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Protection of Conscience Project

Service, not Servitude
Religious Believers

Conscience and Modern (i.e., Democratic) Totalitarianism1

In Conscience, Cooperation & Complicity

Proceedings from the 31st Annual Convention
of the Fellowship of Catholic Scholars
San Antonio, Texas.  (26-28 September, 2008)

Reproduced with permission

Rev. Robert John Araujo, S.J.*

Now that the court has determined to condemn me, God knoweth how, I will discharge my mind…concerning my indictment and the King's title. The indictment is grounded in an Act of Parliament which is directly repugnant to the Law of God… I am the King's true subject, and I pray for him and all the realm… I do none harm, I say none harm, I think none harm… Nevertheless, it is not for the Supremacy that you have sought my blood-but because I would not bend to the marriage!3

The sphere of action of the State has grown steadily larger until it now threatens to embrace the whole of human life and to leave nothing whatsoever outside its competence.4

My objective here is to examine the exercise of conscience and religious liberty in a particular light removed from the drama and heroism of peaceful civil disobedience. My effort is designed to look at the nature of properly formed conscience and the corresponding exercise of religious freedom and what it may mean in the context of the United States and other western democracies today.

The issue of conscience has often had a prominent role when conflicts have arisen between individuals and the civil authorities about the extent to which an individual had to endorse publicly views favored or forced by the state. Conscience and its frequent companion, religious liberty, form that core of the person who, with the exercise of right reason guided by the quest for objective truth and frequently in the exercise of the practice of faith in God, deliberates and discerns regarding what is right and what is wrong and formulates the belief that guides one's path in life. The path chosen and the choices made along the way clearly have an impact on the individual and his life; however, a person's exercise of conscience can have a bearing not only on the lives of other individuals but also on society as a whole.

The exercise of conscience and religious liberty has often had a prominent role when conflicts have arisen between the individual's exercise of conscience and faith and the expectations of the civil authorities. Often, this has taken place when an individual had to endorse publicly the views favored by the state which this individual could not endorse. People like Thomas More have been brought before the law because they disagreed with some rule or policy pursued by the state that they knew was unjust or wrong. In spite of pressure, they maintained their principled position, typically in a firm but dignified manner. The public expressions of their views were accomplished without violence, pressure, vitriol, or sensation. Their tact continued in spite of conflicts with legal authorities, which led both to imprisonment and one to execution.

My objective here is to examine the exercise of conscience and religious liberty in a particular light removed from the drama and heroism of peaceful civil disobedience. My effort is designed to look at the nature of properly formed conscience and the corresponding exercise of religious freedom and what it may mean in the context of the United States and other western democracies today. Expressions of conscience and the exercise of religious belief can be relied upon as a defense when the law and its rules-the fruit of positive law-go in one direction but the person of moral principles and integrity chooses a different path.

In some contexts, this manifestation of conscience may be the means by which an individual resists an unjust law. But the manner in which conscience and religious liberty are and will be exercised in the future continues to evolve. This is due, in part, to what I perceive as an emerging danger residing in a new type of totalitarianism that confronts and finds a home in western democracies, including the United States. I suggest however that the proper exercise of conscience and religious freedom, certainly as the Catholic Church has provided instruction on both, may just be the antidote for the emerging problems in the United States, and, for that matter, the rest of the world, to avert a form of totalitarianism that beckons the present age.

Let me continue by providing an explanation of the nature of conscience and religious freedom. Let us consider the example of the lunch counter civil rights activists of half a century ago. Many were inspired by Christian principles to express their disagreement with racist policies. They attempted to sit and dine where the law forbade because of their race. The law was defied, and the justification for the defiance was often rooted in conscience and belief in the justice of God.

But conscience and religious belief can be manifested in more subtle ways. Thomas More took no action, unlike the lunch counter protesters, to object to the erroneous law of his day. He merely chose not to do something-to take a public oath-which the civil law mandated. During the legal controversy involving King Henry's quest to divorce Catherine of Aragon, More chose to remain silent. But his silence did not mean agreement or indifference to the unjust law. He fervently prayed for God's guidance on how he should conduct himself in a perilous time. He had no public quarrel with Parliament or the King, and he said nothing about the propriety or impropriety of the Act of Succession until after he was convicted of treason. He recognized that both the King and Parliament had proper roles in the making of human law. If Parliament said that if someone other than Henry were king, he would not have interfered, even though, in the exercise of reason, conscience, and faith, More knew that this law would pose great challenges.

