The Hollow Promise of Freedom of Conscience

33 Cardozo L. Rev. 1389, 1413-16 (2012)

N.N. Sawicki

Abstract:  Two hundred years ago, Thomas Jefferson asserted that no law “ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” Since then, freedom of conscience has continued to be heralded as a fundamental principle of American society. Indeed, many current policy debates–most notably in the medical and military contexts–are predicated on the theory that claims of conscience are worthy of legal respect. This Article, which offers a comprehensive account of the contemporary treatment of conscience, challenges established assumptions and seeks to reframe the debate about the normative value of conscience in American society. This Article first clarifies contemporary understandings of conscience by systematically analyzing its treatment in positive law. It looks beyond the traditional medical, military, and religious contexts, giving a descriptive account of law’s treatment of conscience across various substantive realms, including tax evasion, civil disobedience, discrimination, and even violent terrorism. It demonstrates that legal accommodations are typically granted on an ad hoc basis, without a guiding doctrinal principle. If there is a consistent and coherent justification for treating cases differently, our legal system has thus far failed to provide it. This Article concludes that, in order for American law to reflect the kind of robust, autonomy-based respect for conscience to which every pluralistic society aspires, we must agree on a content-neutral guiding principle for negotiating future claims for legal accommodation. The alternative, the Article posits, is to concede that American society has abandoned the fundamental purpose of conscientious accommodation–namely, protecting the individual from oppressive majoritarian understandings of morality. [Full Text]

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