by Marie A. Connelly
Jiminy Cricket once urged Pinocchio to “always let your conscience be your guide.” He instructed Pinocchio to do the right thing and summon his conscience to help him distinguish right from wrong. The story of Pinocchio teaches us that a well-formed conscience is necessary for moral and social order. Good things come from following one’s conscience—Geppetto’s wish to become a father came true only because Pinocchio learned to follow his conscience. In teaching Pinocchio, Jiminy assumes that Pinocchio was free to follow his conscience and the only thing that might obstruct Pinocchio is Pinocchio himself. Yet what are would Pinocchio do, and what are we to do when laws conflict with our conscience? Which one wins—the individual conscience or the government? And why?
Freedom of conscience and its sister—religious liberty—have paraded forcefully into the public square and are at the center of the recent Health and Human Services controversy over a rule that requires religions institutions to pay for drugs and services that are contrary to their beliefs or face crippling fines. The Obama administration has been sued 29 times by more than 80 plaintiffs seeking to invalidate this regulation as unconstitutional for coercing the conscience rights of these plaintiffs. Advocates for religious freedom often use interchangeably the phrases “freedom of conscience” and “freedom of religion.” But are conscience and religion synonymous? Neither history nor practice seems to answer in the affirmative, yet the practice of using these phrases interchangeably continues.
This post seeks to provide a brief overview of the history of free exercise in America by examining practices and legal enactments in the states preceding the adoption of the U.S. Constitution, the political philosophy influencing the debates at the constitutional convention, and the text of the Constitution and the First Amendment. This overview is intended to provide context for future debates on laws and policies that affect conscience or religious freedom rights. This foray is not intended to be comprehensive. The free exercise of religion is the focus today, but it is only one aspect of the religion clauses in the First Amendment; a discussion, and perhaps a debate, on the Establishment Clause is reserved for a future post. Part two of this article—for a later date—will evaluate the cases that interpret the meaning of free exercise of religion in the first 100 years under the Bill of Rights. A third article will discuss modern developments since the revival of the religious liberty debate in the 1940s.
American Colonists established settlements with one of four religious characteristics: Anglican (VA), Puritan (New England except for Rhode Island), apathetic toward religious distinction (NY & NJ); or sanctuaries for religious dissidents (RI, MD, PA, DE, Carolinas).[i] The importance of free exercise of religion was first elevated in more pluralistic colonies, like Maryland, Pennsylvania, Rhode Island, and the Carolinas. The more homogenous colonies like Virginia were slower to consider the importance of free exercise of religion because most of their citizens shared the same religious beliefs. (This didn’t preclude such states from ultimately considering the issue of free exercise, however, as James Madison’s Memorial and Remonstrance of 1785 proves. The so-called Virginia Assessment Controversy came to head because members of minority religions opposed being taxed to support Virginia’s established religion.)
In 1649, the Maryland Assembly enacted America’s first free exercise clause when it passed the Act Concerning Religion containing a free exercise clause applicable only to those professing faith in Jesus Christ.[ii] A few years later, Rhode Island introduced the phrase “liberty of conscience” in its Charter of 1663, and this liberty protected those with differences of religious belief as long as they did not disturb the peace.[iii] Although Rhode Island was founded by the religious dissident and exile Roger Williams, the state’s freedom of conscience clause found its way into early versions of legal documents in Carolina and New Jersey. Rhode Island’s notion that the state could circumscribe freedom of conscience to preserve peace or safety also made its way into most state constitutions. (NY, NH, GA, DE, MD, MS, NJ, RI, SC).
Nearly concurrently, the Enlightenment was taking root in continental Europe. In 1689 a young John Locke published his first major work, A Letter Concerning Toleration, and a few years later he published the Two Treatises on Government, and again a few years later The Reasonableness of Christianity. These early Lockean works contained many themes that were read, ingested, and dispersed during the Constitutional Convention by prominent American Founders, especially Madison and Jefferson. Locke observed the infighting and religious strife in Europe and concluded that religious conflict was largely due to the lack of religious toleration by government. He accepted the common understanding of his day that conscience belongs to the individual but is endowed by God,[iv] and he saw the purpose of civil government as protecting life, liberty, and property.[v] As a solution to the religious strife in England and Europe, Locke proposed a separation of spheres: the government should tolerate religious belief, but the religious and their institutions should be less concerned with matters of the world, namely those of government. This thought undoubtedly colored Jefferson’s when he wrote a private letter to the Danbury Baptists nearly one hundred years after Locke, in which Jefferson called for a wall of separation between church and state. Interestingly, Locke did not extend the right of religious toleration to atheists, Catholics, or those who refused to tolerate others. For atheists, he thought that by denying the existence of God they could not be trusted to honor their oaths or affirmations, and Catholics couldn’t be trusted because they held an allegiance to a foreign prince. Do Locke’s ideas hold true today where oaths and affirmations still have value regardless of one’s belief on God, and it is well-settled that Catholics are not bound by a foreign prince? I argue yes—in part, but first let’s take a look at the text of the Constitution and the drafting of the First Amendment.
