“Conscience” in a Culture without Truths? Print
By Hadley Arkes   
Tuesday, 13 September 2011

In the Republican debate in South Carolina, Professor Robert George raised the critical issue of protection for claims of “conscience.” That question has cut most deeply, of course, on the matter of abortion. The Hyde-Weldon Amendment was brought forward under federal law to protect doctors and nurses who did not wish to become accomplices in abortion. But with Obamacare, the administration has issued regulations that notably weaken those protections, both for the provision of abortion and contraception.  

And now, with the movement toward same-sex marriage, another front has opened:  Once same-sex marriage was established in Massachusetts as part of the fundamental law, agencies of adoption were compelled to place children with couples of the same-sex or leave the field. Catholic agencies, faced with the challenge, chose to leave the field rather than comply.  

But as Walter Olson has pointed out, these developments have moved apace even when the states have not established same-sex marriage. It has been quite sufficient to have laws barring discrimination based on “sexual orientation.”  Those laws are enough to impose sanctions on photographers who express their unwillingness to take photos at a same-sex wedding.

But behind the arguments over claims of “conscience” there is an eerie truth that dare not speak its name:  The understanding of “conscience” has been deflated in our current law, along with the understanding of “religion.” John Paul II reminded us forcefully that “conscience” involves an appeal to an objective set of moral norms outside ourselves. The trend in the law, however, has been to accept as claims of conscience any beliefs personally and intensely held. 

As Justice Scalia has remarked, we are at the risk of backing into a system in which “each conscience is a law unto itself.” The laws on conscientious objection were once aligned with the God of Christians and Jews. But that gave way over time to the test of “belief in a Supreme Being,” and even that had to give way. The Supreme Court eventually came to uphold the claims of young men who were professed atheists, but held to political or ethical beliefs that the judges were willing to treat as the equivalent of a “religious” conviction.    
With this dispensation, we could imagine a state of affairs in which the laws forbid abortion once again, but a band of practitioners assert their claims of “conscience” to perform abortions as a matter of their own firm beliefs. They would assert the religion of irreligion.


          Mrs. Pelosi: Personal beliefs cannot stand in the way of abortion rights

Years ago, in the seminars arranged by Fr. Richard Neuhaus, we would bring together lawyers litigating over religious freedom, and some of them bridled when they were asked to explain how they would rule out such claims to religious standing. We had, after all, the union of prostitutes in California under the banner of COYOTE: Call Off Your Old Tired Ethics. What if they claimed to be a religious sect? 

The lawyers were impatient with these questions; they preferred to assume that we all knew what we meant by “religion.”   But of course the law must be in place to represent a distinctly moral concern and have a filtering effect:  The laws will not stand back and permit widows to be burned on funeral pyres under the name of religion, or even permit parents of Jehovah’s Witnesses to withhold blood transfusions from their children. There is no way for the law to avoid the question of what truly stands as a legitimate religion.

The law had a firmer clarity when it could simply take its bearings from James Madison’s understanding of religion:  “the duty which we owe to our Creator and the manner of discharging it.” That Creator was of course the God of Israel, and the duties were bound up with the Laws that sprang from that Lawgiver.     

With that understanding the law was anchored, not merely in beliefs, but in truths held with conviction about the Author of the Laws of nature and the moral force of those laws. The problem before us now is just what claims of “conscience” mean when they are detached from that body of truths.

We are flying an important banner when we unfurl the cause of “conscience,” but we are flying that banner in a culture that no longer understands us as we understand ourselves. Most people around us think we are simply invoking intense, personal beliefs when we invoke claims of conscience on abortion. 

And so Nancy Pelosi, resisting the Hyde-Weldon Act on conscience, recoiled from the notion that people could invoke their “beliefs” in a manner that frustrates the right to abortion. “This is the law of the land,” she said, “a constitutional right could simply be ignored.” She has hold of the problem:  The law must find its ground in reasons that would be valid for everyone who would be bound by the laws.

No religious group has claimed an exemption from the laws of homicide on the strength of “beliefs” that the victims are not really human. That radical claim to “belief” has been made mainly by the religion of secularism in this country.

And what the other side cannot understand then is this:  When we invoke rights of conscience in relation to abortion, we are not asking our “beliefs” to be honored. We are planting in the law the premise that the right to abortion has been founded in the most grievous errors of reason.


Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.

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