Category: Freedom of Conscience

Picture of Mississippi governor who signed HB 1523 into law. A federal judge recently struck down the law. Photo courtesy of U.S. Department of Agriculture

Picture of Mississippi governor Phil Bryant, who signed HB 1523 into law. A federal judge recently struck down the law. Photo courtesy of U.S. Department of Agriculture

Late last month, a federal judge declared Mississippi’s “Protecting Freedom of Conscience from Government Discrimination Act” (HB 1523) unconstitutional. In response, legal scholar and libertarian Richard Epstein discussed issues of religious freedom and anti-discrimination initiatives on the latest episode of the Hoover Institution’s podcast, The Libertarian.

The Mississippi law was written to protect those with specific religious objections on issues of marriage, sexual acts outside of marriage, and gender. The law would give people with the specified views the state-protected right to act on these views in business dealings and in roles as administrators. Anti-discrimination LGBT groups argued that the law allows unconstitutional discrimination, and the judge agreed, striking down the law under the Equal Protection Clause. The judge also ruled that the law violated the Establishment Clause because it favored some religious beliefs over others. The case represents one of many recent clashes between freedom of conscience and anti-discrimination laws.

Epstein rejects the judge’s ruling as both legally misguided and finds error in the underlying understanding of tolerance.


The Spanish novelist Cervantes wrote his famous tale about a knight-errant almost 200 years before the the 1st Amendment to the U.S. Constitution was adopted. But as Eric C. Graf, Professor of Literature at Universidad Francisco Marroquín, explains, Don Quixote paved the way for freedom of religious conscience by championing the freedom to think or believe what you want in your head.

I want to be very clear from the outset that moral concerns surrounding transgender identity are not unimportant. But in the likely event that we don’t come to any national consensus on that question any time soon, it is important not to overlook other moral and social concerns that are far more pressing. In particular, there are legitimate concerns regarding safety and privacy, no matter which side one favors, but resorting to the force of law will leave some real victims vulnerable.

On the one hand, the Anti-Violence Project’s 2014 Report on Lesbian, Gay, Bisexual, Transgender, Queer, and HIV-Affected Hate Violence found that compared to violence among the general population, “Transgender women [i.e. biologically male] survivors were 1.6 times more likely to experience physical violence and 1.6 times more likely to experience sexual violence, when compared with other survivors.” I have seen headlines connecting this violence with restroom use in the past, but now that the issue has become politicized those stories are harder to locate. In any case, privacy and safety are real and major concerns for many. We should not be indifferent to this.

On the other hand, according to the CDC,

  • Nearly 1 in 5 (18.3%) women and 1 in 71 men (1.4%) reported experiencing rape at some time in their lives.
  • Approximately 1 in 20 women and men (5.6% and 5.3%, respectively) experienced sexual violence other than rape….

Again, privacy and safety are real and major concerns here. We should not be indifferent. (more…)

gty_pope_francis_kim_davis_wg_150929_16x9_992On the papal plane back to the Rome, Pope Francis said that government officials have a “human right” to refuse to discharge a duty if they feel it violates their conscience. “Conscientious objection must enter into every juridical structure because it is a right,” Francis said.

The pontiff admitted, though, that he “can’t have in mind all cases that can exist about conscientious objection.” But what would he think about the case of Kim Davis, the Kentucky county clerk who objected to having her name on same-sex marriage licenses?

Turns out he told her, in person, to “stay strong.”

At least that’s the report of Davis’s lawyer, Mathew D. Staver. According to Staver, Davis and Francis met at the Vatican embassy:

Pope Francis talks aboard the papal plane while en route to ItalyWhen Pope Francis gave addresses at the White House, Congress, and the UN, he mentioned the importance of religious freedom. But many people (including me) were rather disappointed that he didn’t speak more specifically about what sorts of religious liberties are under threat.

Once aboard the papal plane, though, it appears the pontiff provided more clarity on the issue. According to Reuters, the pope said government officials have a “human right” to refuse to discharge a duty, such as issuing marriage licenses to homosexuals, if they feel it violates their conscience.

March for Life(1)Imagine if the government were to tell an organization dedicated to veganism that, because of a new mandate, they must purchase a meat platter to serve at their monthly meetings and that the chair cushions in their conference room must be made of leather.

Appalled by this governmental intrusion, the vegans ask to be excluded from the mandate since none of their members wish to eat bologna while sitting on dead cow skin. They also point out that a group of Jain vegetarians who meet next door were given an exemption and that they are merely asking to be treated similarly.

The government considers their request and decides to deny the exemption. The reason? Unlike the Jains, the vegans’ objection is based on moral philosophy rather than religion.

Such reasoning would be morally and legally absurd. Yet it is the exact reason the Obama administration gave for denying an exemption from the HHS’s abortifacient mandate to March for Life, a non-religious, non-profit pro-life organization whose staff opposes all forms of abortion, including those caused by contraceptives that can act as abortifacients.

sbbIn response to the Supreme Court’s ruling on the case of Obergefell v. Hodges, Governor Sam Brownback issued a new executive order to ensure religious freedom protections for Kansas clergy and religious organizations.

In the majority opinion of Obergefell, Justice Anthony Kennedy wrote that, despite this newly invented “right” for same-sex couples to marry, religions and their adherents “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” and further, that “the First Amendment ensures that religious organizations and persons are given proper protection.”

And yet, given the otherwise broad and blurry language of Kennedy’s opinion and the corresponding concerns of the dissenting justices, religious persons continue to worry.

As Chief Justice John Roberts wrote: “People of faith can take no comfort in the treatment they receive from the majority today.” (more…)