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FREEDOM OF CONSCIENCE AS RELIGIOUS AND MORAL FREEDOM1

Published online by Cambridge University Press:  03 January 2014

Michael J. Perry
Michael J. Perry*
Affiliation:
Robert W. Woodruff Professor of Law, Emory University School of Law; Senior Fellow, Center for the Study of Law and Religion, Emory University School of Law
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Abstract

In another essay being published contemporaneously with this one, I have explained that as the concept “human right” is understood both in the Universal Declaration of Human Rights and in all the various international human rights treaties that have followed in the Universal Declaration's wake, a right is a human right if the rationale for establishing and protecting the right—for example, as a treaty-based right—is, in part, that conduct that violates the right violates the imperative, articulated in Article 1 of the Universal Declaration, to “act towards all human beings in a spirit of brotherhood.” Each of the human rights articulated in the Universal Declaration and/or in one or more international human rights treaties—for example, the right, articulated in Article 5 of the Universal Declaration and elsewhere, not to be subjected to “cruel, inhuman or degrading treatment or punishment”—is a specification of what, in conjunction with other considerations, the imperative—which functions in the morality of human rights as the normative ground of human rights—is thought to forbid (or to require). A particular specification is controversial if and to the extent the supporting claim—a claim to the effect that the “act towards all human beings in a spirit of brotherhood” imperative forbids (or requires) X—is controversial. My aim in this essay is to elaborate and defend a particular specification: the right, internationally recognized as a human right, to freedom of conscience—to freedom, that is, to live one's life in accord with the deliverances of one's conscience.

Keywords

human rightsmoralityfreedom of consciencefreedom of religion
Type
ARTICLES
Information
Journal of Law and Religion , Volume 29 , Issue 1 , February 2014 , pp. 124 - 141
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2014 

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Footnotes

1

This essay is a revised version of chapter 7 of my new book, Human Rights in the Constitutional Law of the United States (Cambridge, England: Cambridge University Press, 2013).

References

2 Maclure, Jocelyn and Taylor, Charles, Secularism and Freedom of Conscience, trans. Todd, Jane Marie (Cambridge, MA: Harvard University Press, 2011), 20, 106CrossRefGoogle Scholar. “‘Moral pluralism’ refers to the phenomenon of individuals adopting different and sometimes incompatible value systems and conceptions of the good.” Ibid., 20.

In the conclusion to their book, Maclure and Taylor write: “There do not seem to be any principled reasons to isolate religion and place it in a class apart from the other conceptions of the world and of the good.” Ibid., 105. Robert Audi concurs: Audi, Robert, Democratic Authority and the Separation of Church and State (New York: Oxford University Press, 2011)CrossRefGoogle Scholar. Many others have reached the same conclusion. A sampling: Sapir, Gideon and Statman, Daniel, “Why Freedom of Religion Does Not Include Freedom from Religion,” Law and Philosophy 24, no. 5 (2005)CrossRefGoogle Scholar: 487 (“[W]hether we understand freedom of religion as a branch of freedom of conscience or as a branch of the right to culture, there is no justification for granting it special status within the framework of these rights.”); Kislowicz, Howard, Haigh, Richard, and Ng, Adrienne, “Calculations of Conscience: The Costs and Benefits of Religious and Conscientious Freedom,” Alberta Law Review 48, no. 3 (2011)Google Scholar: 681 (“[We argue] that there is no principled reason that matters of conscience should be treated differently from matters of religious belief and practice.”); Cornelissen, Gemma, “Religion-Based Exemptions: Are Religious Beliefs Special?,” Ratio Juris 25, no. 1 (2012)CrossRefGoogle Scholar (answering “no”).

Although Leiter, Brian reaches the same conclusion in Why Tolerate Religion? (Princeton, NJ: Princeton University Press, 2013)Google Scholar, he does so on the basis of a problematic argument about the ways in which religiously based claims of conscience are relevantly different from claims of conscience that are not religiously based. See Robert Merrihew Adams, review of Why Tolerate Religion?, by Brian Leiter, Notre Dame Philosophical Reviews, January 6, 2013, http://ndpr.nd.edu/news/36599-why-tolerate-religion/; William Galston, “Claims of Conscience: Religious Freedom and State Power,” review of Why Tolerate Religion?, by Brian Leiter, Commonweal, April 19, 2013, http://www.commonwealmagazine.org/claims-conscience. As the work cited in the preceding paragraph illustrates—and indeed as this essay illustrates—one need not rely on Leiter's argument to support the conclusion that, in Maclure and Taylor's articulation, “[t]here do not seem to be any principled reasons[, for purposes of freedom of conscience,] to isolate religion and place it in a class apart from the other conceptions of the world and of the good.”

