I was privileged to speak at Duke Law School yesterday about Ward v. Wilbanks, an Alliance Defense Fund case in which Eastern Michigan University expelled a counseling graduate student for her religious beliefs and her unwillingness to perform counseling that violated her conscience. I am grateful to the Federalist Society — both the national organization and the Duke chapter – for hosting the event.
In my presentation, I recounted some manifestations of the long American tradition of accommodating conscience. Colonies and young states disestablished their churches (and the federal government never established a national church) in part on the ground that compelling direct support of the inherently religious activities of a particular house of worship or denomination can violate the consciences of those who dissent from some or all of that church’s beliefs. Article II, Section 1 of the Constitution permits the incoming (or re-elected) President to “affirm” rather than “swear” to “faithfully execute the Office . . . ,” an accommodation of those that believe that Christians ought not to swear oaths. The United States has long accommodated many of those who have a conscientious objection to military service. Federal and state laws protect at least some of those who conscientiously object to participation in or payment for abortion, sterilization, or contraception.
The point, of course, is that what Ms. Ward seeks in her lawsuit is not particularly unusual in American law and history. Contrary to this long tradition, EMU failed to accommodate her conscience, expelling her for declining to participate in activities that would have violated her religious convictions — and for refusing to change her religious beliefs. Harm to third parties from her exercise of conscience was minimal to non-existent. I am hopeful that the U.S. Court of Appeals for the Sixth Circuit, which recently heard oral argument on Ms. Ward’s appeal of a district court ruling against her, will issue a ruling consistent with the American tradition of accommodating conscience.