Some Supreme Court cases in recent years have asserted a constitutional right to religious freedom using the First Amendment’s protection of “the free exercise of religion.” In the case involving the Masterpiece Cakeshop, the owner claimed a religious right to deny service to certain customers. That argument has entered the realm of medicine. In 2019, Donald Trump’s White House asserts that “conscience protections” give medical professionals the right, on religious grounds, to refuse to perform, or inform about, or refer patients to practitioners willing to carry out procedures such as abortion, sterilization, or assisted suicide.
The free exercise of religion is the right to hold whatever religious beliefs one accepts, to worship with co-religionists, to adhere to the same moral precepts as they do . . . or not (because religious freedom also includes freedom from religion). Except in the mentally ill, all adults have an innate ability to distinguish right from wrong, that is, a conscience. Conscience is not the monopoly of religious persons; it is characteristic of humanity.
What, then, is special about religion? In addition to creedal statements about the nature of ultimate reality and narratives about inspired leaders, religions enjoin some behaviors (prayer, charity, pilgrimage) and forbid others (idolatry, blasphemy, murder, stealing, lying, adultery, banned food or drink). Some religions actively seek to expand through missionary work, conquest, or by physically eliminating adherents to other faiths. Religions often exclude from their own community people who modify or challenge their teachings, ignore their practices, or perform prohibited acts. Non-conformists are to be shunned. They are denounced as apostates, backsliders, or heretics, and stigmatized as damnable. Often, they are persecuted and sometimes executed.
In the U. S., legal enforcement of these disciplinary provisions would deprive individuals of rights guaranteed by the Constitution. The free exercise of religion promised in the First Amendment does not confer the right to deprive citizens of the equal protection under the law promised in the Fourteenth. These denials would impede equal access to life, liberty and the pursuit of happiness, other promised freedoms (voting, education, welfare), and equal economic opportunity. Could the followers of only one religion, claiming the absolute truth of their faith, discriminate on this basis? The danger here is immense! Some religious people fear a turning of the tables by which secular people or “Nones,” those who adhere to none of the religions, could persecute the faithful. But the First and Fourteenth Amendments also protect religious practitioners. The guarantees work both ways. And so they must!
If Congress can do nothing to establish religion or prohibit its free exercise, it would appear that no government, whether federal or local, can forbid what one’s religion enjoins. Yet the law does interdict practices considered religious by some: polygamy, genital mutilation, ritual drug use. If Congress cannot (generally) prohibit religious practices, is the converse true? Just because religions can ban lawful practices their faith forbids, can they also require adherents to prevent lawful practices of non-adherents?
Here is the conflict between conscience and citizenship. If conscience demands departure from law, then suffer the consequences specified in law and protect your conscience. This happens when you rank conscience over citizenship. But if opposing parties each assert a basis in conscience for their conflicting positions, then conscience cannot rule, only law. If citizenship makes us equal, as it must, then citizenship is prior to conscience because only citizenship will protect our various appeals to conscience on an equal basis. Therefore, to prioritize one citizen’s conscience over another’s is to deny the latter person’s right to equal treatment as guaranteed by the Fourteenth Amendment. Since it is wrong to assume that only religious people have a conscience and since the First Amendment states “congress shall make no law respecting an establishment of religion,” then no one person’s conscience can override another’s. Law must outweigh conscience in the guarantee of equal rights.