Vischer - Conscience and the common good: reclaiming the space between person and state

Robert K. Vischer

CAMBRIDGE UNIVERSITY PRESS

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Cambridge University Press

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I am thankful for the insightful comments on various portions of this book from friends and colleagues, including Tom Berg, Matt Bodie, Rick Garnett, John Inazu, Lyman Johnson, Andy Koppelman, Joel Nichols, Eduardo Penalver, Michael Perry, Lisa Schiltz, Steve Shiffrin, Steven Smith, Susan Stabile, Julian Velasco, and John Witte Jr. I owe particularly large debts of gratitude to Brian Tamanaha and Amy Uelmen, both of whom went far beyond the call of duty in encouraging and offering constructive feedback on this project. My students, Eric van Schyndle and Paul Haverstock, provided stellar research assistance, and I appreciate the institutional support offered by Dean Thomas Mengler and the University of St. Thomas Law School. I benefited enormously from presenting earlier versions of these chapters at Vanderbilt, Marquette, Notre Dame, St. John's, Villanova, Fordham University, University of Maryland, Oklahoma University, University of Colorado, St. Louis University, Humboldt University (Berlin), Pontificia Universita San Tomasso (Rome), and the University of Exeter (U.K.). I am especially grateful to my wife, Maureen, and my daughters Sophia, Lila, and Ava for cheering me on in my efforts, and I apologize to Ava that the book has less to say about princesses or fairies than she might have hoped.

I am grateful for permission to include portions of my earlier work in this volume. Portions of as Legal Advice as Moral Perspective , 19 GEO. J. LEGAL ETHICS 225 (2006); Professional Identity and the Contours of Prudence , 4 UNIV. OF ST. THOMAS L.J. 46 (2006); and Heretics in the Temple of Law: The Promise and Peril of the Religious Lawyering Movement , 19 J. L. & RELIG. 427 (2004).

Americans justifiably cherish the liberty of conscience as a foundational limitation on state power. Few today would challenge the assessment offered in 1919 by future Supreme Court Chief Justice Harlan Fiske Stone that the liberty of conscience is so vital that it may well be questioned whether the state which preserves its life by a settled policy of violation of the conscience of the individual will not in fact ultimately lose it by the process.

When the state moves against the individual, either foreclosing dissent or coercing assent to the majority's ideals, it makes sense to view liberty of conscience as a legal protection that arises at the point of conflict between an individual's deeply held moral or religious beliefs and state power. Increasingly, the individual claiming conscience is opposed not by state power, but by the similarly conscience-driven claims of nonstate entities. Few of us would dispute the notion that liberty of conscience is an essential feature of the political order, but that broad consensus has proved to be of little help in resolving an expanding range of disputes involving conscience.

Consider the case of Elane Photography. Nearly ninety years after future Chief Justice Stone cautioned against using state power to force a person to participate in military combat against the dictates of his conscience, another widely publicized legal skirmish over conscience erupted from a simple email exchange. Vanessa Willock contacted Elane Photography, a husband-and-wife photo agency in Albuquerque, New Mexico, through its web site to inquire about photographing her same-sex commitment ceremony. Co-owner Elaine Huguenin emailed back: We do not photograph same-sex weddings. But thanks for checking out our site. Willock filed a complaint with the state human rights commission, alleging a violation of the state's public accommodations law, which covers sexual orientation. At the hearing, Willock testified that the email was a shock and caused her anger and fear. Jonathan Huguenin explained at the hearing that they made sure that everything that we photographed, everything we used our artistic ability for was in line with their Christian values.

Unlike the military draft or pledge of allegiance cases, both sides in the Elane Photography case can wrap themselves in the mantle of conscience. Willock acted on her belief in the moral legitimacy of same-sex relationships by seeking to solemnize her commitment with the same celebratory trappings that have long been part of traditional marriage ceremonies. The Huguenins acted on their belief in the immorality of same-sex relationships by refusing to participate in the celebration of such a relationship. Whereas Willock's critics argue that liberty of conscience should not be interpreted as empowering individuals to force others to assist their morally contested projects, the Huguenins' critics argue that liberty of conscience should not be interpreted as a license for marketplace providers to discriminate against members of historically marginalized groups.