Colombo on the Naked Private Square

Ronald J. Colombo  (Hofstra U. School of Law) has posted The Naked Private Square. The abstract follows.

In the latter half of the twentieth century, America witnessed the construction of a “wall of separation” between religion and the public square. What had once been commonplace (such as prayer in public schools, and religious symbols on public property) had suddenly become verboten. This phenomenon is well known and has been well studied.

Less well known (and less well studied) has been the parallel phenomenon of religion’s expulsion from the private square. Employment law, corporate law, and constitutional law have worked to impede the ability of business enterprises to adopt, pursue, and maintain distinctively religious personae. This is undesirable because religious freedom does not truly and fully exist if religion expression and practice is restricted to the private quarters of one’s home or temple.

Fortunately, a corrective to this situation exists: recognition of the right to free exercise of religion on the part of business corporations. Such a right has been long in the making, and the jurisprudential trajectory of the courts (especially the U.S. Supreme Court), combined with the increased assertion of this right against certain elements of the current regulatory onslaught, suggests that its recognition is imminent.


In the last few years, a new word has crept into our vocabulary: Christianophobia. As far as I can tell, the word is being used to refer to two different, though related, phenomena. The first is the anxiety and antipathy that traditional Christianity creates in cultural and intellectual institutions in the West: academia, journalism, publishing, the entertainment industry. I believe this is the “Christianophobia” to which Pope Benedict refers, for example, when he decries the growing “hostility and prejudice” against Christianity in Europe.

I’m not sure that “Christianophobia” is the right word to use in this context. The hostility to Christianity one encounters in the West is mostly ideological. What we have is a struggle between competing worldviews, one of which seeks to win by excluding the other, which it sees as irrational, from public debate. This strategy is illiberal, ill-informed, and childish, but it is not really “phobic” in the way we normally use that term. It reflects not so much a visceral antipathy to Christians as people as a desire for Christians to keep quiet and stop retarding social progress.

Now, things may be changing. When critics denounce Christians as “bigots” — for maintaining the traditional understanding of marriage, for example — that does imply a personal judgment. Bigots are bad people; you wouldn’t want them living next door to you or building a gathering place in your neighborhood. You Read more

Sepper on Taking Conscience Seriously

Elizabeth Sepper (Washington U. School of Law) has posted Taking Conscience Seriously. The abstract follows.

For too long, the conventional account of morality in medicine has placed conscience firmly on one side of the moral divide. The archetypal doctor who refuses to participate in controversial treatments—most commonly end-of-life care, abortion, sterilization, and contraception—has been the lodestar of legislative efforts and scholarly accounts. In the name of institutional conscience, healthcare facilities have also been permitted to assert moral or religious objections to care and impose them on employees and affiliates of all beliefs and backgrounds. Doctors, nurses, and institutions that are willing to deliver controversial care have been virtually absent from discussions.

This Article aims to reframe the debate by taking conscience seriously. Through engagement with the moral philosophical literature, it makes two inter-related arguments. First, conscience equally may compel a doctor or nurse to deliver a controversial treatment to a patient in need. Yet legislation meant to protect conscience, paradoxically, has undermined the consciences of these doctors and nurses. Second, endowing healthcare institutions with conscience via legislation is theoretically and practically problematic. By privileging the institutions’ rights to refuse to provide certain treatments, legislation impinges on the rights of individual providers to provide care they feel obligated by conscience to deliver. Ultimately, if legislation is to protect conscience, it must negotiate between competing claims of conscience of health providers and the facilities in which they work—regardless of whether they refuse or are willing to provide controversial care. This Article introduces a new framework for achieving a better balance between the interests of institutions, individual doctors and nurses, and the patients who depend on them for care.