Liberty and Conscience
One of the more dubious achievements of the Obama administration has been to put religious freedom and the rights of conscience back on the agenda in American politics. Most notoriously, the administration has sought to impose upon private employers, including religious people and even religious institutions, a requirement to provide their employees with health-insurance coverage that includes abortion-inducing drugs, sterilization procedures, and contraceptives, even if the employer cannot, as a matter of conscience, comply. Large employers who fail to provide such coverage will be subject to a significant fine — in effect paying a price for abiding by their religious convictions.
The administration’s mandates have been challenged on statutory and constitutional grounds in federal courts around the country, and it seems reasonably likely that the Supreme Court, pursuant to the Religious Freedom Restoration Act of 1993, will ultimately require exemptions for religious employers and others who conscientiously object. The mandates’ critics argue that they constitute an assault on the freedom of religious employers to follow their consciences, and so needlessly compel a choice between civic obligations and religious ones.
Of course, the administration contends that its mandates do not violate religious freedom or the rights of conscience, properly understood. Indeed, the administration argues that the mandates — which contain only the narrowest of exemptions — are necessary precisely to protect the freedom and the rights of conscience of women who wish to use contraceptives and abortifacient drugs, or to avail themselves of sterilization procedures. To exempt these women’s employers from providing coverage for such products and procedures would be to allow those employers to impose their moral views on workers who may not share them.
Thus, we find people on both sides of the debate claiming to be the defenders of liberty and conscience. The sorts of arguments that each side makes, however, compel us to consider the relationship between freedom and conscience. In the often-used phrases "freedom of conscience" and "religious liberty," we of course assume that "freedom" and "liberty" on the one hand and "conscience" and "religious" on the other are compatible and mutually reinforcing. But there is no escaping the fact that some people place more emphasis on the one than the other, and that how you understand the meaning of freedom must shape how you understand the meaning of conscience — and vice versa.
In approaching this complex problem, we would be wise to consider the ideas of two thinkers whose views have helped shape our understanding of liberty and of conscience — John Stuart Mill and John Henry Newman. Both were supporters of the notion of a freedom of religion, but their different emphases, and different paths to liberty and conscience, will help illuminate our present dilemma.
A PROGRESSIVE BEING
Mill and Newman were perhaps the greatest English intellectuals of the 19th century. They were both men of deep and wide learning and formidable intelligence. And both wrote powerful defenses of freedom.
Mill’s was in the form of an 1859 pamphlet entitled, simply, On Liberty. In that essay, he defended what he described as "one very simple principle [that is] entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion." That principle has been dubbed Mill’s "harm principle," which he explained this way:
[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.
Mill’s principle is frequently invoked in cocktail-party conversations and in freshman class discussions. It has, however, been sharply criticized even by philosophers of a generally liberal persuasion (such as the late H.L.A. Hart of Oxford University) who argue that it is too sweeping in ruling out paternalistic reasons for limiting certain forms of liberty.
More conservative philosophers have been even more skeptical and critical, finding in Mill’s principle a radical oversimplification of morality that ends up being much too thin and crude to serve as the foundation for ethical action. For present purposes, though, the key question is not the scope or breadth of Mill’s principle, or even its content, but rather its ground. What, for Mill, provides the moral basis for respecting people’s liberty? What is the source of the obligation? Mill was unambiguous about his foundational beliefs, writing:
It is proper to state that I forgo any advantage which could be derived to my argument from the idea of abstract right, as a thing independent of utility. I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being.
Mill thus grounded his principle of liberty and the obligation to respect it in the belief that respect for liberty will, in its consequences, prove a net benefit. But a benefit to whom? Or to what? To the community? Which community? Local? National? Imperial? International? Mill did not exactly say.
He did, however, say that those who accept utility as the governing criterion of morality and as the ground of moral obligation — including the obligation to respect and protect liberty — must conceive of utility "in the largest sense, [as] grounded on the permanent interests of man as a progressive being."