The United States Constitution itself contains only two references to religion. First, it prohibits religious tests for office in Article VI § 3. Second, it permits a conscientious objector to offer an ‘affirmance’ instead of taking an oath of office. See Art I, § 3, cl. 6; Art II, § 1, cl. 8; Art VI, cl. 3. The Quakers were the most common conscientious objectors to oaths, and despite being a minority religion, they had a stronghold in William Penn’s colony of Pennsylvania and later in Delaware through John Dickinson’s leadership and representation. The heart of freedom of religion was introduced by James Madison in the First Amendment. There is no recorded debate from the drafting of the Free Exercise Clause; the only debate is on the Establishment Clause, and even that is quite minimal considering the widespread implications these clauses have in modern legal and jurisprudential discourse. Most analysis of the original meaning of the Free Exercise Clause is conducted by evaluating the drafts of the clause as they were proposed during the First Congress. Madison’s first draft explicitly included the phrase “full and equal rights of conscience” instead of freedom of religion. The final House version of the religion clauses read “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.” This version, proposed by Massachusetts Congressman Fisher Ames, injected the phrase “free exercise” into federal discourse after the phrase had been floated around the states before the First Congress convened. The Senate passed a final version that excluded the phrase liberty of conscience: “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion.” This version was rejected by the House. The two chambers met in a conference committee, of which Madison took part, to devise a final version of the clause that omitted the key phrase rights of conscience. The states ratified this version which today still reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Whether this omission of rights of conscience was made because the drafters saw religious liberty as narrower than freedom of conscience and sought only to protect the former or whether the drafters saw the two as interchangeable and sought to eliminate the freedom of conscience for the sake of brevity, we cannot know with certainty. However, given the intellectual and political history of the clause we can know that even if the drafters did believe the two phrases—liberty of conscience and freedom of religion—were synonymous, a religious element inhered in the free exercise clause.[vi] Free exercise of religion, by its own terms does not merely include freedom of one’s thoughts unattached to some other authority.
Jiminy Cricket’s exhortation to let our conscience be our guide is a particular conundrum for the American legal system. How do we—the court or the legislatures—reconcile contemporary secular society with the religious ideas that influenced and informed our Founders? Measuring the interest of the individual measure against the interests of the government is a tough task. The problem will be most difficult at the margins, and is compounded when the objector does not belong to an existing religion. What if he bases his conscientious objection on secular scruples, yet he could also object to as a member of an organized faith? Shall the possibility that he could object for religious reasons be the means test? In other words, if a secular objector could not possibly root his objection within a doctrinal faith, should his objection be rejected? If so, how do we accommodate emerging faiths? Any objector must be sincere, and measuring his sincerity is another challenge. How do we determine whether the objector is inventing his conscientious objection to achieve some legal or other benefit?
At root, Locke and his American followers believed that religious liberty could be limited to preserve social order by protecting public peace or safety. This principle must apply today. In this manner, I believe that Locke’s ideas are relevant and applicable to the First Amendment. A challenge remains in determining when and whether one’s freedom of religion (or conscience) should give way to the good of society, and whether there is a distinction between freedom of conscience and religion.
Jiminy will be with us in the coming discussions as we work through the history and the current law to attempt to resolve some of the most difficult, and most interesting, legal and philosophical questions that continue to perplex even the members of America’s highest court.
[i] McConnell at 1424
[ii] McConnell 1425.
[iii] Id. at 1426.
[iv] Feldman at 370; Locke’s Letter Concerning Toleration
[v] Feldman at 368; Locke’s Letter Concerning Toleration
[vi] See McConnell 1488-93