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Protection of Conscience Project

Service, not Servitude
Legal Commentary

Taking (Conscience) Rights Seriously

Originally appeared 11 June, 2012
In Public Discourse: Ethics, Law, and the Common Good
Online journal of the Witherspoon Institute of Princeton, NJ

Reproduced with permission.

Melissa Moschella*

The key to understanding conscience rights correctly is to recognize that there is a world of difference between a law that makes me do something I don't want to do, and a law that makes me do something I have an obligation not to do.

As a pluralistic liberal democracy, we should craft our laws so that individuals will never be unnecessarily coerced into violating their consciences.

Recently Catholics stood up in a united protest against the Department of Health and Human Services' mandate that requires employers to provide insurance coverage for contraception, sterilization, and abortion-inducing drugs, filing 12 lawsuits on behalf of 43 Catholic entities across the country. They claim that the mandate runs afoul of the First Amendment and the 1993 Religious Freedom Restoration Act by requiring them to pay for or to facilitate access to products and services in violation of their sincerely held religious beliefs. They joined a broader interfaith coalition that now includes 53 groups filing 23 lawsuits.

To many, including the editors of the New York Times, opposition to the mandate seems like an attempt to impose Catholic views about contraception on the rest of the society, or an unjustified request for special treatment. Why should a minority of Catholics (together with some other Christians who object to the abortion-drug aspect of the mandate) determine public policy for the entire country? Yes, the government could provide free access to contraceptives without conscripting employers to do it for them through their health plans, but why should we bend over backwards to adapt our policies to the religious or moral sensibilities of a minority?

These common objections invite a broader reflection about why, as a pluralistic liberal democracy, we should indeed bend over backwards to craft our laws so that individuals will never be unnecessarily coerced into violating their consciences. Unnecessarily, as we'll see, is the key word, for conscience rights aren't absolute trumps; they are conditioned by the needs of public order and others' rights. Given their fundamental importance, however, the common good requires respecting conscience rights unless it is absolutely necessary for the achievement of a truly compelling state interest-as it would be, for example, if a religion required its members to engage in human sacrifice, or to act violently toward nonbelievers.

The key to understanding conscience rights correctly is to recognize that there is a world of difference between a law that makes me do something I don't want to do, and a law that makes me do something I have an obligation not to do. The former is an annoyance, the latter an assault on my moral integrity. I may not want to follow the speed limit, but that doesn't give me a claim to be exempted from the law. On the other hand, if I believe that killing animals is morally wrong, no law should force me to serve meat in my business's cafeteria, or give my employees gift certificates to a steakhouse, even if encouraging people to eat more high-protein foods would promote public health.

Likewise, I may think that taking a hallucinogenic drug such as peyote will improve my overall health and happiness, but only if I believe I have an obligation to use that drug-as do members of the Native American Church in some sacramental contexts-do I have a special claim to an exemption from laws that forbid me to do so. That's why, after the Supreme Court concluded it was unable to grant Native Americans in Oregon such an exemption in Employment Division v. Smith, lawmakers rightfully responded at the state level by adding an exemption to the Oregon drug law, and at the national level with the Religious Freedom Restoration Act, prohibiting the government from substantially burdening the free exercise of religion unless there is no other way to achieve a compelling state interest.

My point is not that the Supreme Court decided Smith incorrectly; analyzing the Smith decision would require also considering the scope and limits of judicial authority to overturn laws duly enacted by the elected representatives of the people, and that is not my subject here. Rather, my point is that, as a matter of principle, members of the Native American Church, like others in a similar situation, have a right to an exemption from laws that prevent them from practicing their faith. The accommodations granted to them for the sacramental use of peyote were neither a case of unjustified special treatment, nor a case of the Native American Church imposing its views on everyone else. Rather, those accommodations were based on the recognition that a burden on individuals' ability to follow their deeply held beliefs-not just desires or preferences, but beliefs about how they are obligated to live-is a unique and uniquely threatening type of limitation on individual freedom.

Yet one might ask, as Brian Barry does in Culture and Equality, why we should treat a religious belief, or any perceived moral obligation, differently from a mere desire or preference. Why should the law distinguish between, for example, those who sincerely believe that smoking marijuana from time to time will enhance their overall quality of life, and those who, like the plaintiffs in the Smith case, believe that they have a religious obligation to ingest peyote in sacramental contexts?

Laws exist to promote the common good, which includes, as a constitutive element, the integral well-being of all members of society. Integral human well-being is perfectly compatible with (indeed, often requires) acting against one's preferences or desires. Even reasonable preferences often need to be set aside if one is to form and follow a coherent plan of life, remain faithful to one's commitments, favor and foster the common good of one's communities, treat others fairly, and generally abide by the moral norms that structure and guide practical decision-making in accordance with the requirements for genuine human flourishing. Thus when following the law-which serves the common good by, among other things, solving coordination problems-requires one to act against one's preferences, no harm to one's integral well-being is involved.

