The refusal of Kentucky county clerk Kim Davis to issue marriage certificates to same-sex couples sparked a major controversy. Conservatives hailed Davis’s principled refusal to violate her conscience and her understanding of the Constitution, whereas liberals insisted that anarchy will result if government officials fail to carry out laws they dislike.
But, as so often happens, the debate rested on a false choice. After unnecessary litigation leading to Davis’s incarceration, eventually a win-win solution emerged which protected Davis’s right to conscience without violating the rights of same-sex couples. The solution was breathtakingly simple: Other officials in the clerk’s office, who do not share Davis’s scruples, issue marriage licenses to same-sex couples.
The episode called to mind an idea Ralph Nader and I proposed more than a decade ago (in an article in Hastings Law Journal) – the recognition of a “right to conscience” for government employees. Ralph and I actually focused on government attorneys, but the right could and should apply more broadly. Why not stipulate that government employees may decline an assignment (without punishment) if they believe it would force them to act unlawfully or otherwise violate their oath of office or conscience?
An obvious objection is that respecting such a right would impede government efficiency. But experience suggests the folly of assuming that the proposed right of conscience would be exercised so wantonly as to create significant disruptions. Germany recognizes a right of conscience for all employees (private as well as public). To my knowledge, no one argues that
its economy has suffered as a result. Here, in America, the law exempts conscientious objectors from military service. America has never had difficulty fielding an army as a result.
There are other situations, too, in which American law respects a right to conscience. Many states have long had “conscience clauses” stipulating that physicians may not be penalized for refusing to perform abortions, and, following the Supreme Court decision in Roe v. Wade, the U.S. Congress enacted such a statute. Oregon extends similar protection to physicians who refuse to participate in physician-assisted suicide (which is legal in Oregon).
American law also extends various protections to government employees that theoretically could disrupt an agency’s efficiency or harmony, such as protection for the outspoken government official who expresses views on controversial issues and the whistleblower who reports misconduct. Despite potential drawbacks of allowing such behavior, the Supreme Court protects the public employee’s First Amendment rights and many states protect whistleblowers from retaliatory action. In each case, public values, including protection of conscience, trump concerns about convenience or efficiency.
So, too, the Supreme Court prevents the government from forcing individuals to articulate viewpoints with which they disagree. In landmark cases, the Court has struck down (in 1943 and 1977 respectively) statutes requiring a compulsory flag salute in school and a compulsory display of a state’s motto on one’s license plate. Chief Justice Rehnquist characterized these cases as protecting “the constitutional interest” of “freedom of conscience.”
Why not extend such protection to government employees? Kim Davis’s refusal to sign marriage licenses may have caused inconvenience, and sowed dissension, but that is a tolerable price to pay when the alternative is requiring people to choose between their conscience and their job.
Because many (including me) reject Davis’s views on same-sex marriage, she may be a poor poster child for the proposed right to conscience. Accordingly, anyone resistant to recognition of such a right should ponder other situations in which government employees have been discharged for refusing to undertake actions that violated their consciences.
A prosecutor in Minnesota (“popular and well known” according to the Minnesota Star Tribune) was fired because he refused to prosecute a case where the evidence derived from a police search which, he felt, lacked probable cause. A California prosecutor was fired because he refused to prosecute a “three strikes and you’re out” case that could have resulted in life imprisonment for a man charged with possession of less than a quarter of a gram of cocaine. The prosecutor explained that, when he declined the case, he expected it would be reassigned to an attorney who didn’t share his misgivings. The obvious question is why that win-win solution was eschewed in favor of discharging a devoted and able public servant — “a young and rising star” according to the Los Angeles Times.
Such cases make their way to the newspapers, but numerous government employees face similar conflicts. Imagine an Environmental Protection Agency regulator expected to promote an interpretation of a statute which she believes contradicts the intent of Congress and increases pollution. Or someone who works for the FCC and is asked to promote a policy he thinks contravenes the First Amendment. Obviously the views of these hypothetical employees cannot trump those of their superiors. But must they be forced to take an assignment that violates their conscience?
Protecting such a right to conscience is unlikely to undermine the effectiveness of government agencies: After all, the employee who frequently finds assignments morally unpalatable is working in the wrong place, and will presumably realize as much before long.
The importance of the proposed right transcends its values to those who exercise it. As things stand, many talented and credentialed people entering the workforce choose the private sector because of the prospect of greater compensation. If we wish (for the sake of society) to encourage the public-spirited among them to opt for public service positions, we should make such positions more attractive. Recognizing a right to conscience is a small step in that direction.
Our society shows sensitivity to the call of individual conscience. We respect the conscience of draftees who oppose war, physicians who oppose abortion, whistleblowers who oppose their superiors’ misconduct, and citizens who oppose government dogma on license plates and in the classroom. Why not protect the rights of government employees whose conscience leads them to resist a particular assignment?
Alan Hirsch, a Yale law School Graduate, JD 1985, is Instructor in the Humanities and Chair of the Justice and Law Studies program at Williams College.