3 UN General Assembly, Universal Declaration of Human Rights, art. 1, Dec. 10, 1948, http://www.un.org/en/documents/udhr/. Article 1 of the Universal Declaration states: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Ibid.

4 See Perry, Michael J., “The Morality of Human Rights,” University of San Diego Law Review 50 (forthcoming)Google Scholar. I have explained in the essay just cited what constitutes a “human right”; the sense in which some human rights are, in some legal systems, “legal” rights; and the sense in which all human rights are “moral” rights. I have also pursued there this inquiry: What reason or reasons does one have, if any, to live one's life in accord with the imperative to “act towards all human beings in a spirit of brotherhood”?

5 Universal Declaration of Human Rights, art. 5. Article 5 of the Universal Declaration states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Ibid.

6 On different understandings of “conscience,” see Chapman, Nathan S., “Disentangling Conscience and Religion,” University of Illinois Law Review, no. 4 (2013): 1457–1501Google Scholar.

7 Maclure and Taylor, Secularism and Freedom, 1. Maclure and Taylor conclude their book on the same note. See ibid., 105–10.

8 As of July 2013, 167 of the 193 member states of the United Nations were parties to the ICCPR.

9 Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms art. 9, opened for signature Apr. 11, 1950, 213 U.N.T.S. 221, is substantially identical:

  1. 1.

    1. 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 worship, teaching, practice and observance.

  2. 2.

    2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Organization of American States, American Convention on Human Rights art. 12, Nov. 22, 1969, O.A.S.T.S. no. 36, is also substantially identical:

  1. 1.

    1. Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one's religion or beliefs, and freedom to profess or disseminate one's religion or beliefs, either individually or together with others, in public or in private.

  2. 2.

    2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs.

  3. 3.

    3. Freedom to manifest one's religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.

  4. 4.

    4. Parents or guardians, as the case may be, have the right to provide for the religious and moral education of their children or wards that is in accord with their own convictions.

10 United Nations International Covenant on Civil and Political Rights art. 18, Dec. 16, 1966, 999 U.N.T.S. 171. Article 18 of the ICCPR is an elaboration of Article 18 of the Universal Declaration: “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.” Universal Declaration of Human Rights, art. 18.

Another international document merits mention: UN General Assembly, The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, G.A. Res. 36/55, U.N. Doc. A/RES/36/55 (Nov. 28, 1981). See Symposium, “The Foundations and Frontiers of Religious Liberty: A 25th Anniversary Celebration of the 1981 U.N. Declaration on Religious Tolerance,” Emory International Law Review 21, no. 1 (2007)Google Scholar.

11 Human Rights Committee, General Comment 22, art. 18 (48th Sess., 1993), in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1, at 35 (1994), http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/9a30112c27d1167cc12563ed004d8f15?Opendocument.

12 Cf. Woodhouse, Barbara Bennett, “Religion and Children's Rights,” in Religion and Human Rights, ed. Witte, John Jr. and Green, M. Christian (New York: Oxford University Press, 2012)Google Scholar, 299.

13 On the idea of the “transcendent,” see Taylor, Charles, A Secular Age (Cambridge, MA: Belknap Press of Harvard University Press, 2007)Google Scholar; Warner, Michael, VanAntwerpen, Jonathan, and Calhoun, Craig, eds., Varieties of Secularism in a Secular Age (Cambridge, MA: Harvard University Press, 2010)Google Scholar.

14 Human Rights Committee, General Comment 22, n. 12. Cf. Maclure and Taylor, Secularism and Freedom, 20: “The democratic state must . . . treat equally citizens who act on religious beliefs and those who do not; it must, in other words, be neutral in relation to the different worldviews and conceptions of the good—secular, spiritual, and religious—with which citizens identify.”

