By: Susan J. Stabile
There has been a lot of public attention of late to issues
involving a clash between the conscience of Catholic institutions
and state law and public policy. The issue of a Catholic
institution’s conscience can arise in a number of different
circumstances. Does a religious employer have to provide
contraception coverage for its employees? Does a Catholic hospital
have to provide access to emergency contraception and must it
provide abortion services? Must a Catholic adoption agency allow
gay persons or same-sex couples to adopt children?
Focusing on the normative question of how we should deal with
clashes between the conscience of religious institutions and law
and public policy, I will consider three questions. First, assuming
the law should protect the conscience of religious institutions,
how should we define a religious institution for these purposes?
Second, assuming the law should protect the conscience of religious
institutions, what kind of burden on religion is sufficient to give
rise to an exclusion from otherwise generally applicable state
laws? Finally, how do we balance the burden on religion against the
state’s public policy interest? While there may not be clear
answers to any of these questions, it is important to have enough
on the table to facilitate discussion of these issues.