Freedom of conscience
Presented to the Rotary Club
Powell River, British Columbia, Canada: 10 September, 2014
Thank you for inviting me to speak to you this evening. C.S. Lewis once
observed that a lifetime of learning leaves a man a beginner in any subject,
so I am here as a beginner who is still just beginning. The specific focus
of the Protection of Conscience Project is freedom of conscience in health
care. However, rather than address issues specific to health care I am going
to speak more generally about freedom of conscience. I think a broader
approach, a bigger picture, will be more useful for you as Rotarians. I'll
begin with some notes about the history of freedom of conscience and
1. Freedom of conscience
Our modern notion of freedom of religion began in Europe with the
Reformation. Freedom of conscience was at the service of freedom of
religion. It was the necessary (though not sufficient) condition for freedom
of religion, since the decision to convert from one religion to another
depended on the judgement of conscience. For the next four hundred years,
when "freedom of conscience"appeared in law, it was - almost without
exception - always in its Reformation context, directly linked to freedom of
The proclamation of the Universal Declaration of Human Rights in
1948 marked the first time that freedom of conscience and freedom of
religion were clearly distinguished in law.1 Since that
time, freedom of conscience has appeared in numerous national constitutions
that used the Declaration as a template. But the Declaration had a
limitation that has been inherited by subsequent constitutions and charters
- including our own.
French philosopher Jacques Maritain was one of the driving forces behind
the Declaration. He identified the limitation at the time. He
explained that the Declaration was, in a sense, only an action
plan. It was an agreement only about how people and states ought to behave.
There was no agreement about why they should behave that way, and -
important in the present context - no agreement about the origin, definition
or nature of freedom of conscience.2
So, historically speaking, freedom of conscience is a relatively new idea
in law. That may explain why so many seem to see freedom of expression,
association and assembly as blessings to be celebrated, but freedom of
conscience and religion as problems to be solved.
2. The importance of belief
On the other hand, we also hear that freedom of conscience and religion
are problematic because conscience and religion depend upon "blind faith:"
upon "mere belief," not scientific knowledge. And it is true that belief is
something less certain than knowledge. We say that we know something only if
we see it directly or if it can be demonstrated with scientific or
Nonetheless, belief is essential to society in a way that scientific
certainty is not. Human society exists wherever people live together,
whether or not they are scientifically or technologically advanced. But
society cannot exist without belief - without faith in other people. If
people were unwilling to trust one another or accept the learning handed
down from their forebears, human society could not function or progress.
Every generation would have to start from scratch to re-invent the wheel or
re-discover decimal numbers.
This is also true of science. No physicist, for example, would work
through every experiment performed for the last hundred years in order to
personally verify everything learned during that time. This does not mean
that scientists need never verify what other scientists tell them. It does
mean that they must accept far more on faith than they could possibly
establish by experiment.
So the next time you hear someone pontificating about the stupidity of
blind faith or the foolishness of mere belief, ask him if he knows
his date of birth.
3. Everyone is a believer
On reflection, it is reasonable to believe that knowledgeable and
trustworthy people can teach us things that we, ourselves, know little or
nothing about. We believe what trustworthy people tell us unless we have
some reason to doubt them. This is not "blind faith."
However, people are also believers in a more profound sense. Rotarians,
for example, believe in "the practical ethical principle that 'One profits
most who serves best.'"3 Your 4-way test demonstrates
that you believe that truth exists and that we can know what is true, and
that justice exists and we can know what is just.4 If
you didn't believe that, your 4-way test would be meaningless. I have no
doubt that everyone here also believes in human dignity and equality.
But if you believe these things, it will not be because they are facts
demonstrated by science. Science can prove many things, but the reality of
justice and of human equality are not among them. That human dignity exists
- or that it does not - or that human life is worthy of unconditional
reverence - or merely conditional respect - these views are not the products
of scientific enquiry. They rest upon faith: upon beliefs about human
nature, the meaning and purpose of life, the nature of good and evil. The
classic ethical question, "How ought I to live?" cannot be answered by any
of the disciplines of natural science, though natural science can provide
raw material needed for adequate answers.
The fact is that our lives, and the right ordering of our lives and of
society, depends primarily upon reasonable belief. This is not a bad way to
live. On the contrary: it is the only way we can live as human beings, and I
think the principles of Rotary implicitly acknowledge that.
4. All beliefs influence public behaviour
All public behaviour - how one treats other people, how one treats
animals, how one treats the environment - is determined by what one
believes. All beliefs influence public behaviour, and the history of Rotary
demonstrates that Rotarians have always recognized this. Your public service
is a product of your beliefs.
