The Institutional Dilemma of Principled Dissent
 When the ELCA Task Force on Sexuality Studies proposed respect for the conscience of the neighbor, it did so on the basis of a hard-won observation.3 This observation grew out of eight years of study and inquiry, out of conversations with experts and representatives of various communities within the ELCA, and out of reading and hearing statements from individuals across the whole church on both sides of the question of the moral and religious standing of monogamous, committed same-gender couples. And it grew out of the searing, unresolved conflicts among members of the task force itself. Obliged and privileged to listen with attention and respect to ELCA Lutherans on all sides of these questions, the task force came to understand that this church is not dealing with velleities that can be exposed as superficial. It is not dealing with ignorance of or indifference to the teachings of Scripture that can be overcome by reminding people of the centrality of the Word of God. It is not dealing with a lack of moral concern or a lack of moral principles that would justify viewing some positions as self-interested violations of the community's moral sense. It is not dealing with faulty reasoning that can be put right by further education. It is not dealing with irrational fears that more information can calm. It is not dealing with morally careless self-indulgence that is indifferent to the plight of the neighbor.
 While there are undoubtedly some Lutherans whose views on the question are infected by such faults, in the overwhelming majority of cases, this was not what the task force saw, nor were these inadequacies much on display in the convention hall in Minneapolis. The plain fact was that by 2009 ELCA Lutherans, after much prayer, study, thought, and argument had arrived at settled conscientiously held views on the matter of same-gender couples, views that bound these persons in integrity to particular moral positions and particular moral practices, notwithstanding the consequences. The difficulty to be addressed was the dismaying fact that, as the social statement says, these deep convictions could be gathered into four different conflicting sets.4 Respect for the conscience of those with whom one disagrees was what the majority of the task force proposed as a properly Lutheran response to this deep, faithful, and principled disagreement within the community. Such respect was proposed not as a theological principle but as a practical expression of love for the neighbor in the present conflictual situation.
 While this respect for the deep and well developed conscience of the neighbor was proposed as a response consonant with the "greatest commandment" and resonant with our distinctive tradition, one does not have to be Lutheran or even Christian to grasp either the importance of respect for conscience or the connection of conscience with human dignity. There is a substantial body of secular literature on the subject, and it may be helpful to review its logic here.5
 Institutions, whether they are states, churches, universities, families, or voluntary associations, require participants in the community to do certain things and to refrain from doing other things. When things are going well, these requirements express the deep moral convictions of the majority of those participating in the community: what the state or church requires is what the majority believe to be necessary to the well being of the community and the members of it; what the state or church proscribes is what the majority (usually the vast majority) of the people are convinced is wrong and harmful. Of course, not everyone does do what is required, and, of course, a sizable number of folks unfortunately will do what is forbidden. In cases of violation, institutional authorities reprove, discipline, constrain, enjoin, dismiss, expel, fine, lock up, or even execute the people who violate the laws that express the moral sense (or we might even say "conscience") of the community. In such cases there is no serious conversation about whether there is something wrong with the laws or the moral sense of the community.
 Those situations, properly characterized as moral lapses, must not be confused with situations of a completely different sort. It does happen, from time to time, that some highly principled member or some few highly principled members of the community come to believe that what the majority have embraced as morally right is, in fact, morally wrong. These people may refuse to do what the state or church requires, not because they are self-interested or greedy or indifferent to moral expectations, but rather because they refuse to do what they believe to be morally wrong. Conversely, these people may do what is forbidden because they believe the laws or rules that forbid it are morally wrong. Figures that come immediately to mind are conscientious objectors in times of war, Martin Luther King and other people who engaged in patently illegal activities during the mid-twentieth-century civil rights struggles, America's own reclusive hero, Henry David Thoreau, and, of course, Martin Luther in his disputes with the ecclesial authorities of his times.
 It would be naïve to suggest that it is always clear, when duties are avoided and rules are flouted or challenged, whether the situation is one of moral failure or morally principled objection. We all know how resourceful we can be in rationalizing our failings and how passionately and righteously narrow self-serving views can be sincerely defended. For these reasons, the first move of moral authorities in families, churches, and other associations will usually be to suggest that the person engaged in the disobedience is acting out of a faulty understanding of what is moral and will seek by correction, education, and persuasion to put right the error. This may involve a relatively patient and solicitous reiteration of the reasons for the rule, coupled with a confident assertion that because the authority has a broader perspective or has thought more deeply about the problem or for some other reasons "knows best" and should be trusted, the violator should come round and voluntarily comply with what the community requires. Or it may involve a brusque and impatient summary of what the authority takes to be the obvious errors in the miscreant's argument, coupled with a declaration that there is nothing more to be discussed and that immediate compliance is required.6 However, unless we are willing to assume that authority is always right (which history, the teachings of the prophets, and the crucifixion of Jesus make quite difficult to take for granted), we have to assume that there will be occasions when this approach to the problem will not and, indeed, should not succeed. What, then, ought the authority to do when its persuasive efforts fail, when the person or persons in question continue, despite all this earnest education, to protest that what the authorities and even the majority of their peers consider to be right is actually quite indubitably morally wrong?