15 Human Rights Committee, General Comment 22, n. 12. See Yoon and Choi v. Republic of Korea, CCPR/C/88/D/1321-22/2004 (2006), http://www.wri-irg.org/node/6221 (ruling that Article 18 requires that parties to the ICCPR provide for conscientious objection to military service). For relevant discussion, see Maclure and Taylor, Secularism and Freedom, 89–91.

16 For a recent example of such a description, see McCrudden, Christopher, “Catholicism, Human Rights and the Public Sphere,” International Journal of Public Theology 5 (2011)CrossRefGoogle Scholar: 331.

17 R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, 759. For the text of Section 2(a) see Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11 (U.K.).

18 R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, 337. See Kislowicz, Haigh, and Ng, “Calculations of Conscience,” 707–13.

19 “In an old rabbinic text three other questions are suggested: ‘Whence did you come?’ ‘Whither are you going?’ ‘Before whom are you destined to give account?’” Heschel, Abraham J., Who Is Man? (Stanford, CA: Stanford University Press, 1965)Google Scholar, 28. “All people by nature desire to know the mystery from which they come and to which they go.” Carmody, Denise Lardner and Carmody, John Tully, Western Ways to the Center: An Introduction to Western Religions (Belmont, CA: Wadsworth Publishing, 1983), 198–99Google Scholar. “The questions Tolstoy asked, and Gauguin in, say, his great Tahiti triptych, completed just before he died (‘Where Do We Come From? What Are We? Where Are We Going?’), are the eternal questions children ask more intensely, unremittingly, and subtly than we sometimes imagine.” Coles, Robert, The Spiritual Life of Children (Boston: Houghton Mifflin, 1990)Google Scholar, 37.

20 For the person deep in the grip of, the person claimed by, the problem of meaning, “[t]he cry for meaning is a cry for ultimate relationship, for ultimate belonging,” wrote Rabbi Heschel. “It is a cry in which all pretensions are abandoned. Are we alone in the wilderness of time, alone in the dreadfully marvelous universe, of which we are a part and where we feel forever like strangers? Is there a Presence to live by? A Presence worth living for, worth dying for? Is there a way of living in the Presence? Is there a way of living compatible with the Presence?” Heschel, Who Is Man?, 75. Cf. Joske, W. D., “Philosophy and the Meaning of Life,” in The Meaning of Life, ed. Klemke, E. D. (New York: Oxford University Press, 1981)Google Scholar, 250 (“If, as Kurt Vonnegut speculates in The Sirens of Titan, the ultimate end of human activity is the delivery of a small piece of steel to a wrecked space ship wanting to continue a journey of no importance whatsoever, the end would be too trivial to justify the means.”); Nozick, Robert, Philosophical Explanations (Cambridge, MA: Harvard University Press, 1981)Google Scholar, 586 (“If the cosmic role of human beings was to provide a negative lesson to some others [‘don't act like them’] or to provide needed food to passing intergalactic travelers who were important, this would not suit our aspirations—not even if afterwards the intergalactic travelers smacked their lips and said that we tasted good.”).

21 Tracy, David, Plurality and Ambiguity: Religion, Hermeneutics, Hope (San Francisco, CA: Harper & Row, 1987)Google Scholar, 86.

22 In Milan Kundera's The Unbearable Lightness of Being, the narrator, referring to “the questions that had been going through Tereza's head since she was a child,” says that “the only truly serious questions are ones that even a child can formulate. Only the most naive of questions are truly serious. They are the questions with no answers. A question with no answer is a barrier than cannot be breached. In other words, it is questions with no answers that set the limits of human possibilities, describe the boundaries of human existence.” Kundera, Milan, The Unbearable Lightness of Being (New York: Harper & Row, 1984)Google Scholar, 139.

23 Tracy, David, The Analogical Imagination (New York: Crossroad, 1981)Google Scholar, 4. Tracy adds: “To formulate such questions honestly and well, to respond to them with passion and rigor, is the work of all theology. . . . Religions ask and respond to such fundamental questions . . . Theologians, by definition, risk an intellectual life on the wager that religious traditions can be studied as authentic responses to just such questions.” Ibid.

