The concept of “conscience rights” has burst upon the Alberta election campaign in the past few days. This is not the same thing as having freedom of conscience. Freedom of conscience is already guaranteed by the much maligned Charter of Rights and Freedoms. In fact, “freedom of conscience and religion” is the first right guaranteed by the Charter.
As “conscience rights” are being promoted, they would apparently entail a legislated assurance that individual citizens could follow their own conscience to the extent of refusing to provide public services that are at odds with their own conscience. Doctors, it is suggested, should be able to refuse to provide abortions or birth control information or prescriptions, if the doctor, in good conscience, objects to abortion or birth control practices. A Marriage Commissioner, it is suggested, should be able to refuse to marry a gay couple, or an inter-racial couple if, in good conscience, the Commissioner believes that homosexual or inter-racial unions are wrong. A high school teacher, it is suggested, should be able to exclude an unveiled teen-aged girl from his/her classroom if the teacher believes, in good conscience, that post-pubescent girls should not be seen unveiled in public.
Given that we have freedom of conscience in Canada, the doctor, the Marriage Commissioner, and the teacher, and every other citizen, already have three options available to them if their conscience runs up against public policy and law. First, they can arrange their affairs to avoid the issue: For example, the doctor can practice outside the public health care system, or engage in a practice that doesn’t touch on the conscience issue; the Marriage Commissioner can decline the appointment; the teacher can seek work in an all-boys school. Second, they can practice civil disobedience, disobey the law, and publicly accept the consequences as a means of engaging a public debate about right laws. Civil disobedience is not disobedience in secret, with the intent of avoid the consequences. Civil disobedience is disobedience in public, with the intent of bringing bad law into disrepute, or ridicule, or dis-function. Third, they can obey in the meantime, and seek to have the law changed. The course of action any citizen would follow would depend upon how strongly s/he feels about the issue in the circumstances.
What, then, might be gained by instituting conscience rights? Any why haven’t we seen more of this before now? The concept is ill-formed and problematic.
It is not clear whether the concept is intended to be unconditional, or conditional. An unconditional conscience right would mean anyone could act freely in any situation on the simple declaration that they are exercising a “conscience right”.
There is an ancient east Indian sect, known as thuggees, who performed ritual murder. An unrestricted conscience rights would presumably allow a thuggee to express his conscientious belief that ritual murder is the right thing to do (freedom of conscience), and then commit ritual murder in compliance with his conscience (a conscience right).A conditional conscience right would entail the government deciding that conscience should trump public policy and the law in only some situations, and the government would be the arbiter of conscience rights.
The reference may seem ludicrous, for the simple reason that, while both church and secular society believe in conscience, both church and society also believe that the individual conscience is not, by itself, a constantly reliable determinant of action in the public sphere. The Judeo-Christian tradition does not believe that everyone’s conscience is equally “good”. So, in the Christian tradition, a framework is constructed by which the to judge if conscience is good or bad. (The framework is sometimes built on Scripture and sometimes on Church dogma, but it is there for every Church.) Since no organized society or theocracy recognizes unrestricted conscience, the introduction of conscience rights in Alberta would almost certainly depend upon the government (assume for a moment that it is Wild Rose) deciding on some limited number of situations in which conscience should trump public policy and law. Making the list would be an interesting political exercise. When a society, such as Alberta, includes faiths other than Christianity, including people who have no ‘faith’, then the construct might have to be built to respect a wider range of beliefs. But perhaps the list would not be more general. Perhaps Christian but not Muslim, perhaps Protestant but not Roman Catholic, perhaps evangelical but not liberal, perhaps citizens certified by government approved clergy, but not others. Perhaps the list would recognize conscience in some fields, such as medicine, but not others, such as housing.
For example, evangelical Christians have a strong sense of what constitutes good conscience or bad conscience. They also seem to have a strong sense of judgement — a strong sense that s/he who acts wrongly should be judged. It is hard to imagine that such citizens would want an unrestricted conscience right, although they may well want a conscience right that reflects their own views about which issues are important and what is right action in the context of the issue. But, of course, other citizens would say that if the conscience right is not unrestricted it should reflect their view of what issues are important, and what is right to do.
As the earlier reference to thuggees suggests, there is a reason why freedom of conscience (and freedom of speech) does not carry with it the unreseved right to follow our personal conscience or act on our speech. An unrestricted “conscience right” would convey rights to people of no conscience as well as those of very sensitive conscience. It would convey rights to those with a culturally developed conscience very much in accord with common experience in Alberta as well as those that might be very different from what is common in Alberta.
There would likely be considerable tension between conscience rights and human rights. Does the human right to housing trump the conscience right to deny housing to unmarried couples, or inter-racial couples, or vice versa? Does a father’s conscience right to keep his adult unmarried daughter isolated from the world trump the daughter’s right to freedom, or vice versa.
The only real value of a conscience is when exercising it is such a fragile experience that we must pay close attention. When the government explicitly allows citizens to act as they wish in any or all circumstances, without regard for the consequences, simply on the basis that the citizen claims a conscience right, society will be in deep trouble.
I support the right of any citizen to try to persuade me that birth control (for example) should be delisted. I applaud the citizen who will engage in civil disobedience to call attention to a law or public policy /she believes is wrong, and accept the consequences. I do not believe in giving anybody’s conscience a “get out of jail free” card. As human beings, we deserve better.