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.