Why claims of conscience matter

Lest we forget, our Framers put religious liberty, or freedom of conscience, first on the list of fundamental rights protected … Continued

Lest we forget, our Framers put religious liberty, or freedom of conscience, first on the list of fundamental rights protected by the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

Why first? In his famous “Memorial and Remonstrance,” James Madison put it this way:

Brandon Thibodeaux


A cross necklace hangs in front of Lucy West’s American flag t-shirt as she participates in the opening worship ceremony during the non-denominational prayer and fasting event, entitled “The Response” at Reliant Stadium August 6, 2011 in Houston, Texas.

But today, 220 years after the ratification of the Bill of Rights, claims of conscience seeking religious exemptions from government laws and regulations are frequently the last to be heard (if they are heard at all) in debates over public policy.

Has our “first freedom” become an afterthought – or, worse yet, an annoyance?

Consider the current battle over whether religiously-affiliated institutions must provide coverage for contraception in their health insurance plans. In the initial federal regulations, nothing was done to address the inevitable conflicts that would arise by mandating that religiously-affiliated institutions do what they cannot do as a matter of conscience.

Only after a political firestorm greeted the rules did the Obama administration scramble to provide an accommodation for claims of conscience. (Seven states and various religious groups are still challenging the modified regulations in court, arguing they don’t go far enough to protect religious liberty.)

Or consider the long-running fight in Washington State over whether to require pharmacists and pharmacies to dispense Plan B or other emergency contraceptives, even when doing so violates their religious convictions.

Last week, U.S. District Judge Ronald Leighton blocked implementation of regulations promulgated by the Washington State Pharmacy Board, pointing out that “the rules exempt pharmacies and pharmacists from stocking and delivering lawfully prescribed drugs for an almost unlimited variety of secular reasons, but fail to provide exemptions for reasons of conscience.”

Not to be deterred, the state is challenging the decision – and is given a good chance of prevailing in the court of appeals.

By criticizing the unwillingness of many in government to take religious conscience seriously, I am not arguing that religious claims should always trump other important societal interests. When religiously-motivated parents, for example, refuse medical care for their gravely-ill child, the courts have rightly ruled that the state has a compelling interest in ordering treatment.

But whatever the outcome, the government has a responsibility under the First Amendment to take claims of conscience seriously when laws place a substantial burden on religious practice.

This isn’t special pleading for protecting Christian conscience (the focus in these health care debates). In 2006, I applauded when the airport authority in Minneapolis attempted to work out an accommodation for some Muslim taxi drivers who couldn’t as a matter of conscience pick up passengers carrying alcohol. Unfortunately, public backlash against the accommodation caused the airport authority to drop it.

Of course, finding ways to accommodate religious conscience is a balancing act between competing interests – and accommodation isn’t always feasible. But if arriving airline passengers are easily able to get another cab, or if women employees are offered alternative coverage for contraception, or if pharmacy customers have easy access to a nearby store or another pharmacist, then government can and should find a way to provide the service while simultaneously upholding religious liberty.

Religious liberty is less about the freedom to do what one wants or enjoys – and more about the freedom to do what one must do according to the dictates of conscience. To our credit, American history is replete with examples of protecting the right of people to follow their conscience, from exemptions from combat for conscientious objectors to exemptions from the flag salute for schoolchildren.

Does it take work? Yes. Is it messy? Yes.

But doing whatever it takes to uphold religious liberty is what makes America, on our best days, a haven for the cause of conscience.

Charles C. Haynes is senior scholar at First Amendment Center and director of the Religious Freedom Education Project at the Newseum.

  • usapdx

    No person or group can take a right away from any American by the supreme law of our land, the Constitution which is by the people but not by any religion what so ever.

  • cricket44

    Medical situations, including going to the pharmacy, need to be treated differently. If one finds themselves *incapable and/or unwilling* to do their job, because of conscience, it is THEIR responsibility to find a job that allows them to do so. Their rights of religion do not take precedence over the other person’s right of medical care.

  • haveaheart

    At the crux of this issue is an oxymoron, “religious employers,” that is the source of all the controversy. Religion shouldn’t be a business; that’s why churches are given tax-exempt status.

    However, as we well know, many religions ARE in business, operating large and technically profitable institutions like hospitals and universities. The fact that these religious organizations have decided to move into the public sector and operate corporate entities doesn’t mean that they should carry their religious exemptions with them. “Religious liberty” does not guarantee the right of religious institutions to conduct profit-making businesses outside the constraints of federal law.

    “Religious liberty” also doesn’t convey protection for imposing one’s belief system on others. It simply means that one is protected in the personal practice of one’s religious beliefs. That is, no one can legally dispute your right to pray or prevent you from worshipping, organizing a congregation, building a sanctuary, etc.

    “Religious liberty” is all about YOU — what YOU do or don’t do; how YOU follow your conscience and the dictates of your church; whether YOU are living your life in accordance with the tenets and teachings of your religion.

    Many religionists make arguments like this one: “. . . there are millions of Catholic women who, along with their church’s leaders, object to subsidizing contraception, sterilization, and abortifacient drugs, whether they are employers providing them via insurance to employees or employees having the cost passed on to them.”

    The problem here, of course, is that said Catholic women are attempting to circumscribe behavior for those who don’t believe as they do. The church requires each Catholic woman to abjure the use of contraception; it does not oblige her to make sure that no other Catholic woman uses it.

    Living one’s conscience doesn’t always mean getting the government to accommodate you. Sometimes it means following your conscience and accepting

  • JosephD1000

    How hard is it for these as*-hats to understand that institutions, corporations, clubs, organizations, companies….. are by definition incapable of possessing a ‘conscience’. Only human beings can have a conscience.
    Rights and freedom exist only at the level of the individual, it’s not that hard to understand.
    Arguing that any corporation can discriminate against any citizen for any reason is idiotic and unconstitutional. Always.

