Federal law and the law of every state sometimes grant exemptions from laws when those laws place a burden on the free exercise of religion. Is this practice defensible? Is it possible to give a principled account of why this is done—one that not only justifies religious exemptions as a general matter, but also fits well with commonly held intuitions about the cases in which those exemptions are granted?
Many distinguished legal theorists and philosophers have been drawn to the idea that it is conscience rather than religion that is entitled to special protection, and the U.S. Supreme Court has sometimes embraced the same position.Footnote 1 Yet “conscience” is not a good explanation for the core exemption cases; it is present in cases that almost no one would want to accommodate, and it fails to justify exemption in many cases where the claim for exemption seems strong. This suggests that a different justification is at work.
A second puzzle is that there has been remarkably little explanation of why conscience is a legitimate basis for objecting to the application of a law. Any such claim must rely on assumptions about political theory, about morality, and perhaps even about theology, but these are rarely stated. “Conscience” has been something of a black box.
In short, the common valorization of conscience gives rise to two problems: Can conscience explain the settled exemption cases? And if it cannot, why does the idea of “conscience” have such power for so many people?
An increasingly prominent justification for the reliance on conscience is that conscience is entitled to deference because the person in its grip cannot obey the law without betraying his deepest, most identity-defining commitments. I will argue here that this justification fails. To see why, one must expose the unstated premises of the argument. I do this by drawing upon Harry Frankfurt's account of what he calls “volitional necessity.” Someone in the grip of volitional necessity cares about something so wholeheartedly that he cannot form an intention to act in a way that is inconsistent with that care. Such a person must say, in the words attributed to Martin Luther, “Here I stand; I can do no other.”Footnote 2
Frankfurt's account clarifies the structure of the argument that this kind of invocation of conscience implies. It thus contributes two important points to the debate about conscience. First, it shows that a person can be bound in this way by allegiances that are not moral: volitional necessity can arise from anything at all that a person cares about. Its object may be amoral or even wicked. It is defined entirely by a description of the internal mental state of the agent who is in its grip. Second, because volitional necessity need not have any connection to objective value, it is a poor basis for claims upon other people.
Conscience may be relevant to the determination of whether a claim should be accommodated. People's life-defining commitments, moral or otherwise, should be accommodated where reasonably possible, but the deference this calls for is weak. The will to be moral is another way of understanding conscience. It is valuable, and it warrants some deference even if we think the agent mistaken about what morality requires. But this has more to do with its moral character than with its importance to the individual. And this moral character cannot provide a full account of religious accommodation. Religion is more than a set of moral injunctions and less than everything that people think important. Religion has an erotic as well as a punitive aspect. It involves hope as well as fear. That aspect is not captured by the language of conscience.
I follow Thomas Hill in regarding “conscience” as a general concept that is capable of being specified in various particular conceptions. The general concept, Hill observes, is “the idea of a capacity, commonly attributed to most human beings, to sense or immediately discern that what he or she has done, or is about to do (or not do) is wrong, bad, and worthy of disapproval.”Footnote 3 This general idea leaves open many further questions. It is the answer to those questions that specifies particular conceptions of conscience.
Part I of this essay explains why conscience has been attractive to those trying to make sense of the religion clauses but shows that it cannot explain the full range of cases that it is being asked to cover. Part II shows that there are in fact several different available conceptions of conscience, each relying on different assumptions about the nature of conscience, its relation to political obligation, and the basis of legitimate moral claims against the state. Part III examines the approach that treats conscience as volitional necessity, and shows its weaknesses. Part IV considers a different conception, relying on respect for moral motivation as such, and shows that it can do some but not all of the work of explaining the religious accommodation cases. Part V tries to offer a better explanation.
I. THE ATTRACTIVENESS OF CONSCIENCE
Much of the attractiveness of conscience arises from its perceived capacity to resolve a tension between free exercise and establishment principles. The Supreme Court has declared that “[n]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.”Footnote 4 The Establishment Clause “mandates governmental neutrality between religion and religion, and between religion and nonreligion.”Footnote 5 But the Court has also acknowledged that “the Free Exercise Clause,. . . by its terms, gives special protection to the exercise of religion.”Footnote 6 This generates a puzzle. It is not logically possible for the government both to be neutral between religion and nonreligion and to give religion special protection. Some justices and many commentators have therefore regarded the First Amendment as in tension with itself.Footnote 7 Call this the free exercise/establishment dilemma.
The dilemma is pressing because religion is ubiquitously given special treatment. A classic case is Quaker and Mennonite objections to participation in war, which have been accommodated since colonial times. But there are plenty of other cases. Persons whose religions place special value on the ritual consumption of peyote or marijuana (or wine, during Prohibition) seek exemption from drug laws. Landlords who have religious objections to renting to unmarried or homosexual couples want to be excused from antidiscrimination laws.Footnote 8 Churches seeking to expand sometimes want exemption from zoning or landmark laws. The Catholic Church wants to discriminate against women when ordaining priests. Jewish and Muslim prisoners ask for kosher or halal food. These scruples have often been deferred to, and religious objectors have frequently been exempted from obligations that the law imposes on all others. (There is considerable dispute about whether the decision about when to accommodate ought to be one for legislatures or courts, but that debate rests on the assumption, common to both sides, that someone should make such accommodations.)
The sentiment in favor of such accommodations is nearly unanimous in the United States. When Congress enacted the Religious Freedom Restoration Act, which attempted to require states to grant such exemptions, the bill passed unanimously in the House and drew only three opposing votes in the Senate.Footnote 9 After the Supreme Court struck down the Act as exceeding Congress's powers, many states passed their own laws to the same effect.Footnote 10 Many of those opposed to judicially administered accommodations, such as Justice Antonin Scalia, think it is appropriate for such accommodations to be crafted by legislatures. Each of these measures raises the same dilemma. If government must be neutral toward religion, then how can this kind of special treatment be permissible?