24 “Not the individual man nor a single generation by its own power, can erect the bridge that leads to God. Faith is the achievement of many generations, an effort accumulated over centuries. Many of its ideas are as the light of the star that left its source a long time ago. Many enigmatic songs, unfathomable today, are the resonance of voices of bygone times. There is a collective memory of God in the human spirit, and it is this memory which is the main source of our faith.” From Abraham Heschel's two-part essay “Faith,” The Reconstructionist 10, Nov. 3 & 17 (1944). For a later statement on faith, incorporating some of the original essay, see Heschel, Abraham J., Man Is Not Alone: A Philosophy of Religion (New York: Farrar, Straus & Young, 1951), 159–76Google Scholar.

25 Consider, for example, Bertrand Russell's worldview:

That man is the product of causes which had no prevision of the end they were achieving; that his origin, his growth, his hopes and fears, his loves and his beliefs, are but the outcome of accidental collocations of atoms; that no fire, no heroism, no intensity of thought and feeling, can preserve an individual life beyond the grave; that all the labor of the ages, all the devotion, all the inspiration, all the noonday brightness of human genius, are destined to extinction in the vast death of the solar system, and that the whole temple of man's achievement must inevitably be buried beneath the debris of a universe in ruins—all these things, if not quite beyond dispute, are yet so certain that no philosophy which rejects them can hope to stand. Only within the scaffolding of these truths, only on the firm foundation of unyielding despair, can the soul's habitation henceforth be safely built.

Russell, Bertrand, Mysticism and Logic (London: Allen & Unwin, 1917), 47–48Google Scholar. Consider too Clarence Darrow's similarly bleak vision, as recounted by Paul Edwards:

Darrow, one of the most compassionate men who ever lived . . . concluded that life was an “awful joke.” . . . Darrow offered as one of his reasons the apparent aimlessness of all that happens. “This weary old world goes on, begetting, with birth and with living and with death,” he remarked in his moving plea for the boy-murderers Loeb and Leopold, “and all of it is blind from the beginning to the end.” Elsewhere he wrote: “Life is like a ship on the sea, tossed by every wave and by every wind; a ship headed for no port and no harbor, with no rudder, no compass, no pilot; simply floating for a time, then lost in the waves.” In addition to the aimlessness of life and the universe, there is the fact of death. “I love my friends,” wrote Darrow, “but they all must come to a tragic end.” Death is more terrible the more one is attached to things in the world. Life, he concludes, is “not worthwhile,” and he adds . . . that “it is an unpleasant interruption of nothing, and the best thing you can say of it is that it does not last long.”

Edwards, Paul, “Life, Meaning and Value of,” in The Encyclopedia of Philosophy, ed. Edwards, Paul (New York: Macmillan Publishing Company, 1967), 4:470Google Scholar. Whether Clarence Darrow was in fact “one of the most compassionate men who ever lived” is open to question. See Wills, Garry, chaps. 8–9 in Under God: Religion and American Politics (New York: Simon & Schuster, 1990)Google Scholar.

26 John Paul II, Fides et Ratio, Encyclical letter on the relation between faith and reason, Sept. 14, 1998. In the introduction to Fides et Ratio, John Paul II wrote:

Moreover, a cursory glance at ancient history shows clearly how in different parts of the world, with their different cultures, there arise at the same time the fundamental questions which pervade human life: Who am I? Where have I come from and where am I going? Why is there evil? What is there after this life? These are the questions which we find in the sacred writings of Israel and also in the Veda and the Avesta; we find them in the writings of Confucius and Lao-Tze, and in the preaching of Tirthankara and Buddha; they appear in the poetry of Homer and in the tragedies of Euripides and Sophocles as they do in the philosophical writings of Plato and Aristotle. They are questions which have their common source in the quest for meaning which has always compelled the human heart. In fact, the answer given to these questions decides the direction which people seek to give to their lives.

Ibid., introduction, pt. 1. See ibid., chap. 3, pt. 26. (Fides et Ratio would more accurately be named Fides et Philosophia.) We find a similar statement in the Second Vatican Council's Declaration on the Relation of the Church to Non-Christian Religions (Nostra Aetate, 1):

People look to their different religions for an answer to the unsolved riddles of human existence. The problems that weigh heavily on people's hearts are the same today as in ages past. What is humanity? What is the meaning and purpose of life? Where does suffering originate, and what end does it serve? How can genuine happiness be found? What happens at death? What is judgement? What reward follows death? And finally, what is the ultimate mystery, beyond human explanation, which embraces our entire existence, from which we take our origin and toward which we tend?

27 Maclure and Taylor, Secularism and Freedom, 12–13. For discussion of the distinction, see ibid., 76–77, 89–93, 97. For a functionally similar distinction, see Audi, Robert, Democratic Authority and the Separation of Church and State (New York: Oxford University Press, 2011), 42–43CrossRefGoogle Scholar.

28 Maclure and Taylor, Secularism and Freedom, 77. Maclure and Taylor are well aware that there will be cases in which it is difficult to administer the distinction between “core or meaning-giving beliefs and commitments” and “the legitimate but less fundamental ‘preferences’ we display as individuals.” See ibid., 91–97. But there will also be many cases in which the distinction is relatively easy to administer. For example:

[A] Muslim nurse's decision to wear a scarf cannot be placed on the same footing as a colleague's choice to wear a baseball cap. In the first case the woman feels an obligation—to deviate from it would go against a practice that contributes toward defining her, she would be betraying herself, and her sense of integrity would be violated—which is not normally the case for her colleague.

Ibid., 77.

29 Syndicat Northcrest v. Amselem, [2004] 2 R.C.S. 551, 588. “It is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection.” Ibid., 553.

30 United Nations International Convention on Civil and Political Rights art. 7, Dec. 16, 1966, 999 U.N.T.S. 171. Article 7 states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” Ibid.

31 Similarly, the right to the free exercise of religion entrenched in the constitutional law of the United States is conditional; it permits government to prohibit some religious practices. See Reynolds v. United States, 98 U.S. 145, 166 (1879) (upholding the constitutionality of a law banning polygamy):

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

By its very terms, the free exercise right forbids government to prohibit, not the exercise of religion, but the “free” exercise of religion—that is, the freedom of religious exercise. (The First Amendment states, in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”) Just as government may not abridge “the freedom of speech” or “the freedom of the press,” so too it may not prohibit the freedom of religious exercise. The right to freedom of religious exercise is not an unconditional right to do, on the basis of religious belief or for religious reasons, whatever one wants. One need not concoct outdated hypotheticals about human sacrifice to dramatize the point. One need only point, for example, to the refusal of some Christian Science parents to seek readily available lifesaving medical care for their gravely ill child. See Lundman v. McKown, 530 N.W.2d 807 (Minn. 1995). See also Caroline Frasier, “Suffering Children and the Christian Science Church,” Atlantic Monthly, April 1995, 105. Just as the right to freedom of speech does not privilege one to say, and the right to freedom of the press does not privilege one to publish, whatever one wants wherever one wants whenever one wants, the right to freedom of religious exercise does not—because it cannot—privilege one to do, on the basis of religious belief or for religious reasons, whatever one wants wherever one wants whenever one wants.

32 The Siracusa Principles state: “10. Whenever a limitation is required in the terms of the Covenant to be ‘necessary,’ this term implies that the limitation: (a) is based on one of the grounds justifying limitations recognized by the relevant article of the covenant, . . . [and] (c) pursues a legitimate aim . . .”

For the Siracusa Principles, see United Nations, Economic and Social Council, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, U.N. Doc. E/CN.4/1984/4 (1984), reprinted in Human Rights Quarterly 7 (1985): 3.

33 The Siracusa Principles state: “11. In applying a limitation, a state shall use no more restrictive means than are required for the achievement of the purpose of the limitation.” Ibid.

34 The Siracusa Principles state: “10. Whenever a limitation is required in the terms of the Covenant to be ‘necessary,’ this term implies that the limitation: . . . (b) responds to a pressing public or social need, . . . and (d) is proportionate to that aim.” Ibid.

The right to religious and moral freedom obviously would provide no meaningful protection for practices covered by the right if the consistency of a ban or other policy with the right was to be determined without regard to whether the benefit of the policy was proportionate to the cost of the policy. And, indeed, Article 18 is authoritatively understood to require that the benefit of the policy be proportionate to the cost of the policy.

