Conscience clauses: allowing
discrimination motivated by religious belief
Conflicts over human rights and freedoms:
North Americans cherish their freedoms of belief, religion, speech, action.
etc. But these freedoms are neither absolute nor unlimited. A person's freedom
to wave their fists in the air stops when they impact another person's nose --
Many of the cases heard before the courts involve conflicts between two
persons' rights and freedom. Examples are:
The right for a same-sex couples to be treated equally as opposite-sex
couples and be able to marry vs. the right of
California voters to pass a constitutional amendment to limit marriage to a
union of one man and one woman.
||The right of a woman to enter a medical clinic without harassment vs. the
right of pro-lifers to attempt to perform "sidewalk counseling" with the aim
of finding out whether she is seeking an abortion and attempting to persuade
The right of a follower of Santeria to conduct a
religious ritual in which an animal is sacrificed to their Gods vs. the right
of the majority to ban practices that they regard as objectionable.
||The right of homosexual adults to engage in physical intimacy in private
vs. the right of the majority to criminalize practices that they consider to
||The right of a public school student to wear religious jewelry or a head
covering vs. the right of a public school administration to enforce a ban on
what they consider might be gang symbols or unacceptable clothing.
||The right of a homosexual group to purchase a supply of customized
letterhead vs. the right of the owner of a printing shop to not serve
The list is endless.
Many of these conflicts relate to sexual
orientation and abortion access. This is mainly
because these are probably the two main topics of concern to religious and
||Pro-lifers generally believe that human personhood begins at conception;
thus abortion is a form of murder.
||Pro-choicers generally believe that human personhood starts later in
pregnancy or at childbirth. They oppose compulsory childbirth for every
pregnant woman, and believe that women should have access to abortion if they
decide that this is their least-worse option.
||Religious and social conservatives generally believe that homosexuality is
an immoral behavior; some believe that it should once more be criminalized.
||Most religious and social liberals, civil rights supporter, sexual
minorities, and some others regard homosexuality and bisexuality as two of
three normal and natural sexual orientations. They feel that persons of all
sexual orientations should be treated equally.
These are laws and regulations that allow individuals and groups to
discriminate because of their religious and/or moral beliefs.
Most frequently, the term "conscience clause" is used to refer to the field of
medicine where doctors, nurses, pharmacists, etc. are allowed to deny services
to the public. Examples are:
However, the term "conscience clause" is also used to refer to permitting
discrimination outside of the medical field. Since the principles involved are
identical in the two cases, we will use the more inclusive definition here.
2005: Conflict over birth control: A very busy pharmacy in Wal-Mart
store in Wisconsin was in need of a temporary pharmacist. They accepted the
recommendation of a temporary staffing agency and hired one of the agency's pharmacists. He filed
a written statement with Wal-Mart, explaining that his religious convictions required him to decline any interaction with a customer that involved
contraceptives. The pharmacy supervisor made special arrangements so
that the pharmacist would not have to fill birth control prescriptions,
handle birth control pills, perform checks on birth control orders, etc.
When the pharmacist answered a phone call dealing with contraceptives, he
would place the customer on hold and not inform anyone else that there was a
call waiting. When a patient came to the counter to pick up a birth control
refill or seeking advice, he would simply walk away and not inform anyone else
that a customer wanted assistance. The supervisor offered a compromise in
which the pharmacist would not have to talk to any walk-in patients but
would be required to refer phone calls dealing with contraceptives to someone
else. The supervisor fired him after it became clear that he would not accept
The pharmacist sued in federal court because he felt that his religious freedoms
under the Civil Rights Act of 1964 were being compromised. The judge dismissed
the complaint, ruling that he did not have jurisdiction to hear this type of
complaint. He dismissed the charges against Wal-Mart because the extensive
accommodation that the company offered to the pharmacist was reasonable under
The case was appealed to the United States Court of Appeals for the Seventh
Circuit. A three-judge panel unanimously dismissed all charges. They ruled
that the Civil Rights Act does require employers to make reasonable
accommodation for their employees' religious beliefs and practices, but not to
the extent of creating an undue hardship.
An article by Jesse C. Vivian for the U.S. Pharmacist stated:
"... the extent to which an employer must go to accommodate religious
expression is not unlimited and is never carried out to extremist measures. In
this case, a pharmacy manager practically bent over backward to accommodate
this pharmacist's desires to be free of any activities involving
contraception. But, said the courts, there are limits on how far an employer
must make those accommodations. Here, the pharmacist pushed the limits way
beyond the mandates of the law when he demanded that he be protected from any
inquiry, no matter how trivial, concerning any form of contraception."
"It is highly doubtful that this case would have come out any differently if
the state had adopted a conscience clause. Such laws also limit accommodations
to those that are reasonable under the circumstances of employment. Demands
for altered work assignments that go beyond reasonable accommodation will not
be forced upon employers, including those involved with health care services."
2006: Adoption conflict: Catholic Charities of Boston, MA had been placing
children in adoptive homes for over a century. In recent years, about 2% of
the placements were in homes headed by same-sex couples. They found themselves
in a conflict between the requirements of the law and the position of their sponsors, the
Roman Catholic Church. State law forbids discrimination in the provision of
services on the basis of sexual orientation. The Church
condemns homosexual behavior as immoral, and requires its agencies to
discriminate against adoption by same-sex couples.|
In 2005-DEC, the Catholic Charities board voted unanimously to continue
adoption by same-sex parents. In 2006-FEB, the four bishops in Massachusetts
decided to ask the state government to have a conscience clause
written into the legislation that would give them special dispensation so that
they could freely discriminate against homosexuals and bisexuals. At this point,
eight of the agency's 42 board members quit in protest, saying that the agency
should consider all couples as potential adoptive parents, regardless of their gender
The agency decided to terminate its adoption function in mid-2006. The
Boston Globe commented:
Board members of Catholic Charities said they were also deeply saddened by the
news. Some members, however, expressed some relief that they no longer had to
wrestle with the painful clash between gay rights and religious freedom. James
Brett, a board member, said the withdrawal was approved 'with a heavy heart,'
but it is preferable to a protracted battle over an exemption. ''This is a
better resolution,' he said. 'It's more straightforward'." 2
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
Jesse C. Vivian, "The Crossroads Between Law and Ethics: Conscience Clauses,"
U.S. Pharmacist, 2007-AUG-20, at:
Patricia Wen, "Catholic
Charities stuns state, ends adoptions. Gay issue stirred move by agency," The
Boston Globe, 2006-MAR-11, at: