April 21, 2011 10:11 am ET — Jamison Foser

The Heritage Foundation is pushing so-called "conscience rights" as "the new frontline in the culture war" — a sure sign that the right knows it is losing the war, for "conscience clauses" are a surreptitious attempt to limit freedom under the guise of protecting it.

Conservatives have lost or are losing debates over whether abortion should be a legal medical procedure, marriage equality, and whether it should be legal to fire someone simply for being gay. So now they're perversely trying to frame their oppressive agenda as the preservation of freedom. Heritage, for example, describes the legalization of same-sex marriage as "government overreach," a threat to "liberty," and an example of the government becoming "increasingly intrusive in society's moral deliberations."

How does Heritage justify describing the removal of government barriers to a loving couple freely deciding to marry as a threat to liberty? Simple: Heritage worries that if gays are allowed to marry, florists who hate gays might face sanction if they discriminate against gay customers who want flowers for their wedding. Seriously.

But Heritage knows it's a losing argument to say it favors the rights of bigots to discriminate. So instead it disingenuously claims to be concerned with defending "individuals' right of conscience." In Heritage's telling, this means three things: Protecting the "rights" of medical professionals to refuse to provide family planning and abortion services, protecting the "rights" of Christian businesses to discriminate against non-Christians, and protecting the "right" to discriminate against gays.

Now, all those goals are dubious enough, but — if taken at face value — Heritage's campaign for "conscience rights" has obvious implications the organization doesn't want to talk about. See, Heritage doesn't get to determine what offends an individual's conscience; that's up to the individual. And so we aren't just talking about medical professionals refusing to perform abortion or fill a birth control prescription. A medical professional who thinks AIDS is God's attempt to punish gays could refuse life-saving treatment without sanction. A neo-Nazi could refuse to treat Jewish patients. A racist restaurant owner might refuse to serve an interracial couple.

Those are extreme examples, to be sure — but Heritage either believes in the primacy of individual conscience or it doesn't. If it does, that means protecting the "right of conscience" of people it disagrees with, too. So, for example, if a clerk whose job is to process marriage licenses believes it is immoral to discriminate against gays and refuses to process the marriage licenses of heterosexual applicants until gay marriage is allowed, that would fall under Heritage's "conscience" rhetoric. It seems rather unlikely, however, that Heritage would defend the clerk's 'individual right of conscience.'

And so it seems clear that "individuals' right of conscience" isn't a principle to conservatives at the Heritage Foundation — it's simply a marketing gimmick. Heritage isn't really trying to protect the rights of individuals to act according to their beliefs: Heritage is trying to protect the rights of individuals to act in accordance with Heritage's beliefs. That's an understandable goal, but it shouldn't fool anybody into thinking Heritage's "conscience rights" efforts are about protecting individual liberty. They're just an effort to help people discriminate against gays and deny access to legal medical procedures without saying they want to discriminate against gays and deny access to legal medical procedures.  

Still, as backwards as Heritage is, this represents progress. It wasn't that long ago that Heritage president Ed Feulner was advocating the enforcement of anti-sodomy laws

The Coors Connection p. 63

Now Heritage feels compelled to take a subtler approach to its anti-gay activism, dressing it up as a concern for "conscience rights." Heritage is opening a new front in the culture war for the simple reason that it's losing on the old fronts.