Opting Out: Conscience and Cooperation in a Pluralistic Society

We live in a liberal, pluralistic, largely secular society where, in theory, there is fundamental protection for freedom of conscience generally and freedom of religion in particular. There is, however, both in statute and common law, increasing pressure on religious believers and conscientious objectors (outside wartime) to act in ways that violate their sincere, deeply held beliefs. This is particularly so in health care, where conscientious objection is coming under extreme pressure. I argue that freedom of religion and conscience need to be put on a sounder footing both legislatively and by the courts, particularly in health care. I examine a number of important legal cases in the UK and US, where freedom of religion and conscience have come into conflict with government mandates or equality and anti-discrimination law. In these and other cases we find one of two results: either the conscientious objector loses out against competing rights, or the conscientious objector succeeds, but due to what I consider unsound judicial reasoning. In particular, cases involving cooperation in what the objector considers morally impermissible according to their beliefs have been wrongly understood by some American courts. I argue that a reasonable theory of cooperation incorporated into judicial thinking would enable more acceptable results that gave sufficient protection to conscientious objectors without risking a judicial backlash against objectors who wanted to take their freedoms too far.

I also venture into broader, more controversial waters concerning what I call freedom of dissociation – the fundamental right to withdraw from associating with people, groups, and activities. It is no more than the converse of freedom of association, which all free societies recognise as a basic right. How far should freedom of dissociation go? What might society be like if freedom of dissociation were given more protection in law than it currently has? It would certainly give freedom of religion and conscience a substantial foundation, but it could also lead to discriminatory behaviour to which many people would object. I explore some of these issues, before going back to the narrower area of freedom of conscience and religion in health care, making some proposals about how the law could strengthen these basic pillars of a liberal, free society.

David S. Oderberg is Professor of Philosophy at the University of Reading. He completed his doctorate at Wolfson College, Oxford, and became Lecturer in Philosophy at Reading in 1992. He has written four books and edited or co-edited five others, as well as being the author of over sixty papers. His main research areas are metaphysics and ethics, but he also works in philosophy of religion, philosophy of science, and other areas. In 2013 he delivered the Hourani Lectures in Ethics at the State University of New York, Buffalo, and in 2003 was a Visiting Scholar at the Social Philosophy and Policy Center, Bowling Green, Ohio. Professor Oderberg is a Senior Fellow of the Higher Education Academy, and in 2016 was named, by a major US website for prospective college applicants, as one of the fifty most influential living philosophers.

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