One of America’s leading experts in legal theory defends the rights of conscience
But why is religious freedom so essential? Why does it merit such heightened concern by citizens and policymakers alike? In order to answer those questions, we should begin with a still more basic question. What is religion?
Religion as Right Relation to the Divine
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. In the perfect realization of the good of religion, one would achieve the relationship that the divine—say God himself, assuming for a moment the truth of monotheism—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 source or sources of meaning and value that different traditions understand as divinity.
For my part, I believe that reason has a very large role to play for each of us in deciding where spiritual truth most robustly is to be found. And by reason here, I mean not only our capacity for practical reasoning and moral judgment, but also our capacities for understanding and evaluating claims of all sorts: logical, historical, scientific, and so forth. But one need not agree with me about this in order to affirm with me that there is a distinct human good of religion—a good that uniquely shapes one’s pursuit of and participation in all the aspects of our flourishing as human beings—and that 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 and to live authentically by ordering one’s life in line with one’s best judgments of the truth in religious matters.
If I am right, then the existential raising of 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. But if that is true, then respect for a person’s well-being, or more simply respect for the person, demands respect for his or her flourishing as a seeker of religious truth and as one who lives in line with his or her 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—it cannot be faith—unless it is free, respect for the person—that is to say, respect for his or her dignity as a free and rational creature—requires respect for his or her 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—though many faiths proclaim the right to religious freedom on theological and not merely philosophical grounds—to understand religious freedom as a fundamental human right.
Since its establishment by Congress, the US Commission on International Religious Freedom has stood for religious freedom in its most robust sense. It has recognized that the right to religious freedom is far more than a mere “right to worship.” It is a right that pertains not only to what the believer does in the synagogue, church, or mosque, or in the home at mealtimes or before bed; it is the right to express one’s faith in the public as well as private sphere and to act on one’s religiously informed convictions about justice and the common good in carrying out the duties of citizenship. Moreover, the right to religious freedom by its very nature includes the right to leave a religious community whose convictions one no longer shares and the right to join a different community of faith, if that is where one’s conscience leads. And respect for the right strictly excludes the use of civil authority to punish or impose civic disabilities on those who leave a faith or change faiths.
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 reflecting 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.
Just Limits on the Freedom of Religion
Of course, there are limits to the freedom that must be respected for the sake of the good of religion and the dignity of the human person as a being whose integral fulfillment includes the spiritual quest and the ordering of one’s life in line with one’s best judgment as to what spiritual truth requires. Grave injustice can be committed by sincere people for the sake of religion. The presumption in favor of respecting liberty must be powerful and broad. But it is not unlimited.
Even the great end of getting right with God cannot justify a morally bad means, even for the sincere believer. I don’t doubt the sincerity of the Aztecs in practicing human sacrifice, or the sincerity of those in the history 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 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 injustices of equal gravity) 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 conscience requires, political authority must meet a heavy burden.
What Is Conscience?
But conscience has burdens proper to itself as well. To understand the nature of conscience and the ground of its claim to freedom, we do well to turn to John Henry Newman, the great nineteenth-century English intellectual. Newman understood human beings as free and rational creatures—creatures whose freedom and rationality reflects their having been made in the very image and likeness of God.
Newman’s dedication to the rights of conscience is well known. Even long after his conversion from Anglicanism to Catholicism, he famously toasted “the Pope, yes, but conscience first,” as he put it in his Letter to the Duke of Norfolk (1875). Our obligation to follow conscience was, he insisted, in a profound sense primary and even overriding. Is there a duty to follow the teachings of the pope? Yes, to be sure. As a Catholic, he would affirm that with all his heart. If, however, a conflict were to arise, such that conscience (formed as best as one could form it) forbade one’s following the pope, well, it is the obligation of conscience that must prevail.
Many of our contemporaries will be tempted to see in this their own view of conscience—as an interior, self-liberating referral of grave moral questions to our “feelings” or untutored intuitions as “autonomous” beings. But Newman, the most powerful defender of freedom of conscience, held a view of conscience and freedom that could not be more deeply at odds with such a view. Let Newman himself state the difference:
"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 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 “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 one grasps, yet in no way makes up for oneself, on concrete proposals for action. Conscience identifies our duties under a moral law that we do not ourselves make. It speaks of what one must do and what one must not do. Understood in this way, conscience is, indeed, what Newman said it is: 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 and 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 doesn’t feel bad about doing it, or, at least, one doesn’t feel so bad about doing it that one prefers the alternative of not doing it.
I’m with Newman. His key distinction is between conscience, authentically understood, and self-will—conscience as the permissions department. His 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 religious liberty of individuals and communities of faith—obtain not because people as autonomous agents should be able to do as they please; they 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 form of words 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.”
Freedom, Justice, and Duty
Fifty years ago, Martin Luther King, Jr., responded in his Letter from Birmingham Jail to those who criticized his program of civil disobedience as mere willful law-breaking:
I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."
King turned not inward to his own feelings of being aggrieved by the law, not to the intuitions of his autonomous self, and not even to a claim of his own rights. Instead he turned to “moral responsibility”—to obligation, to duty. He, like Newman, understood this as a duty to principles of justice we did not create, but to which we must respond. As the Declaration of Independence teaches us, prior to any laws made by men are the immutable standards of justice—standards by which we judge whether the laws are just and can rightfully command our obedience.
These standards, of the equal dignity of all human persons, of their equal freedom, and of the accountability of government to the people, apply not just to our own laws but to those of other nations as well. As the United Nations recognized in its 1948 Universal Declaration of Human Rights, religious freedom is an essential principle of justice, in all nations and in all ages. Our Congress said the same in the International Religious Freedom Act of 1998. All of us have a duty, in conscience, to work for the religious freedom of all men and women everywhere.
Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program at Princeton University. He is the new chairman of the United States Commission on International Religious Freedom. This essay, adapted from his new book Conscience and Its Enemies, represents his own opinions. He is not speaking on behalf of the USCIRF. This article has been republished with permission from Public Discourse, a MercatorNet partner site.
Originally published at MercatorNet on 1 August 2013. Used with permission. All rights reserved.
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