Skip to main content
Religious Freedom Toolkit

Part III | Expanded Analysis

Category B | Principles

Topic 6 | Protecting conscience and conscientious objection

Conscience encompasses all deeply held convictions of an individual regarding what is right and wrong, including those based on religious belief. Conscientious objection, or “appeal to conscience,” is the refusal to follow a legal requirement based on conscience. Historically, state protection of conscience arose from the protection of religion-based conscientious objections to military service. If a state fails to protect religious conscience, the state will almost certainly fail to protect other conscience claims as well. Religion-based conscience claims have a heightened salience because of their appeal to an obligation higher than positive law. If duty to God is viewed as being insufficient to justify protecting conscience, then we should expect the state to view other grounds for protecting conscience, such as personal autonomy, to be insufficient as well.

UDHR: Conscience, human dignity, and human rights  

Respect for individual reason and conscience is integral to upholding human dignity, in which all human rights are rooted.203 Article 1 of the Universal Declaration of Human Rights (UDHR) affirms that all human beings are born “equal in dignity and rights” and “are endowed with reason and conscience.”204 Reason and conscience empower individuals to engage in critical thinking, moral discernment, and ethical decision-making as autonomous agents. Using reason and conscience in these ways honors and upholds our own human dignity and the dignity of others. Conversely, broad limitations on acts of conscience risk violating human dignity.

Historical development of conscience protections  

The U.S. founders demonstrably understood the supreme importance of conscience and the gravity of protecting conscience-based claims. James Madison referred to conscience as “the most sacred of all property.”205 Thomas Jefferson concurred, stating that no other constitutional right was more deserving of protection from governmental intrusion than the right to freedom of conscience.206

Objections to legal requirements based on conscience historically originated from claims of religious freedom.207 In the United States, the first conscience-based objections came from pacifist religious communities, such as the Religious Society of Friends or “Quakers,” who raised doctrinal opposition to military conscription.208 Over time, the right to conscientious objection was expanded to include not only broad doctrinal stances adopted by churches and religious organizations but also individuals’ religiously motivated objections to military service.209 Later, the right broadened further to encompass individuals whose objections were based in beliefs that were more ambiguously religious210 and then, by analogy, those whose objections were not religiously motivated.211

Today, appeals to conscience are raised in contexts in addition to military conscription/service, including health care (e.g., providers or patients who refuse to participate in medical procedures) and public accommodation (e.g., business owners who decline to provide expressive services in support of same-sex marriage).

Given the history of recognized conscience claims being grounded in religious belief, it seems clear that if a state fails to protect religious conscience, the state will almost certainly fail to protect other conscience claims as well. Religion-based conscience claims also have a heightened salience because of their appeal to an obligation higher than positive law. If duty to God is viewed as being insufficient to justify protecting conscience, then we should expect the state to view other grounds for protecting conscience, such as personal autonomy, to be insufficient as well. 

Monism, public reason theory, and erosion of the right to conscientious objection  

The extent to which conscientious objections to legal requirements are recognized and accepted in a society is shaped by political systems and the scope of state power, jurisdiction, and authority.212 States are typically characterized by one of two political systems: monism or dualism.

Monism is a philosophical and political framework in which the state is the supreme source of sovereign power in a society; no other authority may supersede or extend beyond the state’s legislation—including appeals to divine power and deity.213

Dualism, on the other hand, acknowledges that multiple sources of legitimate authority exist in society. These sources may include regional governments, international organizations, and even religious institutions.214 Thus, dualism acts as a limitation on absolute state power. Perhaps one of the most poignant examples of dualism can be found in scripture, when the Pharisees attempted to entrap Jesus Christ by inquiring whether it was lawful to pay tribute to Caesar. Jesus responded, “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.”215 His response summarizes the principle of dualism—that state authority exists concurrently with divine authority.

Monism aligns closely with public reason theory, which provides a philosophical framework for justifying political decision-making based on “public reason.”216 Public reason is characterized by neutrality and impartiality; it declines to subject individuals to “any other person’s moral or political authority.”217 Rather, public reason seeks to identify moral and political rules that are justifiable or acceptable to all those over whom the state has authority. Like monism, which fails to recognize any legitimate authority beyond the state, public reason fails to recognize the legitimacy of political decisions beyond those justified by shared public considerations. It also demands that political decision-making and legislation treat everyone the same, providing no exemptions for conscience. The values of unity and uniformity that monism and public reason seek to promote can also be used to justify the dismissal of individual conscience by compelling those who disagree to accept and abide by prevailing views. Thus, monism and public reason both dismiss, and fail to protect, appeals to individual conscience.218

Recent examples from U.S. jurisprudence illustrate a need to preserve freedom of conscience, despite societal and political trends toward monism and public reason theory.

  • Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018)219 and 303 Creative LLC v. Elenis (2023)220 both examined public accommodation221 laws that, when applied, would compel artists to create expressive statements in support of same-sex marriage, contrary to their religious convictions.
  • Expansive application of public accommodation laws have similarly burdened health care providers. In Christian Healthcare Centers v. Nessel (2023)222 and State of Texas & Mayo Pharmacy v. HHS (2023),223 for example, courts examined the validity of state laws requiring health care providers to prescribe cross-sex hormones or abortion-inducing drugs to patients despite the providers’ religious objections.
  • Antidiscrimination laws have also been applied to faith-based ministries that provide public services like adoption or that seek to hire ministers who promote their religious doctrines, in New Hope Family Services, Inc. v. Poole (2020)224 and Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc. (2021).225

These examples, among others, illustrate the emergence of a new form of public reason premised on antidiscrimination and public accommodation. Legislative protections against discrimination have mirrored changing public attitudes about antidiscrimination. As society becomes more progressive, one response is “to promote . . . nondiscrimination norms to the exclusion of the freedom norms that also exist in human rights,” including freedom of conscience.226 In attempts to eliminate racism and disparate treatment of minority groups, legislatures thus risk devaluing legitimate appeals to individual conscience. Although the cases above exemplify judicial attempts to shore up protections for conscience-based objection, they simultaneously illustrate a gradual erosion of freedom of conscience in response to mounting political monism and public reason.227

Critiques and responses: Protecting conscience as a path to common ground  

Public reason theory values unity and uniformity, compelling conscience objectors to “go along with the prevailing view[s] or else suffer severe consequences.”228 Protecting conscience and conscientious objections, however, can help pave a path to common ground.

Critics argue that allowing conscientious objectors to carve out exemptions to otherwise generally applicable antidiscrimination and public accommodation laws undermine legislative efforts to promote antidiscrimination and equal treatment.229 In the United States, Title VII of the Civil Rights Act of 1964230 and other federal and state antidiscrimination laws prohibit discrimination in employment, public accommodation, and education on the basis of race, color, religion, sex, and national origin.231 Critics contend such laws could be eroded by granting individual exemptions for conscientious objection.

Through the granting of narrow exemptions, however, accommodating individual conscience is achievable while maintaining robust antidiscrimination and public accommodation protections. In practice, exemptions have proven less broad than critics predict; courts consider both material and dignitary harms when evaluating claims and have restricted exemptions that undermine a general regime of antidiscrimination and public accommodation.232 For example, in Masterpiece Cakeshop, the Court articulated its commitment to “confine[]” exemptions, to prevent “a long list of persons who provide goods and services for marriages and weddings [from refusing] . . . to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.”233 A framework of narrowly tailored exemptions, granted to remedy specific harms, does not create a broad license to discriminate; rather, it facilitates wide access to the market for members of historically marginalized communities while simultaneously recognizing the validity of conscience-based claims.234

Many critics assert that public servants—including government administrators, healthcare providers, law enforcement officers, and providers of social services—have a duty to serve the public without discrimination, particularly against traditionally protected classes, regardless of their personal beliefs and values. Critics believe equal protection is compromised when public servants are empowered to refuse or impede access to essential services, such as refusing to issue marriage licenses to same-sex couples235 or refusing to provide reproductive health care.236

Though these concerns are relevant, the weight of individual conscience and autonomy are equally compelling. Striking balance between these competing interests is possible through the principled application of narrowly tailored exemptions. Admittedly, individuals who are refused service suffer a dignitary harm, but as law professor Douglas Laycock asserts, “the balance of hardships clearly and unambiguously tilts in favor of the religious objector.”237 While those who suffer disparate treatment are free to seek service or accommodation elsewhere, conscientious objectors compelled by state action are not free to live their lives according to their own convictions; rather, they are forced to choose between abandoning their occupation or violating their own conscience and “disrupt[ing their] . . . relationship with God.”238

Two final, related critiques involve “slippery slope” or “floodgate” arguments: If exemptions are granted to conscience objectors, individuals could potentially abuse the system by claiming unfounded or frivolous objections, thus undermining the integrity of genuine moral or religious objections.239 And (related to the first critique discussed above) if too many individual exemptions are granted to conscientious objectors, broad state and federal regulatory schemes designed to promote antidiscrimination could be undermined.