For an explication and defense of proportionality inquiry, see Klatt, Matthias and Meister, Moritz, “Proportionality—A Benefit to Human Rights? Remarks on the I*CON Controversy,” International Journal of Constitutional Law 10 (2012)CrossRefGoogle Scholar: 687; Möller, Kai, “Proportionality: Challenging the Critics,” International Journal of Constitutional Law 10 (2012)CrossRefGoogle Scholar: 709. See, with particular reference to proportionality inquiry under the right to religious and moral freedom, Gunn, T. Jeremy, “Permissible Limitations on the Freedom of Religion or Belief,” in Witte, John Jr. and Green, M. Christian, eds., Religion and Human Rights (New York: Oxford University Press, 2011), 263–66Google Scholar; Kislowicz, Haigh, and Ng, “Calculations of Conscience,” 686–93.

35 Wicclair, Mark R., Conscientious Objection in Health Care: An Ethical Analysis (Cambridge: Cambridge University Press, 2011)CrossRefGoogle Scholar, 11. See Sapir and Statman, “Freedom of Religion,” 474: “[C]oercing people to act against their deepest normative beliefs presents a severe threat to their integrity and makes them experience strong feelings of self-alienation and loss of identity; therefore, it should be avoided as far as possible.”

36 Ibid., 26 (quoting Nussbaum, Martha C., Liberty of Conscience: In Defense of America's Tradition of Religious Equality (New York: Basic Books, 2008)Google Scholar, 37). For Wicclair's full response to the question of “why the exercise of conscience is valuable and worth protecting,” see ibid., 25–31.

37 For the Siracusa Principles, see n. 32.

38 Human Rights Committee, General Comment 22 (see n. 11).

39 Joseph, Sarah, Schultz, Jenny, and Castan, Melissa, eds., The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (Oxford: Oxford University Press, 2004)Google Scholar, 510.

40 See n. 2.

41 In 1931, the fascist dictator of Italy, Mussolini, Benito, proclaimed that “religious unity is one of the great strengths of a people.” Quoted in Noonan, John T. Jr., A Church That Can and Cannot Change: The Development of Catholic Moral Teaching (Notre Dame, IN: University of Notre Dame Press, 2005), 155–56Google Scholar. See McConnell, Michael W., “Establishment and Disestablishment at the Founding, Part I: Establishment of Religion,” William & Mary Law Review 44, no. 5 (2003)Google Scholar: 2182 (“Machiavelli, who called religion ‘the instrument necessary above all others for the maintenance of a civilized state,’ urged rulers to ‘foster and encourage’ religion ‘even though they be convinced that it is quite fallacious.’ Truth and social utility may, but need not, coincide.”) (quoting Niccolo Machiavelli, The Discourses, ed. Bernard R. Crick, trans. Leslie J. Walker (1520; repr., Harmondsworth, England: Penguin Books, 1970), 143.). Cf. “Atheist Defends Belief in God,” The Tablet [London], March 24, 2007, 33:

A senior German ex-Communist has praised the Pope and defended belief in God as necessary for society . . . “I'm convinced only the Churches are in a state to propagate moral norms and values,” said Gregor Gysi, parliamentary chairman of Die Linke, a grouping of Germany's Democratic Left Party (PDS) and other left-wing groups. “I don't believe in God, but I accept that a society without God would be a society without values. This is why I don't oppose religious attitudes and convictions.”

42 Maclure and Taylor, Secularism and Freedom, 18n1. See Grim, Brian J. and Finke, Roger, The Price of Freedom Denied: Religious Persecution and Conflict in the Twenty-First Century (New York: Cambridge University Press, 2011)Google Scholar, 222 (“[T]he core thesis [of this book] holds: to the extent that governments and societies restrict religious freedoms, physical persecution and conflict increase.”). See Paul Cruickshank, “Covered Faces, Open Rebellion,” New York Times, October 21, 2006. The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, G.A. Res. 36/55, ¶ 3, U.N. Doc. A/RES/36/55 (Nov. 28, 1981) states: “[T]he disregard and infringement of . . . the right to freedom of thought, conscience, religion or whatever belief, have brought, directly or indirectly, wars and great suffering to mankind . . .”

43 That the coercive imposition of sectarian moral belief violates the right to religious and moral freedom does not entail that the non-coercive affirmation of theistic belief does so. Examples of the latter, from the United States: the phrase “under God” in the Pledge of Allegiance, “In God We Trust” as the national motto, and “God save this honorable court” intoned at the beginning of judicial proceedings. I have addressed elsewhere the question of whether the non-coercive affirmation of theistic belief violates the Establishment Clause of the U.S. Constitution: Perry, Michael J., “Religion as a Basis of Lawmaking,” chap. 6 in The Political Morality of Liberal Democracy (New York: Cambridge University Press, 2010), 100–119Google Scholar.

