My thesis in this review builds on and is inspired in part by George’s book: Where, or to the extent that, a conflict between conscience and authority reduces to a pure stand on principle by each side—sincere conscience for its sake versus authority for its—in a free society conscience should almost always win. The only time that claims of government authority should triumph over genuine claims of religious conscience is when religiously motivated conduct would produce essentially intolerable harm to others—harm of a kind and degree that would lead one to conclude (in effect, not literally) that it is inconceivable that a just and good God, rightly understood, possibly could have commanded such conduct, and that it is necessary for the state to reject the religious claim in order to prevent such intolerable harm to others. That should be a highly unusual case. In most instances of claimed religious conduct, the stakes are not nearly so high. Frequently, they involve not much more than a claim of state authority to suppress the exercise of religious conscience simply because the state finds threatening in principle the idea of conscientious resistance to its commands. Where that is the case, I submit, there is only one possible answer. Sincere religious conscience should always prevail over claims of government authority that reduce to the asserted need to vindicate government authority for its own sake.
Michael S. Paulsen,
The Unconscionable War on Moral Conscience,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol91/iss3/7