Part II | Outline

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  

• The Universal Declaration of Human Rights (UDHR) affirms that all human beings are endowed with reason and conscience, suggesting that these inherent attributes are the foundation of human dignity, in which all human rights are rooted.

Historical development of conscience protections  

• U.S. founders recognized the fundamental importance of conscience and preserving conscience from “government intrusion.”

• The first conscience-based objections came from pacifist religious communities, such as the Religious Society of Friends or “Quakers.”

• Today, appeals to conscience are raised in various 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).

• Because justifications for protecting conscience were historically premised on religious justifications, if appeals to religious conscience are not recognized and accepted, there is little hope for the recognition of other conscience objections.

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

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

  • In a monist system, the state is the supreme source of sovereign power, and no other authority supersedes or extends beyond the state.
  • In a dualist system, multiple sources of legitimate authority exist in society, and state authority is limited by those other sources of authority.

• Monism aligns closely with public reason theory, which posits that political decision-making should be based on “public reason.”

  • Public reason is characterized by

    • neutrality and impartiality; it declines to subject individuals to “any other person’s moral or political 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.
    • demands that political decision-making and legislation treat everyone the same. The values of unity and uniformity that monism and public reason seek to promote can be used to justify the dismissal of individual conscience by compelling those who disagree to accept and abide by prevailing views.

Critiques of conscience-based exemptions include the following:

• Allowing conscientious objection to otherwise generally applicable antidiscrimination and public accommodation laws undermine these laws and promote discrimination and unequal treatment. In the United States, Title VII of the Civil Rights Act of 1964 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. Critics contend such laws could be eroded by granting individual exemptions for conscientious objection.

• Regardless of their personal beliefs and values, public servants—including government administrators, health care providers, law enforcement officers, and providers of social services—have a duty to serve the public without discriminating, particularly against traditionally protected classes.

• 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.

Responses

• Striking a balance between the protection of individual rights and antidiscrimination is crucial. Respecting conscience and conscientious objections does not equate to endorsing discrimination. It is possible to find common ground that accommodates individual conscience while protecting historically marginalized groups.

• Exemptions to otherwise generally applicable antidiscrimination laws do not create a broad license to discriminate. Rather, they are narrowly tailored to respond to specific situations.

• Admittedly, individuals who are refused service suffer a dignitary harm, but “the balance of hardships clearly and unambiguously tilts in favor of the religious objector.” 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.”

• Protecting freedom of conscience acts as a check on state power, preventing governmental overreach and ensuring that individuals are not compelled to act against their own will or conviction.