Such critiques are largely speculative. U.S. case law demonstrates that courts routinely evaluate the sincerity of conscience-based claims by applying “a sensible test based on neutral and objective factors.”240 These factors include (1) whether the objection is based on a fixed, sincerely held moral, philosophical, or religious belief;241 and, if the claim is based on religion, (2) whether the objection is consistent with broader doctrines and beliefs of the claimant’s religious community.242 Jurisprudence thus demonstrates that “floodgates”-based critiques of conscience-based exemptions are unfounded; the courts’ adjudication of sincerity limits their ability to grant numerous or insincere exemptions.

Conclusion  

Appeals to conscience serve as a check on governmental overreach, ensuring that individuals are not compelled to act against their own will or conviction and, thus, upholding their human dignity. Striking a balance between the protection of conscience and antidiscrimination is achievable through the granting of narrow legal exemptions to individuals with sincere objections. These exemptions are often mischaracterized as a broad license to discriminate, but laws, properly interpreted and applied, can ensure exemptions are reasoned and applied sparingly.

Previous - Topic 6 Outline
Next - Topic 6 Quotes

References

203. See Universal Declaration of Human Rights, pmbl., G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), https://www.un.org/en/about-us/universal-declaration-of-human-rights (“Whereas recognition of the inherent dignity and the equal and inalienable rights of the members of the human family is the foundation of freedom, justice and peace in the world ”).

204. Id. art. 1.

205. 1 THE PAPERS OF JAMES MADISON, at ch. 16 (Property) (William T. Hutchinson et al. eds., 1962), https://press-pubs.uchicago.edu/founders/documents/v1ch16s23.html.

206. From Thomas Jefferson to Richard Douglas, 4 February 1809, NATIONAL ARCHIVES: FOUNDERS ONLINE, https://founders.archives.gov/documents/Jefferson/99-01-02-9714 (last visited Dec. 2024).

207. Brett G. Sharffs, Why Religious Freedom? Why the Religiously Committed, the Religiously Indifferent, and Those Hostile to Religion Should Care, 2017 BYU LAW REVIEW 957, 983 (2018), https://digitalcommons.law.byu.edu/lawreview/vol2017/iss4/10.

208. When a few Quakers were first drafted into George Washington’s forces during the French and Indian War, they refused to “bear arms, work, receive provisions or pay, or do anything that tends, in any respect, to self-defense.” Paul F. Boller, Jr., George Washington and the Quakers, 49 BULLETIN OF FRIENDS HISTORICAL ASSOCIATION 67, 70 (1960) (quoting George Washington, in 1 THE WRITINGS OF GEORGE WASHINGTON FROM THE ORIGINAL MANUSCRIPT SOURCES 1745–1799, at 394 (John C. Fitzpatrick ed., 1931) [hereinafter THE WRITINGS OF GEORGE WASHINGTON]). George Washington was directed to imprison the conscientious objectors and give them only a small amount of bread and water until they agreed to fight. Id. (quoting THE WRITINGS OF GEORGE WASHINGTON, supra, at 394 n.76). Washington responded to his superior by saying that he “could by no means bring the Quakers to any terms. They chose rather to be whipped to death than bear arms, or lend us any assistance whatever upon the fort, or any thing [sic] of self- defense.” Id. (quoting THE WRITINGS OF GEORGE WASHINGTON, supra, at 420). George Washington later agreed that the Quakers’ conscientious objections should be protected by the government:

"The liberty enjoyed by the People of these States, of worshipping Almighty God agreeably to their Consciences, is not only among the choicest of their Blessings, but also of their Rights— While men perform their social Duties faithfully, they do all that Society or the State can with propriety demand or expect; and remain responsible only to their Maker for the Religion or modes of faith which they may prefer or profess.

"[The Quakers’] principles & conduct are well known to me—and it is doing the People called Quakers no more than Justice to say, that (except in their declining to share with others the burthen [sic] of the common defense) there is no Denomination among us who are more exemplary and useful Citizens."

From George Washington to the Society of Quakers, 13 October 1789, NATIONAL ARCHIVES: FOUNDERS ONLINE, http://founders.archives.gov/documents/Washington/05-04-02-0188 (last visited Dec. 2024).

209. Since 1958, the U.S. Congress exempted from military service “any person . . . who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” 50 U.S.C. § 3806(j) (2024).

210. See United States v. Seeger, 380 U.S. 163, 187–88 (1965).

211. See Welsh v. United States, 398 U.S. 333, 340–44 (1970).

212. Sharffs, supra, at 966.

213. Jean Bethke Elshtain, Against Liberal Monism: On Secularism & Religion, FRONTLINE PBS (Apr. 29, 2004), https://www.pbs.org/wgbh/pages/frontline/shows/jesus/readings/elshtain.html.

