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Conscientious Exemption, Reasonable Accommodation, and Dianne Hensley

On December 2nd, McLennan County Justice of the Peace Dianne Hensley was issued a public warning for refusing to perform same-sex marriages. She continued to perform marriages for heterosexual couples, but claimed that she was following her “conscience and religion” by abstaining from performing the non-straight marriages.

Hensley has been open about her policy and claimed in 2017 that she qualified for a “religious exemption” from performing this service for non-straight couples. She sees her position as grounded in her Christian faith, and therefore considers herself to be “entitled to accommodations just as much as anyone else.”

For the past several years Hensley’s office has refused to officiate same-sex marriages. In response to requests, Hensely and her staff offer a document explaining her reasoning and indicating other local qualified and willing alternative substitutes.

Hensley would not be the first public official to be reprimanded for not participating in the administration of same-sex marriages. In 2018, an Oregon Supreme Court judge was suspended for three years for refusing to conduct same-sex marriages. In 2015, in a case that garnered a great deal of national attention, Kimberly Davis, now a former county clerk in Kentucky, refused to issue marriage licenses to same-sex couples and was fired (this year she was declared vulnerable to lawsuits).

Hensley’s case is unique, however, because it is not a required part of her job to perform marriages at all. Officiating marriages is a way to earn “thousands of dollars in personal income,” but is optional for justices of the peace. Because officiating is optional, many of Hensley’s like-minded colleagues simply stopped performing them after the Supreme Court granted rights to gay couples.

The right to reasonable accommodation can be murky in cases like these. Roughly speaking, unreasonable accommodations are those that:

Typically accommodations are seen to be unreasonable because of the first or third consideration listed; if, in order to accommodate the needs or conscience of the employee, the job itself must be fundamentally altered, then the employer is not required to make such accommodation. Perhaps relatedly, if making such an accommodation is sufficiently burdensome for the employer, they need not provide it. For instance, a business would not be required to lower production standards or create a new position in order to accommodate an employee.

The justification for exemptions of conscience constitute a difficult area of labor ethics and fit uncomfortably with the right to reasonable accommodation. First, it is intuitive that we would not want a system to be in place where individuals could not live according to their values. However, this is not an unrestricted value, and there are intuitive constraints on when appeals to moral integrity would be reasonable: norms of professions and their role in our society will limit when individuals can conscientiously refuse.

Consider the case of a health care provider who finds it morally objectionable to provide some medical intervention. The context of the role of medical professionals in society plays an important part in determining the extent to which it makes sense to allow for such professionals to selectively abstain from providing services based on their conscience. Here, the particular social value that the training and care involved in health care providers make the professional standards especially pertinent. They possess both knowledge and skills that the public does not generally have and therefore the public must rely on them for part of their lives (health maintenance) that is particularly significant.

Thus, while moral integrity is deeply important, appropriate refusals must not run afoul of the role that professionals play in our society. In this, health care providers are likely in a similar category as justices of the peace: specialized training and skills that the general public relies on for unique and irreplaceable services.

One of the motivations behind the Texas commission’s complaint against Hensley is that, due to her discriminatory practices regarding officiating marriages, she is displaying a lack of ability to be impartial, which is certainly a requirement of a justice of the peace. This again might mirror concerns for health care providers that select which interventions to provide – such practices may indicate a provider is not being guided by norms of the profession and make decisions regarding medical interventions on medical grounds.

Some professions allow for personal conscience to guide professional decisions, but for most, the decision-making process for what to do is grounded in the professional aims, so one’s individual values are given sway only when the profession itself allows for leeway in making the decision. For example, a teacher who assigns grades randomly instead of according to some system grounded in pedagogy is flouting the professional norms of teaching. Teachers can assign grades on a number of bases, as long as they are pedagogical grounds – as long as they are serving recognizable pedagogical purposes. An instructor’s normative attitudes may be able to play some role in how they make teaching choices, but only in spaces that the profession allows for some leeway.

Similarly, in the healthcare profession, providers can adopt different degrees of risk aversion and styles of patient rapport, different philosophies of patient care and approaches to remaining up to date with treatment standards, but it is hard to see where any extra-medical leeway would come in: in controversial or difficult decision scenarios, health care providers are still expected to make decisions on medical grounds. Similar standards would apply for justices of the peace regarding the performance of their duties.

The particularly significant role that justices, teachers, and health care providers play in our society may be underlying the difficulty in motivating an exemption of conscience. That such professionals have special skills that provide critical services for public welfare means that it is important they not arbitrarily practice their professional role.

Compare these cases to the role conscience might play in other professions where the role is less integral to society’s well-functioning. Imagine a concierge is an ethical vegetarian, believing that consuming and purchasing meat products is against the dictates of morality. On the surface, this wouldn’t have a significant impact on her ability to be a good concierge. However, part of the job of a concierge is to give visitors information in order to guide them in the foreign city. Say this concierge considers it to be morally wrong to eat at steakhouses and that she would be morally complicit in the wrong of eating at steakhouses were she to direct patrons in their direction. Of course we wouldn’t want to make the vegetarian do things that make her uncomfortable, or lead an inauthentic life – and this is what grounds the value of moral integrity and the push to find grounds for conscientious refusals.

However, if the concierge makes decisions about how to treat visitors, or about how to go about her job based on non-concierg-ing reasons, it seems she is not meeting this standard for the profession; she is being a bad concierge. Concierges should guide visitors, and if the vegetarian concierge doesn’t do that, she is failing at conceirg-ing. It seems like this is similar in structure to other scenarios we could imagine as a matter of philosophical fiction, such as a Christian Scientist HCP or an Amish Apple store Genius. For such individuals, they have sincere moral grounds to refuse to engage with patients or clients in the way their profession dictates. So are these individuals’ moral attitudes consistent with their performance of their job or candidates for reasonable accommodation?