Many people willing to accept this nonetheless claim that religious
beliefs should be an exception. Take, for example, Dr. James Robert Brown of
the University of Toronto. In 2002, Dr. Brown offered advice to health care
workers who don't want to be involved with things like abortion or
contraception. These "scum" - that was his word - should "resign from
medicine and find another job." His reasoning was very simple.
Religious beliefs are highly emotional - as
is any belief that is affecting your behaviour in society. You have no right
letting your private beliefs affect your public behaviour.5
Well, listen to Martin Luther King Junior's "I have a dream" speech.6
It is abundantly clear that the Reverend King was acting publicly upon his
religious convictions. Moreover, he was, at times, "highly emotional."
Should he have resigned from the civil rights movement and found another
Notice, also, what Dr. Brown was doing when he spoke to the reporter. He
was doing exactly what he said that others should not do. He was acting
publicly upon his private belief that other people should not be allowed to
act publicly upon theirs. Even though Dr. Brown was not being "highly
emotional," it is important to recognize that, in his world, Rotarians would
be denied the freedom to act publicly upon Rotary's principles. Rotary is,
after all, a private organization.
I suggest that Rotarians are in good company with the Reverend King, and
that society has been and continues to be well-served by good people acting
publicly on their beliefs, whether or not they are religious.
5. A secular state includes both religious and non-religious believers
The public square is populated by people with any number of moral
viewpoints, some religious, some not: some tied to particular philosophical
or ethical systems, some not: but all of them believers. Of course, this can
generate disagreement and conflict, especially in societies marked by
pluralism. Secularism is a currently popular movement that purports to
create common "neutral" ground for public affairs by banishing what it calls
private, personal, moral or religious beliefs from the public square.
By now I think what I have already said suggests some of the problems
with this approach, but here I want to draw your attention to a rather
neglected judgement of the Supreme Court of Canada, Chamberlain v.
Surrey School District No. 36. All nine Supreme Court judges agreed
with the finding by Mr. Justice Gonthier that "secular" does not mean
"[Nothing] in the Charter, political or democratic theory, or a
proper understanding of pluralism," he wrote, "demands that atheistically
based moral positions trump religiously based moral positions on matters of
public policy," since "everyone has ‘belief' or ‘faith' in something, be it
atheistic, agnostic or religious."
"[W]hy," he asked, "should the religiously informed conscience be placed
at a public disadvantage or disqualification?"
I here quote from the judgement:
To do so would be to distort liberal principles in an
illiberal fashion and would provide only a feeble notion of pluralism. The
key is that people will disagree about important issues, and such
disagreement, where it does not imperil community living, must be capable of
being accommodated at the core of a modern pluralism.7
Thus, as a matter of law in Canada, the notion that a secular state or a
secular public square is faith-free or must be purged of the expression of
moral or religious belief is radically false.8 On the
contrary: precisely because Canada is a secular state, it must make room for
the full participation of all believers, religious or not, in public life.
Of course, on this point, I am preaching to the choir. The Rotary Code of
Policies states, "Rotary is a secular organization whose membership includes
persons of all faiths, religions, and beliefs."9
Perhaps Mr. Justice Gonthier was a Rotarian.
6. The limitation of freedom of conscience
As I noted at the outset, there is a tendency to treat freedom of
conscience and religion as problems to be solved, especially by activists
whose political or social agendas are hampered by those with differing
beliefs. Not infrequently, they legally attack and coerce their opponents,
using "the violence of law" to suppress their viewpoints and force their
compliance.10 Those pursuing this strategy typically
chant two mantras provided by the Supreme Court of Canada in Trinity
Western University v. College of Teachers:
[F]reedom of religion. . . is not absolute. It is
inherently limited by the rights and freedoms of others.
The proper place to draw the line is generally between
belief and conduct. The freedom to hold beliefs is broader than the freedom
to act on them.11
The mantras are not new. Oliver Cromwell adopted precisely this approach
to Catholicism in Ireland almost 400 years ago. Papists, he declared, were
free to believe whatever they wished, for the thoughts "in their own breasts
I cannot reach." However, he would set the law on any Papists who acted upon
their beliefs, by celebrating mass, for example.12
Thus, Oliver Cromwell and the Supreme Court of Canada agree that freedom
to act on beliefs is less extensive than the freedom to hold them. Well, for
that matter, so do those who support freedom of conscience and religion. The
principle is not in dispute.
What is in dispute is where the line is to be drawn, and what is to be
done with those who cross it. The Irish did not share Cromwell's views about
where the line should be drawn, nor is it clear that there is anything
approaching a consensus in Canada on this point. So it is instructive to
remember Oliver Cromwell and the Irish when judicial, social and political
elites or activists begin to sound like the Lord Protector.
