This Note does not attempt to claim that religion and conscience are not moral equivalents, that they are not equally important, or that they do not require equal legal treatment. Nor does it attempt to claim the converse. Simply put, it argues that a consideration of the different foundations underlying conscience protections and religious protections should give pause to anyone arguing that the two are equivalent. This Note concludes that the rationales behind protecting religion and conscience are different enough to merit consideration in the debate. For if religion and conscience are treated as equivalents under the law, they will be treated as though they are the same. When litigants bring religion or conscience cases to the courts, they will be judged in the same way. The two will be subject to the same exceptions, the same tests, and the same qualifications. Again, this might be the best result; it might even be the bullseye. But it is also possible that religion and conscience should both be protected within their separate (though in some respects, similar) spheres. Such an arrangement might better protect religion and better protect conscience. Whether conscience should be protected in its own right is an entirely separate question, and one that this Note does not take up. Additionally, if it is decided that conscience should be protected on its own merits, this Note will not point to the line where conscience protections should be drawn and compare it to the line marking religious protections. Instead, very simply, this Note argues that the two lines are not measuring the same thing.
Part I of this Note will define three forms of conscience—one that is found only within the context of religion, and two that are found entirely apart from it—and will explain why the secular claims to “conscience” stem from different rights than those supporting religious liberty. Part II will argue that the Founders understood conscience to be intrinsically tied to religion, and it will discuss the role that this conception of conscience played in the early drafts of the Free Exercise Clause of the United States Constitution and in the enacted versions of state constitutions. Part III will progress through a timeline of the Supreme Court’s understanding of the word religion, beginning with the early Court, moving through the conscientious objector cases after World War II, and ending with the Court’s current jurisprudence. Finally, Part IV will argue that the Free Exercise Clause was not intended to incorporate the same protections of conscience which Dhooge argues it should be used to protect today.
Setting Our Feet: The Foundations of Religious and Conscience Protections,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol95/iss1/11