But when Parliament declared that the King, rather than the Pope, was head of the Church and commanded More to declare openly his agreement by subscribing to a public oath that conflicted with his convictions, based on the exercise of his well-formed conscience informed by his faith, he could not comply. More never doubted that he was the subject of two sovereigns but to make such a declaration required by the human law would violate the higher law of God that More knew he was bound to follow.

The case of Thomas More provides insight into the nature of the civil law as it relates to the exercise of conscience and the religious faith that is often its companion. There is no uncertainty that our democratic societies require law to define rights and responsibilities and to guide the ordered liberty of the citizenry. If the civil law is not in itself a good, it is frequently a necessity, which promotes an ordered society whose proper objective is to protect all its members and their peaceful coexistence with one another. Normative principles that are known in advance through the promulgation of law guide everyone including those who make, administer, and decide under the law.

In the contemporary world of the twenty-first century, the law may also be viewed as something that promotes the common good and general welfare even though it may cause inconvenience to some individuals (e.g., legal requirement to pay taxes) or outright frustrations to others (e.g., legal prohibition against robbing banks). It can be thought that good laws respect human dignity, the exercise of conscience and the need for religious liberty, which often accompanies the exercise of conscience. But can the law command a doctor to perform an abortion? If not, ought it require the physician to refer a patient to one who will provide this service?

Typically the good citizen dutifully complies with the law. This person greets in friendly attitude all that come his way. He is a productive member of the community and contributes physically and spiritually to the common good. But what should happen when obedience to the law necessitates that this person compromise on a principle formed by the well-formed conscience? It is not simply the authority saying "you must think this way" and leave it at that (for then the person could go on thinking as before), but the authority now insists, "You must do it this way, and if not, you will have to face consequences that are not of your liking for the force of the law is against you."

This is the story of Thomas More, but it likely is the story of many others less well known to us and to history but who also had to rely on the exercise of conscience. The two quotations that appear at the beginning of this essay set the stage for what is to follow. The first is taken from correspondence written by Thomas More who was lawyer, husband, father, statesman, legislator, judge, and saint. He was scrupulous in what he did in all these callings. But one day, his reasoned intellect informed him that he could not publicly assert what he believed in his reasoned judgment to be a falsehood that contravened the sanctity of marriage-especially the one between King Henry and Queen Catherine-and the proper authority of the Church. If he could say nothing, which was the course he preferred to take, he may have retained his high status in the community and died an old man in his bed surrounded by the company of his family and friends. But because he would not bend to something that the positive civil law necessitated, he was declared a traitor, tried, sentenced and executed under the law.

And this brings me to the second quotation of Christopher Dawson who was a gifted student of history and of his times. He understood well the threats that the National Socialist Party of Germany and the Communists in Russia posed not only within their own countries but throughout the world. He offered his insights about the dangers of totalitarianism in several important elements of his writings. But he also warned that even the western democracies could duplicate the problems generated by totalitarianism and menace religious belief as publicly expressed through the exercise of conscience.

In the present day we may assert that the democracy in which we exist cannot transgress into certain places (as it did in the infamous totalitarian states of the twentieth century) because we presume that the law and the state are servants of humanity: the human person and family are not the vassals of the state or the law it promulgates; rather, they are the masters. But in totalitarian Germany and Russia, the state (or the "party") was thought to be the paramount justification of human existence: it replaced humanity; it did not exist to be its servant. This hazard was well chronicled by Heinrich Rommen in his The State in Catholic Thought. The totalitarian state and its highly centralized authority determined not only what people must do but also what they must think-and if they thought and acted contrary to the views and dictates of the state, they would do so at their peril.

One might think that the matters I raise here are of no concern to citizens of democratic states of the early twenty-first century because the totalitarian state is a relic of the past, or so that is the common belief. But I am obliged to remind you that Herr Hitler came to power not through violence but by way of manipulation of the democratic processes of the Weimar Republic. So, we must ask if elements of the law and juridical structures of our democracies ever act in a fashion where citizens have a diminishing ability to evaluate critically, objectively, and morally the law. The laws and legal systems that we hold dear can generate a type of human-worship that knows only the mind of the lawmaker and what the lawmaker considers to be the end of the human purpose.

