Discrimination Law Functioning as Conscience Clause

Published on May 1, 2010 in Russell Pearce. 2 Comments Tags: abortion, conscience clause, religious discrimination.

In a story today, the New York Daily News reported that “a Catholic Nurse” is suing Mount Sinai Medical Center because she was forced to assist in an abortion . . . over her strenuous objections.” Under Section 8-107(3) of the New York City Human Rights Law and Section 296 (10) of the New York State Human Rights Law, this lawsuit should be a slam-dunk. Both of these laws forbid an employer from requiring an employee to violate their religious belief so long as the employer can provide a reasonable accommodation. In this matter, it seems incredible that the hospital could not reasonably accommodate. Interesting example of anti-discrimination law functioning as a conscience exemption.

2 Responses to “Discrimination Law Functioning as Conscience Clause”

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steve smith
May 2, 2010 at 7:45 am

Is this a case of an anti-discrimination functioning as a conscience exemption, or of an anti-discrimination law containing an exemption? I ask not to quibble, but because I think anti-discrmination laws (and, for that matter, “anti-discrimination” thinking) represent one of the foremost threats to freedom of conscience and free exeercise today. One of the most common ways of trying to accommodate competing interests and values is to include special exemptions in the anti-discrimination laws. There’s often disagreement about such provisions, and disagreement about how effective this compromise is likely to be. But if the laws themselves– their very “anti-discrimination” dimension, so to speak– could function to provide exemptions, that would be an interesting twist in the problem.
Ann Neumann
May 4, 2010 at 2:47 pm

Steve Smith’s question is interesting because it asks us to determine what is discrimination. Would, for instance, the Catholic nun be able to sue if she protested performing a service for a gay man? What we call discrimination, in other words, tends to change over time, to evolve. Think of the judge who refused to marry an interracial couple. I certainly believe in protecting the conscience of individuals. If the nun feels that abortion is killing, which of course is not a theological argument but a religious one, she shouldn’t be required to participate. And yet, the conscience clauses that exist in the US add up to allowing religious institutions and individuals to discriminate against those who are poor (women who don’t have access to contraception), the elderly (doctors who against the patient’s will apply artificial nutrition and hydration), gays (hospitals that refuse to provide STD or aids prevention information), rape victims (Catholic hospitals that refuse to distribute emergency contraceptives). The list goes on. When one enters a profession that serves a pluralistic society, what is that individual’s obligation to ALL of those served? And should we allow institutions to dictate what patients’ or employees’ consciences are?