SETTING OUR FEET: THE FOUNDATIONS OF RELIGIOUS AND CONSCIENCE PROTECTIONS.

Author:Torline, Hanna
 
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INTRODUCTION

In an article published in 2017 titled The Equivalence of Religion and Conscience, Lucien J. Dhooge argues that "religion and conscience are moral equivalents that require equal legal treatment." (1) In the end, Dhooge concludes that the law should treat religion and conscience as though they are the same. While Dhooge reins in his conclusion just a bit--by noting that we "should proceed with caution in order to address potential negative consequences" (2)--he reaches his conclusion without considering the important, and notably different, foundations that underlie the justifications for religious and conscience protections. Dhooge's conclusion that conscience and religion are "moral equivalents" might be right. After all, it is a normative (and complicated) claim. Thus, it's possible that Dhooge's conclusion does not miss the mark. But instead of accounting for the wind, setting his feet, nocking the arrow, and taking a calculated shot, Dhooge runs straight for the bullseye, arrow in hand. The result may be desirable, but it also may have been forced.

This Note does not attempt to claim that religion and conscience are not moral equivalents, that they are not equally important, or that they do not require equal legal treatment. Nor does it attempt to claim the converse. Simply put, it argues that a consideration of the different foundations underlying conscience protections and religious protections should give pause to anyone arguing that the two are equivalent. This Note concludes that the rationales behind protecting religion and conscience are different enough to merit consideration in the debate. For if religion and conscience are treated as equivalents under the law, they will be treated as though they are the same. When litigants bring religion or conscience cases to the courts, they will be judged in the same way. The two will be subject to the same exceptions, the same tests, and the same qualifications. Again, this might be the best result; it might even be the bullseye. But it is also possible that religion and conscience should both be protected within their separate (though in some respects, similar) spheres. Such an arrangement might better protect religion and better protect conscience. Whether conscience should be protected in its own right is an entirely separate question, and one that this Note does not take up. Additionally, if it is decided that conscience should he protected on its own merits, this Note will not point to the line where conscience protections should be drawn and compare it to the line marking religious protections. Instead, very simply, this Note argues that the two lines are not measuring the same thing.

Part I of this Note will define three forms of conscience--one that is found only within the context of religion, and two that are found entirely apart from it--and will explain why the secular claims to "conscience" stem from different rights than those supporting religious liberty. Part II will argue that the Founders understood conscience to be intrinsically tied to religion, and it will discuss the role that this conception of conscience played in the early drafts of the Free Exercise Clause of the United States Constitution and in the enacted versions of state constitutions. Part III will progress through a timeline of the Supreme Court's understanding of the word religion, beginning with the early Court, moving through the conscientious objector cases after World War II, and ending with the Court's current jurisprudence. Finally, Part IV will argue that the Free Exercise Clause was not intended to incorporate the same protections of conscience which Dhooge argues it should be used to protect today.

  1. DEFINITIONS

    1. Religion

      Before proceeding to define conscience, it is first necessary to provide a workable definition of religion. In part, defining religion is the entire crux of this Note, as it concludes that the Supreme Court has defined religion too broadly by drawing the borders of the word around an entirely separate concept: secular conscience. For the purposes of this Note, the definition of "religion" will "adhere [ ] to traditional traits... especially the existence of and belief in a supreme being." (3) This conception of religion encompasses belief systems which include "three components: (1) belief in a deity; (2) with duties in this life; and (3) a future state of rewards and punishments." (4) While this Note will utilize this definition of religion moving forward, it is not premised on the supposition that this is the correct definition of religion as it is used in the First Amendment. Rather, defining religion in this way simply helps to differentiate between the concepts of religion and certain types of conscience.

      While the Supreme Court traditionally defined religion as necessitating a belief in a higher being, the Court later broadened its definition to include even agnostic belief systems where

      the adherent's words and deeds were motivated by a devotion to goodness and virtue for their own sake... as long as such [a] belief system was sincere, meaningful, and occupied a place in the life of the possessor parallel to that occupied by belief in God in the life of a religious adherent. (5) For now, it is enough to recognize that these two definitions differ from one another and to know that this Note, when talking about "religion," will be referring to the former definition.

    2. Conscience

      Moving now to conscience, Dhooge primarily discusses two types of conscience in The Equivalence of Religion and Conscience. These two--"traditional" and "individual"--are the ones most relevant to the Free Exercise Clause. Briefly, this Note will also discuss a third type of conscience: "learned" conscience. The "learned" definition of conscience has not been embraced by legal scholars or judges, so its intricacies are not as important for the purposes of this Note.

      The first type of conscience will be called "traditional." In its simplest form, it claims that "Cod gave us our conscience." (6) Thus, traditional conscience is intrinsically linked to a claim of authority. Since this traditional conscience is understood as a projection of Cod's will into human hearts, many Christians, and undoubtedly those of other theistic religions, believe that following one's conscience is even more important than following the commands of human authority or of an individual's autonomous desires. Those who adhere to the traditional view believe that "[m]oral conscience, present at the heart of the person, enjoins him at the appropriate moment to do good and to avoid evil." (7) This type of conscience was the "battle cry of the Protestant Reformation," (8) which professed that "Cod alone is Lord of the conscience." (9) And Gaudium et Spes outlined traditional conscience when it explained that "[i]n the depths of his conscience, man detects a law which he does not impose upon himself, but which holds him to obedience.... [A] law written by God; to obey it is the very dignity of man; according to it he will be judged." (10)

      Those who adhere to the traditional view of conscience ascribe its foundations to God. Because conscience comes from God, and because a person's greatest good (attaining salvation) depends upon following divine instructions, people must be allowed to follow their consciences. Or, at least, so goes the argument in favor of protecting traditional conscience. For divine instructions--to the believer--carry more authority than the commands of the state or even the desires of the individual himself. Thus, if one believes that the individual has a right, or even a duty, to place God in the highest seat of authority, and also believes that conscience is a manifestation of God's commands, it follows that the state must respect conscience. Even if the state does not recognize the existence of a supreme being, if its citizens (from whom the state derives its power) believe they owe a higher duty to God, the state's proper role requires it to respect this primary place of God. (11) Such was the view of the Founders, which will be discussed in the next Part.

      A second type of conscience will be called "learned." The learned conscience may be attributed to a few different sources. One claim is that learned conscience is "genetically determined, with its subject probably learned or imprinted as part of a culture." (12) A person's learned conscience forms as community standards are imposed upon that person throughout his or her life. Those community standards "teach" the conscience appropriate behavior and values. The psychologist Sigmund Freud spoke of this "learned" conscience when he argued that conscience originated through the sense of guilt we feel upon acting against social norms, which embed themselves in individuals through external disapproval of aggression. (13) Similarly, Charles Darwin argued that conscience evolved

      from the "greater duration of impression of social instincts" in the struggle for survival. In such a view, behavior destructive to a person's society... is bad or "evil." Thus, conscience... [is] experienced as guilt and shame in differing ways from society to society, and person to person. (14) If the law were to protect such a view of conscience, that protection would not be derived from the same duty-based theory that supports protecting "traditional" conscience. For, if conscience is a person's individual, learned response to a community interaction, and if society is responsible for imprinting such a conscience into someone's mind, then how can a person's duty to her conscience be distinguished from her duty to society--in other words, to follow the law? Certainly, the stale is simply a more formal representation of society's views and values. Thus, the state's actions (laws) are often the formalization of a collective, societal conscience. And since the pulls of an individual's conscience are neither the product of...

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