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15 - Liberty of Conscience, Free Exercise of Religion, and the US Constitution

from Part III - Applied Topics in Law and Conscience

Published online by Cambridge University Press:  12 June 2021

By
Nathan S. Chapman
Edited by
Jeffrey B. Hammond  and
Helen M. Alvare
Jeffrey B. Hammond
Affiliation:
Faulkner University
Helen M. Alvare
Affiliation:
George Mason University, Virginia
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Summary

Nathan Chapman considers the link between free exercise and freedom of conscience in the US Constitution and legislation. Some theorists emphasize the similarity between religion and other moral or philosophical commitments and insist there is no reason to privilege the former over the latter. However, for the founding generation, freedom of conscience meant religious freedom, exercised as a response to one’s duty to God. Courts and legislatures often negotiate different relationships between freedom of religion and of conscience. Speech, press, and association rights have been employed to protect conscience. And some state and federal statutes accommodate religion and other commitments under the label of conscience. However, the Free Exercise, Establishment, and Equal Protection Clauses have not been interpreted to prioritize nonreligious conscience. The Supreme Court has interpreted the law about conscientious objection to military service to include non-theistic beliefs. Some statutes accommodating religion also protect nonreligious beliefs or practices, for example, statutes governing abortion, physician-aided suicide and capital punishment.

Keywords

accommodationconscientious objectorFirst Amendment Religion Clausesliberalismnonreligious consciencestate constitutionsSupreme Court of the United States
Type
Chapter
Information
Christianity and the Laws of Conscience
An Introduction
 , pp. 287 - 304
Publisher: Cambridge University Press
Print publication year: 2021

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References

Recommended Reading

Chapman, Nathan S. “Disentangling Conscience and Religion.” University of Illinois Law Review (2013): 1457–1501.Google Scholar
Greenawalt, Kent. “Religion As a Concept in Constitutional Law.” California Law Review 72 (1984): 753–816.CrossRefGoogle Scholar
Koppelman, Andrew. “Conscience, Volitional Necessity, and Religious Exemptions.” Legal Theory 15, no. 3 (2009): 215–44.CrossRefGoogle Scholar
Laycock, Douglas. “Religious Liberty As Liberty.” Journal of Contemporary Legal Issues 7 (1996): 313–56.Google Scholar
Lund, Christopher C. “Religion Is Special Enough.” Virginia Law Review 103 (2017): 481–524.Google Scholar
McConnell, Michael W. “The Origins and Historical Understanding of Free Exercise of Religion.” Harvard Law Review 103 (1990): 1409–1517.Google Scholar
Miller, William Lee. The First Liberty: America’s Foundation in Religious Freedom. Washington, dc: Georgetown University Press, 2013.Google Scholar
Rawls, John. Political Liberalism: Expanded Edition. New York, ny: Columbia University Press, 2011.Google Scholar
Schwartzman, Micah. “What if Religion Is Not Special?” University of Chicago Law Review 79 (2012): 1351–1427.Google Scholar
Smith, Steven D. “What Does Religion Have to Do with Freedom of Conscience?” Colorado Law Review 76 (2005): 911–40.Google Scholar

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