214. Kent Greenawalt, Dualism and Its Status, 104 ETHICS 480, 480–81 (1994).

215. Mark 12:16–17 (KJV); see also Matthew 22:21 (KJV).

216. Jonathan Quong, Public Reason, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Apr. 20, 2022), https://plato.stanford.edu/entries/public-reason.

217. Id.

218. Sharffs, supra, at 981.

219. Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. 617 (2018). The U.S. Supreme Court held that the Colorado Civil Rights Commission’s hostility toward a baker’s sincerely held religious convictions violated the Free Exercise Clause of the First Amendment. The baker refused to create a cake in celebration of a same-sex couple’s wedding, and the couple filed a charge with the Commission, claiming that the baker violated the state’s Anti-Discrimination Act.

220. 303 Creative LLC v. Elenis, 600 U.S. 570 (2023).

221. Public accommodation laws prohibit businesses and government entities from discriminating when providing services or goods to the public.

222. Christian Healthcare Centers, Inc. v. Nessel, 117 F.4th 826 (2024).

223. Texas & Mayo Pharmacy v. U.S. Department of Health and Human Services, No. 7:23-cv-00022-DC (W.D. Tex. Apr. 5, 2024) (mem.).

224. New Hope Family Services, Inc. v. Poole, 966 F.3d 145 (2d Cir. 2020).

225. Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., 41 F.4th 931 (7th Cir. 2022).

226. Sharffs, supra, at 977.

227. See Support for Nondiscrimination Protections for LGBTQ People, PRRI (Mar. 23, 2023), https://www.prri.org/research/findings-from-the-2022-american-values-atlas (showing Americans’ support for LGBTQ antidiscrimination legislation and Americans’ opposition to religiously based service refusals at or near all-time highs).

228. Scharffs, supra, at 988.

229. Note, Pandora’s Box of Religious Exemptions, 136 HARVARD LAW REVIEW 1178, 1187–89 (2023).

230. 42 U.S.C. §§ 2000e to 2000e-17 (2024).

231. See Bostock v. Clayton County, 590 U.S. 644 (2020) (holding that Title VII’s prohibition on employment discrimination because of “sex” encompasses sexual orientation and gender identity).

232. Douglas NeJaime & Reva Siegel, Religious Exemptions and Antidiscrimination Law in Masterpiece Cakeshop, 128 YALE LAW JOURNAL FORUM 201, 214 (2018).

233. Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. 617, 632 (2018)

234. See NeJaime & Siegal, supra, at 210, 214–15.

235. Laurel Wamsley, Kim Davis Is Ordered to Pay $100,000 to Same-Sex Couple She Denied Marriage License, NATIONAL PUBLIC RADIO (Sept. 14, 2023), https://www.npr.org/2023/09/14/1199477637/kim-davis-same-sex- marriage-license-ordered-to-pay-damages.

236. Lori Freedman & R. Alta Charo, Commentary, When Conscience Calls for Treatment: The Challenge of Reproductive Care in Religious Hospitals, National Academy of Medicine (Apr. 30, 2018), https://nam.edu/when-conscience-calls-for-treatment-the-challenge-of-reproductive-care-in-religious-hospitals.

237. Douglas Laycock, Liberty and Justice for All, in RELIGIOUS FREEDOM, LGBT RIGHTS, AND THE PROSPECT FOR COMMON GROUND 24, 30 (2018), https://doi.org/10.1017/9781316999752.004.

238. Id.

239. Nathan Chapman, Adjudicating Religious Sincerity, 92 WASHINGTON LAW REVIEW 1185, 1211 (2017).

240. Kevin Vallier & Michael Weber, In Defense of the Sincerity Test, in RELIGIOUS EXEMPTIONS 247, 247 (2018), https://doi.org/10.1093/oso/9780190666187.003.0014; see also Int’l Soc’y for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 441 (2d Cir. 1981) (describing types of evidence considered in adjudicating religious sincerity).

241. See Kathleen A. Brady, THE DISTINCTIVENESS OF RELIGION IN AMERICAN LAW: RETHINKING RELIGION CLAUSE JURISPRUDENCE 281 (2015) (asserting that courts should “carefully tailor the questions that judges can ask and focus the inquiry on whether the individual’s free exercise claims are consistent with their overall conduct during the period of the dispute”).

242. Int’l Soc’y for Krishna Consciousness, Inc., 650 F.2d at 441 (explaining that “[a] believer’s sincerity is also evaluated in light of the religion’s size and history . . . but this is not dispositive”).