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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:
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.