Legal Commentary

There's been a lot of talk recently about conscience exemptions: exemptions from generally-applicable laws based on religious or more general moral concerns.  President Obama called for one for medical personnel opposed to abortion, and the idea has been gaining currency that similar exemptions could be part of some sort of compromise on the same-sex marriage issue.  Nan Hunter's discussion of the conscience clause proposed as part of the New Hampshire same-sex marriage bill (at least until it got derailed) can be found here.  And of course some conscience exemptions exist as a matter of constitutional right under the Free Exercise Clause.

I've not given this matter much more than passing thought.  But it hit me in a personal way yesterday when, to relieve the tedium of grading, I went to talk to my TIAA-Cref representative (a bad-news-for-bad-news trade if there ever was one).  We had not met before, as it was my first meeting with a rep based in New York.  Early on in the discussion he asked me for whom I was doing retirement saving -- i.e., who was going to rely on my money.  I did my normal split-second assessment and decided to come out and refer to my partner as my husband.  It worked out fine: the rep was perfectly appropriate and we had a good meeting.

But what if he had objected?  What if he had said, "I'm sorry but I can't in good conscience give you financial planning advice designed to take full advantage of your legal and lifestyle status, both of which I disapprove.  If I were to do so I would be acting to promote a relationship I consider immoral and would be a party to the perversion of the concept of marriage."  Could he do that?  Should he be allowed?

 I ask this because in the past I've heard scholars and commentators debate these kinds of issues in the context of wedding photographers and the like -- there was an infamous case of a photographer in New Mexico who refused to take photos at a same-sex commitment ceremony.  Some participants in these dicussions have argued that forcing a photographer to take photos of a ceremony, on pain of violating a public accommodations law, violated the person's free speech rights.  I assume there's consensus at the extremes: nobody would think a minister should (or could) be forced to preside over a marriage ceremony to which he has moral or religious objections.  But how far does that go?  The photographer?  How about the cake decorator?  (Don't forget the unfortunate "Happy Birthday Adolf Hitler" birthday cake incident.)  The limo driver?  The tux renter?  The financial planner?

I don't have a strong position on this, much less an answer.  I can see the arguments on both sides -- and I can also see the practical point, made by Dale Carpenter, that most gay people would simply not want a personal service from someone who objected on moral grounds to providing it to them.  But when it gets to day-to-day kinds of services (my financial planner, for example), should it fall to, well, me, to have to call his manager and request another rep?  That seems to inflict a real dignity hit on me: "Uh, Mr. Smith, the rep I met with this morning considers my marriage immoral and perverse: could you please find someone who's willing to look at our investments?"  Let me be clear: I've never faced that situation.  But I suspect others have, maybe if not so explicitly (or maybe so -- consider the case of the Houston landscaper).

Any thoughts?  How far does conscience go?  How far does speech go?  Cake decorating?  Financial planning?  Landscaping?