44 John Courtney Murray, S.J., “Memo to Cardinal Cushing on Contraception Legislation,” n.d., mid-1960s, Murray Collection, Woodstock Theological Center Library, Georgetown University, http://woodstock.georgetown.edu/library/murray/1965f.htm; see John Courtney Murray, S.J., “Toledo Talk,” May 5, 1967, transcript, Woodstock Theological Center Library, Georgetown University, http://woodstock.georgetown.edu/library/Murray/1967g.htm. Murray's influence on Boston's Archbishop, Cardinal Richard Cushing, and Cushing's influence on the repeal of the Massachusetts ban on the sale of contraceptives, is discussed in Seth Meehan, “Legal Aid,” Boston College Magazine, Spring 2011, and in Seth Meehan, “Catholics and Contraception: Boston, 1965,” New York Times, March 15, 2012. See Joshua J. McElwee, “A Cardinal's Role in the End of a State's Ban on Contraception,” National Catholic Reporter, March 2–15, 2012. For the larger context within which Father Murray wrote and spoke, see Tentler, Leslie Woodcock, Catholics and Contraception: An American History (Ithaca, NY: Cornell University Press, 2004)Google Scholar. For a recent reflection on Murray's work by one of his foremost intellectual heirs, see Hollenbach, David S.J., “Religious Freedom and Law: John Courtney Murray Today,” Journal of Moral Theology 1 (2012)Google Scholar: 75.

45 Maclure and Taylor, Secularism and Freedom, 11.

Kent Greenawalt has written that “[a] vast array of laws and policies . . . imply the incorrectness of particular religious views.” Greenawalt, Kent, “Five Questions about Religion Judges Are Afraid to Ask,” in Obligations of Citizenship and Demands of Faith: Religious Accommodation in Pluralist Democracies, ed. Rosenblum, Nancy L. (Princeton, NJ: Princeton University Press, 2000)Google Scholar, 199. He gives three examples: a law that educational funds be “made available equally to men and women[,]” a decision to go to war, and a judicial order that a state desegregate its schools. Ibid.

I disagree. The proposition that a law banning racial segregation (for example) is warranted on the basis of certain premises—premises that are admissible under the right to religious and moral freedom—does not entail that it is incorrect to conclude on the basis of certain other premises—premises that are not admissible under the right—that the law is, say, contrary to God's will.

46 It bears emphasis that the rationale for the right to religious and moral freedom that I have presented here is nonsectarian. Cf. Laycock, Douglas, “Reviews of a Lifetime,” Texas Law Review 89, no. 4 (2011)Google Scholar: 985:

The only reasons that can justify religious liberty to a broad audience in a religiously diverse society are reasons that do not require acceptance or rejection of any propositions of religious faith. Of course such a scheme will not persuade everybody, and perhaps in the end will not persuade anybody. But that is what I was trying to do. I am happy to supplement the argument with religious reasons when speaking to audiences that might be persuaded by them.

Some citizens have a religious reason (or reasons) for affirming the right to religious and moral freedom, and for them, the religious reason may be the dominant reason. On religious reasons for religious liberty, see Conkle, Daniel O., “Religious Truth, Pluralism, and Secularization: The Shaking Foundations of American Religious Liberty,” Cardozo Law Review 32, no. 5 (2011): 1763–67Google Scholar.

47 I recommend the interested reader consult this work: Conkle, Daniel O., Constitutional Law: The Religion Clauses, 2nd ed. (New York: Foundation Press, 2009), 81–108.Google Scholar

48 See Laycock, Douglas, Religious Liberty (Grand Rapids, MI: W. B. Eerdmans Publishing, 2011), 2:47–230Google Scholar; McConnell, Michael W., “The Origins and Historical Understanding of Free Exercise of Religion,” Harvard Law Review 103, no. 7 (1990)CrossRefGoogle Scholar: 1409; McConnell, Michael W., “Free Exercise Revisionism and the Smith Decision,” University of Chicago Law Review 57, no. 4 (1990)CrossRefGoogle Scholar: 1109.

