The Problem with “Conscience”

The last time a state’s Religious Freedom Restoration Act (RFRA) made news, I argued that the law’s critics were letting the word “discrimination” distract them from the real issues at stake. Everything I said then bears repeating: not all discrimination is wrong, not all wrongful discrimination should be illegal, and sometimes religious freedom really does give people the right to discriminate.

But it’s only fair to acknowledge now, with another RFRA controversy lining outrage-mongers’ pockets, that RFRAs’ critics aren’t the only ones whose thinking is being derailed by a buzzword. Some RFRA supporters—and to be clear, I am generally a RFRA supporter—are themselves being distracted by the word “conscience,” and are standing on overbroad principle when distinctions and compromises need to be made.

“Conscience” is, to be sure, an attractive slogan for supporters of religious freedom. For one, it lacks the baggage that “religion” now carries—no one calls herself “spiritual but not conscientious.” And it has broader appeal than “religion”: atheists have consciences, and nobody wants to be forced to do something they’re convinced is wrong.

Further, and unusually for a slogan, “freedom of conscience” also has a long history. To give an early American example: James Madison’s original draft of the First Amendment protected not “the free exercise of religion” but “the full and equal rights of conscience.” To give another: the practice of exempting religious pacifists from the draft, famously instituted by George Washington to protect the Quakers, has long been known as “conscientious objection.”

But with long history comes historical meaning, and the meaning “conscience” has acquired through its history isn’t entirely helpful. Originally, in America at least, “conscience” meant something much narrower than what it means today, something more like “freedom of belief”—the freedom to make up one’s own mind about religion and morality, to join the church of one’s choosing, and to disagree with popular opinion or official orthodoxy without being punished.¹

It’s always been clear that freedom of conscience protects some conduct—going to church, confessing one’s beliefs, and such—but what conduct does it protect? For most of American history, the answer was “the worship practices of the Protestant mainstream,” and ideas and conduct that didn’t resemble Protestantism weren’t considered part of religion. Thus, people who believed quite sincerely in freedom of conscience saw no problem with prosecuting atheists for blasphemy, or punishing Catholic schoolchildren for refusing to recite the Protestant version of the Ten Commandments. Similarly, the Supreme Court could acknowledge that “religion” includes a person’s efforts to obey God and yet, in the same opinion, declare that Mormons’ efforts to obey God by teaching polygamy could not possibly be religious.²

We’ve tried to reject the nineteenth-century approach, and to create a sort of religious freedom that applies to all religions equally.³ Freedom of conscience now means freedom to believe anything, regardless of whether it’s consistent with mainstream views about religion. But this broader approach has its consequences.

To begin with, by extending “conscience” to include all religions, we’ve destroyed the limits that the old approach put on conscience claims. Under the old approach, “freedom of conscience” effectively meant “freedom to preach what you want about God, except that he doesn’t exist,”⁴ and “freedom to go to a church of your choosing on Sunday, but not to miss school for mass on Ash Wednesday.” With such a narrow, predictable notion of conscience, you don’t need to worry about conscience interfering with important public interests. You can assume, like Thomas Jefferson did, that the rights of conscience will never conflict with people’s “social duties.”⁵

With our all-inclusive version of “conscience,” of course, you can’t assume any such thing; conscientious objections can be made to nearly any law. But the problem isn’t just that the broader notion of conscience increases the number of possible conflicts between conscience and the public interest. It also, subtly but profoundly, changes the logic of conscience claims.

To illustrate: when an eighteenth-century Baptist cried “Conscience!” he was accusing the government of telling him what to believe or how to worship. His accusation carried weight because belief and worship were universally believed to be weighty matters—Jefferson and the Baptists, for example, disagreed on nearly every religious question, but they agreed passionately that they should be able to form their own opinions about religion. Further, the accusation’s merits could be judged on the basis of shared notions about belief and worship—a tax to support clergy was a violation of conscience, but a tax to support the army was not, no matter one’s religious views about war.

In contrast, when a twenty-first century Baptist cries “Conscience!” she is usually not appealing to any shared notion that a particular aspect of a person’s life is particularly important and should be free from government control. Rather, she is asserting a right to act consistently with whatever she happens to believe, in every sphere of life. She’s not saying, “The government is telling me what to believe about God,” but rather, “The government is telling me to do something I believe is wrong.”

And this brings us, finally, to the problem with RFRA supporters’ appeals to conscience. To understand what I mean, just compare “conscience” to “discrimination” on the other side of the argument.

The problem with “discrimination” as a slogan is that it admits to none of the moral distinctions that are necessary in these controversies. Instead, it draws a line from a photographer who refuses to photograph gay weddings straight to segregated bathrooms and buses—and in the other direction, straight to churches that don’t perform gay weddings. The idea that Jim Crow and churches’ refusal to sanction gay unions are morally indistinguishable is impossible to defend rationally, but it is precisely the idea the word “discrimination” conveys.

The problem with “conscience” is that it sends the same message. Consider the photographer being forced to photograph a gay wedding. If her argument is that she shouldn’t have to photograph the wedding because she believes it would be wrong, how is her claim any different from that of a businessman who refuses to hire blacks because he believes God meant the races to be separate? And if those claims fail, why should a minister be free not to perform gay weddings, if his reason for not doing so boils down to “I believe I shouldn’t”?

In reality, these three claims are very different. The businessman is claiming a freedom to choose whom he associates with in public—an important freedom, to be sure, but hardly an absolute one in a diverse society like ours. The photographer is claiming a freedom to choose what beliefs her photography will promote, which is much more important—a cousin to Christian painters’ freedom to make paintings of Jesus but not Buddha. The minister is claiming (to my mind, at least) a more important freedom still: the freedom of churches to govern themselves, and to define and control their own religious ceremonies.

These freedoms are not the same: they rest on different justifications, and they conflict with the goals of the gay rights movement in different ways. There is no reason to assume that they should be treated identically, but that’s what calling them all “conscience” suggests.

So, my plea to my fellow RFRA supporters: be careful with the word “conscience.” I get that it’s an attractive slogan, and that it boasts a (mostly) proud history. I also get that it’s motivated by a desire to convey how important religious freedom laws can be to the people who need them, who might otherwise be put to the choice of whether to violate their beliefs or give up their livelihoods.

But if we insist that “conscience” must mean, “Religious people always get to discriminate against gays in housing and employment,” we’re going to lose. And if our argument fails to distinguish between that claim and the photographer’s claim, then we play right into the hands of the people who say that there’s no difference, and that the photographer should lose, too.

In short, the best and fairest solutions to the present conflict are going to involve drawing distinctions and making compromises where less important freedoms are at stake. If we let “conscience” get in the way of that, it’s ultimately going to do us more harm than good.

^{1. For more on founding-era ideas about “conscience,” see chapter 3 of the indispensable <i>Religion and the American Constitutional Experiment</i>, by John Witte, Jr., and Joel Nichols (Westview Press, 2010).}↩

^{2. “To call [the advocacy of polygamy] a tenet of religion is to offend the common sense of mankind.” Davis v. Beason, 133 U.S. 333, 341–42 (1890). This reasoning led the Supreme Court to uphold an Idaho law that prohibited Mormons from voting.↩}

^{3. I don’t think we’ve succeeded, and I suspect that success is impossible, but that’s a topic for another day.↩}

^{4. Or that he wants you to practice polygamy.↩}

^{5. These ideas is expressed in his famous letter to the Danbury Baptists, available here from the Library of Congress.↩}