  • jpbarber1

    Religious liberty is alive and well in America. It is not under attack . It’s the religious industry that’s attacking democracy and trying to force their so called values on everyone else. They preach more politics than Jesus. They are more about profit than conscience.

  • alert4jsw

    We are always free to act in accordance with our conscience. The real question is whether our actions are moral.

    Every action one takes in relation to others creates both costs and benefits to the actor and to those acted upon. Acting upon one’s conscience is intended to benefit the actor. And it is certainly within the bounds of moral action if others share those benefits. In fact, benefiting others is often the main purpose of our action.

    But in order for an action to be truly “moral,” all costs associated with it must be borne by the actor. If someone other than the actor must bear a cost, the action is no longer moral, but moralistic — which is the polar opposite of morality.

    To cite the popular example of the pharmacist whose conscience leads him to reject contraception, the only truly moral action is to find another line of work that doesn’t bother his conscience so much. In that case, he is bearing the cost of his moral position, and is acting in a moral manner. Trying to deny someone else the product that she (acting in accordance with her concience) finds acceptable is not morality, it is moralism — nothing more than bullying from behind a mask of piety.

    Understanding this, one can see that truly moral action requires no “conscience exception” to any law, Such exceptions are only necessary if one wishes to engage in moralistic bullying by forcing someone else to bear the cost of his convictions.

  • FamilyDocUlsterNY

    Amen, Brother. And those who hold to TRUE conservatism (libertarians) would agree: Your right to swing your arm ends, where my nose begins. ……………………….(And actually a good bit short of that, to avoid presenting a threat.)

  • ccnl1

    The reality of contraception and STD control:

    The Brutal Effects of Stupidity:

    : The failures of the widely used birth “control” methods i.e. the Pill ( 8.7% failure rate) and male con-dom (17.4% failure rate) have led to the large rate of abortions and S-TDs in the USA. Men and women must either recognize their responsibilities by using the Pill or co-ndoms properly and/or use safer methods in order to reduce the epidemics of abortion and S-TDs.- Failure rate statistics provided by the Gut-tmacher Inst-itute. Unfortunately they do not give the statistics for doubling up i.e. using a combination of the Pill and a condom.

    Added information before making your next move:

    from the CDC-2006

    “Se-xually transmitted diseases (STDs) remain a major public health challenge in the United States. While substantial progress has been made in preventing, diagnosing, and treating certain S-TDs in recent years, CDC estimates that approximately 19 million new infections occur each year, almost half of them among young people ages 15 to 24.1 In addition to the physical and psy-ch-ological consequences of S-TDs, these diseases also exact a tremendous economic toll. Direct medical costs as-sociated with STDs in the United States are estimated at up to $14.7 billion annually in 2006 dollars.”

    And from:

    Consumer Reports, January, 2012

    “Yes, or-al se-x is se-x, and it can boost cancer risk-

    Here’s a crucial message for teens (and all se-xually active “post-teeners”: Or-al se-x carries many of the same risks as va-ginal se-x, including human papilloma virus, or HPV. And HPV may now be overtaking tobacco as the leading cause of or-al cancers in America in people under age 50.

    “Adolescents don’t think or-al se-x is something to worry about,” said Bonnie Halpern-Felsher professor of pediatrics at the University of California, San Francisco. “They view it as a way to have intimacy without having ‘s-ex.’” (It should be called the Bill Clinton Syndrome !!)

    Obviously, political leaders in both part

  • nkri401

    Mr. Haynes,

    “…what one must do according to the dictates of conscience. ”

    I think what you really meant to say is “…what one must do according to the dictates of conscience of the church. ” and this makes you a pious baloney, I’m afraid.

  • longjohns

    I guess I should expect rational arguments coming from the contradictory standpoint of religion. However, it is still difficult to see how the following quotes belong on the same side of separation of church and state.

    ” I am not arguing that religious claims should always trump other important societal interests. When religiously-motivated parents, for example, refuse medical care for their gravely-ill child, the courts have rightly ruled that the state has a compelling interest in ordering treatment.”

    “Consider the current battle over whether religiously-affiliated institutions must provide coverage for contraception in their health insurance plans. In the initial federal regulations, nothing was done to address the inevitable conflicts that would arise by mandating that religiously-affiliated institutions do what they cannot do as a matter of conscience.”

    In other words when state regulations conflict with your religious belief of preserving life then state regulations should be ignored. However, when state regulations conflict with other people’s religious beliefs but agrees with your religious beliefs then of course state regulations trumps religious beliefs.

    I actually don’t have problems with the state forcing a secular agenda on either. It is only your selective application of conscience that is a problem.

  • hearthasreasons

    Do you really think that there are any significant choices I can make that impose no cost on any one but me? “No man is an island.” This sounds a little bit like the old anti-religious argument “You can have freedom of religion, as long as I can have freedom from your religion.” My religion–in other words, my personal belief system–impacts everything I do, every choice I make, every interaction I may have with another human being. The way I vote, the food I eat, the words I say, the clothes I wear, the media I consume. If you are interacting with me, you are experiencing my religion. And yes, my choice of profession is influenced as well.
    In many cases I would be sympathetic to the argument that living my religion is my burden, not someone else’s. But when the government mandates that all members of a certain profession engage in behavior that is not sanctioned by the dictates of my conscience, that profession becomes closed to me. It’s equivalent to imposing a religious test for pharmacists. We don’t do this in our country for elected officials, but for someone in a profession, it’s okay?

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