To say religious liberty is a hot topic is an understatement in the aftermath of the Zubik case, wherein the Little Sisters of the Poor and others sued the government on religious liberty grounds to not be forced to provide their employees with insurance coverage for contraception and sterilizations. It is an important time to secure not only legal protections for religious liberty, but also to strengthen society’s understanding of why religious liberty deserves such protections. Yet the kinds of argument for religious liberty that some religious adherents have been using in public are weak. One such argument is the argument that religious liberty is ultimately based on one’s individual conscience.
Recently, I was asked to serve on an interfaith panel of speakers regarding the right to religious liberty. One panelist, a legal expert, insisted that the civil right to religious liberty is ultimately based on the individual’s right of conscience. Some American Christian intellectuals have also appealed somewhat exclusively to the rights of conscience in their public argumentation for religious liberty, especially those intellectuals associated with the “new natural law” school. Even as some Catholic public statements have offered lucid and cogent arguments for religious liberty, some statements of our bishops have also lapsed into the argument from the rights of conscience. The nature of the challenges to religious liberty in America are such that appeals to the right of conscience will at best temporarily avert illicit governmental interference in religious institutions.
Conscience alone cannot be the foundation of a civilly-expressed right, even on Catholic theology’s own grounds. Conscience does not have a right in its mere sincerity to demand accommodation from civil society, even if society has reasons to tolerate sincere consciences. Standard Catholic political theology points rather in the other direction: civil law, so long as it is compatible with the eternal law of God, binds in conscience on account of the importance of the common good of the political community. One’s own conscience, while certainly the proximate norm of our actions, is a norma normata—normed by divine revelation, right reason, just laws, etc.
Herbert McCabe, OP, for example, argues that thinking of a sincere conscience as a final authority is problematic. Tolerance for sincere consciences may be an instance of political prudence to attain the greater good, but sincere conscience cannot be the ultimate basis for civil liberties. He gives an example: “It is not the strength and sincerity of my conviction that the use of nuclear weapons must always be evil, but rather the grounds for this conviction that make it morally right for me to refuse any co-operation with such use. Obviously, no members of a tribunal could accept these grounds without becoming conscientious objectors themselves; short of this they can only make a sensible, and therefore just, decision to tolerate me” (God Still Matters, 155). The tribunal estimates that worse evils would occur were such conscientious objectors locked up, or at least finds no significant damage to the social in their position, and so tolerates them. But if a greater evil emerges in tolerating conscientious objectors, then tolerance is out. “The truth of this can be seen, I think, if we ask ourselves whether there should be tribunals to judge whether a man really holds as a matter of conscience that he should strangle all Jewish babies at birth…” (ibid.). The sincerity, even if verified sincerity, of someone’s conscience is an insufficient argument for a civil right.
There is a parable here for religious liberty, that religious liberty needs a deeper grounding than individual conscience. Rather, appeals to conscience in religious liberty are strong insofar as they are grounded in religion itself, for conscience is our “secret core and sanctuary” where we discover the will of God found in the moral law (Gaudium et spes 16). Appealing to the American Founding Fathers to authenticate an argument for religious liberty being grounded in conscience is insufficient and even question-begging. It also belies the theoretical and practical diversity among the Founding Fathers themselves regarding the kind of respect that religious conscience deserved (cf. Muñoz’s God and the Founders). Jefferson certainly wanted clerical influence reduced. George Washington thought both that government should encourage religious liberty, and also that Quakers had no legitimate religious claim for refusing any military service whatsoever.
That conscience alone is insufficient grounds for a natural and civil liberty in matters religious was already discussed at Vatican II during the drafting process for Dignitatis humanae. The first two drafts of DH were mainly based on the appeal to sincerity of conscience, and were widely criticized for failing to show how even a sincerely erroneous conscience commanded civil respect. John Courtney Murray recognized the inadequacy of the conscience-only argument and introduced his juridical-social argument into the third draft. The final position of DH was shaped by the council’s acceptance of the French and Polish bishops’ desire for a deeper “ontological foundation” for religious liberty, a foundation tying together our rational, religious nature with civil liberty in religious matters. Every person has the right to free exercise of his or her religious conscience in society on the basis of the human person’s deepest need for the truth about God, found and lived out in a social way (DH 2 § 2). In any case, there was a concern to avoid basing religious liberty on conscience alone. This is not to say that conscience has nothing to do with religious liberty, as DH 3 points out regarding the inner and free nature of religious acts.
