The last time a state\u2019s Religious Freedom Restoration Act (RFRA) made news, I argued<\/a> that the law\u2019s critics were letting the word \u201cdiscrimination\u201d distract them from the real issues at stake. Everything I said then bears repeating: not all discrimination is wrong<\/a>, not all wrongful discrimination should be illegal, and sometimes religious freedom really does give people the right to discriminate.<\/p>\n But it\u2019s only fair to acknowledge now, with another RFRA controversy lining outrage-mongers\u2019 pockets, that RFRAs\u2019 critics aren\u2019t the only ones whose thinking is being derailed by a buzzword. Some RFRA supporters\u2014and to be clear, I am generally a RFRA supporter\u2014are themselves being distracted by the word \u201cconscience,\u201d and are standing on overbroad principle when distinctions and compromises need to be made.<\/p>\n \u00a0<\/p>\n \u201cConscience\u201d is, to be sure, an attractive slogan for supporters of religious freedom. For one, it lacks the baggage that \u201creligion\u201d now carries\u2014no one calls herself \u201cspiritual but not conscientious.\u201d And it has broader appeal than \u201creligion\u201d: atheists have consciences, and nobody wants to be forced to do something they\u2019re convinced is wrong.<\/p>\n Further, and unusually for a slogan, \u201cfreedom of conscience\u201d also has a long history. To give an early American example: James Madison\u2019s original draft of the First Amendment protected not \u201cthe free exercise of religion\u201d but \u201cthe full and equal rights of conscience.\u201d 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 \u201cconscientious objection.\u201d<\/p>\n But with long history comes historical meaning, and the meaning \u201cconscience\u201d has acquired through its history isn\u2019t entirely helpful. Originally, in America at least, \u201cconscience\u201d meant something much narrower than what it means today, something more like \u201cfreedom of belief\u201d\u2014the freedom to make up one\u2019s own mind about religion and morality, to join the church of one\u2019s choosing, and to disagree with popular opinion or official orthodoxy without being punished.1<\/a><\/sup><\/p>\n It\u2019s always been clear that freedom of conscience protects some conduct\u2014going to church, confessing one\u2019s beliefs, and such\u2014but what conduct does it protect? For most of American history, the answer was \u201cthe worship practices of the Protestant mainstream,\u201d and ideas and conduct that didn\u2019t resemble Protestantism weren\u2019t 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 \u201creligion\u201d includes a person\u2019s efforts to obey God and yet, in the same opinion, declare that Mormons\u2019 efforts to obey God by teaching polygamy could not possibly be religious.2<\/a><\/sup><\/p>\n We\u2019ve tried to reject the nineteenth-century approach, and to create a sort of religious freedom that applies to all religions equally.3<\/a><\/sup> Freedom of conscience now means freedom to believe anything, regardless of whether it\u2019s consistent with mainstream views about religion. But this broader approach has its consequences.<\/p>\n To begin with, by extending \u201cconscience\u201d to include all religions, we\u2019ve destroyed the limits that the old approach put on conscience claims. Under the old approach, \u201cfreedom of conscience\u201d effectively meant \u201cfreedom to preach what you want about God, except that he doesn\u2019t exist,\u201d4<\/a><\/sup> and \u201cfreedom to go to a church of your choosing on Sunday, but not to miss school for mass on Ash Wednesday.\u201d With such a narrow, predictable notion of conscience, you don\u2019t 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\u2019s \u201csocial duties.\u201d5<\/a><\/sup><\/p>\n With our all-inclusive version of \u201cconscience,\u201d of course, you can\u2019t assume any such thing; conscientious objections can be made to nearly any law. But the problem isn\u2019t 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<\/i> of conscience claims.<\/p>\n To illustrate: when an eighteenth-century Baptist cried \u201cConscience!\u201d 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\u2014Jefferson 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\u2019s merits could be judged on the basis of shared notions about belief and worship\u2014a tax to support clergy was a violation of conscience, but a tax to support the army was not, no matter one\u2019s religious views about war.<\/p>\n In contrast, when a twenty-first century Baptist cries \u201cConscience!\u201d she is usually not appealing to any shared notion that a particular aspect of a person\u2019s 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\u2019s not saying, \u201cThe government is telling me what to believe about God,\u201d but rather, \u201cThe government is telling me to do something I believe is wrong.\u201d<\/p>\n And this brings us, finally, to the problem with RFRA supporters\u2019 appeals to conscience. To understand what I mean, just compare \u201cconscience\u201d to \u201cdiscrimination\u201d on the other side of the argument.<\/p>\n The problem with \u201cdiscrimination\u201d 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\u2014and in the other direction, straight to churches that don\u2019t perform gay weddings. The idea that Jim Crow and churches\u2019 refusal to sanction gay unions are morally indistinguishable\u00a0is impossible to defend rationally, but it is precisely the idea the word \u201cdiscrimination\u201d conveys.<\/p>\n The problem with \u201cconscience\u201d is that it sends the same message. Consider the photographer being forced to photograph a gay wedding. If her argument is that she shouldn\u2019t 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 \u201cI believe I shouldn\u2019t\u201d?<\/p>\n In reality, these three claims are very different. The businessman is claiming a freedom to choose whom he associates with in public\u2014an 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\u2014a cousin to Christian painters\u2019 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.<\/p>\n 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\u2019s what calling them all \u201cconscience\u201d suggests.<\/p>\n So, my plea to my fellow RFRA supporters: be careful with the word \u201cconscience.\u201d I get that it\u2019s an attractive slogan, and that it boasts a (mostly) proud history. I also get that it\u2019s 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.<\/p>\n But if we insist that \u201cconscience\u201d must mean, \u201cReligious people always get to discriminate against gays in housing and employment,\u201d we\u2019re going to lose. And if our argument fails to distinguish between that claim and the photographer\u2019s claim, then we play right into the hands of the people who say that there\u2019s no difference, and that the photographer should lose, too.<\/p>\n 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 \u201cconscience\u201d get in the way of that, it\u2019s ultimately going to do us more harm than good.<\/p>\n 1. For more on founding-era ideas about \u201cconscience,\u201d see chapter 3 of the indispensable <i>Religion and the American Constitutional Experiment<\/i>, by John Witte, Jr., and Joel Nichols (Westview Press, 2010).<\/sup>\u21a9<\/a><\/p>\n 2. \u201cTo call [the advocacy of polygamy] a tenet of religion is to offend the common sense of mankind.\u201d Davis v. Beason, 133 U.S. 333, 341\u201342 (1890). This reasoning led the Supreme Court to uphold an Idaho law that prohibited Mormons from voting.\u21a9<\/a><\/sup><\/p>\n 3. I don\u2019t think we\u2019ve succeeded, and I suspect that success is impossible, but that\u2019s a topic for another day.\u21a9<\/a><\/sup><\/p>\n 4. Or that he wants you to practice polygamy.\u21a9<\/a><\/sup><\/p>\n 5. These ideas is expressed in his famous letter to the Danbury Baptists, available here<\/a> from the Library of Congress.\u21a9<\/a><\/sup><\/p>\n<\/body><\/html>\n","protected":false},"excerpt":{"rendered":" The last time a state\u2019s Religious Freedom Restoration Act (RFRA) made news, I argued that the law\u2019s critics were letting the word \u201cdiscrimination\u201d 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 […]<\/p>\n","protected":false},"author":914,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[15,125,62,16,124],"tags":[],"class_list":["post-2526","post","type-post","status-publish","format-standard","hentry","category-american-society","category-gay-rights","category-politics","category-protestantism","category-religious-freedom"],"yoast_head":"\n
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