“Conscience” promises a way out of the dilemma by describing the basis of free exercise in a way that specifies only the internal psychology of the person exempted, without endorsing any claims about religious truth. Thus it is possible to give religion special treatment without favoring religion as such. I shall now examine how the Supreme Court came to be drawn to this strategy. Then I will examine its limitations.
A. Seeger and Welsh
The free exercise/establishment dilemma was presented to the Supreme Court most strikingly in a pair of draft exemption cases during the Vietnam War, and those cases have provided powerful support for the view that conscience is the appropriate object of constitutional protection. The first of these concerned Daniel Seeger, who claimed the conscientious-objector exemption from the military draft but was uncertain of God's existence. In a statement he attached to the draft board's questionnaire, which had asked whether he believed in a Supreme Being, he wrote that “the existence of God cannot be proven or disproven, and the essence of His nature cannot be determined. I prefer to admit this, and leave the question open rather than answer ‘yes’ or ‘no.’”Footnote 11 (He explained years later that “I didn't make any particular connection between my theological beliefs and my determination not to fight in the army.”)Footnote 12 He was quite clear, however, in his views about war:
I cannot participate in actions which betray the cause of freedom and humanity. Experience with the past indicates that our armament policy will lead to war, and war, with its indiscriminate crushing of human personality, cannot preserve moral values. . . . To resort to immoral means is not to preserve or vindicate moral values, but only to become collaborators in destroying all moral life among men.Footnote 13
The question of the appropriate basis of exemption was presented starkly by the Selective Service Act, which exempted from the draft anyone “who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” The Act defined its terms in a problematic way: “Religious training and belief in this connection means an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.”Footnote 14
The court of appeals thought that the statute was unconstitutionally discriminatory: “for many in today's ‘skeptical generation,’ just as for Daniel Seeger, the stern and moral voice of conscience occupies that hallowed place in the hearts and minds of men which was traditionally reserved for the commandments of God.”Footnote 15 When the case was appealed to the U.S. Supreme Court, that court avoided the conclusion that the law was unconstitutional but only by construing the term “Supreme Being” very broadly, so that the test was “whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption.”Footnote 16 The Court concluded that Seeger was entitled to the exemption “[i]n light of his beliefs and the unquestioned sincerity with which he held them.”Footnote 17
A few years later, the Court revisited the exemption issue in the case of Elliott Ashton Welsh II, who also conscientiously objected to participation in any war but who stated that he did not believe in God and that his beliefs were not religious. The Court decided that Welsh, too, should be exempted. A four-judge plurality concluded that Welsh's beliefs were “religious” as that term was defined in the statute. What was necessary was “that this opposition to war stem from the registrant's moral, ethical, or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions.”Footnote 18 The common denominator was conscience:
If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual “a place parallel to that filled by . . . God” in traditionally religious persons. Because his beliefs function as a religion in his life, such an individual is as much entitled to a “religious” conscientious objector exemption under [the statute] as is someone who derives his conscientious opposition to war from traditional religious convictions.Footnote 19
The plurality concluded that the law “exempts from military service all those whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war.”Footnote 20
Justice Harlan, concurring in the result, thought that the Court's removal of the statute's theistic requirement was “a remarkable feat of judicial surgery”Footnote 21 that was inconsistent with the clear intentions of Congress. But he joined the result because he thought, as the Court of Appeals had thought in Seeger, that the law impermissibly discriminated on the basis of religion—that it drew “a distinction between theistic and nontheistic religions.”Footnote 22 If Congress was going to create exemptions, Harlan thought, it was constitutionally required to show “equal regard for men of nonreligious conscience.”Footnote 23 As he explained, “The common denominator must be the intensity of moral conviction with which a belief is held.”Footnote 24 A dissenting judge in the court of appeals below had come to the same conclusion, noting that Welsh was “willing to go to jail rather than do violence to his beliefs, which is more than can be said for many who profess a belief in a Supreme Being.”Footnote 25
B. What Conscience Cannot Explain
So the reliance on conscience produced a result that the Supreme Court found satisfying in the draft cases. If one surveys the broader range of exemption cases, however, one finds that conscience works less well as a functional substitute for religion.
One problem is that, as Christopher Eisgruber and Lawrence Sager observes, conscience can generate exorbitant demands: “Both good and evil can emanate from conscience: the feeding of the poor, perhaps, but also the purification of the caucasian race.”Footnote 26 A pointed illustration comes from a prison interview with Dan Lafferty, who, in response to a religious revelation reported to him by his brother Ron, murdered his sister-in-law and her fifteen-month-old daughter:
It was like someone had taken me by the hand that day and led me comfortably through everything that happened. Ron had received a revelation from God that these lives were to be taken. I was the one who was supposed to do it. And if God wants something to be done, it will be done. You don't want to offend Him by refusing to do His work.Footnote 27
Conscience thus includes some claims that almost no one would want to respect. This difficulty can be accommodated by noting that the claim for accommodation is only presumptive and can be defeated by a strong enough state interest. As the case of Lafferty shows, even theism will sometimes generate unworthy claims.
