Liberty's Refuge: The Forgotten Freedom of Assembly.

• Author: Vischer, Robert K.
• Position: Book review

As a political culture seemingly hard-wired for the full-throated championing of individual rights, we are not quite sure what to do with liberty claims by groups. Whether we are talking about corporate speech rights, (1) the treatment of religious student groups at public universities, (2) the limits of the ministerial exception, (3) the Boy Scouts' right to discriminate, (4) or churches' access to public schools, (5) we have seen a recent spate of conflicts involving groups that have spawned both political battles and landmark Supreme Court rulings. As such, our uneasiness with the right of association as a constitutional matter may have something to do with our uneasiness with the freedom of association as a political matter. We do not quite know what to do with groups. Judging from the public reaction to the Court's Citizens United ruling, (6) we do know that Americans tend to reject the notion that the corporate person possesses rights on par with the natural person. (7) And while citizens are more inclined to defend the autonomy of religious groups, it is not clear whether that inclination is just a relatively weak extension of our traditionally strong commitment to individual religious liberty, or whether there is meaningful recognition of the importance of group liberty. Especially outside the context of religious organizations, the deference owed to groups by the surrounding political community remains unsettled.

Today's most contentious debates about legal protection for group autonomy have focused on the group's freedom to defy the political community's judgment as to what the common good entails, whether that judgment is expressed as broadly applicable nondiscrimination laws, limitations on the right to decline to provide certain morally contested goods or services, or conditions attached to government funding. When a group claims a right of moral autonomy, the claims encounter rougher political terrain than similar claims made by individuals. Because we cannot easily place the group's asserted right of moral autonomy within the prevailing individual-versus-state paradigm for analyzing claims of conscience, we tend to view groups as interlopers masquerading as individuals. Groups do not have consciences; individuals do, and we struggle to understand a group claim for moral autonomy as anything other than an artificial claim of conscience. The pantheon of conscience's heroes includes Thoreau, Gandhi, and King, not the Boy Scouts, Walgreen's, or Catholic Charities. Invoking a right of group conscience has enjoyed limited traction in our political discourse. Indeed, we often believe that the best way to honor individuals' consciences is by empowering them to overcome obstacles presented by groups.

Contrast our legal tradition's lionization of Daniel Seeger, who objected on moral grounds to military service, (8) with the cursory dismissal of the claims raised by Elane Photography, a husband-and-wife photo agency in New Mexico that declined on moral grounds to shoot a same-sex commitment ceremony. The agency was fined nearly $7000 for violating the state's anti-discrimination law. (9) Part of the difference, no doubt, is the commercial nature of the enterprise, and I will address that aspect below. But part of the difference is the belief that, as long as the husband and wife who comprise the photo agency are not coerced as individuals into engaging in conduct that they believe is immoral, it does not matter if the corporate form that they have chosen is implicated in the objectionable conduct. As one noted civil rights scholar (and current member of the Equal Employment Opportunity Commission) remarked, "if you run a wedding photography service, even if you don't like the fact that those two gays are getting married, you'd better have someone on your staff who will take those pictures." (10)

As I argue in a recent book, (11) I believe that such responses derive from a superficial understanding of conscience. I need to explain why in order to provide a broader context for my reaction to Professor John Inazu's effort to reclaim the right of assembly. (12) Suggesting that the owners of Elane Photography can honor their consciences by keeping their moral beliefs out of the marketplace ignores the external orientation of conscience: conscientia refers to moral belief applied to conduct. Respecting conscience as an internalized set of beliefs does not authentically respect conscience. Similarly short-sighted is the idea that the owners can avoid the problem by hiring an employee who is willing to shoot events that they themselves deem morally objectionable. This solves nothing unless we only see conscience in individualist terms, as though its claims apply to its bearer's own conduct and no further. In reality, conscience refers (literally) to shared moral belief, and while not every claim of conscience will actually be shared, such claims are, by their nature, susceptible to sharing. As such, the owners' refusal to make hires that would permit them to offer a "full service" photography agency is not an imperialist expansion of conscience's interior domain; it is a natural outgrowth of conscience's relational dimension. Institutions do not possess a conscience in any real sense, but they do embody distinct moral identities that are shaped by their constituents' consciences. When we preclude the cultivation and maintenance of such institutional identities, it is not just moral pluralism that suffers; it is the cause of conscience itself.

I believe that we need to recapture the relational dimension of conscience--i.e., the notion that the dictates of conscience are defined, articulated, and lived out in relationship with others. My moral convictions have sources beyond myself, and my sense of self comes into relief through interaction with others. When I live according to the dictates of my conscience, I communicate the normative implications that flow from my perception of reality; my conscience makes truth claims that possess authority over conduct--my own and the conduct of those who share, or come to share, my perception. Conscience connects a person to something bigger than herself, not only because we form our moral convictions through interaction with the world around us, but also because we invest those convictions with real-world authority in ways that are accessible to others. This is the relational dimension of conscience.

As such, if our society's commitment to conscience is grounded solely in the language and legal framework of individual rights, we are not fully committed to conscience. Conscience's substance and real-world implications are relational by their very nature. Though conscience is intensely personal, the nature of conscience directs our gaze outward, to sources of formation, to communities of discernment, and to venues for expression. When the state closes avenues by which persons live out their core beliefs--and admittedly, some avenues must be closed in the interest of peaceful co-existence--there is a cost to the continued vitality of conscience.

There are many examples we could use to explore this dynamic, but let's use one that everyone has been talking about lately: the Obama administration's mandate on contraception coverage. Pursuant to the Patient Protection and Affordable Care Act, (13) the Department of Health and Human Services ("HHS") announced that it would require all employers offering health insurance to cover certain types of preventive care at no additional cost to their employees. Contraceptives and sterilizations are part of the mandate, including products considered by some to be abortifacents. The mandate exempted "religious employers," which were defined as an employer who:

(1) has the inculcation of religious values as its purpose;

(2) primarily employs persons who share its religious tenets;

(3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization [as defined elsewhere]. (14)

As widely commented, the ministry of Jesus himself would have not qualified as "religious" under this definition.

What I am interested in for purposes of this discussion is how defenders of the mandate have framed the conscience issue. The obama administration's press secretary noted that "this approach does not signal any change at all in the administration's policy on conscience protections." (15) The implementing regulations addressed the conscience objection head-on, explaining that:

Nothing in these final regulations precludes employers or others from expressing their opposition, if any, to the use of contraceptives, requires anyone to use contraceptives, or requires health care providers to prescribe contraceptives if doing so is against their religious beliefs. These final regulations do not undermine the important protections that exist under conscience clauses and other religious exemptions in other areas of Federal law. Conscience protections will continue to be respected and strongly enforced. (16) Kathleen Sebelius, the HHS Secretary, used similar reasoning in defending the mandate, emphasizing that the new rule does not preclude "a Catholic doctor, for example, [from refusing] to write a prescription for contraception," nor "does it affect an individual woman's freedom to decide not to use birth control." (17) The liberty of conscience is satisfied, under these terms, as long as the employer can tell its employees that the use of contraceptives is immoral, and as long as no individual is forced to use contraceptives or prescribe them. In my view, this marginalizes both the action-oriented pull of conscience, as well as its relational dimension.

The Obama administration did not go as far as some of the mandate's defenders, though, who insisted that overcoming the institutional obstacles to contraceptive coverage was necessary to vindicate the conscience rights of employees. Eric Bugyis, for example, described the...