Brownlee on Conscientious Objection and Civil Disobedience

Kimberley Brownlee (Warwick U.) has posted Conscientious Objection and Civil Disobedience. The abstract follows.

This paper looks at two types of dissent that are generally described as conscientious, namely, civil disobedience and conscientious objection. Both practices raise pressing normative questions about the proper parameters of dissenters’ rights and duties in a reasonably good society. They also raise questions about both the scope of legitimate toleration of assertions of conscientiousness and the appropriate legal and political responses to conscientious disobedience. The paper gives a qualified endorsement of the moral justifiability of these two practices. It also explores their credentials as moral rights and their legal defensibility. The paper challenges the dominant liberal view that, in relation to both moral rights and legal defenses, a more compelling case can be made for private conscientious objection than for civil disobedience.

Rienzi on the Constitutional Right Not to Kill

Mark Rienzi (Catholic U. of America, Columbus School of Law) has posted The Constitutional Right Not to Kill. The abstract follows.

Federal and state governments participate in and permit a variety of types of killings. These include military operations, capital punishment, assisted suicide, abortion and self-defense or defense of others. In a pluralistic society, it is no surprise that there will be some members of the population who refuse to participate in some or all of these types of killings.

The question of how governments should treat such refusals is older than the Republic itself. Since colonial times, the answer to this question has been driven largely by statutory protections, with the Constitution playing a smaller role, particularly since the Supreme Court’s 1990 decision in Employment Division v. Smith.

This Article offers a new answer to this very old question: a federal constitutional right not to kill, protected by the Due Process Clauses of the Fifth and Fourteenth Amendments.

The Court’s substantive due process cases suggest that certain unenumerated rights can qualify for constitutional protection when they are “deeply rooted in the Nation’s history and traditions.” Read more

Can a Judge Refuse to Conduct a Gay Marriage?

That is the question that an anonymous New York judge asked the New York Judicial Ethics Committee.  In this judicial ethics opinion, the Committee largely did not answer it, though it did opine that the judge could choose to conduct only those weddings of his relatives and friends.  That would be tantamount, in the Committee’s view, to refusing to conduct marriages “on a facially neutral basis” and the Rules Governing Judicial Conduct do not require a judge to conduct weddings.

Requiring Nurses to Perform Abortions

Another case raising the issue of so-called conscience exemptions: this week, a group of 12 hospital nurses in New Jersey brought suit against their employer, the University of Medicine and Dentistry of New Jersey (UMDNJ), for requiring them to participate in abortions. The plaintiffs allege that the hospital’s actions violate the “Church Amendment,” a federal law which forbids hospitals receiving federal funds, like UMDNJ, from requiring employees to participate in abortions if participation would violate the employees’ “religious beliefs or moral convictions.” The plaintiffs allege that the hospital’s actions violate state law as well. As my friend Rick Garnett at Mirror of Justice notes, this seems to be a pretty blatant violation of law, but, based on a student note I read recently, it’s not all that unusual. The complaint in the case, Danquah v. UMDNJ, is here. — MLM

New Issue of the Journal of Catholic Legal Studies

The Journal of Catholic Legal Studies at St. John’s University School of Law (which I am privileged to advise) has just published its new issue, which contains a symposium dealing with the question, “Whom Should a Catholic Law School Honor?” and a book symposium on Professor Robert Vischer’s Conscience and the Common Good: Reclaiming the Space Between Person and State (CUP 2009).  — MOD

Beneke on Religious Violence, Anti-Catholicism, and Rights of Conscience in Early America

Chris Beneke (Bentley University) has posted “Not by Force or Violence”: Religious Violence, Anti-Catholicism and Rights of Conscience in the Early National United States. The abstract follows. – ARH

This essay maintains that the sixteenth- and seventeenth-century wars of religion, as well as the periodic hanging, burning, and disemboweling of heretics, did indeed provide a lush and useful ideological backdrop during the Revolutionary era.  As state and federal constitutions were framed, religious violence was vividly recalled, but it was also safely ensconced in the distant past.  Late eighteenth-century partisans of religious rights generally treated religious violence as the defining characteristic of a regrettable age that all reasonable and sympathetic people would want to avoid reliving, rather than an imminent threat.

This approach to a sanguinary and increasingly remote history was integral to a new legal and cultural framework in which anti-Catholicism slackened and less corporal understandings of religious faith took hold.  It was also integral to the justification of a more expansive conception of rights. Toleration’s protections were limited to preserving dissenters from violence and severe, intrusive forms of persecution.  By contrast, “religious liberty” (a close, late eighteenth-century synonym for “free exercise of religion”), protected them from the more mundane operations of religious oppression, such as restrictions on movement, marriage, and office holding, exclusive incorporation laws, and inequitable taxation, thus clearing the way for full participation in civil life.  To those who conceived and defended religious liberty in the new nation, violence was of course deplorable.  It was just not directly relevant.

Wardle on Protection of Healthcare Providers’ Rights of Conscience

Lynn D. Wardle (BYU – J. Reuben Clark Law School) has posted Protection of Healthcare Providers’ Rights of Conscience in American Law: Present, Past, and Future. The abstract follows. – ARH

This article reviews the past, present, and future state of healthcare providers’ right of conscience. It reviews the deeply embedded constitutional protections that recognize the right of conscience as a fundamental human right, and additionally, it shows that the constitutional doctrine of abortion privacy assumes and allows protection for the rights of conscience of healthcare providers. After reviewing the past, the present state of protection of right of conscience is set forth, including the Provider Conscience Rule adopted by the Department of Health and Human Services in 2008. The future of the 2008 Provider Conscience Rule is considered, since there has been debate over rescinding it, and the article concludes that while it is possible to fully protect rights of conscience, full commitment is needed to honor this important, fundamental right.