A deeper objection is that conscience excludes some claims that are widely recognized as valid. Many religious claims that are uncontroversially weighty, claims that nearly everyone would want to accommodate, are not conscientious. A paradigm case for religious exemption for most proponents of such exemptions is the ritual use of peyote by the Native American Church, which the Supreme Court declined to protect in Employment Division v. SmithFootnote 28 but which received legislative accommodation shortly thereafter.Footnote 29 Yet neither of the claimants in Smith was motivated to use peyote by religious conscience. Al Smith was motivated primarily by interest in exploring his Native American racial identity, and Galen Black was merely curious about the Church.Footnote 30
The emphasis on conscience focuses excessively on duty. Many and perhaps most people engage in religious practice out of habit, adherence to custom, a need to cope with misfortune, injustice, temptation, and guilt, curiosity about a religious truth, a desire to feel connected to God, or happy religious enthusiasm rather than a sense of obligation or fear of divine punishment.Footnote 31 The most recent congressional pronouncement on religious liberty, the Religious Land Use and Institutionalized Persons Act of 2000, declares that “[t]he term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”Footnote 32
Conscience is also underinclusive because it focuses on those cases in which the agent feels impelled by a duty that she is capable of performing without depending on external contingencies. “Conscience” is a poor characterization of the desire of a church to expand its building to be able to hold its growing congregation, as in City of Boerne v. Flores.Footnote 33 Conscientious resistance to the law was not an option. The reconstruction could not be done without the help of architects and contractors, whom the city could prevent from doing the work merely by withholding the necessary permits. The problem is even more pronounced in Lyng v. Northwest Indian Cemetery Protective Association,Footnote 34 a widely criticized decisionFootnote 35 in which Native Americans objected to a proposed logging road that would pass through an ancient worship site sacred to their tribe. The logging road, the Court conceded, would “virtually destroy” the ability of the Native Americans “to practice their religion.”Footnote 36 Nonetheless, the Court, evidently persuaded that exemptions had to be based on conscience, held that there was no constitutionally cognizable burden because the logging road had “no tendency to coerce individuals into acting contrary to their religious beliefs.”Footnote 37 Once more, this result was quickly reversed by Congress.Footnote 38
So conscience cannot be the basis for accommodation. It fails to fit the cases in which most people want to accommodate religion. It is both overinclusive and underinclusive. Yet any account of religious exemptions will need to explain why the idea of “conscience” so dominates the discourse.
C. The Intensity Hypothesis
Recall that in Welsh the plurality and Justice Harlan agreed that the basis for exemption is conscience. There are, however, many foundational questions that these opinions left unaddressed. Why is conscience the appropriate object of protection? The plurality does not explain, while Harlan suggests a clear answer: conscientious objections are the ones that are felt most intensely.Footnote 39 But this answer gives rise to questions of its own. Why should intensity matter so much?
Harlan's focus on intensity raises a problem analogous to that of the “welfare monster,” who constitutes a classic objection to utilitarian ethics. The welfare monster is someone who happens to be so constituted that she gets more happiness per unit of resources consumed than anyone else does (with no diminishing marginal utility). If utilitarian principles are accepted, the monster gets an unfairly large share of resources; in the limit case, no one else will get anything.
Harlan's opinion implies a sort of modified utilitarianism in which particularly intense preferences are understood to make a particularly strong claim. This is, however, not all that far from the original utilitarianism of Jeremy Bentham, which sought simply to maximize pleasure and minimize pain and which has been rejected as excessively crude by most modern philosophers.Footnote 40 Bentham did not think that pleasures and pains were identical in weight but that they could be distinguished by their intensity, duration, certainty or uncertainty, propinquity or remoteness, and likelihood of being followed by sensations of a like or of an opposite kind.Footnote 41 Harlan ignores every dimension except intensity. This is even cruder than Bentham.
For our purposes, Harlan's formulation, like conscience, is both overinclusive and underinclusive. Galen Black's desire to participate in the peyote ceremony was not particularly intense, while Dan Lafferty's urge to kill a mother and her child was very intense. Evidently Lafferty's conscience would have given him no rest or peace if he had not committed those murders.
A variation on the intensity hypothesis is the claim that the law ought to defer to a believer's fear of extratemporal consequences. The burden of obeying a law, so the argument goes, is greater for a person who believes that doing so will put his soul in jeopardy for eternity.Footnote 42 But (aside from the problem that this approach leaves out Seeger and Welsh—while still covering Lafferty!) here we seem to have lost the idea that conscience has any special dignity. This approach recasts conscience as a kind of prudent response to duress, God as a big thug who will thwack anyone who disobeys him, and conscientious objection as a strategy to escape thwacking.Footnote 43 What is more, it is not clear why deference is called for. If, for whatever reason, you are not deterred by official punishment, then you should be willing to accept that punishment. The state's nastiest thwack is gentler than God's.
II. THE VARIETIES OF CONSCIENCE
If not intensity, then what is special about conscience? Historically, “conscience” has been a protean notion with different meanings for different people. So there have been different answers to this question. What follows is not an exhaustive catalogue but rather a brief sketch of a few ideal types to clarify the main options that are on offer.