We can therefore note two things about Mill’s defense of liberty — whether it is freedom of speech (which is a freedom Mill treats as quite central) or freedom of religion (which interests him less) or any other freedom. First, the ultimate basis of the moral claims of freedom as he understood them was social benefit or "utility," rather than "abstract right." And second, Mill’s view of humanity was imbued with 19th-century optimism and belief in progress.
Man, Mill suggested, is naturally good and highly perfectible — a "progressive being." Man therefore will, in his cultural and personal maturity, do well by himself and others if only he is left free of paternalistic and moralistic constraints that prevent him from engaging in experiments in living from which he, corporately and individually, will learn what conduces to happiness and what does not. Freed from the old moralisms and religious and other superstitions — liberated to be the progressive being that, by nature, he is — man will flourish.
Those old moralisms and superstitions, far from preventing him from descending into vice and degradation, tie him down and wound his spirit. They profoundly impede his full flourishing and self-realization. Free to do as they please so long as they do not harm others, mature persons in mature cultures will, on the whole, want to do good and productive things, and hence utility-enhancing things. And there is no real danger in a developed society of a regression to the condition of men as they were in barbarian societies and in small, threatened communities; in these cases, Mill believed his defense of liberty did not apply.
There is much to criticize in the concept and defense of liberty that readers are offered by Mill. The naïve optimism and progressivism surely seem to be unfounded. And the utilitarianism does not hold up well either. The Christian philosophical anthropology that Mill regarded as a relic of superstitious ages has proved to be far more plausible and durable than the alternative that Mill, quite uncritically, accepted. And utilitarianism, along with other forms of consequentialism in ethics, is in the end unworkable and even incoherent. It presupposes a kind of commensurability in human values and their particular instantiations that simply does not square either with reality or with conditions of deliberation and choice.
The basic aspects of human well-being and fulfillment that, together, constitute the ideal of human flourishing are reducible neither to each other nor to some common substance or factor they share. These basic human goods, though they all provide more-than-merely-instrumental reasons for action and are partially constitutive of our all-around well-being, are not all just different forms of the same thing. They differ substantially as distinct dimensions of our flourishing and fulfillments of our capacities as human persons. They are, as such, incommensurable in a way that renders hopeless the utilitarian project of identifying a rule for choosing that promises, in Jeremy Bentham’s phrase, "the greatest happiness of the greatest number," or of producing the net best proportion of benefit to harm overall and in the long run.
Yet despite all this, Mill was not entirely wrong. He was correct to forgo an appeal to "abstract right" and to look for the moral ground of liberty in a consideration of the well-being and fulfillment — in a word, the flourishing — of human beings.
He called this goal "the end of man" and characterized it as the effort to bring "human beings themselves nearer to the best thing they can be." People have rights, including rights to liberties, because there are basic human goods — ends or purposes that not only conduce to but constitute our flourishing. The full defense of any particular liberty — including the freedom of religion — requires the identification and defense of those human goods, those basic aspects of human well-being and fulfillment, that the liberty secures, protects, or advances.
The freedom of religion, therefore, is grounded in an idea of religion as a fundamental human good.
THE MEANING OF RELIGION
In its fullest and most robust sense, religion is the human person’s being in right relation to the divine — the more-than-merely-human source or sources (if there be such) of meaning and value. For Jews, Christians, and Muslims, for instance, in the perfect realization of the good of religion, we would achieve the relationship that God himself wishes us to have with him.
Of course, different traditions of faith have different views of what constitutes religion in its fullest and most robust sense. There are different doctrines, different scriptures, different ideas of what is true about spiritual things and what it means to be in proper relationship to the more-than-merely-human sources of meaning and value.
The distinct human good of religion is clearly taken by most people in most places to play a unique and critical role in shaping one’s pursuit of and participation in all the aspects of our flourishing as human beings. One begins to realize and participate in this good from the moment one begins the quest to understand the more-than-merely-human sources of meaning and value in our world and to live authentically by ordering one’s life in line with one’s best judgments of the truth in religious matters.