As for Hensley, she has support to “practice her religion” from members of conservative religious groups. They do not engage with the question of whether or to what extent some careers may simply be incompatible with the free practice of some religions. Since 2015, the Texas Justice Court Training Center has said that permitting a justice of the peace to perform only straight marriages lacked legal authority.

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The Ethics of Philosophical Exemptions

photograph of syringe and bottle of antiobiotics

While every state in America has legislation requiring vaccinations for children, every state also allows exemptions. For instance, every state allows a parent to exempt their child from vaccinations for legitimate medical reasons: some children with compromised immune systems, for example, are not required to be vaccinated, since doing so could be potentially harmful. However, many states also allow for exemptions for two other reasons: religious reasons, and “philosophical reasons.” While religious exemptions are standardly granted if one sincerely declares that vaccinations are contrary to their religious beliefs, what a “philosophical reason” might consist in varies depending on the state. For example, Ohio law states that parents can refuse to have their children immunized for “reasons of conscience”; in Maine a general “opposition to the immunization for philosophical reasons” constitutes sufficient ground for exemption; and in Pennsylvania “[c]hildren need not be immunized if the parent, guardian or emancipated child objects in writing to the immunization…on the basis of a strong moral or ethical conviction similar to a religious belief” (a complete list of states and the wordings of the relevant laws can be found on the National Conference of State Legislatures website).

Of course, not all states grant exemptions on the basis of any reason beyond the medical: California, Mississippi, and West Virginia all deny exemptions on the basis of either religious or philosophical reasons. And there seem to be plenty of good reasons to deny exemption except only in the most dire of circumstances, since vaccinations are proven to be overwhelmingly beneficial both to individuals, as well as to the community at large by contributing toward crucial herd immunity for those who are unable to be vaccinated due to medical reasons.

At the same time, one might be concerned that, in general, the law needs to respect the sincere convictions of an individual as much as possible. This is evidenced by the fact that many states provide religious exemptions, not only for vaccinations, but in many other different areas of the law. Of course, while some of these exemptions may seem reasonable, others have become the target of significant controversy. Perhaps most controversial are so called “right to discriminate” conditions that, for example, have been appealed to in order to justify unequal treatment of members of the LGBT community.

While there is much to say about religious exemptions in general, and religious exemptions to vaccinations in particular, here I want to focus on the philosophical exemptions. What are they, and should they be allowed?

As we saw above, the basis for granting philosophical exemptions to vaccinations seems to simply be one’s sincere opposition (how well-informed this opposition is, however, is not part of any exemption criteria). In practical terms, expressing philosophical opposition typically requires the signing of an affidavit confirming said opposition, although in some cases there is the additional requirement that one discuss vaccinations with one’s doctor beforehand (Washington, for example, includes this requirement). In general, though, it is safe to say that it is not difficult to acquire a philosophical exemption.

Should such exemptions exist? We might think that there is at least one reason why they should: if sincere religious conviction is a sufficient basis for exemption (something that is agreed upon by 47 states) then it seems that sincere moral or philosophical conviction should constitute just as good of a basis for exemption. After all, in both cases we are dealing with sincere beliefs in principles that one deems to be contrary to the use of vaccinations, and so it does not seem that one should have to be religious in order for one’s convictions to be taken seriously.

The problem with allowing such exemptions, of course, is the aforementioned serious repercussions of failing to vaccinate one’s children. Indeed, as reported by the PEW research center, there is a significant correlation between those states that present the most opportunity to be exempted – those states that allow both religious and philosophical grounds for exemption – and those that have seen the greatest number of incidents of the outbreak of measles. Here, then, is one reason why we might think that there should be no such philosophical exemptions (and, perhaps, no exemptions at all): allowing such exemptions results in the significant and widespread harm.

The tension between respecting one’s right to act in a way that coincides with one’s convictions and trying to make sure that people act in ways that have the best consequences for themselves and those around them is well-explored in discussions of ethics. The former kinds of concerns are often spelled out in terms of concerns for personal integrity: it seems that whether an action is in line with one’s goals, projects, and general plan for one’s life should be a relevant factor in deciding what ought to be done (for example, it often seems like we shouldn’t force someone to do something they really don’t want to do for the benefit of others). When taking personal integrity into account, then, we can see why we might want there to be room for philosophical exemptions in the law.

On the other hand, when deciding what to do we also have to take into account will have the best overall consequences for everyone affected. When taking this aspect into consideration, it would then seem to be the case that there almost certainly should be only the bare minimum of possibility for exemptions to vaccinations. While it often seems that respecting personal and integrity and trying to ensure the best overall consequences are both relevant moral factors, it is less clear what to do when these factors conflict. To ensure the best consequences when it comes to vaccinations, for example, would require violating the integrity of some, as they would be forced to do something that they think is wrong. On the other hand, taking individual convictions too seriously can result in significantly worse overall consequences, as what an individual takes to be best for themselves might have negative consequences for those around them.

However, there is certainly a limit on how much we can reasonably respect personal integrity when doing so comes at the cost of the well-being of others. I cannot get away with doing whatever I want just because I sincerely believe that I should be able to, regardless of the consequences. And there are also clearly cases in which I should be expected to make a sacrifice if doing so means that a lot of people will be better off. How we can precisely balance the need to respect integrity and the need to try to ensure the best overall consequences is a problem I won’t attempt to solve here. What we can say, though, is that while allowing philosophical exemptions for vaccinations appears to be an attempt at respecting personal integrity, it is one that has produced significant negative consequences for many people. This is one of those cases, then, in which personal conviction needs to take a backseat to the overall well-being of others, and so philosophical reasons should not count qualify as a relevant factor in determining exemptions for vaccinations.