A. Aquinas-Conscience
The idea of conscience has its origins in the thought of the Stoics. The Latin word conscientia originally referred to some knowledge, especially some secret or private knowledge, shared with another. In Stoicism, conscientia refers to a person's awareness of the natural moral law and his own actions' correspondence or lack of correspondence with that law.Footnote 44 Early Christians such as Paul and Jerome used the same word to refer to the soul's faculty that made a person aware of his own sinfulness.Footnote 45
Peter Abelard made conscience central to his conception of sin; objectively, sin was contempt of God, but it consisted in consenting to that which, it is believed, ought not to be consented to. It followed from this that sin consisted only in acting against conscience. Ignorance of God's will excuses sin; it is not sinful to fail to possess moral knowledge. Thus even the crucifiers of Christ were not guilty of sin because they were ignorant of the divinity of Christ.Footnote 46
The most influential early formulation of the authority of conscience was that of Aquinas, who regarded it as a judgment by the rational part of the soul about the goodness or badness of an action. For Aquinas, conscience was not a feeling, intense or otherwise, but an exercise of the reason. This act of judgment relied on a person's innate knowledge of natural law. The judgment of the practical intellect was morally binding, and moral wrong consisted of the will's refusal to consent to that judgment: “every act of will against reason, whether in the right or in the wrong, is always bad.”Footnote 47
Aquinas acknowledged that conscience could err, either by misunderstanding the correct moral principles or by misapprehending the circumstances in which one was to act. Such error would be culpable either if it were directly voluntary (because the agent deliberately avoided uncomfortable information) or if the agent were negligent about knowing what he ought to know. If, however, a person's ignorance were inevitable, that person would be excused if he acted on his erroneous conscience.Footnote 48
The basic idea of the supreme authority of conscience had already been endorsed, in stronger terms than ever appeared in Aquinas, by Pope Innocent III (1198–1216):
One ought to endure excommunication rather than sin. . . . no one ought to act against his own conscience and he should follow his conscience rather than the judgment of the church when he is certain. . . . one ought to suffer any evil rather than sin against conscience.Footnote 49
Here one sees the beginnings of the idea that conscience can trump even the objective law. Noah Feldman observes that the idea of freedom of conscience is already being suggested here: “If it was sinful to act against conscience, then there might be reason to avoid requiring anyone to act against conscience.”Footnote 50 Perhaps individuals should endure anything rather than sin against conscience, but the more you make them endure, the more likely it is that they will sin against conscience.
But here this idea is only inchoate. Aquinas did not suggest that conscience entailed religious toleration. On the contrary, he supported the persecution of heretics.Footnote 51 Even modern neo-Thomist defenses of religious toleration only reject religious coercion intended as such; they do not necessarily entail religious exemptions from religiously neutral laws.Footnote 52 In Aquinas, conscience trumps positive law only in the eyes of God, for whom even the person who has committed a serious moral wrong is redeemed if his ignorance of moral truth is not culpable.
The autonomy of conscience from law is thus an entirely internal matter, or at least a matter that is only between the person and God. “His conscience is man's most secret core and his sanctuary,” the present catechism of the Catholic Church declares. “There he is alone with God whose voice echoes in his depths.”Footnote 53 Call this Aquinas-conscience.
B. Locke-Conscience
The modern idea of freedom of conscience as a limit on the state's legitimate power received its most influential formulation in John Locke's Letter Concerning Toleration, which argues that “the Care of Souls is not committed to the Civil Magistrate, any more than to other Men.”Footnote 54 Part of the reason was the limited responsibilities of the state, which existed solely in order to protect life, liberty, and property. But another was that “no Man can, if he would, conform his Faith to the Dictates of another.”Footnote 55 Locke radicalizes Aquinas's argument that the individual has an obligation to obey his conscience, and concludes that coerced worship would be “Hipocrisie, and Contempt of his Divine Majesty.”Footnote 56 Coercion of worship is absurd, because what it produces has no religious value:
Although the Magistrates Opinion in Religion be sound, and the way that he appoints be truly Evangelical, yet if I be not thoroughly perswaded thereof in my own mind, there will be no safety for me in following it. No way whatsoever that I shall walk in, against the Dictates of my Conscience, will ever bring me to the Mansions of the Blessed.Footnote 57
Here conscience is not simply a matter between the person and God; it is a constraint upon what the state may legitimately do. Call this Locke-conscience.
Locke's argument is, of course, loaded with religious premises: that conscience is valuable because it is a way of discovering God's will; that it is sinful to act against conscience; that the rights of conscience are inalienable; and that no one can legitimately grant to another the right to make one's religious decisions.Footnote 58 And in keeping with seventeenth- and eighteenth-century usage, “conscience” refers only to religious matters.Footnote 59 Locke's vision of conscience extends only to religious decisions, decisions about religious worship, which he claims are not the legitimate concern of the state. It is not a basis for exemption from otherwise legitimate laws. On the contrary, if a legitimate law offends anyone's conscience, that person is in the position of Innocent III's heretic:
such a private Person is to abstain from the Action that he judges unlawful; and he is to undergo the Punishment, which it is not unlawful for him to bear. For the private judgment of any Person concerning a Law enacted in Political Matters, for the publick Good, does not take away the Obligation of that Law, nor deserve a Dispensation.Footnote 60
C. McConnell-Conscience
But if Locke's view does not justify religious exemptions, it bears the seeds of such a justification. James Madison, in Memorial and Remonstrance, asserts that “[i]t is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him,” and that “every man who becomes a member of any particular Civil Society [must] do it with a saving of his allegiance to the Universal Sovereign.”Footnote 61 Michael McConnell makes this a premise for an argument (never stated by Madison) that religion ought to be a basis for exemptions because it involves a duty to God:Footnote 62
If the scope of religious liberty is defined by religious duty (man must render to God “such homage . . . as he believes to be acceptable to him”), and if the claims of civil society are subordinate to the claims of religious freedom, it would seem to follow that the dictates of religious faith must take precedence over the laws of the state, even if they are secular and generally applicable.Footnote 63
He claims that religion has a unique claim to accommodation, because “[n]o other freedom is a duty to a higher authority.”Footnote 64 Even those who do not believe in God should understand the value of avoiding “conflicts with what are perceived (even if incorrectly) as divine commands.”Footnote 65 Here we do have a justification for exemptions.Footnote 66 Call this McConnell-conscience.Footnote 67
McConnell-conscience is bad news for Seeger and Welsh, who did not think that their objections derived from divine commands.Footnote 68 Their objections are not “conscientious” even in the sense intended by Locke and Madison. Some early American sources are quite clear about this. Cotton Mather thought that “[t]o live without any Worship of God, or to Blaspheme and Revile his Blessed Name, is to be chastised, as abominably Criminal, for there can be no pretence of Conscience thereunto.”Footnote 69 A Connecticut Congregationalist argued in 1755 that it would be:
absurd, to speak of allowing Atheists Liberty of Conscience. Because he who professeth himself to be an Atheist, at the same time professes that he has no Conscience. For what Conscience can a Man have; who believes that there is no God, no moral Obligations, no future Rewards, and Punishments?Footnote 70
And Locke himself concluded that “those that by their Atheism undermine and destroy all Religion, can have no pretence of Religion whereupon to challenge the Privilege of a Toleration.”Footnote 71
The accommodations that were given did not even rely on this abstract concept. Only a small number of accommodations were ever asked for,Footnote 72 and of these, only those related to military service were granted in state constitutions.Footnote 73 Considerations of convenience and compassion rather than principle supported the original practice of religious accommodation.Footnote 74
McConnell-conscience does not avoid the free exercise/establishment dilemma so much as squarely run into it. For this reason, McConnell-conscience is not a good candidate to be the modern common denominator that helps us escape the dilemma. Exemptions thus conceptualized could only be available to theistic religions, because only those religions can generate the unique source of moral authority that this theory demands.Footnote 75 And the implied endorsement of theism violates the rule that government is not to endorse religious propositions.