If you question my hypothesis, I encourage you to evaluate the words of Justice Kennedy in the 1992 Supreme Court decision of Planned Parenthood v. Casey where, in discussing liberty, he stated: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."5 But this formulation about our liberty, which at first blush appears to be a counterpoint to the authority of the state, is problematic, for what happens when the conceptions of different persons about their liberty are on a collision course? The state may well intervene, as it was asked to do in the Casey case, to ensure that access to abortion would remain invincible to any challenge. This result was due to the skill of abortion advocates who determined in which direction our democracy would travel and guide (or push) the nation. As Dawson reminded, it is the "dominant prejudices of the moment" rather than some objective and moral compass that often guide society.6

This approach to law making and enforcement is the basis of the totalitarian state's legal, positivist system. The "democratic" world of today does have to worry about totalitarianism. And it has become clear that the exercise of conscience no longer affords undeniable protection against totalitarian practice.

My point is further illustrated by the 2003 Massachusetts Supreme Judicial Court opinion in the Goodridge case where the four-member majority of that court asserted that "civil marriage is an evolving paradigm" and redefined marriage to include unions of homosexual couples.7 The conclusion of the court constitutes an illustration of the totalitarianism of which I speak and that is taking root in our democracy. As a result of Goodridge, some justices of the peace have resigned their commissions on the grounds that they could not, in good conscience, perform same-sex weddings that Massachusetts now permits, i.e., requires. And for those who did find Goodridg objectionable but have not resigned, Governor Deval Patrick has asserted that they will perform marriages of homosexual couples or be stripped of their commissions as justices of the peace. The fact that there are magistrates who are willing to perform these unions has proven immaterial to the Governor and the prescription he has issued. For these magistrates who retain objections to homosexual marriages, it is no longer a matter of discretion to do something that the law allows when it becomes a duty to perform what the state demands. This approach to law making and enforcement is the basis of the totalitarian state's legal, positivist system. The "democratic" world of today does have to worry about totalitarianism. And it has become clear that the exercise of conscience no longer affords undeniable protection against totalitarian practice.

Conscience and faith are at that core of the person who, with the exercise of right reason guided by the quest for objective truth,8deliberates and discerns regarding what is right and what is wrong and formulates the beliefs that guide one's path in life. The path chosen and the choices made clearly have an impact on the individual and his life; however, they can also have a bearing on the lives of others. The exercise of conscience proposed here is not the one that permits a person to conclude that one has the right to do whatever one's conscience instructs simply because the conscience so decides.9

The peril of this view of conscience is that it results in purely subjective decision-making and makes no provision for considering the objective truth extending beyond one's self that is needed to determine what is right and wrong not only "for me" but for everyone who may be affected by the exercise of individual conscience. Otherwise the exercise of conscience risks confusing falsehood and wrong with truth and right. A person has the right to express the view of his conscience and to say the other person is wrong. In doing so, the individual who has relied on the objective truth may also have to be prepared to be persecuted-as was the case of those who objected to many of the policies of National Socialism in Germany when they asserted, based on conscience and religious belief, that the state and its enforcement mechanisms were wrong. Surely there is a need for public peace and security, but when properly understood and used, conscience and faith, objectively formed and responsibly practiced, pose no threat to the common good. In fact, they enhance and safeguard it-especially in a society that claims itself to be a democracy.

The manifestation of conscience and religious belief is a fundamental right guaranteed by law. The state does not confer this right nor is it its source. Its foundation is in authentic human nature, authored by the Creator. What the state cannot grant, the state cannot lawfully deny even though it tries to on occasion.

The understanding of conscience that I propose deals with the matter of where no government authority should go-into the innermost convictions of those who are not only its citizens but fundamental masters. The state may properly ask for citizens' allegiance on issues of public import affecting the authentic common good, but the state ought not to go any further. The manifestation of conscience and religious belief is a fundamental right guaranteed by law. The state does not confer this right nor is it its source. Its foundation is in authentic human nature, authored by the Creator. What the state cannot grant, the state cannot lawfully deny even though it tries to on occasion.