The raising of existential religious questions, the honest identification of answers, and the fulfilling of what one sincerely believes to be one’s duties in the light of those answers are all parts of the human good of religion. And for that reason, respect for a person’s well-being, or more simply respect for the person, demands respect for his flourishing as a seeker of religious truth and as one who lives in line with his best judgments of what is true in spiritual matters. And that, in turn, requires respect for everyone’s liberty in the religious quest — the quest to understand religious truth and order one’s life in line with it.
Because faith of any type, including religious faith, cannot be authentic unless it is free, respect for the person — that is to say, respect for his dignity as a free and rational creature — requires respect for his religious liberty. That is why it makes sense, from the point of view of reason and not merely from the point of view of the revealed teaching of a particular faith, to understand religious freedom as a fundamental human right.
From the perspective of any believer, the further away one gets from the truth of faith in all its dimensions, the less fulfillment is available. But that does not mean that even a primitive and superstition-laden faith is utterly devoid of value, or that there is no right to religious liberty for people who practice such a faith. Nor does it mean that atheists have no right to religious freedom. Respect for the good of religion requires that civil authority respect and nurture conditions in which people can engage in the sincere religious quest and live lives of authenticity that reflect their best judgments as to the truth of spiritual matters. To compel an atheist to perform acts that are premised on theistic beliefs that he cannot, in good conscience, share, is to deny him the fundamental bit of the good of religion that is his: namely, living with honesty and integrity in line with his best judgments about ultimate reality. Coercing him to perform religious acts does him no good, since faith really must be free and coercion dishonors his dignity as a free and rational person.
Thus, religious freedom is an essential element of the vision of liberty at the heart of our liberal society. Although John Stuart Mill showed no great interest in religious freedom, he did not disdain it either, and his insistence on grounding liberty in principle opens the path to the defense of the freedom of religion.
Perhaps Mill had little to say about that freedom in particular because he had something of a tin ear for religion, at least in its traditional manifestations. His "harm principle" would, of course, extend to religious activity and practices, but he did not appear to view those activities as having much real value. Religious practice was merely another choice, and Mill believed that people’s choices should be respected as long as no one else was harmed.
But to see religion as just another choice is to emphasize freedom over conscience and liberty over religion. Because of his rather narrow conception of religion, Mill’s contribution to our understanding of the right to freedom of religion does not extend past freedom. To go further, we would do well to turn to Newman.
FROM LIBERTY TO CONSCIENCE
John Henry Newman did not have a tin ear for religion. He was a religious genius. And his understanding of religion enabled him to produce an account of freedom — in particular the freedom of conscience — that was profoundly superior to Mill’s, and from which we still have much to learn.
Like Mill, Newman did not appeal to "abstract right" as the ground of liberty, but instead located the foundation of honorable freedom in a concern for human excellence and human flourishing. Newman had the immense advantage over Mill of believing in human fallenness (or what Christians know as original sin), and so was spared Mill’s naïve optimism and boundless faith in human progress. Moreover, the utilitarian approach to moral decision-making (and all that it presupposes and entails) had no appeal whatsoever to Newman. As a serious Christian, he was spared that particular error. He was cognizant both of the need for restraints on freedom, lest human beings descend into vice and self-degradation, and of the supreme importance of some essential freedoms as conditions for the realization of values that truly are constitutive of the integral flourishing of men and women as free and rational creatures.
Newman’s dedication to the rights of conscience is well-known. Even long after his conversion from Anglicanism to Catholicism, he famously toasted "to the Pope, if you please, — still, to conscience first," as he put it in his 1875 Letter to the Duke of Norfolk. Our obligation to follow conscience was, he insisted, in a profound sense primary and even overriding. Do Catholics have a duty to follow the teachings of the Pope? Yes, to be sure. If, however, a conflict were to arise, such that one’s conscience (formed as best one could form it) forbade one’s following the Pope, it is the obligation to conscience that must prevail.
