Religious liberty is seemingly coming under greater attack, either culturally or legally.  As of now, a good many of the instances of this attack are represented in opposition to Christian attempts to claim what we may call “conscience rights.”  What is conscience, that which someone called “that little voice in our heads”?  What legitimate role does it play in Christian responses to perceived sin which they believe they are implicated in by their actions?  Can conscience be defined precisely enough to allow us to answer the previous question?  Can a court of law ever be expected to devise a definition of conscience and a test to sort out reasonable conscience claims from unreasonable ones?  Is conscience amenable to public discussion?  How does all this relate to First Amendment, Free Exercise Clause issues, if at all?  This blog will explore the problem of the conscience with a view to beginning a fruitful discussion for Christians who are faced with that “little voice.”  My desire here is to open the conversation, not splve all the problems associated with religious liberty claims.

First, what is conscience?  Agreement on a definition is pretty uniform.  It is at the most general level “moral knowledge.”  The content of that knowledge may differ from person to person, time to time, place to place—though Christians would tend to argue that its content is uniform throughout time, space and among all individuals in a normative sense.  That is, everyone ought to have the same knowledge of morality, right and wrong, whether they do or not.

It would appear that the content of conscience in a Christian sense is that total objective revelation of Scripture that addresses moral and ethical issues.  I say objective because I want to be sure we understand that the moral knowledge for Christians does not arise in their own selves, but comes from outside, though of course it may be “felt” and embraced inwardly and subjectively.  But the problem is that not all, even of Christians, have a fully developed sense of moral knowledge on which conscience may draw.  This is obviously because of the sin nature in all of us and that remains in some measure our entire lives.  Consciences will be “fully informed” or not depending on the individual.

Nevertheless, there is another issue to be considered before we decide whether any given conscience objection ought to be “heard.”  That is the text of Romans 14, which seems to be a clear case of conscience exercised by Christians in the context of eating meat sacrificed to idols, but which can be extended to other situations.  What do we do with this text?  We cannot ignore it, but on the other hand, we cannot legitimately extend its application infinitely to any infringement on conscience claimed by a believer.  But what we can say is that conscience does have relevance in a given circumstance involving religious scruples.

So conscience is the belief about the content of moral knowledge that may cause one to object to carry out some action (see Alberto Guibilini, “Conscience,” in Stanford Encyclopedia of Philosophy, 2016, at http://plato.stanford.edu/entries/conscience).  In Christian thought, the conscience may be improved or degraded in its capacity to recognize and act on the knowledge available to the individual.  This occurs by habituation, that is, either following the conscience when it “speaks” or ignoring it.  Consistent carrying out of either of those choices will make or unmake the conscience.  It is true also that even though one’s conscience is habituated to some particular content, that content may or may not be actually consistent with the principles of ethics in Scripture.  In such cases, we have what is called the “weaker brother” (Romans 14).  Nevertheless, the belief by the individual cannot be completely ignored, for that is at the time his conscience.

If the knowledge content of the conscience is consistent with Scriptural ethics, then that person has a properly functioning conscience that will inform him correctly as to right and wrong.  This properly habituated conscience is the one we need to consider most carefully and take most seriously.

To try to make this discussion relevant to the religious liberty issue, I begin by quoting from an article by Melissa Moschella:

“The key to understanding conscience rights correctly is to recognize that there is a world of difference between a law that makes me do something I don’t want to do, and a law that makes me do something I have an obligation not to do. The former is an annoyance, the latter an assault on my moral integrity. I may not want to follow the speed limit, but that doesn’t give me a claim to be exempted from the law. On the other hand, if I believe that killing animals is morally wrong, no law should force me to serve meat in my business’s cafeteria, or give my employees gift certificates to a steakhouse, even if encouraging people to eat more high-protein foods would promote public health (Public Discourse, The Witherspoon Institute, June 11, 2011).”