Conscience must be more than simply subjective views or beliefs, particularly when one considers the reality that some people may believe strange things that should not be put into practice. Conscience and religious liberty do not confer the freedom to believe in whatever one chooses to believe simply because an interior, personal directive says so. This "inner voice" is guided by pure subjectivity and reveals plainly the folly of Casey.

But, in the United States today, the exercise of this "inner voice" is exemplified by the laboratory of Casey. However, Casey fails to offer guidance when the conceptions of liberty held by two or more persons following the decision's roadmap end up on a collision course. The highly subjective Casey definition of liberty is not a desirable method of finding out what conscience means and what it does not.

In the early twenty-first century, new issues are emerging internationally that pertain to the exercise of conscience by medical personnel and pharmacists who object to certain medical practices (in particular, abortion or assisted suicide/euthanasia) or to the distribution of pharmaceuticals that destroy nascent human life.10 Waiting in the wings are cases about mandates to perform marriages of same-sex couples. I suspect the list will continue to grow.

During the past several years, menacing developments regarding the denial or retrieval of "conscience exceptions" have been surfacing. Abortion providers such as the Planned Parenthood Federation (PPF), have been alarmed by the exercise of conscience clause protections invoked by pharmacists, physicians, and other health care providers that would exempt them from having to give "emergency contraception" to women who request these agents. PPF has argued that, "Prescription refusal is a disturbing trend that can jeopardize woman's (sic) reproductive health."11 Apparently, the jeopardy to the health and life of the infant is of little or no consequence to them or to their advocacy. PPF also raises a challenge to religious liberty by noting that access to "reproductive health care diminishes as an increasing number of non-religiously affiliated hospitals are merging with Catholic hospitals."12 PPF has asserted that while it believes that individuals have the right to their own opinions and moral beliefs, "it is unethical for health care providers to stand in the way of a woman's access to safe, effective, legal, and professional health care" as PPF defines health care.13 PPF supported the efforts of the Illinois Governor who issued an executive order requiring health care providers and pharmacies to dispense "emergency contraception" and other birth control pharmaceuticals.14 It is clear that many of the health care providers who have objected to prescribing or dispensing abortifacients are doing so out of conscience or religious or moral conviction.

When the democratic state has alternatives to obtain the goals (and the "orthodoxy") it pursues, should it not respect the innermost convictions of those persons who choose to be excused for reasons substantiated on conscience and religious convictions? This claim is all the more convincing when we acknowledge that there are medical providers and pharmacists who are willing to perform the services demanded by some but objectionable to others. To put the point unequivocally: if some are willing to take actions that threaten human life and the law permits this, should the law not also recognize and respect those members of the society who, in the exercise of well-formed conscience, elect not to participate in these activities knowing that someone else will readily perform them? The answer should be "yes." Yet, regrettably it is not.

If the state is able to secure goals, while legal, are nonetheless debatable on moral grounds, should all persons still be required to comply? Surely the protection of conscience is consistent with a fair and objective reading of the First Amendment which declares that Congress (and the states) shall make no law prohibiting the free exercise of religion or the Universal Declaration of Human Rights which speaks of the protection of conscience.

With regard to the UDHR, we can gain valuable insight from the experience of the drafters of the Universal Declaration of Human Rights. They realized that no one could ever really know what beliefs or thoughts a person had (unless of course they were extracted by unlawful means such as torture); however, the drafters understood that a person's innermost convictions would mean little if the holder had to proclaim in a public manner a contrary position. As Professor Morsink concludes in his study of the travaux prèparatoires of the UDHR, "Behind this seemingly innocuous right lies the profound right not to be compelled to profess a belief or ideology which one does not hold."15 The drafters agreed with René Cassin, a French delegate on the drafting committee, that a person should not be compelled to do something indirectly what he could not be forced to do directly.16 And this point reiterates a theme presented by Pope Benedict in his address at Regensburg in September of 2006 when he quoted the Koran in which it is stated, "there is no compulsion in religion." When one carefully considers what the Holy Father said, the prohibition against compulsion means two things. The first is that no one, individually or in community, should be forced to believe in something to which they cannot subscribe. The second follows: no one, individually or in community, should be forbidden to believe in something that is important to them and when this belief is founded on the basis of right reason. The abuse of power that existed in Nazi Germany and Soviet Russian can exist even in a democratic state where free thinking based on conscience and religious belief may not only be not welcome but not be tolerated.17

The oath required by the Act of Succession in Tudor England guaranteed the uniformity and cohesion within society is an important component of the totalitarian state. But, as we know, the present day "democratic" state acts in a similar fashion when it demands uniformity of opinion enforceable by the legal authority it exercises.

Totalitarianism relies on a centralized, universal control of all aspects of public life that can include the disclosure or control of even the "innermost convictions" of society's members.18 The totalitarian state often conjures means of ensuring public endorsement of its control by demanding the uniform support of all over whom the state exercises dominion. The oath required by the Act of Succession in Tudor England guaranteed the uniformity and cohesion within society is an important component of the totalitarian state. But, as we know, the present day "democratic" state acts in a similar fashion when it demands uniformity of opinion enforceable by the legal authority it exercises. May I suggest that the public education system in the western democracies is beginning to offer evidence illustrating the acceptableness of contraception for minors, abortion, redefinitions of the family, and the rights of same-sex couples to marry.

In spite of efforts at universal and central control, there often remain elements of the society that preserve a moral force and function as a counterpoint to the pressure of this state. In the context of Nazi Germany and the Soviet Union there were religious and intellectual groups who served as counterpoints, usually at their peril. By pursuing their goals, the members of these groups faced persecution and annihilation if discovered by the state's enforcement mechanisms. What they thought and believed could never become public if their views were to survive in those times. Perhaps with knowledge of this, these totalitarian states pursued means of discovering ways of forcing disclosure so that uniformity and cohesion of action and belief would be guaranteed.

Christopher Dawson noted that in modern times Christianity needed to become an underground movement in order to survive in places where it had previously flourished.19 But Dawson correctly acknowledged that Christianity as a way of life is ultimately faced with a dilemma in that the display of conscience that goes along with it cannot be concealed. As Pope Benedict XVI reiterated in his first encyclical letter, Deus Caritas Est, Christians "are called to take part in public life in a personal capacity."20 He recognized that not only the totalitarian state but even the modern, democratic state "is not satisfied with passive obedience; it demands full co-operation from the cradle to the grave."21 Dawson continued by stating that such obedience often was necessary to avoid being "pushed not only out of modern culture but out of physical existence."22

The views and beliefs of the well-formed conscience that are targeted today by the democratic state need not be held by a few isolated individuals; they can and likely are held by many other persons. In this context, the hallmark of the totalitarian regime is its plan to eradicate beliefs and actions based on these beliefs.

In the context of evolving situations in western democracies that include the United States regarding conscience-based exceptions on policy issues of the day (e.g., abortion, morning-after pills, public education, and marriage to mention but a few issues), Dawson's words from the first half of the twentieth century may be an accurate and chilling prophecy about the transformation of the democratic world of the early twenty-first century. The views and beliefs of the well-formed conscience that are targeted today by the democratic state need not be held by a few isolated individuals; they can and likely are held by many other persons. In this context, the hallmark of the totalitarian regime is its plan to eradicate beliefs and actions based on these beliefs. This appears to be the case with perspectives on abortion, same-sex marriage, euthanasia, and the poisons known as "emergency contraception" that are more and more becoming not only the permissible policies but the requirements of the modern state. These are not only interesting times, they are challenging as well. And how should these challenges be met? With resignation? With defiance? Or, with the reasoned response of a well-formed conscience?

The exercise of conscience can often, even in democratic countries like the United States, trigger unexpected and peculiar reactions. If there can be freedom for "choice" exercised by an individual to take the life of a baby in utero, why should the same society prevent freedom of choice for an individual who does not wish to participate in this action? If there is freedom to marry whoever one wishes, should there not also be the freedom to say that there is a problem with this permissive attitude? If there is freedom for a person to take one's own life, should there not also be the freedom for others to announce that they will not participate in taking life nor should they be required to by the law?

Allow me to return to the "mystery of life" passage from Casey. Some might argue that the positions contained in this dicta of the Supreme Court represent the natural and proper evolution of the liberal and democratic state and the exercise of conscience,23 but others (perhaps keeping in mind the counsel of Thomas More who suggested that "when statesmen forsake their own private conscience for the sake of their public duties… they lead their country by a short route to chaos"24) can reasonably argue that this is not correct. It should be noted that private conscience for Thomas More was not what some inner voice was saying but what objective reason in tune with the transcendent moral order revealed.

