Legal Commentary

Earlier this month, Keith Bardwell resigned as a justice of the peace in Louisiana, a couple of weeks after invoking his conscience as a basis for refusing to issue a marriage license to an interracial couple. I wish that the refusal had never occurred, but if it was going to occur, I wish it had happened before I sent the final galleys of my book on conscience to the publisher. Bardwell?s refusal provides a helpful glimpse into the complicated battle lines surrounding the right of conscience today.

Is it possible to take a right of conscience seriously yet deny it to a justice of the peace in these circumstances?  I believe that it is, not because of the substance of the views, but because it is a public official acting on those views.  For the same reason, I do not believe that Massachusetts shirks its commitment to liberty of conscience if it fails to accommodate the conscience-driven views of JPs who refuse to issue marriage licenses to same-sex couples.  Though I consider myself someone who takes the liberty of conscience seriously, this places me on the opposite side of some of the leading lights on this issue.   (E.g., Steve Shiffrin and Robert George, two scholars whose work I respect tremendously and who come from opposite ends of the political spectrum, believe that a right of conscience should encompass a justice of the peace?s refusal to issue marriage licenses, at least under some circumstances.)

In my view, the government can legitimately require its agents who are tasked with implementing its laws to, well, implement its laws.  The more pressing concern, in my view, is to ensure that the government does not treat marketplace providers as a form of ?public official? automatically subject to anti-discrimination laws.  Further, we should resist the temptation to treat licensed marketplace providers as ?public officials? by virtue of their licenses.  In other words, the more interesting questions involve the expanding definition of ?public official,? not the obligations properly shouldered by public officials.  Licenses are assurances of competence, not evidence that a provider has become a de facto government agent.  In cases where access to an essential good or service is threatened, the government may prudently take steps to attach certain strings to licenses, but those strings should be a last resort.

If you have interest in the rapidly evolving and intensely contested notions of conscience reflected in modern law, you might want to check out my book, due out in December:  Conscience and the Common Good: Reclaiming the Space Between Person and State.