Protection of Conscience Project
Issues in Depth: Legal Commentaries

2. See generally Maureen K. Bailey, Contraceptive Insurance Mandates and Catholic Charities v. Superior Court of Sacramento: Towards a New Understanding of Women’s Health, 9 Tex. Rev. L. & Pol. 367 (2005); Maureen Kramlich, The Abortion Debate Thirty Years Later: From Choice to Coercion, 31 Fordham Urb. L.J., 781 (2004); Susan Berke Fogel & Lourdes A. Rivera, Saving Roe Is Not Enough: When Religion Controls Healthcare, 31 Fordham Urb. L.J. 725, 727 (2004); Brietta R. Clark, When Free Exercise Exemptions Undermine Religious Liberty and the Liberty of Conscience: A Case Study of the Catholic Hospital Conflict, 82 Or. L. Rev. 625 (2003); William W. Bassett, Private Religious Hospitals: Limitations on Autonomous Moral Choices in Reproductive Medicine, 17 J. Contemp. Health L. & Pol’y 445 (2001); Judith F. Daar, A Clash at the Bedside: Patient Autonomy v. A Physician's Professional Conscience, 44Hastings L.J. 1241 (1993); Lynn D. Wardle, Protecting the Rights of Conscience of Health Care Providers, 14 J. Legal Med. 177-230 (1993); see also Amy Gutmann, Religious Freedom and Civic Responsibility, 56 Wash. & Lee L. Rev. 907 (1999); Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915, 916 (1992); Gerard V. Bradley, Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism, 20 Hofstra L. Rev. 245 (1991); Douglas W. Kmiec, The Original Understanding of the Free Exercise Clause and Religious Diversity, 59 UMKC L. Rev. 591 (1991); Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990); see further Bryan A. Dykes, Note, Proposed Rights of Conscience Legislationi: Expanding to Include Pharmacists and other Health Care Providers, 36 Ga. L. Rev. 565, 565 (2002); Jason M. Kellhofer, Note, The Misperception and Misapplication of the First Amendment in the American Pluralistic System: Mergers Between Catholic and Non-Catholic Health Care Systems, 16 J. L. & Health 103 (2001-02); Irene Prior Loftus, Note, I Have A Conscience, Too: The Plight of Medical Personnel Confronting the Right to Die, 65 Notre Dame L. Rev. 699, 718 (1990). See further infra note __ (citations to other articles, etc.). [Back]

3. NCSL's Top Ten Legislative Issues Forecast For 2006, NCSL News, Dec. 29, 2005, at *7 (seen December 29, 2005).  [Back]

4. The NCSL notes that a bond measure that will be on the ballot in 2006 in Illinois seeks $1 billion for stem cell research; in 2005 Connecticut approved $100 million in funding for embryonic stem cell research; both Indiana and Virginia created adult stem cell research centers in 2005. Id. One organization, through information provided by an outraged employee
has dozens of order forms from researchers requesting fetal parts, price lists for fetal organs and tissue, and donation consent forms for women undergoing abortion. It offers a gruesome glimpse at a vast trade in human tissue from babies that are aborted, and sometimes vivisected, to satiate the exploding multibillion-dollar biotechnology industry.
. . . The research itself is usually for laudable goals, from helping prenatal infants survive to curing Parkinson's disease. But the trade, worth billions, raises myriad ethical questions: Are some humans being killed to benefit others? Are women being exploited to support tissue collection? Who is profiting from the trade? And what are the social implications of its existence?”
Celeste McGovern, Secrets of the Dead-Baby Industry *2 (seen December 19, 2005), (reprinted from Alberta Report Newsmagazine, Aug. 23, 1999 (emphasis added).  [Back]

5. See generally Bailey, supra note __, at 373, n. 31. The District of Columbia City Council passed a similar mandate with no exemption, but it was blocked by Congress.  [Back]

6. See Catholic Charities of Sacramento, Inc. v. Superior Court of Sacramento County, 85 P.3d 67 (Calif. 2004), cert. denied 125 U.S. 53 (2004). [Back]