If democratic society today would applaud the doctor who, in the exercise of conscience, refused to conduct some morally problematic scientific experiment encouraged or required by the law on persons without their consent, why would that same society disapprove of the doctor who, also in the exercise of conscience, refused to terminate human life at its early stages when this is permitted by the law of a democratic state? Put simply, this society's action would indicate that it is more totalitarian than democratic. This society would be guided by a dangerous subjective caprice that demands uniformity rather than diversity of opinion. It would, notwithstanding its democratic claims, be a totalitarian society. Here, we must recall what John Paul II once said: "the value of democracy stands or falls with the values which it embodies and promotes."25 What values are being promoted today by "liberal democracies" such as the United States? Are they truly consistent with and respectful of the principles, including the right to conscience, that should undergird them?

If some are prepared to cheer the physician depicted in the film "The Cider House Rules" who, in the exercise of his ether-molded "conscience," would abort the babies of young, unwed mothers,26 why could they not also commend the physician who, in the exercise of his conscience, refuses to associate himself with such actions when the regulatory mechanisms of the state require the doctor to terminate innocent life that has not given its consent? Perhaps because, as Dr. Edmund Pellegrino, a physician and ethicist and distinguished speaker at this conference, has cautioned, this kind of society offers an "immediate utopianism of a man-made heaven on earth" where there is nothing beyond the here and now.27 In his view, this kind of utopianism determines the secular society's choices about what is permitted and what is not.28 Dr. Pellegrino has admonished members of liberal democracies that the kinds of policy mandates I have identified parallel those of totalitarian systems which subverted the use of medical knowledge to further particular political and economic purposes that are riddled with grievous error.29

For the time being, some conscientious objection protections appear to remain intact. But a chill wind is beginning to precede the coming storm that is forecast in the lawsuits against pharmacists who are resisting mandates to dispense contraceptives they believe morally offensive. Is there any hope that the law might properly respond to this quandary?

The admonition attributed to Edmund Burke needs to be taken into account here: "All that is necessary for the triumph of evil is that good men do nothing."30 In the early twenty-first century good people who are willing to do "something" are desperately needed. Still, we consider ourselves remote from the attitude of the German concentration camp commander who, when asked, "Where was your conscience?", replied that he was simply following orders. In fact, we may not be so removed from this circumstance as we might like to think. Dr. Pellegrino has noted that some "ethicists" of the present day have begun to suggest that physicians "must separate their personal moral beliefs from their professional lives if they wish to practice in a secular society and remain licensed (by the state)…"31 Physicians may begin to wonder that if they raise objections about specific procedures, would they only be entitled to a limited license to practice the healing arts?32 This question can be taken a step further: would they be given a license at all? And, if they have a license, would it be stripped from them when they refuse, out of conscience, to engage in these procedures? Any doubt about this can be eliminated by remembering the justices of the peace in Massachusetts who are facing this very dilemma.

. . .the totalitarian state insists on universal compliance simply because there can be no different voice, there can be no diversity of opinion on matters that have previously been protected by the exercise of conscience and religious belief.

Today's reality demonstrates that there is no need to coerce all citizens with state sanction (imprisonment, denial of licenses, or fines) to perform acts to which they object in good conscience, based not on "feeling" but on sound and reasoned views of rightness and wrongness. Nevertheless, the totalitarian state insists on universal compliance simply because there can be no different voice, there can be no diversity of opinion on matters that have previously been protected by the exercise of conscience and religious belief.33 In the recent past of the twentieth century, one totalitarian state demanded adherence to the view that not all persons were equal-some were even considered subhuman and could be annihilated by the state and the law on which it rested. But reasoned opinion said otherwise. To have been a law-abiding citizen in that state, one had to hold and practice the view advanced by the state or suffer dire consequences. Another totalitarian state of the same period required its citizens to proclaim that there was no God when reason and belief said there is. If a person held and expressed the state's view, he or she was a comrade and patriot. But if one did not, that person became a traitor and would risk calamity.

The views that are suppressed by the totalitarian state need not be unpopular ones. They may demonstrate that a society or community is deeply divided on certain issues-such as abortion, euthanasia, morning after pills, and same-sex marriage. The views that are the subject of the suppression may be widely held, even by a majority of the polity. But if the state has a plan to change all that, what is a person of conscience to do?