Now the quote above is fairly broad, going beyond strictly religious scruples, unless every activity partakes somehow and to some extent of religious beliefs, as some argue (see the discussion in Jonathan Leeman, Political Church: The Local Assembly as Embassy of Christ’s Rule. IVP Academic, 2016, Introduction).  But otherwise, should we allow an unlimited claim of conscience rights because some individual claims them subjectively?  Or must we devise, or try to devise some reasonably objective test that can sort out claims? And what can the American Founders contribute to the debate? At one end of the spectrum it would seem self-evident that not all rights claimed under conscience can be granted by a court (or by any moral agent).  On the other end of the spectrum, it would not be correct to deny all conscience claims.  That much is clear, but not very helpful.  It is just possible then that perhaps most attempts to address conscience rights involve in fact in some way religious claims.  But what I mean by that is that nearly every such issue involves some ethical claim and ethical claims are mixed up with religious claims.  But that does not give every such claim equal status, particularly if we are addressing claims that conflict with objective Christian principles.  If all or most law is directly or indirectly traceable to a moral claim and therefore to a religious principle, then we can begin to sort out those laws that conflict with Christian moral claims and those that do not.

I argue that at the least most law is traceable to some moral notion, and is thus religious, and that most conscience claims have some relation to one’s peculiar “gods” or rather “idols” (to use Herbert Schlossberg’s term).  If then a particular law is enacted that, though ethically based, conflicts with a norm of Christian special revelation, the latter trumps the former and the action of the latter cannot be unduly or at all suppressed or commanded.   This works quite well for a Christian society, but we do not have such a society.  What then can be done to protect conscience claims under Free Exercise law?  In an earlier post I suggested a test that could be used by a court in making such determinations.  This is only a test for Christian conscience claims, but could be generalized with some adjustment.  The court would look for a conscience claim that could be supported by legitimate appeal to recognized special revelation (even if the court could not determine the actual validity of the interpretation) and that did not command an action that directly contradicted any existing legal sanction that has been widely accepted in society (for example, the prohibition against murder, itself traceable to religious principles).  To be sure, there is still a problem with the last phrase, in that just because some existing legal sanction at any point in time is recognized widely as valid does not necessarily mean it is valid when compared to Christian revelation.  However, I felt I had to give some room to long-held (?) laws and regulations.  Perhaps I am mistaken.

On the other hand, if the state is attempting to force an action that is opposed on conscience grounds, then the court will look for the generally accepted nature of that kind of claim on a consistent basis by a denominational doctrinal standard, a university standard, a church doctrinal position, or the like.  If the individual is making the claim he could prove the same, using other standards from religious organizations of which he was not a part, a problem arises to be sure.  But, just to throw the discussion into confusion, consider the following quote:

“Unlike failing to act on a reasonable preference, failing to fulfill a perceived obligation—failing to follow one’s conscience—is always incompatible with integral human well-being. This is true even when one is objectively wrong about the content of one’s obligations. For moral acts are not mere physical chunks of behavior, but are specified by what one’s will is choosing in choosing to perform an action. An action is good insofar as one’s will, in choosing that action, is in line with a will toward integral human well-being. Now, if one believes that, for example, ingesting peyote in a sacramental context is morally obligatory, in choosing not to do so one is, among other things, choosing not to fulfill a moral obligation. Because fulfilling one’s moral obligations is a basic and constitutive aspect of human well-being, a direct choice not to fulfill an obligation is out of line with a will toward integral human well-being. The exact content of the obligation is irrelevant; what matters is that, from the perspective of the acting agent, the agent is choosing not to fulfill an obligation (Melissa Moschella, above).”

Moschella’s claim is a strong one, and not acceptable to everyone, including myself.  I mention it to illustrate the makings of a test that would provide extremely expansive protection for conscience claims.  In the end I cannot see my way simply to accepting everyone’s “gods” and subjective claims of conscience.  So to say that religious claims are somehow involved in most law and also in most conscience claims is not to open the floodgates to every claim advanced.  Moschella goes too far.  I therefore still prefer my test, but understand its limitations.  I want to leave the reader with the exhortation that conscience claims should not be dismissed as mere preferences.  It is always dangerous to ignore conscience, especially for the Christian, but when conscience liberty intersects with the public square, it does little good to argue the universal superiority of the conscience claim.  Moreover, just because a claim is made does not automatically accord it deference.  It ought to be genuinely religious in nature.  The struggle to find an appropriate standard by which to sort out claims is imperative.  I still haven’t said anything about the American Founders’ views, but that will have to wait.