Wednesday, February 04, 2009

Religion and Conscience

On FindLaw today, I have a column about a Wisconsin case in which a girl died of diabetes because her parents decided to pray for her health instead of taking her to the doctor for treatment. The parents, charged with reckless homicide, claim that they had a constitutional right, as a matter of religious freedom, to utilize faith-healing to help their daughter. Accordingly, they claim, the prosecutor is acting in violation of the First Amendment. The trial judge has thus far rejected such arguments. My column addresses the broader question of how the law should handle religiously motivated anti-social behavior.

In this post, I am interested in examining the relationship between people violating the law (or indeed, deciding to opt out of a majority practice, whether or not their conduct violates the law), out of "conscience," on the one hand, and out of religious conviction, on the other. In either case, people feel that what they have chosen to do (or, in the case of faith-healing, not to do) is right and that the alternative is wrong. Should the source of conscience -- belief in a supernatural order from heaven versus one's own sense of right and wrong -- mean the difference between legally protected and legally unprotected behavior?

Consider an example. Joan and John both work for the abolition of capital punishment. Joan is opposed to the death penalty because she believes it is wrong to kill unnecessarily, especially when some of those killed are ultimately proved innocent of wrongdoing. For the same reason, Joan is opposed to the consumption of animal products. Because such consumption condemns nonhuman animals to suffer excruciating pain and death, and because neither the animals harmed nor the alternative plant-based diet that people could consume, poses a threat to human life or thriving that would necessitate the cruelty, she views animal consumption as unnecessary and evil.

Joan is not a member of an organized religion and does not believe in a supernatural entity that demands either faith or specific behavior from its/his/her earthly subjects.

John, on the other hand, is an observant Catholic and believes the death penalty is contrary to God's law. For the same reason, he is opposed to legal abortion, the use of contraceptives, and gay marriage. Both Joan and John express their opposition to the death penalty in legal and illegal ways -- they meet each other for lawful protests and candle-light vigils at prisons whenever an execution takes place in their state, and they both give lectures around the country aimed at educating people about the injustice of state-sponsored, cold-blooded killing. On the unlawful front, they together sabotage the equipment used in executions and illegally trespass to find out and then publicize the names of doctors who perform lethal injections, in violation of state law.

Under existing First Amendment doctrine, it is easy to reject any defense that either Joan or John might mount to a prosecution for their criminal actions, on the theory that the First Amendment provides no exemption from generally applicable laws. On the other hand, one might believe that Free Exercise should be more robust and should allow for exemptions, at least in areas in which the conduct in question is nonviolent. In the latter case, would it be appropriate for one to limit such protection only to John, as a number of state religious freedom laws do, because his opposition to the death penalty is a product of his religious faith, or should the protection extend to Joan as well, who believes just as strongly and fervently in the evil of capital punishment?

Notably, conscientious-objector laws are not always confined to religion-based objection. People opposed to all war on the basis of their conscience may avoid military service, even if their opposition is not tied to faith in the Divine or to religious tenets. Similarly, various states (including New York) permit high school students to opt out of animal dissection in science classes and take advantage of educational alternatives that do not require anyone to be slaughtered. In this as well, there is no requirement of religious faith.

Yet many of us think of the exercise of religion as adherence to a set of rules that people are typically taught as children and then feel compelled to follow throughout their lives, even if they do not always understand exactly why they are asked to do, avoid doing, believe or avoid believing in particular things. We tend to view conscience, by contrast, as more cerebral and deliberate. Joan can, for example, explain why it is wrong to torture and kill animals for consumption -- by invoking widely shared views about unnecessary animal suffering -- in a way that John may not be able to explain why he believes artificial contraception is wrong. If John says, for example, that every act of sexual intercourse must carry the possibility of conception, this is simply a restatement of the belief that others -- of different faiths or no faith at all -- may not share. If, on the other hand, John says that artificial contraception empirically leads to widespread infection with STD's, then people who reject his faith might nonetheless listen, but he is then no longer making a religious argument.

Despite these apparent differences, however, any time a person chooses to depart from community norms because she believes that what the community does is wrong, she is operating on the basis of a commitment to a higher moral principle. That moral principle may come from a faith in religion, or it may come from a moral or philosophical conviction, but either way, the person has chosen a morality that differs from the group's morality, and the group must now decide how important it is to assert its dominant vision over dissenters. This is in part why the freedom of speech appears in the same First Amendment as the religion clauses do: if you are following the rules of the group, you need no constitutional protection; if you find a conflicting set of rules or ideas more compelling, for whatever reason, your dissent makes you vulnerable in the absence of a freedom of thought, speech, and conscience.

