Saturday, April 04, 2015

Conscience Wars

Guest Blogger

Doug NeJaime and Reva Siegel

Many are observing how conflicts over state RFRAs – most notably in Indiana and Arkansas – are now bound up in broader culture war conflicts over same-sex marriage and LGBT equality.  Arguments for religious exemption being asserted in support of state RFRAs, as well as claims to exemption from the ACA's contraceptive coverage requirements, have emerged as part of a cross-denominational movement that has made religious liberty a new rallying cry.  The New York Times yesterday connected the current round of claims to the 2009 Manhattan Declaration, the product of a political coalition between Catholic and evangelical Protestant leaders.  Our article, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, coming out soon in the Yale Law Journal and available here, extensively situates today's religious exemption claims in this cross-denominational mobilization.  Finding even earlier origins, we trace today’s complicity-based conscience claims to the proliferation of healthcare refusals legislation in the 1990s and 2000s—legislation supported by Catholics and evangelical Protestants opposed to abortion, and increasingly contraception.  With this longer view, we can see how religious liberty arguments allow social conservative advocates and religious leaders to shift from speaking as a majority seeking to enforce traditional morality through generally applicable laws to speaking as a minority seeking exemptions from laws that contravene traditional morality.  When unable to entrench traditional morality through outright bans on abortion and same-sex marriage, advocates turn to arguments for religious liberty—and particularly claims based on complicity—to create a web of exemptions from laws that depart from traditional morality.

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