Debates about the nature and scope of religious freedom revolve, in part, around the idea of conscience, an old idea in the western tradition. In moral theology, conscience typically represented a capacity of moral self-reflection that could correct our normal rational and appetitive moral processes, reminding us of the most fundamental moral principles even when we had (mistakenly) convinced ourselves to act against them. Over time, the idea of conscience became a more general idea of an inner sanctum which encompassed all of the moral deliberations that a human undertook. Anglo-American jurisprudence, under the influence of Western Christian ideas, absorbed the idea that each citizen has an unassailable inner sanctum over which the legal polity could not rule. Yet over the past hundred years, we are faced with the awareness that growing pluralism and cultural heterogeneity challenges any easy consensus about how conscience is to be protected in a community of diverse people pursuing many different good lives.
Within the U.S. context, the idea of liberty of conscience is rooted in seminal ideas underlying the Republic. The free exercise clause enshrined in the Bill of Rights was built upon the modern liberal idea that while citizens form a government by alienating certain rights over to a central sovereign, some rights like conscience are inalienable. As Elisha Williams put this in a 1744 sermon: "The members of a civil state do retain their natural liberty or right of judging for themselves in matters of religion. Every man has an equal right to follow the dictates of his own conscience in the affairs of religion."
Yet over the course of the last 200 years, the idea of conscience has been transformed under the conditions of modernity. The ease of making recognizable claims of conscience within a largely homogenous religious citizenry has disappeared. Our age is now marked by an immense diversity of religious views, with greatly conflicting prescriptions for morally-shaped ways of life, a situation that complicates any easy consensus about how "matters of conscience" can manifest in public acts.
The intellectual justifications for protecting conscience have also undergone radical shifts. No longer is there a viable narrative about a rational horizon of shared moral principles and the privileged position of religious conscience has given way to broader ideas about moral subjectivity unrooted from religious life or theological narratives. Appeals to stable, permanent truths within moral and political debates no longer convince large portions of our fellow citizens. We act on the basis of reasons that are evermore shrouded within insular identities, subjective preferences, and carried out among communities of the like-minded, while our justifications are decreasingly persuasive to others. We simply hold fewer norms in common.
So, today we are confronted by new, vexing challenges about how to strike a reasonable balance between protecting conscience and religious liberty and allowing the pluralistic political community to advance laws and regulations for the well-being of the polity. The legal order has to sort out what conscience rights can be tolerated when they conflict with the demands of living together within the same political space.
In this situation it is facile to think that what we need is more law, to fill in the gaps. Rather, as Robert Cover brilliantly explains in Nomos and Narrative, the problem we face is not some deficiency in the law. Rather, we already live with too much law-that is, we live amidst a conflicting multiplicity of laws that guide our individual and communal lives, and lead us into many different, sometimes colliding, ends. The state has a monopoly on only one version of the law and holds power over citizens who are fully aware of many other modes of power, sources of norms, and diverse goals for their lives, many beyond state control. The modern bureaucratic state's regulatory control over more parts of our lives multiplies while simultaneously butting up against enduring and thriving modes of normativity that escape the state’s power.
The American political order tried to protect conscience by recognizing this limit on state power: from Locke to Madison and forward, the political theory underlying conscience protection aimed to allow for principles of toleration and respect for the fact of conscience, while resisting any official endorsement or sanction about the substance of a conscience's claims. Classic liberals cordoned many facets of life and associations-particularly religious and moral ones-for private treatment and control in order to protect these modes of life from what Luther had called the blunt instrument of the state's sword. The constitutional framework of our liberal democratic order protected conscience through self-imposed limits on how far the state can intervene into the lives of diverse citizens.
Thus arguments made by a citizen about what impacted their conscience were generally deferred to, since many of them could be tolerated in our midst without a crumbling of the social order. When Mrs. Sherbert, a Seventh-day Adventist was fired after she refused to work on Saturday, her Sabbath Day, and was denied unemployment benefits because other jobs were available that she refused (also requiring Saturday work) the Court declared this forced her to make a choice that was forbidden by the Constitution. The state's laws could not make you give up your religious scruple to gain a government benefit that is otherwise open to you, especially when accommodating this religious way of life comes with very little political cost.
In the 53 years since Sherbert v. Verner, though, the stakes have risen. Claims about government regulations forcing conscientious believers to violate their deeply held beliefs have multiplied. Now, many citizens are far less sympathetic to religious claims. Some of the demands for exemptions impose real costs to the social order. Ethnic, racial, and gender biases manifest in sympathy or hostility to conscience claims: Those sympathetic to Christian bakers objecting to wedding cake sales for a same-sex ceremony may often be far less inclined to think the state ought to accommodate Muslim taxi drivers who do not want to carry passengers with alcohol, in violation of carrier regulations. What appears to one citizen as a legitimate regulation by the government is to another a deeply offensive intrusion. The future instances where citizens may make demands for exemptions are not yet fully imaginable. We will need to sort out how to handle complicity claims that approach and strain credulity.
A hallmark of liberal democracy has been the recognition of different worldviews and moral configurations. Today, we are less tolerant of imposing onto others a unified moral truth. At the same time, recent seismic shifts in moral views about gender roles, sexual identities, configurations of partnerships and marriage, among many other areas of life, have dramatically altered socially acceptable modes of life. For many, these changes mean that liberty has fully awakened and moral progress has been made toward equality and inclusivity. For others, good moral patterns and justified legal regulations of harmful behavior have been stifled. Now we face the question of what to do with those whose moral views have not changed with the times. Does the state have any justifiable interest in forcing the "stragglers" to adopt new, "enlightened" views about moral ideas relating to contraception and marriage equality? Or, are progressives now in danger of committing what Doug Laycock has called the "Puritan mistake," where the formerly oppressed now become intolerant of those with different views?
Exemptions have emerged as an avenue to achieve conscience protections for those who refuse on religious and moral grounds from participating in activities they deem a moral violation. These can be good political compromises to advance a cause while leaving a safety valve for those who object to "opt-out." Yet, granting an exemption may at times implicate the government in endorsing the unequal provision of goods or services or legitimate certain kinds of dignitary harms to those who are refused service by a conscientious objector.
Accommodating religious actors will have to be done, if at all, with the full recognition that a balancing of goods and harms is a necessarily imperfect, even tragic, path to settling these conflicts in a pluralist democratic order. Tolerance for a free and diverse people is a messy affair.