Not all religions involve belief in God. The Supreme Court held long ago that the Establishment Clause forbids government to “aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.”Footnote 76 The Court noted that “[a]mong religions in this country, which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others.”Footnote 77 Hinduism is only the most prominent of many polytheistic religions.Footnote 78 The Buddha did not even regard the existence of God as an interesting question.Footnote 79
In sum, neither Aquinas-conscience, nor Locke-conscience, nor McConnell-conscience can help us out of our dilemma. Aquinas-conscience is not a constraint on the state at all. Locke-conscience objects only to laws that specifically restrict religion and it is no basis for exemptions from generally applicable laws. McConnell-conscience violates the Establishment Clause. If conscience is to be the basis for exemptions, then we must seek other descriptions of its salient characteristic. What other descriptions are available?
D. Sandel-Conscience
Michael Sandel offers a description of conscience that seems carefully calibrated to avoid the difficulties of McConnell's specification. Sandel observes that a person in the grip of conscience has such a strong need to act in accordance with it that he really has no other option. The aim of accommodation is “to prevent persons bound by moral duties they cannot renounce from having to violate either those duties or the law.”Footnote 80 Such protection recognizes “the role that religion plays in the lives of those for whom the observance of religious duties is a constitutive end, essential to their good and indispensable to their identity.”Footnote 81 This explanation of the force of conscience evidently is broad enough to justify the results in Seeger and Welsh. Sandel quotes Seeger with approval.Footnote 82
William Galston offers a similar account of conscience. There are, he argues, two features of religion that are relevant to the exemption question: “First, believers understand the requirements of religious beliefs and actions as central rather than peripheral to their identity; second, they experience those requirements as authoritative commands.”Footnote 83 Nonreligious beliefs that are characterized by identity formation and compulsory power should be similarly accommodated, Galston thinks.
Kwame Anthony Appiah likewise argues that religious practices should be accommodated because they are “likely to represent deeply constitutive aspects of people's identity, rather than something like a taste for one candy over another. We can make distinctions between [those] who, with Luther, declare, Ich kann nicht anders, and the Mr. Bartlebys who simply ‘prefer not to.”’Footnote 84
This argument from the imperative character of one's beliefs is attractive enough that at one point even McConnell is drawn to the same argument: “The free exercise claus accords a special, protected status to religious conscience not because religious judgments are better, truer, or more likely to be moral than nonreligious judgments, but because the obligations entailed by religion transcend the individual and are outside the individual's control.”Footnote 85
This conception of conscience—call it Sandel-conscience—avoids the difficulties of the accounts of conscience considered above. It is a basis for political claims, unlike Aquinas-conscience. It is a claim against even laws that are legitimately enacted, unlike Locke-conscience. It is not based on theological propositions, unlike McConnell-conscience. Indeed, it is not based on anything beyond the internal psychological makeup of the actor, which is tightly bound up with the action that the actor wishes to take. These advantages are doubtless why so many sophisticated philosophers are drawn to it.
Sandel-conscience, however, raises new and intractable difficulties.
III. CONSCIENCE AS VOLITIONAL NECESSITY
People may indeed be constrained in the inescapable way that Sandel, Galston, and Appiah describe. But morality is not the only source of such constraint. Harry Frankfurt observes that the demands of love, of what we happen to care about, can be just as forceful as the demands of moral obligation.Footnote 86 Sandel's explanation of the force of conscience is underinclusive in its own way: the exigency that it points to sometimes arises from moral duties but it arises from other sources as well.
A. The Idea of Volitional Necessity
“Conscience” is an imprecise word for an internal compulsion to act that is specified only by the possessor's internal psychology. A better term is what Frankfurt calls “volitional necessity”: “Someone who is bound by volitional necessity is unable to form a determined and effective intention—regardless of what motives or reasons he may have for doing so—to perform (or to refrain from performing) the action that is at issue.”Footnote 87 Frankfurt's paradigmatic case of volitional necessity is the declaration attributed to Luther: “Here I stand; I can do no other.” What Luther could not muster, Frankfurt observes, “was not the power to forbear, but the will.”Footnote 88 Unlike an addict's compulsion, Luther accedes to the constraining force “because he is unwilling to oppose it and because, furthermore, his unwillingness is itself something which he is unwilling to alter.”Footnote 89 This double unwillingness is what defines volitional necessity.
