Friday, February 28, 2014

Competing Claims in a Morally Conflicted Society

Growing up in the 1950s and early 60s, we were strictly enjoined not to offer any kind of congratulations or to give a gift or to attend as a wedding guest at an invalid marriage - e.g., the second marriage of a divorced person. I think that was well understood, as was the reasoning behind it. But I don't ever recall a case of anyone in the pubic business of providing wedding services refusing to do so on the grounds that a particular marriage was invalid. Nor did I ever hear of those who held public offices which involved issuing marriage licenses or performing civil weddings refusing to do so when the marriages in question involved someone with a still-living divorced spouse. Nor did I ever hear any ecclesiastical prohibition of such persons performing their public duties. A clear distinction, widely and apparently comprehensible to all, seems to have been made between personally participating in an invalid marriage and engaging in ordinary public or commercial activities that related to invalid marriages which were nonetheless legal in civil law.

Then came the "Public Accommodations" provisions of the Civil Rights Act of 1964, which responded to the very real problem in certain parts of the United States of businesses refusing to serve African-Americans. I remember a family acquaintance who was very uncomfortable with the idea of being compelled to socialize with someone of another race. Yet she was equally adamant that, if one were in any kind of public business, then, of course, all customers had to be served regardless of race. Undoubtedly, there were people in 1964 who had genuine religious objections to, say, serving all comers at an integrated lunch counter. But, in the balancing act which has historically characterized the negotiation among competing personal rights and constitutional claims, the country in 1964 resolved that balance in favor of public access for all. 

Most of the time the negotiation balancing competing rights and constitutional claims can be resolved in a common-sense way. For example, Quakers need not serve in the military and the Amish need not be forced to attend school beyond a certain age. On the hand, an Amish market that sells its vegetables to all customers willing to pay may not refuse to sell to someone because he or she will serve the food in an institution of higher education. This is the kind of common-sense negotiation among competing rights and constitutional claims that has worked most of the time in American history. Again, I recall the example of the devout Catholic notary or justice of the peace who routinely issues marriage licenses or performs civil weddings for divorced people with spouses still living.

Not all situations are equally neat or lend themselves to clear adjudication. Undoubtedly, there will always be some borderline issues, where the line seems somewhat uncertain between actively participating in actions one believes to be immoral and merely engaging in ordinary public or commercial activities the beneficiaries of which may happen to be engaging in actions one believes to be immoral. There will always be some such tensions, and the negotiating among competing rights and constitutional claims can on occasion become complicated. How the adjudication of competing rights will be resolved will likely vary  in such cases - depending on the nature of the issue, on the intensity of the moral claims being invoked on both sides, and on the degree of burden a resolution will likely impose. And there may on occasion be situations in which one party may not be morally able to accept society's solutions, thereby putting him or herself in a position of disobedience. But no one should have any illusions about the cost to all concerned when things reach such an extreme, in particular the erosion of the social fabric that results. If anyone does doubt it, all he or she needs to do is consult the history of the past several decades.

In a world decisively conditioned by the European religious wars of the 16th and 17th centuries, Jean-Jacques Rousseau (1712–1778) famously insisted that those with fundamentally conflicting religious beliefs could not live in peace with one another. Modern, constitutional, democratic societies have rejected Rousseau's claim. Experience (especially American experience) suggests that it really is possible for societies to survive (and even thrive) in which different individuals and groups adhere to deeply held different beliefs about right and wrong and advance at times competing claims of personal rights. That experience also affirms, however, that for this to happen it is necessary for the society to respect the competing claims of rights of both parties, balancing them with a common commitment to making such a society actually work, with the adjudications and adjustments that that inevitably entails. 

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