7. Distinctions and limits
This section of the
presentation draws from an extended discussion of the subject in Murphy S, Genuis S.J.
Freedom of Conscience in Health Care: Distinctions and Limits. J Bioeth
Inq. 2013 Oct; 10(3): 347-54
Now, in fact, the distinction between belief and action is valid and can
be useful, but it is inadequate. Further distinctions are required if we are
to avoid imposing Cromwellian ‘solutions' to a purported ‘problem' of
freedom of conscience and religion. One of them is the distinction between
what I call perfective and preservative freedom of conscience.13
A traditional view holds that one who freely chooses a moral good - say,
helping someone in need - perfects himself to the extent that what is chosen
is truly good and not just apparently so. The decision to pursue an apparent
good can be called an exercise of perfective freedom of conscience
because it is potentially perfective of the human person.
On the other hand, one who refuses to participate in wrongdoing -
refusing to steal, for example - preserves his own integrity, even though he
does not achieve the kind of personal growth that might be possible by doing
some positive good. Thus, refusing to do what seems to be wrong can be
described as an exercise of preservative freedom of conscience.
It is generally agreed that the state may limit the exercise of freedom
of conscience if the limitation serves the common good. But if the state can
legitimately limit perfective freedom of conscience by preventing people
from doing what they believe to be good, it does not follow that it is
equally free to suppress preservative freedom of conscience by forcing them
to do what they believe to be wrong.
8. A duty to do what is wrong?
Among other things, which I won't go into tonight, such a policy would
establish a duty to do what one believes to be wrong. Let me dwell on this
for a moment.
The exercise of freedom of conscience is repeatedly characterized in some
quarters as "the problem of conscientious objection,"14
which means, bluntly, the problem caused by people who refuse to do what
they believe to be wrong. The underlying premise is that people really ought
to do what they believe to be wrong, at least when they are told to do so by
the state or by the leaders of their profession.
But how many of you would have become Rotarians if you were told that you
must be willing to do what you believe to be wrong when ordered to do so by
Rotary executive? Quite the contrary: your policies suggest to me that
Rotarians believe that you should not do what you believe to be
wrong, and that refusing to do what you believe to be wrong is the
norm. It is wrongdoing that needs special justification or excuse,
not refusing to do wrong.
That the state can legitimately compel people to do what they believe to
be wrong and punish them if they refuse is a dangerous idea that turns
foundational ethical principles upside down. The inversion is worrisome,
since "a duty to do what is wrong" is being advanced by some of those who
support the "war on terror." They argue that there is, indeed, a duty to do
what is wrong, and that this includes a duty to kill non-combatants and to
torture terrorist suspects.15
What about killing patients?
In 2011 an"expert panel"convened by the Royal Society of Canada
recommended legalization of assisted suicide and euthanasia.16
The experts stated that if "religious or moral conscience" prevents health
care professionals from providing euthanasia or assisted suicide, "they are
duty bound to refer their patients to a health care professional who will."17
Notice; the expert panel was not content simply to encourage and allow
willing health care professionals to kill patients. They insisted that
health care professionals must kill patients, or must help patients find
someone willing to kill them - even if they believe it to be wrong, even if
they believe it to be murder.
Now, killing is not surprising; even murder is not surprising. People
kill other people every day, and people murder other people every day. There
have been murders in Powell River. And I am not arguing here against
euthanasia or assisted suicide.
But to hold that the state or a profession can, in justice, compel an
unwilling soul to commit what he sees as murder, or even to facilitate what
he sees as murder, and justly punish him for refusing to do so - that is
extraordinary, and extraordinarily dangerous.
For if the state or a profession can require me to kill someone else -
even if I am convinced that doing so is murder - what can it not require?
In closing, I suggest that the robust defence and promotion of freedom of
conscience is eminently justified to protect all of us from what may
ultimately prove to be a particularly far-reaching and even deadly form of
authoritarianism. And if that means that prominent people or those in
positions of power and influence will come to see freedom of conscience as a
problem - so be it.
- During the question period following, a nurse practitioner raised
the issue of contraception and asserted that there is or ought to be an
obligation on the part of objecting physicians to refer for
contraception. The nature of the forum and time available did not
permit discussion of the subject. The nurse and audience were
referred to "No More
Christian Doctors" to see that there was much more that could be
said on the subject.
