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“Conscience” and the Law: A Bumpy Ride Print E-mail
By Hadley Arkes   
Tuesday, 29 July 2014
 

It seems to have slipped from historical memory that the First Congress had pondered the possibility of adding to the Bill of Rights an exemption from military service for those who were “religiously scrupulous.”  But as congressmen tested the question from different angles, they finally decided to back away from a move to incorporate in the Constitution a “right” of religious exemption from military service.  As Rep. Benson put it, a claim to religious exemption involved a “religious persuasion,” but it marked no “natural right.” 

The difficulty came in explaining the principled ground for exempting the religious, while others were obliged to face the dangers of military service.  Congressman Gerry of Massachusetts feared that, unless the exemption were connected to membership in a particular sect or church, the exemption could be claimed by nearly everyone.  But if this exemption were given only to members of designated churches, it would mark churches favored by the State – the very thing that would be called in our own day an “establishment of religion.”  

Some congressmen, in a pragmatic mode, thought that there was little to cause worry here since religion seemed to be declining all around. And so, they figured, there would be fewer people claiming the exemption.  But Congressman Scott found no assurance here. If it were really true that religion was dying out, the consequences could be just the reverse: there would be even fewer inhibitions on the “recourse to these pretexts to get excused from bearing arms.”

The times have changed but the essential logical and the moral difficulties in the problem have not.  I raise the matter here because the same problems have perplexed some of the recent arguments about the claims of “conscience” and religious liberty posed against the mandates of Obamacare.

The heart of the problem is revealed at once, say, on matters of exemption from military service when we ask whether the objector is making a “moral” argument. If he were, he would be saying that the war itself is an “unjustified” war, wrongful to conduct, and therefore that it would be unjust to conscript anyone into its service. But that argument for the wrongness of a war is an argument to be made in the public arena as we argue over the measures that Congress may rightly enact, and we vote either for or against the people who would prosecute the war. 

The objector, we may assume, was on the losing side of that vote, and so he goes now to court. But in going to court he is not strictly making any longer a moral argument against the war; he is seeking only an exemption for himself or for people who share his beliefs.  At the same time, he will not admit the authority of a board that would test his beliefs for their truth or falsity.  He wants his beliefs respected because they are his, and because he holds them sincerely.   

 
       Elbridge Gerry by James Bogle (after John Vanderlyn) 1861

But nothing in that claim supplies any ground for holding that the reasons behind the law were themselves mistaken and unjustified, and unfit then to be enforced on anyone else.  Hence the problem that has ever remained: If we think that the laws – say, the laws forbidding the killing of the unborn – are grounded in compelling reasons, then those laws could cease to be binding if they run counter to beliefs held by others, say, that those lives in the womb are not really human. 

Which is to say, the law is no longer binding; it is no longer “law.” And it ceases being law for reasons running even deeper: for an objector may simply deny now that there is any truth, on any matter of consequence, that he is obliged to respect when it runs counter to beliefs of his own, which may not be examined for their truth or falsity.

The Draft Act of 1917 removed the obligation to military service for people belonging to “any well-recognized religious sect or organization.” But that formula had to be abandoned for the reasons anticipated by Congressman Gerry.  By 1965 and the Seeger case, the Supreme Court was willing to sustain a claim to conscientious objection for three young men who would not profess belief in a Supreme Being.   

And by 1970 with Welsh v. U.S., the Court was willing to sustain the “conscientious objection” of a man who insisted that his convictions had no grounding at all in “religion.”  The Court was willing to credit the passions and convictions that seemed to hold a place in his life comparable to religious conviction.  Justice Harlan, concurring, thought that the Court had “performed a lobotomy” on the statutes by detaching “religious” convictions from theism

Still he thought that this was the only reasonable decision. Reasonable, that is, for a Court that had moved decisively away from “religion” as bound up with the Creator and the Author of the moral laws.  It had moved away also from the understanding of “conscience” taught by John Paul II:  an understanding directed to a body of objective moral truths. 

Our friends invoking these days claims of “conscience” against Obamacare have been willing to bar certain acts in the name of “public order and safety,” even if they are animated by “religious beliefs.” But then why not recognize that the “conscience” we respect has a moral content not shared by everything these days that calls itself “religion”?

 
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and the American Founding. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.
 