Of course, many a contemporary dissenting Catholic would be tempted right there to shout "right on, brother Newman!" But they would do so only if they didn’t know the rest of the story. For Newman, though he was perhaps the most powerful defender of freedom of conscience in his day, held a view of conscience and of freedom that could not be more deeply at odds with the liberal ideology that is dominant (even, dare one say, orthodox) in the contemporary secular intellectual culture, and in those sectors of religious culture that have fallen under its influence.
Let us permit Newman to speak for himself, for he had already identified in the 19th century the trend in thought about rights, liberty, and conscience that would become the secular liberal orthodoxy in the late 20th:
Conscience has rights because it has duties; but in this age, with a large portion of the public, it is the very right and freedom of conscience to dispense with conscience....Conscience is a stern monitor, but in this century it has been superseded by a counterfeit, which the eighteen centuries prior to it never heard of, and could not have mistaken for it, if they had. It is the right of self-will.
Conscience, as Newman understood it, is the very opposite of "autonomy" in the modern liberal sense. It is not a writer of permission slips. It is not in the business of licensing us to do as we please or conferring on us, as Justice Anthony Kennedy put it, "the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." Rather, conscience is one’s last best judgment specifying the bearing of moral principles — principles which are in no way one’s own invention — on concrete proposals for action. Conscience identifies one’s duties under the moral law. It speaks of what one must do and what one must not do. Understood in this way, conscience is, indeed, as Newman put it, "a stern monitor."
Contrast this understanding of conscience with what Newman condemns as its counterfeit. Conscience as "self-will" is a matter of feeling or emotion, not reason. It is concerned not so much with the identification of what one has a duty to do or not do, one’s feelings or desires to the contrary notwithstanding, but rather, and precisely, with sorting out one’s feelings. Conscience as self-will identifies permissions, not obligations. It licenses behavior by establishing that one does not feel bad about engaging in them — or at least does not feel so bad about them that one prefers to refrain.
Newman’s core insight is that conscience has rights because it has duties. The right to follow one’s conscience and the obligation to respect conscience — especially in matters of faith, where the right of conscience takes the form of the religious liberty of individuals and communities of faith — obtain not because people as autonomous agents should be able to do as they please. The rights and responsibilities of conscience obtain, and are stringent and sometimes overriding, because people have duties and the obligation to fulfill them.
The duty to follow conscience is a duty to do things or refrain from doing things not because one wants to follow one’s duty, but even if one strongly does not want to follow it. The right of conscience is a right to do what one judges oneself to be under an obligation to do, whether one welcomes the obligation or must overcome strong aversion in order to fulfill it. If there is a phrase that sums up the antithesis of Newman’s view of conscience as a stern monitor, it is the imbecilic slogan that will forever stand as a verbal monument to the "me" generation: "If it feels good, do it."
Of course, there are limits to the rights of conscience, even in the fulfillment of perceived vocational obligations, institutional apostolates, and other religious duties. Gross evils — even grave injustices — can be committed by people sincerely acting for the sake of religion. Unspeakable wrongs can be done by people seeking sincerely to get right with God or the gods or their conception of ultimate reality, whatever it is.
For the sake of the human good and the dignity of human persons as free and rational creatures — creatures who, according to Judaism and Christianity at least, are made in the very image and likeness of God — the presumption in favor of respecting liberty must be powerful and broad. But it is not unlimited. The great end of getting right with God cannot justify morally bad means, even for the sincere believer. We cannot doubt the sincerity of the Aztecs in practicing human sacrifice, or the sincerity of those in the histories of various traditions of faith who used coercion and even torture in the cause of what they believed was religiously required. But these things are deeply wrong, and need not (and should not) be tolerated in the name of religious freedom. To suppose otherwise is to back oneself into the awkward position of supposing that violations of religious freedom (and other grave injustices) must be respected for the sake of religious freedom.