Universal Declaration of Human Rights, Article 18. Everyone has
the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief, and freedom, either alone
or in community with others and in public or private, to manifest his
religion or belief in teaching, practice, worship and observance. (Accessed
2. Maritain, Jacques, Man and the State.
Chicago: University of Chicago Press, 1951, p. 77
3. Rotary Code of Policies (May, 2014)
"Statement on Community Service," (1)(Accessed 2014-03-26)
4. Rotary Code of Policies (May, 2014)
"Reproduction of the 4-way Test." (Accessed 2014-03-26)
5. Canning C.
"Doctor's faith under scrutiny:Barrie physician won't offer the pill,
could lose his licence." The Barrie Examiner, February 21,
6. Martin Luther King,
"I have a dream." (28 August, 1963 ) You Tube (Accessed
Chamberlain v. Surrey School District No. 36  4 S.C.R.
710 (SCC), para. 137 (Accessed 2014-02-19). Dr. Iain Benson comments:
"Madam Justice McLachlin, who wrote the decision of the majority,
accepted the reasoning of Mr. Justice Gonthier on this point thus making
his the reasoning of all nine judges in relation to the interpretation
of 'secular.'" Benson I.T.,
Seeing Through the Secular Illusion (July 29,
2013). NGTT Deel 54 Supplementum 4, 2013. (Accessed 2014-02-18)
8. Benson, I.T.,
Seeing Through the
Secular Illusion (July 29, 2013). NGTT Deel 54 Supplementum 4,
2013. (Accessed 2014-02-18)
Rotary Code of
(May, 2014) 26.050 (Accessed 2014-03-26)
10. Benson IT. The attack on Western
religions by Western law: Re-framing pluralism, liberalism and diversity.
IJRF Vol. 6:1/2 2013 (111-125)
Trinity Western University v. College of Teachers,  1
S.C.R. 772, 2001 SCC 31. Approving P. (D.) v. S. (C.),  4 S.C.R.
141 (Accessed 2014-03-11)
12. "As for the People [of Ireland], what thoughts
they have in matters of Religion in their own breasts I cannot reach;
but shall think it my duty, if they walk honestly and peaceably, Not to
cause them in the least to suffer for the same. . . ", but ". . . I
shall not, where I have the power, and the Lord is pleased to bless me,
suffer the exercise of the Mass . . . nor . . . suffer you that are
Papists, where I can find you seducing the People, or by any overt act
violating the Laws established; but if you come into my hands, I shall
cause to be inflicted the punishments appointed by the Laws." Cromwell,
Oliver, "Declaration of the Lord Lieutenant of Ireland." (January, 1649)
Carlyle, Thomas, Oliver Cromwell’s Letters and Speeches, with
elucidations. Boston: Estes and Lauriat, 1886, Vol. I, Part 5, p.
13. Murphy S, Genuis S.J.
Freedom of Conscience in Health Care: Distinctions and Limits. J
Bioeth Inq. 2013 Oct; 10(3): 347-54
14. Cannold L.
"The questionable ethics of unregulated conscientious refusal."
ABC Religion and Ethics, 25 March, 2011. (Accessed 2013-08-11)
Human Rights Council, Twentieth session, Agenda items 2 and 3:
Annual Report of the Office of the United Nations High Commissioner for
Human Rights- Technical guidance on the application of a human
rightsbased approach to the implementation of policies and programmes to
reduce preventable maternal morbidity and mortality (2 July, 20012)
para. 61, 30 (Accessed 2013-08-11)
O'Rourke A, De Crespigny L,
and Pyman A. "Abortion and
Conscientious Objection: The New Battleground" (July 10, 2012).
Monash Law Review (2012) Vol 38(3): 87-119. (Accessed 2013-08-18)
Finer L., Fine JB.,
"Abortion Law Around the World: Progress and Pushback."
American Journal of Public Health, Apr 2013, Vol. 103 Issue 4, p.
585. (Accessed 2013-08-18)
Human Rights Council, 23nd Session -
June 3, 2013. Agenda Item 3: Presentation of Reports by the Special
Rapporteur on Violence against Women.
Oral Statement: Center for Reproductive Rights. (Accessed
15. Gardner J. Complicity and Causality, 1
Crim. Law & Phil. 127, 129 (2007). Cited in Haque, A.A.
"Torture, Terror, and the
Inversion of Moral Principle." New Criminal Law Review,
Vol. 10, No. 4, pp. 613-657, 2007; Workshop: Criminal Law, Terrorism,
and the State of Emergency, May 2007. (Accessed 2014-02-19)
16. Schuklenk U, van Delden J.J.M, Downie J,
McLean S, Upshur R, Weinstock D.
Report of the Royal Society of Canada Expert Panel on End-of-Life
Decision Making (November, 2011) p. 62 (Accessed 2014-09-10)
17. Schuklenk U, van Delden J.J.M,
Downie J, McLean S, Upshur R, Weinstock D.
Report of the Royal Society of Canada Expert Panel on End-of-Life
Decision Making (November, 2011) p. 69, 101 (Accessed