 
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written by Michael Paterson-Seymour, July 29, 2014
Perhaps, we are wrong to assume that the word “religion” has one, essential core in which the meaning of a word is located and which is, therefore, common to all uses of that word.

In the Philosophical Investigations, Wittgenstein argues, by way of illustration, that it is impossible to devise some definition of “game” that includes everything that we call games, but excludes everything that we do not. However, we are all familiar (i.e. socially) with enough things that are games and enough things that are not games that we can categorize new activities as either games or not.

We should, he insists, travel with the word’s uses through “a complicated network of similarities, overlapping and criss-crossing.” We have to see how it functions in a specific social situation.
This does mean that meaning is arbitrary; were I to say, "I do not know whether what I am feeling is a pain, or something else," I would be showing that I do not know how the word "pain" is used in English. No definition of "pain" is needed to know that I am talking nonsense.
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written by Ryan , July 29, 2014
Mr. Arkes,
I was tracking you through the beginning of the piece, but am still left without an apologetic reason for battling back the accusation that we can't offer an exemption to religious-based conscience because it will create a slippery slope. Slippery as it will permit more and more conscience objections for various government programs concerning which one might disagree. Thanks for clarifying and offering assistance to us when having to justify why the Obamacare contraception mandate is religious discrimination.
Ryan
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written by Sue, July 29, 2014
How about the conscience of the Congressman who voted for Obamacare because the "Catholic" USCCB lobbyists told him that the Stupak amendment would make it "okay". Even though even on the face of it, the amendment permitted rape-incest abortions, and the only good the amendment could possibly achieve was against some abortions, with no protection against the inevitable euthanasia, test-tube repro, mandated contraception, Big Medical Data, and other Orwellian monstrosities that would issue forth from the iron fist of Obamacare.

What happens to religious conscience for those in the pew when the staff of bishop's conferences use the implied authority of the church to achieve a result that is contrary to church teaching?
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written by Schm0e, July 29, 2014
Say, it is said here something to the effect that "a religious persuasion does not confer a natural right." Suppose so. But if we're using natural rights as the authority, exactly which one of those supports the act of conscription?
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written by Frank J. Attanucci, July 29, 2014
My Deep Problem with Burwell v Hobby Lobby

I have deep, deep reasons for judging that the most unfortunate sentence in Justice Alito's majority opinion in Burwell v Hobby Lobby is:

"The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients" (Opinion of the Court, p. 2).

I would summarize my objection as follows:

The Court's jurisprudence (leading all the way back to the First Amendment) seems to compel both the Court and those who would bring "matters of conscience" before the Court to argue their position from the perspective of a "religious belief"--even when the matter at hand can be argued using good scientific, philosophical, or natural law arguments. (In the present case, surely the question of whether "the four contraceptive methods at issue are abortifacients" is a scientific question and not a matter of "religious beliefs".)

In other words, the way in which "the rules of the game" have historically unfolded seems to presume that there is a conflict between faith and reason! Does such a viewpoint (inimical to Catholicism and to both faith and reason) reflect a Protestant worldview which was (even until the '70s) the dominant influence in the forming of our nation and its major institutions? That is the historical question.

In our time, however, the really important matter (to me) is this: What recourse is there to people of no faith? To state the matter most sharply: Do not even atheists--owing to the fact they they share our common human nature--not have a moral conscience that requires equal respect before the law? (This concern is the reason why I could not support Arizona SB 1062.)

Of course, in a large and diverse country such as our own, it would not be hard to find someone willing to claim that obedience to this or that law "would entail a violation of their conscience." This very fact is, in my judgment, a best reason for rethinking how closely our laws reflect the demands presented to us by something we all share: our common human nature. In a sense, what could be more democratic than more explicitly (re-)conceptualizing our jurisprudence in terms of natural law?

We have, I am afraid, a deep contradiction at the very heart of our system of law.
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written by Myshkin, July 29, 2014
@Frank Attanucci

You are completely correct. Our legal system has become a starkly politicized system. And by so becoming it has moved more and more toward a system of men, rather than a system of laws. Hence the chaos of contrary or even contradictory court decisions based not on the law, but on the political positions of the judges. Conscience is greatly weakened by the party spirit as George Washington warned in his farewell address.

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