Question 1: Defining and Protecting Conscience

In Fall 2011, the Undergraduate Fellows enrolled in the Law, Religion, and Liberty of Conscience Seminar interviewed experts about the role of conscience in American life, law and politics. Below are some of their responses to the students' first question:
What is conscience, and what elements of conscience deserve protection from a legal perspective?

Steven D. Smith:

I've written quite a lot on this question, trying to figure out what ‘conscience’ means and whether and why it deserves legal protection. If I had to respond in a couple of sentences, I guess I'd say something very conventional sounding: Conscience is a person's considered and sincere judgment about right and wrong, and an enlightened constitutional regime would try to protect it from regulation.

Richard W. Garnett:

‘Conscience’ is sometimes talked about as if it were just a ‘feeling,’ or ‘sense,’ about what a person thinks is important, or wants to do. I don't think this is quite right. ‘Conscience’ is an intellectual faculty, a kind of capacity, to identify what ought to be done (because it is good) or what should not be done (because it is wrong). ‘Conscience’ is not a personal power to define or determine what is right and wrong, but is instead the capacity to appreciate, to realize, what is actually right and wrong.

Thomas F. Farr:

Conscience is the dimension of the intellect that guides an individual to choose truth over falsehood, right over wrong, good over evil. So long as it is understood as an aspect of human choice that is ordered to objective truth—i.e., as more than the modern understanding of conscience, which is too often “doing what I want to do because I really want to do it”—conscience deserves the protections provided in the Bill of Rights. Because of the First Amendment, the American constitution privileges protection of the religious conscience over other forms. If that is to change, it should be done via democratic means, not by judicial fiat.

Marc O. DeGirolami:

Conscience is a difficult term to define for legal purposes, making it an equally complicated affair to know what does and does not deserve protection. At the very least, we might say that a person who acts from conscience acts on the basis of some deeply held moral conviction. ‘Morality’ seems especially important here—the basis for the behavior must be ethically motivated in order to be described as conscience-based. If it is based in pragmatic judgment, then it is not conscience-based.

The trouble with this description is exactly that it makes our understanding of what morality is the touchstone of what conscience is. And then there is the issue of describing the reason that a state ought to defer in some circumstances—which ones?—to individual claims of conscience.

The first problem is one of meta-ethics—how would one describe the nature of a ‘moral’ objection to, say, mandatory conscription in the army? How we describe the nature of that objection, and what we feel counts as a conscience objection, is very difficult. The second problem relates to political philosophy—the issue is why a state should care about conscience objections. And one might give pragmatic as well as principles reasons that a state might care.

Mark R. Wicclair:

A person’s conscience can be thought of as an internal moral guide. To say that someone has a conscience is to say that:

The person has deeply held moral beliefs.
The person’s decisions and actions generally are consistent with her deeply held moral beliefs.
If a decision or action is not consistent with the peson’s deeply held moral beliefs, she feels guilt, remorse, shame, and the like.

The free exercise of conscience (i.e., the ability to act in accordance with one’s deeply held moral convictions) is essential to preserving one’s moral integrity. Hence, the free exercise of conscience is a value worth protecting. However, there are limits to legal protections of conscience. For example, laws may restrict parents’ exercise of conscience in order to protect children from neglect or abuse. Similarly, the special obligations of professionals may place limits on justified legal protections of conscience.

Caroline Mala Corbin:

I think Eisgruber and Sager’s formulation works well: deeply held moral convictions. To the extent that protecting conscience does not unduly burden others, the law may protect it. It burdens no one to let someone wear a yarmulke to work. It starts to burden coworkers if Sabbath observers are allowed to avoid the Sunday shift. It most definitely burdens others if certain religious beliefs (no contraception, no same-sex marriage) become law.

M. Cathleen Kaveny:

Conscience is a judgment that a particular act is morally prohibited, permitted, or required, either in all cases or in a particular case. In a society such as the United States, the freedom to express one’s moral judgment—one’s conscience—and the grounds for it should always be protected. The freedom to act in accordance with one’s conscience is something else again. Those responsible for the common good need to balance a number of factors, including the importance of the law imposing a general prohibition or requirement, the value it represents or preserves, the harm the exception will do to both purpose and rationale of the law, the importance of the exception to the conscientious claim-maker, and the principle the exemption enacts. There is no value neutral way to assess these claims; an American legislature is going to be more likely to respect, even if it disagrees, with a fundamental refusal to kill than a fundamental refusal to serve women or minorities.

Ian C. Bartrum:

My own personal view is that conscience is the name we give to our innate ability to feel and give weight to the moral emotions. It is the “common sense” at the heart of common sense moral philosophy. As such, it is an essential part of being a human being and realizing our individual human potentials. And, in legal terms, it is at the very core of any meaningful effort to recognize and provide for self-governance. We have to leave room for people to truly govern themselves if we expect them to participate meaningfully in democratic institutions ….Without a space for conscience, I think the entire democratic structure breaks down.

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