 When this peculiar form of morally principled disobedience persists, the institution that is responsible for seeing that people do what is required and refrain from doing what is proscribed must decide whether to secure obedience through coercion. The state, which usually does not bother with the intermediate attempt at education or persuasion, can and does employ force. It levies fines, awards damages, grants injunctions, imprisons violators, and otherwise compels people to conform to the requirements it lays down. Churches, at least in this country, no longer wield such power, but they can still shame, discipline, shun, condemn, denounce, excommunicate, or otherwise cut their ties with persons or congregations who, in moral conscience, are disobedient to the requirements that are supported by the authoritative voices in their church bodies, requirements that may, in some cases, delineate the established moral boundaries of that community. Authorities can do these things, but should they? Should states and churches employ such force and such power when the people in question violate the laws, not for their own benefit and in the hope that they will not be caught, but on the grounds of moral principle and in costly, outspoken criticism of what they take to be the moral failure of the authorities and the power ranged against them?
 This is actually a very serious dilemma for authority and for those charged with what sociologists call institutional boundary maintenance. On the one hand, if the institution fails to punish the violation of accepted norms, it properly fears that it will open the door for any and every person to ignore and dispute any law or duty inconvenient to that particular person. Moreover, no state or community can blithely risk the loss of social cohesion or diminish its capacity to require the sacrifice of narrow or private interests for the sake of broader social objectives and the common good. If it cannot re-establish unity of moral conviction and purpose, it risks either legitimating license or precipitating fracture. On the other hand, there are grave risks involved in overcoming morally grounded opposition by an exercise of power. If the moral objections to the status quo have merit, the authority will become an active agent of an evil that it does not yet understand or to which it has not yet given proper weight.
 Even if the institution should happen to be on the side of the angels in a conflict with opposition that is quite mistaken about where goodness and justice lie, by overcoming moral opposition by force it nevertheless teaches its citizens or the members of the community that their own sense of the good and the right is of no communal significance. In other words, the institution asserts in action (whatever pious platitudes it otherwise publishes) that "might makes right" and that the institution grants no standing to genuine moral conviction and concern that deviates from the status quo or from the perspective of those who control institutional voice and power. Such violation of deep moral convictions has a corrosive effect on the legitimacy of moral authority and on the moral plausibility of the teachings and guidance that the authority defends. Paradoxically, respecting the conscientious convictions of moral agents who have a deep and well-grounded sense of what is right and good may do more to strengthen the moral community than compelling conformity, and it may be precisely unresponsive condemnation that erodes moral authority in such cases.
 Just as it would be naïve to suggest that it is always easy to differentiate moral lapses from principled dissent, so it would be naïve to suggest that the principled individual conscience can always command accommodation. One thinks here of the conscience-bound violence of John Brown as just one example. Under the conditions of plurality, not all conscientiously held positions can be respected, even where outright violence is not a threat. There will necessarily be instances in which legitimate authority will, in full knowledge of the attendant dangers, over-ride the conscientious convictions of some members of the community, but if this is not to have insidious corrosive effects, there must be compelling moral justification specifically for the refusal to respect conscientious dissent — the action might be defended, for example, as clearly and immediately necessary to protect the vulnerable, to safeguard the common good, or to preserve the community.
 When parents, for reasons of conscience, refuse medical care for a dying child whose life could be saved, the state, on the advice of the medical community, refuses to honor the conscientious beliefs of the parents and acts to protect the child. Citizens are not permitted to stop paying taxes on the grounds that they object in conscience to a particular war or to what is being taught in the schools. When Jewish communities in the first century concluded that what the conscience-bound followers of Jesus were doing and teaching simply could no longer be accommodated within the framework of Jewish faith, they expelled them from the synagogues. But in addition to requiring morally articulated justification, such over-riding of conscience by authority depends, if it is to foster a healthy moral community, on the existence of a strong social consensus within the community (a) that the conscientious objectors, however morally passionate and sincere they may be, really are morally mistaken in ways that are fairly obvious and (b) that the actions of the conscientious objectors are, in fact, damaging enough to justify the harm inflicted by compelling them to act against what they believe to be right or to acquiesce in policies that they believe to be wrong.
