clarify the logic of the government’s choices. When government accommodates conscience in a framework that does not preserve the legally enshrined rights of other citizens, we show in this Essay, the government may be employing the law of accommodation to create a de facto public order favoring the beliefs of the objectors.

Keywords: Conscience, Religious Liberty, Accommodation, Reproductive Rights, LGBT, SOGI, Same-Sex Marriage, Human Rights, Comparative Constitutional Law, Transnational Movements, Pluralism, Complicity

Suggested Citation

NeJaime, Douglas and Siegel, Reva B., Conscience Wars in the Americas (May 13, 2020). 5 Latin American Law Review 1 (2020), Available at SSRN: https://ssrn.com/abstract=3600175 or http://dx.doi.org/10.2139/ssrn.3600175

Douglas NeJaime

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Reva B. Siegel (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-6791 (Phone)

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