Is There A Right of Conscience?

Creating new constitutionally protected “rights” with warm and fuzzy sounding names has become the weapon of choice for the progressive left. Who can be against dignity and privacy? And as is invariably the case, the other team eventually figures out the method to the madness and does it too.

A Colorado State Senator, Kevin Lundberg (R-Berthoud), has introduced a bill to protect “the fundamental right of conscience.” Senate Bill 283 is called, “The Right To Disagree.”

The main point of this bill:

Discrimination laws (rightfully) demand that all people are treated equally, and the business must provide those products and services to all who seek them. But business owners should not be forced to provide products and services that violate their conscience. The business owner should be able to identify the scope of their business and not be forced to go beyond, into any business practice with which they disagree.

What person doesn’t want the right to disagree? This person.

I marvel at the dissonance. He writes, “[D]iscrimination laws (rightfully) demand that all people are treated equally” and then contradicts himself in the next sentence: “[B]usiness owners should not be forced to provide products and services that violate their conscience.” He believes your religious beliefs should be a get-out-of jail-free-card for violating the anti-discrimination laws that he claims to support.

If all this sounds familiar, it should. Jack Phillips, owner of Masterpiece Cakeshop, refused to bake a wedding cake for a same-sex couple. The court held this was unlawful discrimination.

“Jack, who has happily served people of all backgrounds for years, simply exercised the long-cherished American freedom to decline to use his artistic talents to promote a message and event with which he disagrees, and that freedom should not be placed in jeopardy for anyone,” [his lawyer] said.

For some, this was a tempest in a teapot on both sides. If somebody doesn’t want to bake you a cake, go to someone who does. And if someone asks you to bake them a cake, and you’re in the cake-baking biz, bake it. You aren’t endorsing their lifestyle. You’re baking a friggin’ cake. Big deal.

But tempests and teapots are where conflicts in rights end up these days. Progressives have yet to accept the fact that the illegitimate Darth Cheeto is president, and Hillary is not. They are now on their 100th day (or more) of shock and awe that Trump hasn’t made transgender urination the centerpiece of his domestic policy. How is it possible that anyone not see that this is “justice”?

On the other hand, the First Amendment has that free exercise piece:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

While there isn’t much to argue about whether the government should be prohibited from denying equal protection to LGBTQ+ people, this goes well beyond that. This isn’t the government’s doing, but a baker’s. The Constitution protects his free exercise of religion explicitly. Neither you (nor I) may share his beliefs, but that doesn’t mean he isn’t entitled to believe as he chooses and exercise his beliefs without government interference in the performance of his own conduct. He doesn’t need our approval of his religious beliefs.

But is it “a get-out-of-jail-free-card for violating the anti-discrimination laws” law? Putting aside the conflation of jail as penalty for violating a civil law, because law is hard and breathless writers are too busy breathlessly writing to worry about such details, he’s got a point.

If a sincerely held religious belief requires one to smoke weed daily, does that make a person exempt from law prohibiting possession of marijuana? Okay, bad example. What about genital mutilation? Much as the Constitution protects religious freedom, we are a secular society and make rules that people of all religious faiths, and people of none, are still obliged to follow.

The core problem arises from the conflict between ideas that are independently acceptable, but intersect and clash.

The rights of business owners, according to Paul and Lundberg, should be placed in higher regard than the right of marginalized communities to not be subject to discrimination.

This characterization is somewhat disingenuous. It’s not the “rights of business owners” at stake, but the rights of people who hold religious beliefs. It arose in the context of business for a baker, but could similarly arise elsewhere. What if a devoutly religious person’s child sent to public school was assigned to a class to be taught by an openly gay teacher? Should that parent be allowed to demand the child be moved to a class taught by a straight teacher?

Should the right of “marginalized communities to not be subject to discrimination” in their purchase of a cake be placed in “higher regard” than religious beliefs? Much of the problem arises from the imposition of regulations on individuals and business owners to adhere to a social agenda based on values. The Constitution applies to government action. Its doctrine has filtered down to regulating individual’s conduct.

I wonder how far Lundberg would take his argument. After all, “right of conscience” can be construed to mean virtually anything. A religious argument against racial intermarriage—that the story of Babel implies races should not mix—was used to defend discrimination against mixed-race couples.

Except marriage is a legal status conferred by the state, not by individuals. But his point, that “the ‘right of conscience’ can be construed to mean virtually anything,” holds true despite his bad example. The problem, of course, is that the same can be said for his claimed right of “marginalized communities to not be subject to discrimination.”

Amazing how one can see the dissonance in the other guy’s argument but not your own. Amazing how the vagaries of rhetoric and doctrine give rise to outrage when your sacred cow is on the line, but there is no concern at all when it’s someone else’s ox being gored.

And hiding behind all of this, unnoticed and unmentioned, is the use of law as a cudgel to micromanage individual thought and choices, even though that beloved Constitution nowhere authorizes the government to impose its prohibitions on individuals, whether religion, equal protection or association. It may not comport with your value system, but you don’t get to bludgeon a free people to believe as you demand they do.


7 comments on “Is There A Right of Conscience?

  1. Patrick Maupin

    The Supremes seem to have found a similar right in Hobby Lobby, but maybe it’s only for corporations.

    1. SHG Post author

      The problem with Hobby Lobby, and why it’s so fundamentally controversial, is that it pits values against each other. When the question is whether a person has a right to something in a vacuum, it’s can be a fairly easy call. But eventually, the question is raised when rights that seem fine independently come into conflict, and then it has to be determined which takes precedence over the other. There’s often no principled way to make this decision, and so it comes down to which value a majority of the court prefers.

      The Court may dress it up in precedent or sophistry, but it’s just pretty package to conceal a banal value judgment. That’s true whether it’s corporations or individuals, right or left, good or evil.

  2. phv3773

    It certainly seems like a dandy vehicle for persons with power to deny the rights of persons without power. Rowan County Clerk Kim Davis denying marriage licenses to same sex couple, for example.

  3. B. McLeod

    Mandating that people be treated equally was the old way. Now, we’re going to have “discrimination” laws that insist we treat people unequally. People with “white privilege” will have to go to the back of the bus, and men who think they’re women can’t possibly be treated the same as men who think they’re men.

      1. B. McLeod

        “Funny” in the sense of “odd and unfitting,” not in the sense of anything that should give rise to mirth.

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