The advantage, for our purposes, of focusing on volitional necessity is that it brings forth with clarity the implications of a view of internal compulsion that is entirely denuded of any external referent. Volitional necessity thus completes the work of abstraction that “conscience” promises. An examination of volitional necessity and the limits of the work it can do will help to make clear the corresponding limits of conscience.
Frankfurt originally comes to focus on the concept of volitional necessity in the course of an effort to develop a defensible conception of free will. What distinguishes humans from other species, Frankfurt claims, is that humans have desires about desires, what Frankfurt calls “desires of the second order.” Humans “are capable of wanting to be different, in their preferences and purposes, from what they are.”Footnote 90 A person has free will if “he is free to will what he wants to will, or to have the will he wants.”Footnote 91 If a person “is performing an action that he wants to perform,” and if “his motive in performing this action is a motive by which he truly wants to be motivated,” then “the person is enjoying as much freedom as it is reasonable for us to desire.”Footnote 92 Obedience to volitional necessity is freedom: if one's will is undivided, then one cannot choose otherwise than one does, and yet one is entirely free. The freedom thus exercised is “as close to freedom of the will as finite beings, who do not create themselves, can intelligibly hope to come.”Footnote 93 Moral responsibility, thus understood, can exist even in a deterministic world: “if someone does something because he wants to do it, and if he has no reservations about that desire but is wholeheartedly behind it, then—so far as his moral responsibility for doing it is concerned—it really does not matter how he got that way.”Footnote 94
The root of volitional necessity, Frankfurt argues, is love. If a person loves something, this gives his life meaning and purpose. Frankfurt suggests that what distinguishes Luther's case is the fact that it involves an end that receives his undivided endorsement, such that it is unthinkable to act otherwise.Footnote 95 Luther embraces it wholeheartedly; his will is undivided with respect to it. This necessity is a liberating one:
As long as we are uncertain, we hold ourselves back. Discovering how things must necessarily be enables us—indeed, it requires us—to give up the debilitating restraint that we impose upon ourselves when we are unsure what to think. Then there is no longer any obstacle to wholehearted belief. Nothing stands in the way of a steady and untroubled conviction. We are released from the blockage of irresolution and can give ourselves to an unimpeded assent.Footnote 96
Volitional necessity constitutes an agent's integrity in a way that some other, equally intense preference, such as an addiction, would not. And this would be true whether or not the source of the necessity is a moral imperative, as in the case of conscience.Footnote 97
Over the course of Frankfurt's career, T.M. Scanlon observes, there has been “a shift of emphasis . . . from concern with an agent's ‘ownership’ of his or her desires as a precondition of moral appraisal to a concern with an ideal of psychic health.”Footnote 98 The object of the inquiry now is the good life. A person's life is (at least in that respect) good if the person is “enjoying the inner harmony of an undivided will.”Footnote 99
Frankfurt thinks that volitional necessity is the marker of a person's identity: “As the set of its essential characteristics specifies the limits of what a triangle can be, so does the set of actions that are unthinkable for a person specify the limits of what the person can will to do. It defines his essence as a volitional creature.”Footnote 100 A person who will do anything if the price is right has only accidental characteristics; he has no stable identity at all.Footnote 101 Following volitional necessity is itself a highest-order interest: one's integrity is at stake.
B. Volitional Necessity and Identity
Here Frankfurt offers us an avenue to address a very old problem in legal theory. For a long time, theorists have wanted to ground a right to individual privacy and autonomy, with respect to such matters as sexual liberty, in a right to personhood—a sphere that the state may not invade. The basic claim of personhood, as Jed Rubenfeld notes, is that “some acts, faculties, or qualities are so important to our identity as persons—as human beings—that they must remain inviolable, at least as against the state.”Footnote 102 But, as Rubenfeld notes, this argument proves too much and has anarchic implications: “Virtually every action a person takes could arguably be said to be an element of his self-definition.”Footnote 103
Frankfurt's argument implies a response. A person's identity is constituted not by all her actions but only by those things that she most cares about and cannot help caring about. This does narrow the field of application in a way that could answer Rubenfeld. It is the move that Sandel makes in defense of conscience.Footnote 104 If the state accommodates that, the free exercise/establishment dilemma is avoided, because the state is remaining neutral among identities.
But this is a poor basis for legal exemption because it is potentially so idiosyncratic. People identify with a lot of things.Footnote 105 As Frankfurt cheerfully admits, the object of one's love can be deeply unworthy. “Being wholehearted is quite compatible not only with being morally somewhat imperfect, but even with being dreadfully and irredeemably wicked.”Footnote 106 Here again is the Lafferty problem. Neither conscience (in any of its varieties surveyed above) nor volitional necessity necessarily points toward anything that other people have any obligation to respect. Both produce analogues of welfare monsters. Perhaps it is very hard for someone to resist the force of volitional necessity, and perhaps that counts as a (rebuttable!) reason not to ask them to do it. But in that case, the appropriate response is not respect. It is pity.
