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