7. Heather Rae Skeeles, Note, Patient Autonomy Versus Religious Freedom: Should State Legislatures Require Catholic Hospitals to Provide Emergency Contraception to Rape Victims, 60 Wash. & Lee L. Rev. 1007, 1017 (2003) (listing seven states); see infra note 9 and accompanying text (discussing new Massachusetts law). [Back]

8. Mass. Gov. Romney Withdraws Plan to Exempt Private Hospitals From Law Requiring EC Access For Rape Survivors, Medical News Today, Dec. 14, 2005, (seen December 29, 2005) (the law “requires hospital emergency departments to offer emergency contraception [hybrid abortifacient] to rape survivors” and “allows pharmacists to dispense the drug to women of all ages without a doctor's prescription.” Id.).  [Back]

9. Id. James Joyner, Mitt Romney: Why I Vetoed Contraceptions Bill, Outside the Beltway, July 26, 2005, available at (seen December 29, 2005). [Back]

10. Pharmacist Laws and Legislation: Laws and Legislation, Updated June 2005 (seen December 29, 2005) (herein “NCSL-Pharmacists”.  [Back]

11. Id. NCSL-Pharmacists at 2, 4-5. California would allow some exceptions. Another bill introduced in California, however, proposed to protect the rights of conscience of pharmacists to refuse to distribute emergency hybrid contraceptive/abortifacients.   [Back]

12. See Office of the Governor, News, Gov. Blagojevich takes emergency action to protect women’s access to contraceptives, April 1, 2005(seen December 29, 2005) (“Responding to recent complaints filed against a licensed Illinois pharmacy that refused to dispense prescription contraceptives, Gov. Rod Blagojevich today filed an emergency rule that clarifies pharmacies in Illinois that sell contraceptives must accept and fill prescriptions for contraceptives without delay.”). See also McDonough, supra note __, at 3. The Governor based his controversial order on the position that the Illinois legislation protecting rights of conscience does not apply to pharmacists. Concerned World News, Congress investigates government coercion of pharmacists, July 27, 2005, available at  (seen December 29, 2005) (“Sheila Nix, the governor's senior policy adviser, admitted that the governor's office would not force doctors to prescribe the ‘morning-after’ pill against their conscience or good medical judgment. The state's Health Care Right of Conscience Act, in the governor's interpretation, covered physicians but not pharmacists.”)   [Back]

13. Jim Suhr, Walgreens places 4 on leave, Associated Press, Dec. 1, 2005, in Boston.com, available at (seen December 29, 2005) (“The four cited religious or moral objections to filling prescriptions for the morning-after pill and ‘have said they would like to maintain their right to refuse to dispense, and in Illinois that is not an option,’ Walgreen spokeswoman Tiffani Bruce said.”).   [Back]

14. Ed Langlois, Conscience situation OK – for now (seen December 19, 2005) (reprinted from Catholic Sentinel, Sept. 2, 2005).  [Back]

15. Langlois, supra note __, at *3-4.  [Back]

16. Molly McDonough, Rx for Controversy, in ABA Journal E-Report, June 10, 2005, at *3. The President of the ABA sent a letter to the New York Times (unpublished) stating:

The ABA supports a patient’s right to receive medically accurate information to carry out health care decisions . . . . While we recognize the difficulty of these issues, we would oppose any legislation that would impede a patient’s ability to get relevant pharmaceutical information, including referrals that other pharmacies are willing to fill for that individual. Id.   [Back]

17. Lynn Vincent, Compulsory choice (seen December 19, 2005) (reprinted from World Magazine, Jan. 18, 2003).  [Back]

18. Lynn Vincent, Compulsory choice (seen December 19, 2005) (reprinted from World Magazine, Jan. 18, 2003).  [Back]

19. Lynn Vincent,  Compulsory choice, at *1,(seen December 19, 2005) (reprinted from World Magazine, Jan. 18, 2003).   [Back]