In addition, the Catholic position recognizes the legitimacy of public authority limiting religious exercise when the practice of someone’s faith contradicts the “just public order” (DH 2, 3; cf. 7 § 3). In a nutshell, the public order is that fundamental part of the common good necessary for society’s continued existence and which public authority must preserve even by coercion. Since society has the right to preserve its existence, public authorities can restrict any exercise that threatens that fundamental core of social life. One contribution of DH to questions of religious liberty is found in the Church’s clarification of the integral parts of public order: public justice (the fundamental human rights of others), public peace, and public morality. Thus the claim of a religious conscience to practice human sacrifice, polygamy, cultic prostitution, or strangling Jewish babies is rightly denied by public authority. Similarly, an employer could not expect civil respect for a claim, based on conscience, to a religious exemption from paying workers the state’s minimum wage. One might say that the Catholic tradition’s view of the compatibility of basic social life and the demands of religious practice stems from her ancient condemnations of Marcionism and Manicheism: the one who is Truth and Good is both the author of creation, including political society, as well as the author of salvation.
What is at stake in American debates about religious liberty are questions pertaining to what is the just public order. When Catholic hospitals have been sued for not allowing abortions, the cases are currently being won on the basis of religious liberty. Yet such cases also involve a question of public order. A right to kill one’s unborn child cannot be weighed against a Catholic hospital’s right to refuse to kill an unborn child. The reason is that the former right claim contradicts the fundamental human right of the unborn child to life (St. John Paul II, Evangelium vitae 71, citing DH 7 on public order). Abortion itself therefore contradicts public order and thus is not a true right. The Church does not think that the refusal to perform an abortion (or a sterilization) is only a faith position, rooted in one’s inscrutable conscience. Involved in such religious liberty cases is also the question of what are the fundamental rights of every person, and what is genuine health care.
A similar mixed religious liberty issue looms regarding what Pope Francis has called “the ideology of gender” (Amoris laetitia 56). Is there a fundamental right to change one’s sex and have others, in their public utterances, acknowledge the sex change? A right to claim a gender-identity contrary to one’s sex, or to teach children the moral legitimacy of the same? If so, denying the right would be unlawful discrimination, no matter what one’s individual or institutional conscience says about it. Rather, what is at stake is the created given-ness of our embodiment, which is “prior to us.”
Pitching religious liberty exemptions as the deliverances of inscrutable, individual consciences that should simply be respected will not help the cause of religious liberty or the freedom of the Church. Strict legal scrutiny of cases based on RFRA will work in the short term, though even RFRA will not prevent courts from placing or even manufacturing human rights more important than religious liberty (and hence satisfying the compelling interest test). The danger of positivistic legal appeals to conscience will only confirm the sense that the Catholic faith poses an irrational threat to public order.
In the place of conscience alone must be the argument that religion in its fullest sense is the highest human good, a good that simultaneously transcends and benefits the political order. “Freedom to serve” has a double meaning, the Mosaic call to go out as a people and serve the living God; and the freedom to serve one’s fellows according to the precept of pure religion. This follows the historical emergence of liberty in the West in the libertas ecclesiae. The transcendence of religious acts beyond the political sphere (DH 3 § 5; cf. John 18:36) requires that government make space for religion to be taken seriously and lived out. Religion is a true human good, even the highest. For this reason, government would betray its mission if it were to treat religious liberty as anything other than “the first right” and not to favor religious exercise. Whatever the case, Catholics in particular must drop the simplistic appeal to mere conscience as the basis for religious liberty, however, as though we were Enlightenment Deists and did not ourselves acknowledge that a sincere conscience does not permit everything. Instead, let us explain why conscience is the human person’s “secret core and sanctuary” and must be respected: it is because there “God’s voice echoes in the depths” (Gaudium et spes 16), calling us to serve him and one another.
