“Conscience” and the Law: A Bumpy Ride


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 Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & 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.