Courts have in the past and will in the future continue to balance such claims against the prevailing moral sentiments of the majority in the culture and will heed the currents of public opinion, lest they lose their legitimacy. Decisions will involve fine balancing acts and will frequently appear to be inconsistent. The elitist claim of Hammond made under dubious color of scientific certitude that he has discovered a new constitution behind the Constitution is little more than an attempt by Hammond to substitute his own moral judgments for those of the community. His assertions that his beliefs and values will ultimately and inevitably prevail contain an amorphous amalgam of scientific determinism and iconoclastic individualism which never have carried much weight in the mainstream of American social jurisprudence. Nevertheless, Hammond argues that "over and beyond claims of conscience that are entitled to constitutional protection, unless a compelling reason exists to curtail them, there are many other settings in which conscience is . . . not given its due" (85). He points out that issues such as abortion, same-sex marriage and physician-assisted suicide will be accorded broader protection by the Court if they are regarded as freedom of religion issues not merely substantive due process liberties subjected to the balancing tests of competing interests used in 14th Amendment cases. He would, therefore, label the alleged rights of the individuals involved in such cases religious liberties, a highly contentious assertion for which he can cite only dissenting opinions and his own beliefs as authority. Granting for the sake of argument that an accommodationist such as Emile Durkheim was wrong when he said that "morality would no longer be morality if it had no element of religion," what standard Hammond would propose is unclear for determining which free exercise of conscience claims are valid and which are not (100). Hammond's concepts of Civil Religion and th |
