Question 3: Non-Religious Moral Claims

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' third question:
Should conscience-based protections be based only on religious grounds, or is there room for non-religious moral claims (as there is in conscientious objection)? Can the conscience-based moral claims of atheists be protected under a scheme of religious-based conscience exemptions?

Thomas F. Farr:

I believe the non-religious content of conscience deserves protection, so long as it is ordered to the truth about man and society, which is to say that conscience drives action that accords with natural reason.

Richard W. Garnett:

Atheists, certainly, are protected by the Religion Clauses, in the sense that everyone (including atheists) enjoys the right to free exercise of religion (which includes the right not to embrace or practice a religion), and in the sense that the no-establishment rule helps to limit government in a way that benefits atheists and believers alike. That said, the “exercise” of atheism is not the “exercise of religion,” and the law can and should distinguish between religion-based requests for accommodations and exemptions, on the one hand, and requests grounded in strong, but non-religious, convictions.

Marc O. DeGirolami

If one is talking about the constitution, I do not think that ‘conscience’ is something which can be constitutionally protected in any kind of general way. Of course, if one is talking about wise public policy, or legislative discretion, I fully support the power of legislatures to create exemptions of various kinds in appropriate cases.

Thomas Berg

The Constitution protects religiously-based objections under the Free Exercise Clause, and there are reasons to treat religious objections as a distinct category. That doesn't mean, however, that other sources of conscience don't deserve protection in particular contexts: just that the Constitution doesn't guarantee it. To the extent that an atheist belief can be tied to a particular moral norm of conduct—for example, refusal to take an oath, or refusal to serve in the military and kill on the ground that “this life is all there is and shouldn't be ended”—it should be counted as a religion-based conscience exemption. We would very likely treat government establishment of atheism as an establishment of religion—of a particular explicit position on a religious question—and correspondingly we should treat atheism-based claims as religiously based.

Ira “Chip” Lupu

Of course there is room in the 21st century to protect moral conscience, divorced from religion. If the “scheme” is religion-based, it won 't protect atheists per se, because the conscience of atheists does not arise from atheism (atheism is a belief in the non-existence of God; how can that, by itself, ground moral beliefs?) The conscience of an atheist derives from some other source of knowledge or intuition about right and wrong.

Steven D. Smith

The question asks about “religious grounds,” but my sense is that you're asking not about justifications for protection but rather about what should be protected. I think that the core protection is for “religious conscience,” if I can call it that, and that the best justifications for protecting conscience are probably religious in nature. But I've argued that there is a persuasive case for protecting non-religious manifestations of conscience as well.

Douglas Laycock

The language of the Constitution we have says free exercise of “religion.” Some claim that means that secular conscience is necessarily unprotected. The effect of that is to shrink protections for religious conscience as well, because judges worry about discriminating.

I think that “religion” must be interpreted in light of the evolution of beliefs about religion since 1789. The Religion Clauses exist to mediate conflict over religion, and the fundamental line of religious conflict in the United States today is between essentially religious and essentially secular worldviews. The Constitution cannot mediate that conflict if only one side is protected. So the Religion Clauses should protect freedom of belief about religion, not just beliefs in religion. When nonbelievers do things that are analogous to religious exercise, they should be protected. This includes acting on their deeply held claims of conscience.

Robert Vischer:

Religious exemptions are one type of conscience protection. I agree that liberty of conscience should not be limited to religious believers, though it gets tricky carving out exemptions to every conceivable form of belief that could conflict with the law’s dictates. That’s why I favor having the law resist the temptation to legislate on contested moral issues when possible, rather than assume that religious liberty can be adequately defended through a framework of exemptions.

Mark R. Wicclair:

The exercise of conscience is worth protecting whether or not the person’s core moral beliefs are religion-based. Moral integrity is no less important to conscientious atheists than it is to conscientious believers. The Supreme Court rightly rejected a religious belief requirement (a belief in a “Supreme Being”) to qualify for conscientious objector status in relation to military service in U.S. v. Seeger and Welch v. U.S.

Caroline Mala Corbin:

Limiting them to religious grounds would be unfair in a country where not everyone is a believer. Perhaps at a time when everyone was religious, and everyone could potentially benefit from a religious exemption, such exemptions did not appear to favor religion over nonreligion. That is no longer the case.

Alan Brownstein

This question really raises four distinct, but related questions.

First, does the Free Exercise Clause of the First Amendment provide conscience-based protection only on religious grounds or is there room for protecting non-religious moral claims as well? As currently interpreted, under the holding of Employment Division v. Smith, the Free Exercise Clause provides virtually no protection to the conscience claims of religious individuals against neutral laws of general applicability. I believe the Smith decision is bad law and have argued that religious liberty deserves greater protection than the Smith decision provides.

Second, does the Establishment Clause of the First Amendment require that, in certain circumstances, if the conscience claims of religious individuals are protected, than non-religious conscience claims must receive equivalent protection? I think there are Establishment Clause limits to the extent that conscience-based protection can be limited exclusively to religious individuals. In some cases the material benefits associated with a conscience claim or the resulting harm to non-beneficiaries are too high to justify the privileging of religious conscience alone.

Third, are there situations in which statutory accommodations of conscience should be extended to include non-religious moral claims? There is no constitutional constraint against adopting legislation that protects conscience claims more broadly than religious liberty concerns require. The practical question, however, is how government can efficiently limit the scope of such claims to avoid undermining the rule of law and the efficient administration of legal rules.

Fourth, do other provisions of the Constitution protect conscience claims in addition to the religion clauses of the First Amendment? Other constitutional provisions protect dignitary interests and personal autonomy. In some circumstances, these interests include what we might describe as rights of conscience. For example, the right not be compelled to speak protects the right not to communicate state mandated messages that the speaker rejects as immoral or inauthentic. Freedom of association can protect the right to associate with persons the larger society has shunned.

M. Cathleen Kaveny

I think there has to be room for conscientious objections based on non-religious grounds in a pluralistic society.

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