20. Nancy Valko, Are Pro-Life Healthcare Providers Becoming an Endangered Species?, at *1 (seen December 19, 2005) (reproduced from Voices On-Line Edition, Vol. XVIII: No. 2 - Pentecost 2003 with permission from Women for Faith and Family) (herein “Valko”).   [Back]

21. Greg J. Edwards, Accommodating Conscience, available at  (reprinted from B.C. Catholic), (seen December 19, 2005).
In Ontario, after a re-organization, management ordered very experienced obstetric and neo-natal nurses at Markham-Stoufville Hospital to assist in abortions. Again, no choice was offered. Eight nurses filed a complaint with the Ontario Human Rights Commission.
Five years later, in 1999, the hospital reached an out-of-court settlement, agreeing that nurses may opt out of doing abortions and that it is up to the hospital, not the dissenting nurses, to find replacements for themselves.
In Thunder Bay, Ont., in 1997, Bishop Frederick Henry spoke out for operating nurses who transferred from St. Joseph’s Catholic Hospital to Thunder Bay Regional, where they were required to do abortions. Management claimed that the nurses knew that they would be required to assist in abortions, but Bishop Henry pointed out that management’s wording of the Letter of Understanding was ambiguous: the nurses interpreted it to mean that every effort to accommodate conscientious objectors would be made, while management claimed it meant nurses could be required to do abortions. Id.  [Back]

22. Id.  [Back]

23. Nancy Valko, Are Pro-Life Healthcare Providers Becoming an Endangered Species?, at *1 (seen December 19, 2005) (reproduced from Voices On-Line Edition, Vol. XVIII: No. 2 - Pentecost 2003 with permission from Women for Faith and Family) (herein “Valko”).  [Back]

24. Edmund Pellegrino, Religious Values and Legal Dilemmas in Bioethics: They Physician’s Conscience, Conscience Clauses, and Religious Beliefs, 30 Fordham Urban L.J. 221, 225 (2002). [Back]

25. See e.g., NARAL Pro-Choice America, Refusal Clauses: Dangerous for Women’s Health (seen December 29, 2005); Planned Parenthood, Refusal Clauses A Threat to Reproductive Rights (seen December 29, 2005); Maureen K. Bailey, Contraceptive Insurance Mandates and Catholic Charities v. Superior Court of Sacramento: Towards a New Understanding of Women’s Health, 9 Tex. Rev. L. & Pol. 367, 369 n.7 (2005) (“The ACLU refers to these clauses as ‘refusal clauses,’ a term recently selected by the ACLU for its political purposes. See George Gund Foundation, Pro-Choice Resource Center, & Reproductive Freedom Project, American Civil Liberties Union, Conscientious Exemptions and Reproductive Rights in Executive Summary, National Meeting (2000)); Am. Civil Liberties Union Reprod. Freedom Project, Religious Refusals and Reproductive Rights 6, 10 (2002) cited in Heather Rae Skeeles, Note, Patient Autonomy Versus Religious Freedom: Should State Legislatures Require Catholic Hospitals to Provide Emergency Contraception to Rape Victims, 60 Wash. & Lee L. Rev. 1007, 1021-22 (2003) (“refusal laws” endanger patients); see also Susan Berke Fogel & Lourdes A. Rivera, Saving Roe Is Not Enough: When Religion Controls Healthcare, 31 Fordham Urb. L.J. 725, 727 (2004); Jason Green, Commentary, Refusal Clauses and the Weldon Amendment, Inherintly Unconstitutional and A Dangerous Precedent, 26 J. Legal Med. 401, 401 (2005); Holly Teliska, Recent Development, Obstacles to Access: How Pharmacist Refusal Clauses Undermine the Basic Health Care Needs of Rural and Low-Income Women, 20 Berkeley J. Gender L. & Just. 229, 229 (2005).  [Back]

26. Id. NCSL-Pharmacists at *1. The NCSL may have been trying to be “balanced” since the title of the webpage refers to such laws as “conscience clauses” while the first sentence of the first paragraph of the text referes to them as “Refusal Clauses.” Id.  [Back]

27. Green, supra note __, at 409. See also Fogel, supra note 2.  [Back]

28. Abraham Lincoln, Speech at Coopers Union, New York, ______.  [Back]

29. Americans United for Life, Health Care Rights of Conscience, Current State Statutes (November 2001). See further Katherine A. White, Note, Crisis of Conscience: Reconciling Religious Health Care Providers’ Beliefs and Patients’ Rights, 51 Stan. L. Rev. 17031707 n. 18 (1999), citing Rachel Benson Gold, Special Analysis: Provider 'Conscience' Questions Re-emerge in Wake of Managed Care's Expansion, in State Reproductive Health Monitor 18 (1997). See also Green, supra note __, at 404 (“Currently, at least 43 states enforce refusal clauses, allowing certain health care practitioners to lawfully refuse to provide health care services that contravene their religious or moral beliefs.” See also Rachel Benson Gold, Conscience Makes a Comeback, The Guttmacher Report on Public Policy, vol. 1, no. 1, at 1 (1998), cited in Bonavoglia, supra note __, at n.1.  [Back]

30. Gold, supra note __, at 1 (citing 1998 AGI report on 42 states with conscience clauses, 27 of which apply to any institution, 15 to private institutions only, and 1 only to religious insitutions). [Back]

31. Consolidated Appropriations Act 2005, Pub. L. No. 108-447, § 508(a),(d)(1)-(2), 118 Stat. 2809 (2004).  [Back]

32. Id. See generally Green, supra note __, at 411. [Back]

33. Id. NCSL-Pharmacists at *2, citing Arkansas Code Ann. § 20-9-1001; Georgia Code Ann. § 16-12-142; Mississippi Code Ann. § 41-41-215; South Dakota Codified Laws Ann. § 36-11-70. [Back]

34. Id. NCSL-Pharmacists at *2, 4-5 (citing bills in Arizona, Arkansas, California, Georgia, Indiana, North Carolina, Rhode Island, South Dakota, Tennessee, Texas, Vermont, West Virginia and Wisconsin).  [Back]

35. Id. NCSL-Pharmacists at *2 (citing bills in Maryland, Michigan and Texas).  [Back]

36. Molly McDonough, Rx for Controversy, in ABA Journal E-Report, June 10, 2005, at *3.  [Back]

37. Noah Feldman, The Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. Rev. 346 (2002); Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990) (reviewing colonial history of protection of rights of conscience); Aviam Soifer, Full and Equal Rights of Conscience, 22 U. Haw. L. Rev. 469 (2000); Timothy L. Hall, Roger Williams and the Foundations of Religious Liberty, 71 B.U. L. Rev. 455 (1991) Richard J. Reagan, Private Conscience and Public Law 207-234 (1972); Harrop A. Freeman, A Remonstrance for Conscience, 106 U. Pa. L. Rev. 806 (1958). [Back]

38. Dawn Hendrickson Steadman, The Free Exercise Clause and Original Intent: A View Toward Exemptions, for Origins of the Constitution, Winter Semester 2000. [Back]

39. “Locke recognized that religious intolerance was inconsistent with both public peace and good government, and deemed religious rivalry and intolerance to be among the most severe political problems of his day. . . . The way to avoid such strife[, wrote Locke,] is by assuring toleration and liberty of religious practice for all.” J. David Bleich, The Physician As A Conscientious Objector, 30 Fordham Urban L. J. 245, 248-249 (2002). However, Locke advocated “legislative supremacy with respect to conflicts between public power and individual conscience and reject[ed] religious exemptions.” McConnell, supra note __, at 1433.  [Back]

40. Thomas Jefferson, A Bill for Establishing Religious Freedom (1779), reprinted in 2 The Papers of Thomas Jefferson 545, 546 (Julian P. Boyd ed., Princeton, Univ. Press 1950) cited in Feldman, infra, note __, at 392. [Back]