Still, to overcome the powerful and broad presumption in favor of religious liberty, to be justified in requiring the believer to do something contrary to his faith or forbidding the believer to do something his faith requires, political authority must meet a heavy burden. The legal test in the United States under the Religious Freedom Restoration Act is one way of capturing the presumption and burden: To justify a law that bears negatively on religious freedom, even a neutral law of general applicability must serve a compelling state interest and represent the least restrictive or intrusive means of protecting or serving that interest.
We can debate, as a matter of American constitutional law or as a matter of policy, whether it is (or should be) up to courts or legislators to decide when exemptions to general, neutral laws should be granted for the sake of religious freedom, or to determine when the presumption in favor of religious freedom has been overcome. But the substantive matter of what religious freedom demands from those who exercise the levers of state power should be something on which reasonable people of goodwill across religious and political divides can broadly (though perhaps not perfectly) agree.
THE FIRST FREEDOM
Observed from a certain perspective, any basic liberty might be assigned a kind of priority: Free speech, for example, which is so essential to the enterprise of republican government (and, in truth, good government of any kind); or freedom of association and assembly; or the right of self-defense and defense of one’s family and community. One might note in the case of any of these rights that its collapse would place all the others in jeopardy.
There is certainly truth in the idea that civil liberty is a sort of seamless garment. Basic civil liberties support one other and, in certain ways, even depend on one other. Tyrannical regimes may begin by dishonoring one or a few basic liberties, but their ability to do so and get away with it will enable them to dispose of them all in the end.
Still, there is a sense in which freedom of religion has special priority or at least a sort of pride of place. It is rightly labeled in America as "the first freedom," not merely because it is listed first in our Bill of Rights, and not just because of its foundational historical role in the establishment of the conditions of free institutions. It is the first freedom because it protects an aspect of our flourishing as human persons that is architectonic in the way we lead our lives and is, in an important sense, pre-political. Religion concerns ultimate things. It represents our efforts to bring ourselves into a proper relationship with transcendent sources of meaning and value. Our religious questioning, understanding, judging, and practicing shapes what we do, not only in the specifically "religious" aspects of our lives (like prayer, liturgy, fellowship, and so forth), but in every aspect of our lives. It helps us to view our lives as wholes and to direct our choices and activities in ways that have integrity — both in the moral sense of that term and in the broader sense of having a life that hangs together and makes sense.
Religion is not the only basic human good, and the other basic human goods are not mere means to the fuller realization of the good of religion. But religion is an intrinsic and constitutive aspect of our integral flourishing as human persons, and also a good that plays a shaping and integrating role with respect to all the other intrinsic and constitutive aspects of human well-being and fulfillment.
Finally, there is the critical role of religion, and thus of religious freedom, in civil society — in the carrying out of essential health, education, and welfare functions, and in limiting the scope of government and checking the power of the state. Religion provides alternative structures of authority and, where it flourishes and is healthy, is among the key institutions of civil society providing a buffer between the individual and the state. This is a vital way in which religion and religious institutions — when they respect the legitimate autonomy of the secular sphere and avoid illiberalism, time-serving subservience to the state, and theocracy — can serve the common good. In the face of tyrannical regimes, they can, if they avoid corruption and co-optation, serve the common good even more dramatically by doing, for example, what the Catholic Church did in the face of communist tyranny in Poland.
Religion can, in other words, contribute to both the theory and practice of freedom, but only where it is basically healthy (that is, uncorrupted) and capable of providing, or providing resources for, prophetic witness. This is one more reason to cherish religious freedom and to push back hard against forces that threaten to erode or diminish it — especially when the threats come from overreaching governments.
When a government is respectful of its citizens’ rights and is eager to serve their well-being, the least it can do is avoid intentionally creating needless conflicts between the freedom of religion and the duties of the citizen. Our federal government, it is sad to say, has failed to meet even that minimal standard of late.