Recently the Colorado Supreme Court overturned the death sentence of a convicted murderer because jurors had consulted a Bible during their deliberations and had argued chapter and verse in choosing life or death for the defendant. After grazing through Romans and Leviticus, they settled upon the passage about “an eye for an eye, a tooth for a tooth,” and voted unanimously for execution. Citing concern that the jurors appear to have turned to “higher” authority rather than the law of the state, the Colorado Supreme Court’s decision was a wise one, recognizing the threat posed by the insertion of biblical passages in the interpretation of laws passed by men in a representative democracy. But the problem is likely to continue to be a thorny one. Colorado, as it turns out, has an unusually directive yet amorphous set of jury instructions, one of which explicitly exhorts jurors to consult a “moral compass” in capital felony cases. It’s an interesting reference in these times, when we slap the word “morality” on everything from individual opinion to ethical guidelines to constitutional principles to religious imperative.
The very purpose of the jury system in common law is to bring community norms to the process of adjudication, whether the wisdom of “peers” (literally the peerage in earlier English history) or the “common sense” of the ordinary citizen or the “reasonable doubt” of the reasonable person. This implies some process by which jurors determine an accused’s fate by, first, evaluating what did or didn’t happen through the filter of their own ability to connect the dots, their sense of witness credibility and their empathy; and, second, measuring these factual conclusions against a given set of rules we as citizens agree to honor as the law. Colorado’s appeal to jurors’ morals is, I should think, an underscoring of the normativity inherent in the open-minded, communally reasoned deliberation that is essential to part one of their role. When it comes to the second part, however, the law, as instructed by the court, must be the compass, the yardstick, the rule. It is not what your mother taught you or what your boss instructed or even what you think God commanded.
Our court system was designed to moderate human behavior in the face of moral ambiguity and in the absence of specific bullhorned answers from God. Laws against murder, of course, reflect religious commandments not to kill. But what happens when someone runs a red light and kills a math prodigy? When someone kills an intruder attempting to harm a child? When a convicted strangler asks the state, with a tortured little smile of anticipatory pleasure, to execute him by strangulation, pretty please? We could have the city council throw knucklebones, or have our tribal elders engage in haruspication; but as a society we’ve come up with our own time-tested system of civic rituals, of procedures and presumptions–the legal process that is due to each of us. Our laws are passed by the men and women we charge to instantiate our morality as best they can, Tom DeLay notwithstanding. Jury instructions are like traffic cones for those laws, signaling the way toward consistency and consensus, balancing the power of the state against those whose liberty is subject to it.
Let me shift the frame a bit. There is, of late, a movement among some health professionals, including doctors, pharmacists and insurers, to exercise so-called “right of refusal.” A pharmacist, for example, will decide that as a matter of personal conscience he will not issue drugs of whose use he disapproves. In practice this refusal seems largely informed by religious conservatism, and thus the refusal seems to crop up almost exclusively in the context of drugs affecting women’s reproduction. Some pharmacists have refused to sell contraceptives to any but married women. Unmarried women have been lectured on the sins of premarital fornication. Some pharmacists have refused to issue the morning-after pill or other abortifacients, calling it baby-killing. The variations have been endless, as varied as the personal tastes of the health providers themselves. At least twelve states have passed laws allowing medical professionals to refuse to dispense medicine or care on general “moral” grounds.
It is an interesting development, this opt-out based on personal belief. While the boundary between personal and professional judgment is not always easy or clear, if indeed pharmacists put their own beliefs before the guidelines of the profession by which they are licensed, they ought to have to accept that they have, in effect, chosen not to be pharmacists. As in the example of the jury room, these new “refusal clause” laws put privatized moral interests in direct contention with the public interest. They may permit professional ethics to be replaced by religious or paternalistic belief. And although done in the name of choice or moral integrity, it certainly appears to have more to do with the right’s longed-for disintegration of “secular humanist” society. The refusal to go along with anything with which you disagree may indeed be a principled individual choice, but it should not be allowed legally to displace collectively reviewed scientific findings, or to substitute for the codes of behavior we demand as a condition of handing out professional licenses. To the extent that that happens, we open the door not just to random disruption in healthcare but a sidelining of the already embedded moralism of our social compact.
It’s true that we live in a moment when the notion of a moral compass is so politically vexed that it ought to be depicted with its little needle spinning like a pinwheel in a good stiff breeze. One can rather too easily imagine jurors spinning that compass a bit like the wheel of fortune: Round and round one’s destiny goes, where she lands, nobody knows. The Ten Commandments? The law as laid down by that guy on Oprah? Sermon on the Mount? Madonna quoting the Kabbalah? Aaaand it’s Leviticus! Down the chute you go! The dangers of such a model were more foregrounded in our public discussion only a few years back; no longer, I suppose. But it is, after all, the commitment to a civil bond over time that keeps us tolerant, distinguishes us as citizens and commits us to justice rather than vengeance, to consistency rather than short-term outcome, to the greater good rather than the exclusivity of individualized whim.