41. McConnell, supra note __, at 1449 (contrasting Jefferson’s and Madison’s views of conscience protection). [Back]

42. McConnell, supra note __, at 1449 (Locke’s view of tolerance of conscience took the view of the government, while the American proponents of rights of conscience took the view of the believer; Founders took the latter view also). [Back]

43. James Madison, Memorial and Remonstrance Against Religious Assessments, ¶ 15, reprinted in Everson v. Bd. of Ed., 330 U.S. 1, 65-66 (Rutledge, J., dissenting) (emphasis added). Id. at ¶ 1 (“The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.”) (emphasis added).  [Back]

44. Id. at ¶ 1. [Back]

45. See infra note __ and accompanying text. See also McConnell, supra note __, at 1494-1500. [Back]

46. The Federalist Papers, No. 10 (Madison)¶4, p. 78 (New American Library 1961).  [Back]

47. Id. at ¶6. [Back]

48. Id.  [Back]

49. Id. ¶5. [Back]

50. Id. [Back]

51. “George Washington, in his famous address to the Hebrew Congregation of Newport, Rhode Island, stated: ‘It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of theri inherint natural rights. More pungently, Thomas Paine commented: ‘Toleration is not the opposite of intolerance, but is the counterfeit of it. Both are despotisms. One assumes to itself the right of withholding liberty of conscience, and the other of granting it.’” McConnell, supra note __, at 1434-1444. [Back]

52. See generally Kenneth R. Craycraft, Jr., The American Myth of Religious Freedom 69-101 (1999) (describing how Madison and Jefferson transformed the theory of religious liberty into a reality); Joseph L. Hassan, Freedomof Conscience in Early Virginia: A Precursor to the Religion Clauses of the First Amendment, Paper submitted for Origins of the Constitution, Apr. 17, 1998 (copy in author’s possession). [Back]

53. See generally Michael Novak, On Two Wings 12-23 (2002) (describing seven evidences of the Founders’ faith).  [Back]

54. Kermit Hall, et al, American Legal History: Cases and Materials 70 (1996).  [Back]

55. This was not the first time conscientious objection from military service had been recognized. Many of the 600 colonial laws establishing and regulating militias had “regularly embodied clauses exempting conscientious objectors, either absolutely or conditionally.” Freeman, supra note __, at 809.  [Back]

56. “General recognition of the importance of conscience at the time of the Revolution is illustrated by the resolution of the Continental Congress, July 18, 1775:

As there are some people, who, from religious principles, cannot bear arms in any case, this Congress intend no violence to their consciences, but earnestly recommend it to them, to contribute liberally in this time of universal calamity, to the relief of their distressed brethren in the several colonies, and to do all other services to their oppressed country, which they can consistently with their religious principles.”

Freeman, supra note __, at 809.  [Back]

57. McConnell, supra note __, at 1436-1442 [Back]

58. Hassan, supra, at 12. [Back]

59. Preamble to the Virginia Bill for Religious Liberty, cited in Everson v. Bd. of Ed., 330 U.S. 1, 12-13 (1946). [Back]

60. Thomas Jefferson, A Bill for Establishing Religious Freedom – June 12, 1779, in The Founders' Constitution, vol. 5, 77 (P. Kurland & R. Lerner eds., Univ. Chi. Press 1987). So proud was Jefferson of his role in securing protection for rights of conscience that he asked that his gravestone be inscribed: “Thomas Jefferson, Author of the Declaration of Independence, of the Statute of Virginia for Religious Freedom, and Father of the University of Virginia.”  [Back]

61. John Witte, The Essential Rigths and Libertines in the American Constitutional Experiment, 71 Notre Dame L. Rev. 371, 391, quoting John Mellen, The Great and Happy Doctrine of Liberty 17 (1795).  [Back]

