In light of the Biloxi City Council's opposition to the Protecting Freedom of Conscience from Government Discrimination Act (HB 1523), I wonder if people realize just how basic protecting conscience rights is to our system of constitutionally limited government.
Thomas Jefferson, the author of the Declaration of Independence, believed freedom of conscience is the most basic of all our rights and that, even when people disagree, they should still defend each other's freedom of conscience.
Jefferson wrote: "No provision in our Constitution ought to be dearer than that which protects the rights of conscience against the enterprises of civil authority." To this, Jefferson adds, "We are bound to make common cause, even with error itself, to maintain the common right of freedom of conscience." And that, "A right to take the side which every man's conscience approves in a civil contest is too precious a right, and too favorable to the preservation of liberty, not to be protected."
The right to freedom of conscience, even for someone who does not believe in God, received perhaps its fullest elaboration in the U.S. Supreme Court's decisions regarding conscientious objectors to the Vietnam draft. In cases like Seeger (1965) and Welsh (1970), the court found that the defendants, "spurred by deeply held moral, ethical, or religious beliefs," could claim conscientious objector status.
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Note the parallels to the current debate over the Protecting Freedom of Conscience law. The draft was legal at the time. Today, so is same-sex marriage. But people had very different opinions about the legitimacy of the Vietnam War. Some thought the war effort was evil. Others thought draft dodgers were evil, or at least spineless cowards. Rising above it all, the court found a way to protect the sacrosanct right to freedom of conscience -- not just as applied to freedom of thought or speech, but as applied to concrete action or non-action -- in this case, the refusal to enter combat. Let's take the parallel between a war objector and a same-sex marriage objector one step further.
Would it be right to force a pacifist T-shirt maker to make pro-war T-shirts for a rally? Would it be right to force a pacifist pizza shop owner to cater a U.S. Army recruiting event? Would it be right to force a pacifist to attend a pro-war rally? The answer to all these questions is clearly no. And the answer is still no when it comes to whether the government may force a pacifist to fight in a legitimate war effort.
Somehow, the United States has maintained its ability to wage war even while granting very broad conscience rights to objectors. Are we to believe our country -- and state -- cannot strike a similar balance when it comes to same-sex marriage?
In the case of Obergefell, the U.S. Supreme Court imposed same-sex marriage on the state of Mississippi, and much of the rest of the nation, without protecting conscience rights. Yet, during the case's oral arguments, the U.S. Solicitor General invited the states to "work out the balance" regarding "how they decide what kinds of accommodations they are going to allow under state law." HB 1523 is the answer. It balances legal recognition of same-sex marriage with conscience protections for persons and organizations who believe in one man/one woman marriage.
In passing HB 1523, the Mississippi Legislature took the first opportunity it has had since the June 2015 Supreme Court decision to "work out the balance." In doing so, they were taking a cue from other states -- like New York and Vermont -- who had previously made same-sex marriage legal while also recognizing religious exemptions for those opposed to same-sex marriage.
This isn't the first time states have needed to protect conscience rights in the wake of a controversial Court decision. In 1973, the Court created a new right to abortion in Roe v. Wade and imposed it on the nation without protecting conscience rights for health care professionals. States responded by passing narrow conscience protection laws for physicians, nurses and pharmacists. The response here is similar -- and commendably restrained in its approach.
HB 1523 contains the framework for all parties involved to exercise their constitutional rights in relation to participating or not participating, condoning or not condoning, same-sex marriage. It is a commonsense response to protect churches, wedding-related vendors, and public employees from the threat of government-sanctioned discrimination. It is also an approach supported by nearly two-thirds of Mississippi voters, according to a statewide poll commissioned by the Mississippi Center for Public Policy. Mississippians should be proud that our state is taking the lead in protecting the most basic right upon which our country is founded.
Contact Jameson Taylor, Ph.D., vice president for policy at the Mississippi Center for Public Policy, at email@example.com