49 See n. 26.

50 Cf. Chapman, “Disentangling Conscience and Religion,” 199 (“Even those . . . who argue that religious liberty presumes the existence of God, rarely go a step further and suggest that religious liberty should only extend to theistic religions.”).

51 Laycock, Douglas, “McElroy Lecture: Sex, Atheism, and the Free Exercise of Religion,” University of Detroit Mercy Law Review 88, no. 3 (2011)Google Scholar: 431. See Laycock, Douglas, “Religious Liberty as Liberty,” Journal of Contemporary Legal Issues 7, no. 2 (1996): 336–37Google Scholar.

52 See n. 14.

53 See n. 17.

54 See n. 18.

55 Law professor George Wright has said to me, in correspondence:

If the Framers had consensually concluded that religious conscience is somehow distinctive, and to be constitutionally distinguished from a more general, or a purely secular, conscience, I would have lodged no serious objection at the time. But as today's culture, or at least key segments thereof, rejects the idea of any relevant distinctiveness of religious conscience, my Hobbesian approach urges that we simply accept the equality of religious and secular consciences, lest we find ourselves seeking, imprudently, to build a stable society on the basis of an apparent principle that persons of exclusively secular conscience are, by loose implication, somehow not operating at the same level of moral depth, seriousness, sustained motivational force, or profundity as are some persons of religious conscience.

George Wright to Michael Perry, e-mail, January 14, 2013.

I have heard it suggested—though I am not arguing here—that to interpret the right to the free exercise of religion to protect religious but not secular conscience is to interpret the right such that it is in tension with the constitutional requirement that government not “establish” religion or with the right to the equal protection of the laws—or with both. It bears mention, in that regard, that in Welsh v. United States, 398 U.S. 333 (1970), Justice Harlan, concurring in the result, argued that for Congress to grant conscientious objector status to those whose pacifism is based on theistic religious belief—or, more broadly, on theistic or nontheistic religious belief—while denying such status to those whose pacifism is based on nonreligious belief is to violate the First Amendment requirement that “Congress . . . make no law respecting an establishment of religion . . .” Ibid., 356.

56 See Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972).

57 Eisenstadt, 405 U.S. at 113 (emphasis in original).

58 See Roe v. Wade, 410 U.S. 113 (1973).

59 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 850–51 (1992).

60 Zablocki v. Redhail, 434 U.S. 374, 386, 388 (1978). See Turner v. Safley, 482 U.S. 78 (1987).

61 Lawrence v. Texas, 539 U.S. 558, 562, 567, 571, 577–78 (2003) (quoting, at 571, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 850 (1992), and, at 577–78, Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)).

Legal historian William Novak has noted that “[b]y the standards of late twentieth-century law, the public regulation of morality [in the United States] is increasingly suspect.” Novak, William J., The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996)Google Scholar, 149. Novak explains:

The burgeoning public/private distinction, the jurisprudential separation of law and morality, and the expansion of constitutionally protected rights of expression and privacy have yielded a polity whose legitimacy theoretically rests on its ability to keep out of the private moral affairs of its citizens. As the American Law Institute declared in the 1955 Model Penal Code, “We deem it inappropriate for the government to attempt to control behavior that has no substantial significance except as to the morality of the actor.”

Ibid. Novak goes on to illustrate that “[t]he relationship between laws and morals in the nineteenth century could not have been more different. Of all the contests over public power in that period, morals regulation was the easy case.” Ibid. See ibid., 149–89.

62 The Due Process Clause of the Fourteenth Amendment, which is a limit on state government, provides: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . .” U.S. Const. amend. XIV, § 1. The Due Process Clause of the Fifth Amendment, which, like the rest of the Fifth Amendment, is a limit on the federal government, provides: “[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law. . . .” U.S. Const. amend. V.

63 For an impressive argument that we should reject the position “that [under the due process clauses] courts may identify certain liberties with no source in positive law and protect them even against general and prospective legislation enforced with all proper procedure,” see Chapman, Nathan S. and McConnell, Michael W., “Due Process as Separation of Powers,” Yale Law Journal 121, no. 7 (2012): 1792–1801Google Scholar.

64 I address some such questions in chapters 8 & 9 of my new book (see n. 1).