C. The Emptiness of Volitional Necessity
Note the difference between volitional necessity and Aquinas-conscience. Aquinas-conscience is good because the actor is doing all he can to follow God, Who is the source of all goodness. Frankfurt uses Luther's “Here I stand” quote effectively several times,Footnote 107 but he does not capture the aspect of Luther's volitional necessity that Luther himself regarded as most important. Luther would not have agreed that he was drawn toward what he loves only by what Susan Wolf calls its “affinity,” its suitability to be an object of care.Footnote 108 Rather, he thought that the basis of his motivation was something genuinely good—in fact, the source of all goodness. “Unless I am convicted by Scripture and plain reason—I do not accept the authority of popes and councils, for they have contradicted each other—my conscience is captive to the word of God,” said Luther (here radicalizing Aquinas's deference to conscience in a way that would have scandalized Aquinas). “I cannot and I will not recant anything, for to go against conscience is neither right nor safe.”Footnote 109 Luther's claim is not just one of volitional necessity. Luther thought that conscience points beyond itself. He would ask: What is good about wholeheartedness as such? Why should it warrant deference?
Identity as Frankfurt conceives it is as protean as intensity of desire, though here there is the added proviso that the actor wholeheartedly endorse and identify with the desires that are the basis of his identity. The possibility of a kind of welfare monster has not been eliminated. There is no reason to think that any given identity will be worthy of respect or that all respectable identities will be equally respectable. As Frankfurt says, “Free lives may not be good lives. Freedom is not the only good thing, and there is no reason to deny that there may be circumstances in which it is actually not worth very much at all.”Footnote 110
Frankfurt's lack of interest in objective value is one of the most controversial aspects of his philosophy.Footnote 111 Gary Watson objects to Frankfurt's conception of free will, arguing that in order for second-order desires to be more truly the agent's own than other inclinations, there has to be something to orient one's second-order desires: “[W]hy does one care about one's second-order volitions? Since second-order volitions are themselves simply desires, to add them to the context of conflict is just to increase the number of contenders; it is not to give a special place to any of those in contention.”Footnote 112 Second-order desires have no authority unless they are fixed in place by third-order desires, and so on ad infinitum. In order for agency and personhood to be determinate, Watson argues, one must value one's activities as “being the fulfillment of desires that arise and persist independently of what we value.”Footnote 113
Frankfurt refuses this Neoplatonic move in favor of a naturalistic one. Decisive commitment need not arise from reasons; it is enough that one is undivided in one's allegiances. Wholeheartedness could exist without any reason at all. It could and frequently does have biological causes. Once one has made (or finds oneself already having) a decisive commitment, Frankfurt thinks, one avoids any infinite regress and has a stable identity.Footnote 114 This may be a coherent account of free will and personhood and to that extent may answer Watson's criticism, but it shows that volitional necessity is entirely unmoored from any objective value.Footnote 115
IV. RESPECT FOR MORAL MOTIVATION AS SUCH
In order for a claim to accommodation to be entitled to respect, it needs that link to objective value. But what objective value could it be? It had better not be specified in a theistic way, because that brings back the difficulties of McConnell-conscience.
One candidate, one that is theologically neutral, is the will to be moral. This looks back to Aquinas but it goes beyond him. Aquinas did not think that conscience could be the basis of claims on other people or on the state, and even his modern followers are able to conclude only that laws that aim to coerce religious conscience are per se wrong. But one could argue, following Aquinas, that the desire to do what is morally right is a good thing in itself, and respect for that desire is a part of respect for persons. “Conscience represents the distinctively human effort to conceive and to live an ethical life, which democracy presupposes when it is committed to the ideal of reciprocal respect for persons, manifest in the democratic ideals of civic equality, liberty and opportunity,” Amy Gutmann writes. “Without an ethical capacity, it is unclear how anyone can command respect.”Footnote 116 The impulse to fulfill one's obligations is so valuable (and perhaps so rare) a human motivation that it should be cherished wherever it is found.Footnote 117 Thus, for example, Pope John Paul II regarded conscience as “the witness of God himself,” because it was “a moral judgment about man and his actions, a judgment either of acquittal or of condemnation, according as human acts are in conformity or not with the law of God written on the heart.”Footnote 118
The desire to be moral is not, however, exempt from the possibility of error.Footnote 119 Mark Twain's Huckleberry Finn regarded himself as culpably weak-willed because he disregarded his own specifically moral compunctions about helping a slave to escape. (If it is presumed that one should always obey one's conscience, he was culpably weak-willed.)Footnote 120 Since conscience describes only an internal state of its possessor, its relation to external reality may be valuable or destructive. So it is not clear why conscience without more states a claim. Conscience, even when its claims are specifically moral, cannot be allowed to have the last word.
Conscience, as the will to be moral, is not only a claim about the inner mental state of its possessor. It also contains within it a claim about what is in fact morally right. That claim cannot be tested by reference only to interior psychology.Footnote 121 The Catholic catechism, continuing to work through the implications of Aquinas-conscience, observes that even in cases of invincible ignorance, in which “the moral subject is not responsible for his erroneous judgment,” the wrong he commits “remains no less an evil, a privation, a disorder.”Footnote 122 The puzzle remains: Why should the state accommodate a conscientious objection based on a belief, however sincere, which it judges to be wrong?Footnote 123
Gutmann's answer is that the will to be moral is valuable in itself. It does not trump all other values but it is entitled to some weight.
This is the most attractive account of conscience as a basis for accommodation. It is indeed valuable whenever people decide to act morally, and this form of volitional necessity may therefore be especially eligible for accommodation. A well-functioning human being is disposed to heed her conscience, and this disposition is damaged whenever she succumbs to pressure to violate her conscience. That may sometimes be a reason to accommodate conscience as such.