62. Witte, supra, at 391-392.  [Back]

63. McConnell, supra at 1458-59; see generally Id. at 1455-66.  [Back]

64. See generally McConnell, supra note __, at 1466-1500 (reviewing history of Free Exercise clause).  [Back]

65. James Madison was the Father of the Bill of Rights.  [Back]

66. The history of the writing of the First Amendment and the differing language used in the various drafts
casts doubt on the suggestion of some commentators that the constitutional term "religion" should be broadly interpreted in order to encompass secular claims of conscience. Regardless of whether such a broad interpretation would be a good idea, such a step would constitute an amendment, not an interpretation, of the First Amendment, and one that the Framers specifically considered, debated, and ultimately rejected.
Michael W. McConnell, The Problem of Singling Out Religion , 50 DePaul L. Rev. 1, 12 (2000)(citations omitted). See also Id. At 1494-1500.    [Back]

67. Witte, supra note __, at 390, quoting Va. Bill of Rights of 1776, art. XVI.  [Back]

68. Freeman, supra note __, at 810 (citing language from the New Hampshire, Virginia, North Carolina, Rhode Island, and New York ratifying conventions).  [Back]

69. Feldman, supra note __, at 349-350.  [Back]

70. Feldman, supra note __, at 351  [Back]

71. Feldman, supra note __, at 350–351. Feldman’s article suggests that Howe’s taxonomy of competing strands of religious thought in colonial America has obscured “the broad agreement in postrevolutionary America on a Lockean concept of liberty of conscience.” Id. at 373. Feldman traces the development of consensus on the right of conscience from about 1690 until “by the late eighteenth century, some version of Locke’s basic view of the nature of the liberty of conscience had been formally embraced by nearly every politically active American writing on the subject of religion and the state.” Id. at 378 Reviewing the well-documented differences in state patterns of creating and supporting established churches in the eighteenth century are reviewed, Feldman notes that “liberty of conscience” was invoked in the battles over support of established churches in Massachusetts and Virginia. Id. at 379-384.   [Back]

72. Feldman, supra note __, at 374.  [Back]

73. Feldman, supra note __, at 384. Writings of eighteenth century Puritans (both criticizing and defending the New England Way), Baptists (John Leland, Isaac Backus, William McLoughlin, and others), Enlightened Deists (Thomas Jefferson and James Madison), and Civil Republicans (whose purported endorsement of government support for established religion is questioned by Feldman) broadly agreed that liberty of conscience was the key to church-state relations. Id. at 384-398.  [Back]

74. Feldman, supra note __, at 398.  [Back]

75. Feldman, supra note __, at 401, quoting 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution, as Recommended by the General Conventiona at Philadelphis, in 1787, at 659 (Jonathan Elliot ed. 1901). North Carolina and Rhode Island “proposed almost identical language.” Feldman, supra, note __, at 401.  [Back]

76. Feldman, supra note __, at 401-404.  [Back]

77. Feldman, supra note __, at 404.  [Back]

78. Id.  [Back]

79. Feldman, supra note __, at 405. Likewise, both neo-federalist and post-modern structuralist arguments that the First Amendment was intended to bar Congress for interfering with state establishment of religion or to take any position on the problem of funding of religion fail the test of historical evidence. Id. at 406-412.  [Back]

80. Freeman, supra note __, at 812. Professor McConnell suggests that “conscience” was dropped to limit the protection to religiously-motivated acts. McConnell, supra note __, at 1494-1500.  [Back]

81. Feldman, supra note __, at 412-417 (examining “coercion” as possible test for Establishment suggesting advantages with caution).  [Back]

82. Feldman, supra note __, at 428.  [Back]

83. McConnell, supra note __, at 1495.  [Back]

84. McConnell, supra note __, at 1493-94.  [Back]

85. McConnell, supra note __, at 1490.  [Back]

86. McConnell, supra note __, at 1491.  [Back]

87. Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915, 920 (1992). Hamburger goes on to argue against such an exemption on historical grounds.   [Back]

