1AP’s 3 Things to Know — Conscience Protection

The ACLU recently filed suit challenging Michigan’s conscience protection law that allows child-placement agencies to offer foster and adoption services consistent with the organizations’ deeply held religious beliefs.

  1. Conscience protection means that no one can force you what to think. What we believe is at the core of who we are. The government should not force people to change their beliefs or refrain from entering the marketplace, and courts have upheld that principle for decades. It is well-established constitutional law that the government cannot decide what beliefs are acceptable. As Justice Jackson wrote over 70 years ago, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”
  2. It also means that no one can force you to act in violation of your conscience. Conscientious objection to military service on religious grounds has been around since the Revolutionary War. After Roe v. Wade, Congress passed conscience protection laws for healthcare professionals who could not perform abortions. In Utah, a 2015 law granted a conscience protection mechanism for clerks who wanted to recuse themselves from solemnizing marriages contrary to their religious beliefs. The Utah recusal requires that someone in the office be able to provide the government service, but does not require it be done by any specific employee, ensuring conscience protection for any employees with religious objections. 
  3. Conscience protection is not a blank check to do whatever you want. A person cannot assert their rights of conscience to prevent access to a legally-obtainable good or service. Kim Davis was wrong when she asserted her rights of conscience to prevent couples from receiving marriage licenses. She should have excused herself while other clerks without conscience objections processed the licenses. Hobby Lobby and the Little Sisters of the Poor may assert a conscience protection claim to not provide contraception in violation of their beliefs only because those products may be obtained through means other than employer-provided health insurance. Asserting a conscience claim as a defense in criminal prosecution fails when preventing the underlying crime is a compelling government interest like child abuse or fraud.

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