Note, however, that this rationale's boundaries are potentially quite elastic. David Richards argues that the moral basis of the free exercise clause is “a negative liberty immunizing from state coercion the exercise of the conceptions of a life well and ethically lived and expressive of a mature person's rational and reasonable powers.”Footnote 124 His broadly libertarian account entails that “the right to conscience protects the sphere of action when state intervention therein is not justified by the protection of all-purpose goods.”Footnote 125 For Richards, conscientious objections to law need not be based on morality or religion; it is enough that they arise out of the agent's exercise of his practical reason. This, he acknowledges, entails constitutional protection for “everything and anything.”Footnote 126
The concerns that motivate Richards's philosophy are rooted, to a large extent, in his own experience as a young gay man in the 1960s and 1970s, when he took professional risks in order to be forthright and truthful about his sexuality. He was an early defender of gay rights at a time when most gay academics were deeply closeted and terrified of writing about these issues. His moral determination and courage are as admirable as those of any conscientious objector.Footnote 127 The right to conscience, he argues, protects “our moral autonomy in acknowledging the ethical principles that both define personal integrity and give shape indissolubly to the unity of belief and action that is one's life.”Footnote 128 Conscience thus understood certainly would protect Seeger and Welsh, but it is hard to see whose claims would be excluded: gay men who are less earnest and serious than Richards? The unserious gay man is also exercising his rational and reasonable powers. The Seeger and Welsh courts clearly had something much narrower than Richards-conscience in mind. Richards himself is driven by concerns of a moral depth that his principle fails to capture. Once more, the object of deference is not defined by the internal psychology of the conscientious objector.
We have not yet accomplished our task of accounting for the religious accommodations that are in fact given (both by courts and by legislatures) in the United States. As explained in Section I.B., above, conscience, as moral compulsion, is both over- and underinclusive with respect to the claims that are accommodated. Even if conscience explains some of the exemptions that are provided, many of the paradigmatic cases remain unexplained. We have not even begun to resolve the free exercise/establishment dilemma, because “conscience” does not explain what free exercise is about.
V. BEYOND CONSCIENCE
If conscience cannot explain America's practices of religious accommodation, then what would a satisfactory account of those practices look like?
Answering that question is obviously beyond the scope of this paper. But our exploration of conscience has provided us with some parameters that any possible answer must satisfy. Unlike Aquinas-conscience, it must be a basis for claims upon other people, not only upon oneself and God. Unlike Locke-conscience, it must be a basis for claims against properly motivated, legitimately enacted laws. Unlike McConnell-conscience, it must not rest on the truth of theism or any other theological proposition. Unlike Sandel-conscience, it must rest on something more than volitional necessity, the internal psychological makeup of the actor. It must, then, rest on some source of value external to the actor. The idea of moral obligation as such is one possible such source of value, but as shown above, that source is over- and underinclusive of the accommodations we are trying to account for. These conditions must be satisfied by any satisfactory defense of religious accommodations.
The Welsh plurality's opinion, unlike the conscience-based justifications that have been offered for it, satisfies these parameters. Recall the test announced by the plurality: in order for an objection to a law to be entitled to accommodation, it was necessary “[1] that this opposition . . . stem from the [objector]'s moral, ethical, or religious beliefs about what is right and wrong and [2] that these beliefs be held with the strength of traditional religious convictions.”Footnote 129 Only the second prong of the test looks to the strength of the objector's volitional necessity. Justice Harlan, with his focus on intensity, might have stopped there, but the other judges wanted more than intensity. They wanted to be shown that the objection rested on “moral, ethical, or religious beliefs about what is right and wrong.”
This first prong of the Welsh test appears to be the more important of the two, since it can explain the accommodation of religious beliefs that are not held with any particular intensity (pace Harlan, who may have wanted to rely solely on the second prong, evidently that prong is not even a necessary condition of a successful demand for accommodation).
What did the Welsh plurality mean by “religious beliefs”? Religion is a category that is hard to delimit. Most of the best treatments of the problem of defining “religion” for constitutional purposes have concluded that no dictionary definition will do because no single feature unites all the things that are indisputably religions. Religions just have a Wittgensteinian “family resemblance” to one another. In doubtful cases, one can only ask how close the analogy is between a putative instance of religion and the indisputable instances.Footnote 130 Among possible relevant factors are beliefs relating to supernatural powers or matters of ultimate concern, rituals, organizations that promote the tenets of the beliefs, rules of moral practice—and conscience. Thus Kent Greenawalt suggests that in the cases of Welsh and Seeger, neither ultimate concern nor conscience is a necessary condition of religion; both are merely “the decisive aspect of analogy.”Footnote 131 But if this is right, then conscience is neither necessary nor sufficient to make a claim religious for legal purposes.
In both cases, the Court placed great weight on the conscientious nature of the claims but it also was drawn to a conception of religion that was not confined to theism. The Court quoted with approval David Saville Muzzey's definition of religion as “the devotion of man to the highest ideal that he can conceive”Footnote 132 and Paul Tillich's description of God as “the depths of your life, of the source of your being, of your ultimate concern, of what you take seriously without any reservation.”Footnote 133 The volitional necessities at issue in those cases appeared to plug into some source of value that transcended Welsh's and Seeger's personal preferences, however strong these might be. Here it appears some work is being done by the inherent attractiveness of pacifism.Footnote 134 Conscientious objection to, say, serving food to black restaurant patrons would not have been likely to elicit comparable deference.Footnote 135
As for the other free exercise cases that are not explicable by reference to conscience, they can be accounted for by the idea that religion—in its theistic and nontheistic forms—is in some way good. That idea can thus satisfy the parameters I lay down for any coherent account of free exercise accommodations. The goodness of religion is an intelligible constraint on state power, not just an individual concern. As stated here, it does not rely on theism but it does not depend solely on the internal psychological state of the actor either.
Whether it resolves the free exercise/establishment dilemma depends on one's understanding of the Establishment Clause and so is beyond the scope of this paper.Footnote 136