 On the matter of same-sex couples, a very strong social consensus had underwritten the sexuality statements of the predecessor bodies and had remained fairly strong in the early years of the ELCA. By 2009, that consensus was simply gone, fractured into a range of morally articulated, scripturally grounded, experientially supported, conscientiously held positions. While the question of who is "objectively" right persists and may, in time, be resolved (or not — the question of whether pacifism is a requirement of discipleship and the question of whether women should be admitted to the clergy are still matters of conscience-bound dispute among Christians), the immediate question addressed by the Assembly was, What does it mean for me to love my neighbor as myself in a situation of principled moral disagreement? What does it mean for us each to "bear one another's burdens" when we consider one another to be committed to views and practices that are simply wrong? The decision of the Assembly was that it means accepting a social statement that articulates a range of morally credible positions concerning same-gender couples rather than a single teaching, and it means trying to put in place policies of "structured flexibility" that allow people to act on their conscientiously held beliefs. The question that various groups have been trying to sort out in the months since August 2009 is whether churches are the sort of moral communities that can actually, in practice, accommodate diverging consciences in matters of scriptural interpretation and policies relating to its rostered leaders.
 I do, in closing, want to come back to the relationship of respect for the mature and settled conscience of the neighbor to theological principles. In an essay titled "On the Origins of Freedom," Karl Rahner objects to the teaching of nineteenth-century Roman Catholic theologians that "only truth and goodness have rights, but not error and evil." He argues that "it cannot be the duty of individuals or society to take away the sphere of freedom, even in the case of wrong decisions, from other human beings. This would always be an attack on the dignity of the person and his or her freedom, which is not a means to an end (in this case the compulsory realization of something good), but part of the meaning and goal of the human person."7 In this essay he is talking not about conscience but about "the enlarged sphere of freedom" brought about by "a pluralist social order."8 But to the extent that one understands human freedom to have its origins in God and understands God to be the "infinite horizon" of our freedom, as Rahner does, one might in fact argue that profound respect for the conscience and moral integrity of one's adversary, while not itself a theological principle, is directly justified by theological principles as well as secular ethics. Whether Paul, Luther, and contemporary Lutheran theology would agree or disagree with Rahner's theological analysis of freedom is, however, a discussion that must be left for another time.
Diane Yeager is Associate Professor and Thomas J. Healey, C'64, Family Distinguished Professor in the Department of Theology at Georgetown University.
1. I have quoted the text of Resolution 3-05 from the LCMS website which also records that the resolution passed by a vote of 934 to 18. I am not, however, absolutely certain that there were no amendments to the language introduced prior to the vote. The page that gives the vote contains the disclaimer that "information presented here is preliminary" and refers the reader to Today's Business, but I cannot find the final text of the resolution in Today's Business. See: http://www.lcms.org/includes/convention/resolutions/res3.html
2. It is perhaps worth noticing that Luther's distinction between the bound and the liberated conscience is not what is at stake in the references to the bound conscience in these texts. Laurie Jungling's fine article, "Conscience-Bound or Conscience Liberated: What's Best for the ELCA?" in the July 2005 issue of JLE and Scott H. Hendrix's equally helpful contribution, "Homosexuality, Conscience, and the Reformation," in the July/August issue of Lutheran Partners should have prompted us to be clearer about this. In speaking of the "bound conscience," the task force documents reference what philosophical ethicists often call the "critical conscience" — that is, the conscience of persons who have undertaken serious study of the issue, have entered into probing conversation, have listened to the criticism of others, and have arrived, after careful, informed consideration, at a firm moral commitment against which they feel that they cannot act without violating their own moral integrity.
3. The task force was very clear about its own internal divisions and dissents concerning both the social statement and the recommendations on ministry policies. The documents therefore represent the views of the majority of the members of the task force and not all the members.
4. Human Sexuality: Gift and Trust (Chicago: Evangelical Lutheran Church in America, 2009), 20-21.
5. Two collections of essays that I particularly recommend are Conscience, edited by John Donnelly and Leonard Lyons (Staten Island, N.Y.: The Society of St. Paul, 1973) and Integrity and Conscience, edited by Ian Shapiro and Robert Adams (New York: New York University Press, 1998). Part 4 of the volume edited by Donnelly and Lyons, offers especially valuable essays exploring "The Authority of Conscience" by P. H. Nowell-Smith, A. Campbell Garnett, John T. Granrose, and William Earle.
6. There is much to suggest that those who have been most distressed by the decisions made at Churchwide 2009 are those who would completely disagree with the task force assessment of the situation in the church as a conflict of informed and settled consciences, believing instead that the situation in the church is one of clear and obvious religious lapses, grounded in plainly identifiable faults, which the ELCA has failed to properly discipline.
7. Karl Rahner, "On the Origins of Freedom," in Karl Rahner: Theologian of the Graced Search for Meaning, ed. Geffrey B. Kelly (Minneapolis: Fortress Press, 1992), 125.
8. Ibid., 124.
© December 2010
Journal of Lutheran Ethics
Volume 10, Issue 12