This does not mean that justice places no limits on the extent to which, or the manner in which, law restricts the pursuit of reasonable preferences. In order to serve its function of promoting the common good, the law should avoid unreasonably restricting individual liberty with regard to the pursuit of reasonable preferences, and should also try to avoid unfairness in distributing the benefits and burdens of common life, among which are inevitable restrictions on freedom.

Unlike failing to act on a reasonable preference, failing to fulfill a perceived obligation-failing to follow one's conscience-is always incompatible with integral human well-being. This is true even when one is objectively wrong about the content of one's obligations.

Unlike failing to act on a reasonable preference, failing to fulfill a perceived obligation-failing to follow one's conscience-is always incompatible with integral human well-being. This is true even when one is objectively wrong about the content of one's obligations. For moral acts are not mere physical chunks of behavior, but are specified by what one's will is choosing in choosing to perform an action. An action is good insofar as one's will, in choosing that action, is in line with a will toward integral human well-being. Now, if one believes that, for example, ingesting peyote in a sacramental context is morally obligatory, in choosing not to do so one is, among other things, choosing not to fulfill a moral obligation. Because fulfilling one's moral obligations is a basic and constitutive aspect of human well-being, a direct choice not to fulfill an obligation is out of line with a will toward integral human well-being. The exact content of the obligation is irrelevant; what matters is that, from the perspective of the acting agent, the agent is choosing not to fulfill an obligation.

Of course, in the face of laws that prohibit one from acting in accordance with a perceived obligation, one can still choose to fulfill that obligation and face the legal penalty. Especially when the penalty is severe, such a choice is heroic. But laws, which aim to foster the common good, which includes the good of each individual, should not create powerful incentives for individuals to act against their genuine well-being. Laws should not, in other words, force us to be heroic in order to maintain our moral integrity.

Further, laws that forbid individuals to act in accordance with the dictates of their consciences place a burden on those individuals that differs not only in degree, but in kind, from the sort of burden involved in forbidding someone to act in accordance with mere preferences, however strong. Such laws-even when, like the Oregon drug laws at issue in Smith, they are otherwise reasonable-fail to distribute the benefits and burdens of social cooperation fairly. Individuals whose conscience rights are burdened by a law therefore have at least a prima facie claim of justice to an exemption from that law, although that claim may be defeated in cases where granting it would be incompatible with the protection of others' fundamental rights or the preservation of the public order.

This brings us back to my point about unnecessarily burdening conscience. One might make the counterargument-returning to the HHS mandate debate-that others' fundamental rights are at stake in this controversy. Many believe that what is really at issue is a woman's right to control her own body. Further, some individuals believe themselves to have an obligation to use artificial birth control, and thus their conscience rights are at stake as well. Yet even if we take both of these to be valid rights claims, it takes only a moment's reflection to realize that rescinding the HHS mandate would violate neither.

Rescinding the mandate would not make contraception illegal. Those who want to use it, or believe themselves to have an obligation to use it, remain free to do so at, I might add, rather negligible financial cost. Even if one has a fundamental right to do something, that does not imply that one has a fundamental right to have someone else foot the bill. Catholics have the obligation, and therefore the right, to attend Mass on Sundays, but that does not mean that the government is required to pay for their transportation costs. Further, even if the government believes that promoting artificial birth control use is such a compelling state interest that it ought to be promoted by removing all possible disincentives (including financial ones), that goal could easily be pursued in ways that do not burden the conscience rights of other citizens.

Finally, for those more convinced by pragmatic considerations than abstract arguments about the requirements of justice, let's not forget that as a political community we also have good practical reasons to avoid making laws that undermine religious practice, because religion in general makes a crucial contribution to civil society. Religion combats individualism-which, as Alexis de Tocqueville famously pointed out in Democracy in America, is one of the great dangers to the health and survival of democratic nations-by producing in people a sense of gratitude and a desire to serve others. That's why, as Robert Putnam and David Campbell show in American Grace, religious people across the board have much higher rates of civic participation and volunteerism than non-religious people. Catholic Charities, for example, provides some 6.5 million meals to the hungry each year, along with many other social services to the poorest and most vulnerable in our society. Do we really want to force these charities either to limit their ministry to fellow Catholics in order to qualify for the HHS mandate's extremely narrow religious exemption-the narrowest ever in the history of federal law-or to pay crippling fines that will leave them with no choice but to cut their services?

We live in a highly pluralistic society that includes people of many different faiths and of no faith at all. If we are to live together peacefully and cooperate for the common good, we should seek all possible alternative routes before choosing a path toward public goals that rides roughshod over conscientious beliefs, even beliefs with which we strongly disagree.

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