Tuesday, October 11, 2011

The Limits of Conscientious Objection

By Michael C. Dorf

{N.B.  I am cross-posting today on the Cornell Journal of Law & Public Policy Blog.  In order to coordinate, I wrote this post a little over a week ago, before Linda Greenhouse posted on the same subject.  She and I reach similar conclusions but by different routes.}

local controversy raises some interesting questions about the proper scope of rights to conscientious objection.  Rose Marie Belforti is the Clerk of the Town of Ledyard in nearby Cayuga County.  Citing her religious-based moral objections, she recently refused to issue a marriage license to a same-sex couple, although she agreed (perhaps after some discussion) to delegate the job of issuing marriage licenses to the deputy clerk, who has no objection to issuing licenses to same-sex couples.  According to the news story, the two women who sought the marriage license are considering possible litigation.

In this post, I want to consider two questions: 1) What distinctions should the law draw among the substantive grounds for conscientious objection?  and 2) What counts as participation in activity deemed morally objectionable.

1) Substantive Grounds

For people like me who favor same-sex marriage, it may be hard to sympathize with Ms. Belforti.  The fact that she finds same-sex marriage immoral strikes us as bigotry, not much ameliorated by the fact that Belforti, like other opponents of same-sex marriage, invokes religious scruples.  After all, Scriptural authority can be, and has been, invoked to support slavery, collective punishment, subjugation of women, and other practices that people like Ms. Belforti do not now attempt to rationalize.  Thus, we think that Belforti and her religious community have made a conscious choice to oppose same-sex marriage, even while other religious communities using the same holy books have made a choice to welcome gays and lesbians as full equals.

To be sure, the same could be said for other conscientious objector claims.  Quakers read the same Bible as other Protestant sects, but end up as pacifists.  Why then, does Belforti’s claim seem substantively less worthy than that of a Quaker who refuses to take up arms?  A big part of the answer is that the Quaker’s pacificism is not tantamount to the view that some members of the community are less valuable than others, while that is a fair implication of the anti-same-sex-marriage view.  Just as we would not be comfortable recognizing a right of a Town Clerk to decline to issue marriage licenses to interracial couples, so too here, the asserted right to conscientious objection is weakened by the fact that it appears to be part of a zero-sum game: Recognition of Belforti’s claim undermines the equality of marriage of same-sex couples.

Yet seen in wide enough angle, any conscientious claim can be seen as condemning some other people.  The Quaker who refuses to fight could be understood to be insulting people who have different scruples.  A vegan Town Clerk who objected to issuing hunting and fishing licenses on grounds that such activities are unethical could be understood to be making a statement about people who hunt and fish.  Etc.

The difference between the Quaker and the vegan, on the one hand, and Ms. Belforti, on the other, is that the Quaker and the vegan make tacit statements (if at all) about members of the majority.  The vast majority of people who think war not categorically immoral and consume animal products are not seriously threatened by the fact that a few of us oddballs hold views that regard their conduct as unethical.  By contrast, gays and lesbians are a persecuted minority, and so the recognition of conscientious objector rights to denigrate them stings much more sharply.

2) Participation

Even if we assume that there ought to be circumstances in which conscientious objection to same-sex marriage should be recognized, there is an additional worry in the Belforti case.  When the law recognizes exemptions for conscientious objectors, it typically does so for people who do not want to participate in acts they regard as immoral.  For example, conscientious objector laws protect people from serving in the armed forces, from performing abortions, and from having to officiate at same-sex marriages (as in New York’s Marriage Equality Act itself).

Such laws do not protect people against indirectly supporting practices with which people disagree, even if they strongly disagree on moral and religious grounds.  Quakers must pay taxes that support wars, just as my taxes go to subsidies for the animal exploitation industries, despite my desire not to participate in them.

Nor is it feasible to imagine that we could exempt everyone with a conscientious objection to some practice from even the remotest sort of participation in that practice.  Administration of the tax code would be enormously complicated were we to allow checkoffs for particular budget items.  And the problem does not end with taxes.  A postal employee might object to delivering an envelope containing a marriage license to a same-sex couple or even to delivering mail containing promotional material for political candidates she opposes.

Where does a town clerk fall on the spectrum between objecting to fighting in a war and objecting to delivering mail for causes with which one disagrees?  I’m inclined to think that it comes closer to the latter position, and thus that the government could legitimately enforce a rule that says that if you want to be a town clerk, you have to issue marriage licenses to everyone who legally qualifies.

That said, I do think we can also recognize that for people like Ms. Belforti, that’s a real harm (albeit one that the law will not accommodate).  People will feel uncomfortable with a level of participation in what they regard as evil at some point below the threshold that the law can recognize for conscientious objector status.

For me personally, that point was driven home twenty years ago when, as a law clerk at the Supreme Court, I occasionally had to sign orders denying an application for a stay of execution, knowing that this was the last step before a person would be executed.  Of course, it wasn’t my decision to deny the stay.  I wasn’t even signing on my own behalf.  (The last legal action often takes place in the wee hours of the morning, when only law clerks are left in the building, with the final authority coming via telephone call with the relevant Circuit Justice.)  But still, I experienced the signing of my initials as a form of participation in capital punishment.  So, even though I do not share her values, and even though I think she should be denied the power to opt out, I do sympathize with Ms. Belforti.