88. McConnell, supra note __, at 1496.  [Back]

89. McConnell, supra note __, at 1497, citing John Locke, A Letter Concerning Toleration, at 43.  [Back]

90. McConnell, supra note __, at 1497.  [Back]

91. McConnell, supra note __, at 1498, citing Jame Madison, Memorial and Remonstrance, supra note __, at 187. [Back]

92. McConnell, supra note __, at 1498. [Back]

93. McConell, supra note __, at 1500. [Back]

94. McConnell, supra note __, at 1488.  [Back]

95. McConnell, supra note __, at 1489 (citing Samuel Johnson’s 1805 dictionary, Noah Webster’s 1806 dictionary, and Buchanan’s 1757 dictionary). [Back]

96. McConnell, supra note __, at 1489-90 (The Georgia Charter of 1732 granted liberty of conscience to all, but free exercise of religion was specifically denied Roman Catholics, suggesting that free exercise entailed more extensive rights than liberty of conscience.). [Back]

97. Id.  [Back]

98. James Madison, Memorial and Remonstrance, supra note __, at ¶1. [Back]

99. [T]he evidence suggests that the theoretical underpinning of the free exercise clause, best reflected in Madison’s writings, is that the claims of the “universal sovereign” precede the claims of civil society, both in time and in authority, and that when the people vested power in the government over civil affairs, they necessarily reserved their unalienable right to the free exercise of religion, in accordance with the dictates of conscience. Under this understanding, the right of free exercise is defined in the first instance not by the nature and scope of the laws, but by the nature and scope of religious duty.
McConnell, supra note __, at 1512. [Back]

100. Jefferson agreed. He famously explained: “The rights of conscience we never submitted, we could not submit. We are answerable for them to our God.” Thomas Jefferson, Notes on Virginia, in The Life and Selected Writings of Thomas Jefferson, 275 (Adrienne Koch & William Peden eds., 1944), cited in Steven D. Smith, The Rise and Fall of Religious Freedom in Constitutional Discourse, 140 U. Pa. L. Rev. 149, 164 n. 58 (1991). [Back]

101. Richard Vetterli & Gary Bryner, In Search of the Republic, Public Virtue and theRoots of American Government (Rev. ed. 1996).  [Back]

102. Charles L. de Secondat (Baron de Montesquieu), The Spirit of Laws, Book 3, ch. 3 (T. Nugent trans., 1902) (“[I]n a popular state, one spring more is necessary . . ., namely, virtue.”). [Back]

103. George Washington, Washington’s Farewell Address from Saul Padover,The Washington Papers (searched Sept. 9, 1999). [Back]

104. Id. [Back]

105. Richard Vetterli & Gary Bryner, Public Virtue and the Roots of American Governmnet, 27 BYU Studies, 29, 41 (Summer 1987). [Back]

106. Id. [Back]

107. J. Howe, The Changing Political Thought of John Adams 165 (1966).  [Back]

108. 10 The Works of John Adams 284.  [Back]

109. R. Vetterli & G. Bryner, Introduction: Public Virtue and the Roots of Republican Government, In Search of the Republic, Public Virtue and the Roots of American Government at 1, from The Words of Edmund Burke 51-52 (1866). [Back]

110. Walter J. Walsh, The First Free Exercise Case, 73 Geo. Wash. L. Rev. 1, 35 (2004). [Back]

111. Nora O’Callaghan, Lessons from Pharaoh and the Hebrew Midwives: Conscientious Objection to State Mandates As A Free Exercise Right, __ Creighton L. Rev. __ (2005) (in publication).  [Back]

112. Exodus 1:16. [Back]

113. Exodus 1:17. One of those saved was Moses, who when his mother could no longer hide him, was set afloat in an ark of bulrushes, found by the daughter of Pharaoh, who raised him as her own son. Exodus 2:1-10. [Back]

114. Angela Bonavoglia, Co-opting Conscience, The Dangerous of Conscience Clauses in American Health Policy, in ProChoice Resources, available at http://www.prochoiceresource.org/about/CoopConsc.pdf (seen December 29, 2005).  [Back]

115. Id.  [Back]