Barrett Turner is assistant professor of theology at Mount St. Mary’s University, in Emmitsburg, MD. He recently completed his doctorate in moral theology and ethics at the Catholic University of America, writing on the development of the Church’s social doctrine on religious liberty.
It’s important to note that this essay reflects a common but significant misunderstanding of Dignitatis Humanae and the Catholic tradition on religious freedom. This essay says that the right to religious freedom is founded “on the basis of the human person’s deepest need for the truth about God, found and lived out in a social way.” That is something very commonly heard by folks backing the Little Sisters and more. And it is not correct. Dignitatis Humanae says instead that the right “has its foundation in the very dignity of the human person as this dignity is known through the revealed word of God and by reason itself.” These two ways of putting things do not say the same thing. It is time for the Catholic Church in the United States to adopt the actual language of Dignitatis Humanae and articulate the basis of the right in dignity understood as the freedom and responsibility to seek truth, whether that is religious truth or not (cf Dignitatis Humanae #2). Much more to say here. But this incorrect understanding has been bandied about for way too long.
The current state of affairs in the United States on freedom of religion and more precisely, the free exercise thereof, is worse than a distinction between freedom of conscience, which is the basis of religious liberty, meaning the right to choose one’s religion, or none at all, and the free exercise of religion, meaning the right to act or practice one’s religion with a unity of person in public and private life, as enshrined in the 1st amendment to the US Constitution in the Bill of Rights, immediately following the the opening clause limiting government from establishing a religion, and followed by the clauses restricting government from infringing upon the freedom of speech, the press, assembly, and redress of grievances.
Liberty is losing bigger than the federal government merely overreaching to prohibit the free exercise of religion. What has happened during the current presidency infringes upon not only religious liberty but also free association in the conduct of private affairs, and more recently we begin to see localities also directly infringe upon the freedom of speech in requiring, by policy and in law, reference to persons who identify as transgendered by a sex designation of their choosing, to include other than their biological sex, under penalty of law, including private businesses.1
Any public policy can be construed as synonymous with a compelling state interest, to restrict not only the free exercise of religion, but also freedom of association, and freedom of speech, in favor of other rights, not expressly found in the Constitution. The right to abortion, the right to contraception, the right to regulate speech to conform to, not an established norm, but a newly imposed norm by the will of government, even when contrary to facts of science.
Aside from official church institutions, members of the religious life, or explicitly ‘faith oriented’ organizations, who are all nonetheless targets of submission to new found, compelling states interests, where is the Constitutional protection of the common man and women from laws that would force their participation in acts of intrinsic evil, sin, or those demonstrably inconsistent with scientific fact? Surely, the right of free exercise of religion was never limited to only formally and officially religious institutions, but all and everyone. It is a personal, individual civil right.
When we are arguing merely to let nuns not be forced to pay for abortions and contraception, while the rest of us must, we have lost more than free exercise of religion. We have lost our right to freely associate with whom we choose, to engage in commerce as we would, within the framework of just laws established within the confines of a constitutional republic. We have lost the right to call a demonstrably biological man ‘he’ or a biological woman ‘she’ at their whim or be faced with fines in NYC. In some states, we have lost the right to refuse to participate in gay marriages if we own a business and fail to provide services for that reason. Where is the compelling state interest there?
These acts, in my view, begin to establish a state religion where the state decides according to its own dogmas, it is unjust and requires remedy in force of law to offer insurance to employees if abortion and contraception are not covered. It is an injustice to call a man a man and a woman a woman at their discretion, or face stiff fines. It is unlawful beyond individual discretion to refuse to participate in a gay marriage by not providing services sought, and all of these tenets trump clearly defined and articulated Constitutional rights found in the first of the Bill of Rights that founded the republic – our first rights derived from our first principles.
The distinction is interesting, between religious liberty and the free exercise thereof, and their basis in natural law, but I think we are beyond reasoning so fine a point. There is not just the one bedrock liberty under threat. The arguments needed are more comprehensive than that.
Pax et bonum
1. http://www.nyc.gov/html/cchr/html/law/gender-identity-legalguidance.shtml