"Religion," broadly understood, therefore may refer to moral commitments that people view as trumping their obligation to obey the law. When such commitments do not significantly threaten the well-being of others, it is just that the law permit them to flourish, whatever their source might be. (For an extended defense of a similar interpretation of the religion clauses of the First Amendment, see Christopher L. Eisgruber and Lawrence G. Sager, Religious Freedom and the Constitution).

Posted by Sherry Colb


egarber said...

Incredibly thoughtful post and findlaw piece.

Here's one conflict I can never seem to reconcile:

Consider "conscience clauses", whereby pharmacists can refuse to issue morning after pills, contraception, etc., for religious reasons. I understand that such laws are intended to fortify and accommodate free exercise. But from an establishment clause standpoint, how can they pass the lemon test?

In other words, by definition, such laws do NOT have a secular purpose (do they?). And they seem to entangle the state with religion in a dangerous way: determining the very definition of what constitutes a valid form of exercise.

On an unrelated note, our puppy is having his surgery today. Consider it our economic stimulus contribution :)...

Sherry F. Colb said...

egarber makes a good point. I am generally not comfortable with the conscience clauses for pharmacists, because -- unlike, for example, people who might have to perform actual procedures, the role of the pharmacist seems removed enough to override personal moral commitments on theory that "this is part of the job." I have a column on this topic at the following site:

Though I do not discuss the establishment clause issue in itself, I suspect that any religion-based exemption recognized by the law could potentially be characterized as "establishment," but that would seem to me to go too far.

Defining religion as conscience does help remedy the problem a bit, it seems to me, by no longer requiring people to invoke any sort of supernatural belief to defend their entitlement to an exemption. I wish your puppy a speedy recovery from surgery!

Unknown said...


Religion-based exemptions are frequently held not to violate the Establishment Clause. See Corporation Of Presiding Bishop v. Amos (1987) and Cutter v. Wilkinson (2005), both unanimous opinions. Are you suggesting that Title VII Section 702, RFRA, and RLUIPA all violate the Establishment Clause?

As for how to reconcile these decisions with the Lemon test, I think the answer is that removing a burden on free exercise has a secular purpose because it furthers a constitutional goal of guaranteeing religious liberty. That is, even if those burdens would not violate the Free Exercise Clause, removing those burdens might still have a secular purpose of further promoting religious liberty. As for entanglement, I think it's difficult to argue that relieving a group of a conscientious burden *excessively* entangles government and religion.

egarber said...


I realize that there are plenty of examples where free exercise is protected intentionally -- such as in the laws you present. My struggle is sort of Madisonian, I guess. I see religious liberty as a rule that keeps faith / conscience "beyond the cognizance" of government. Meaning, religion exists in the wider sea, and government is limited to an island. As a result, part of me worries when the government makes *any* kind of qualitative decision in this area (free exercise or otherwise).

So while I can understand and sort of accept your argument that protecting free exercise is itself secular, it can manifest itself in troubling ways, imo.

For instance, suppose a state passes "conscience clauses" around abortion and contraception, where doctors can refuse to issue certain prescriptions. What happens if I practice a faith that shuns the use of certain medicines? I go to the legislature for the same protection, and I'm told my faith isn't legitimate (or not legitimate enough for legal protection). So I'm basically screwed if I want to be a doctor, whereas the Christian in the former setting gets a leg up from the government. I can't comfortably call that disparity -- where the government ends up deciding what constitutes valid belief in the first place --secular in nature.

But your points are well taken, of course.

egarber said...

Of course, one answer in my last scenario could be a requirement that such laws must be broad, so they don't indirectly discriminate against any faith. But then, you've created a tidal wave -- because any and all regulations governing conduct might therefore become only "suggestions"...

Unknown said...

Well, your points are well taken as well! I don't know how to resolve your hypothetical problem. But I don't think that the current Establishment Clause law prohibits these religion-based accommodations. Perhaps the best solution would be to interpret the Religion Clauses to contain a robust non-discrimination injunction, so that any acceptance of one group's conscientious claim but not another's similar claim would create a presumption of a constitutional violation.

egarber said...

But I don't think that the current Establishment Clause law prohibits these religion-based accommodations.

Oh yeah, I'm pretty sure you're accurately reflecting current precedent. I suppose I'm questioning those precedents. I'm just a blogger -- stare decisis be damned :)

mhp said...

One thought. I am very interested in the distinction between a "religious" argument and other forms of argument ("cerebral" or "deliberate," as you put them) and why the the Constitution might view the two differently. Might the answer be that the theory underlying a deliberative democracy assumes that we are all starting from the same set of premises and from those premises debating which social policies make the most sense? If so, one who does not share the majority's premises is left out of this process--thus the marginalization of their views is not a function of the political process but a failure of it, which is exactly when (according to some) the Constitution should intervene.

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