One can respond with violence-but that raises serious concerns and can quickly remove the cloak of legitimacy from the divergent view. One can resist through peaceful civil disobedience, but some may consider the deleterious effect this will have not only on the objector but also on his family. And then there is the approach of Thomas More.

It was the style of More to keep his exercise of conscience a quiet matter. But on the other hand, his life was a very public act. His silence proclaimed to the realm where he stood when the law demanded what his conscience would not permit. He would not meddle with the conscience of others, for they would stand or fall on their own deeds. As for himself, he declared, "I am no man's judge."34 But he also knew he must be prepared to meet his final judge who is not of this world. Conscience was not exercised for the convenience of the continuation of his earthly life; it was exercised to determine the righteousness of how he would live this life as he prepared for the eternal one.

Another and more recent example of the exercise of conscience and religious freedom is Clemens Cardinal von Galen. In the early stages of the Second World War, von Galen was a diocesan bishop in Germany. He once delivered a homily in Münster in July 1941, and the context was one in which the enforcement mechanisms of the Third Reich were being applied to the Christian, especially the Catholic, community after the "Jewish question" had been addressed. Von Galen understood well what was going on and the effectiveness and the brutality of the totalitarian state. But he was also a faithful disciple for whom conscience and religious freedom meant a great deal-so much so that he was willing to sacrifice himself by remaining true to the Good News. With these words, he exhorted his Münster congregation:

[S]teel yourselves and hold fast! At this moment we are not the hammer, but the anvil. Others, chiefly intruders and apostates, hammer at us; they are striving violently to wrench us, our nation and our youth from our belief in God. We are the anvil, I say, and not the hammer, but what happens in the forge? Go and ask the blacksmith and see what he says. Whatever is beaten out on the anvil receives its shape from the anvil as well as the hammer. The anvil cannot and need not strike back. It need only be hard and firm. If it is tough enough it invariably outlives the hammer. No matter how vehemently the hammer falls; the anvil remains standing in quiet strength, and for a long time will play its part in helping to shape what is being moulded.

The memories of Thomas More and Clemens von Galen vividly remain with us today. Our democratic society is richer, better, and more just because of who they were: men of conscience well-formed and filled with faith in God and His Church. As I have attempted to demonstrate, challenges still remain in exercising conscience and religious liberty today even in the place we call home. Yet, let us not forget von Galen's words. Let us remember that we are united with the anvil of Christ and His Church. Regardless of the hammers that may fall in our time, may the resolve of Christ reinforce our will and vitalize our well-formed consciences. The guidance of More and von Galen, steeled by their fidelity to the one who came to save us all may just be what the world and our beloved country need to avert the totalitarianism that lures the present age.


1. These remarks are a further development of thoughts previously delivered at the University of Portland in April of 2007.

3. Robert Bolt, A Man for All Seasons (1962), at 92-93. These are close to More's own words. In a letter to his daughter, Margaret, dated 2 or 3 May 1535, he said: "I am, quoth I, the King's true faithful subject and daily… pray for his Highness and all his and all the realm. I do nobody harm, I say none harm, I think none harm, but wish everybody good. And if this be not enough to keep a man alive in good faith I long not to live." St. Thomas More: Selected Letters (1961), at 247-48.

4. Christopher Dawson, Religion and the Totalitarian State, XIV The Criterion No. LIV (October 1934), at 1.

5. 505 U.S. 833, 851 (1992)

6. Christopher Dawson, Christianity and European Culture (1998), at 127.

7. Goodridge v. Department of Public Health, 440 Mass. 309, 339; 798 N.E.2d 941, 967 (2003). The majority did state in footnote 29 that, "Our decision in no way limits the rights of individuals to refuse to marry persons of the same sex for religious or any other reasons. It in no way limits the personal freedom to disapprove of, or to encourage others to disapprove of, same-sex marriage. Our concern, rather, is whether historical, cultural, religious, or other reasons permit the State to impose limits on personal beliefs concerning whom a person should marry." Id., at 337; 965. But the court's dicta would not impose any restriction on the Massachusetts legislature from enacting a law to this effect.

8. The significance of right or practical reason and the law was relied upon and developed by Thomas Aquinas in his Treatise on Law, where he stated, as the first principle of the law, that "good is to be done and pursued, and evil is to be avoided." Thomas Aquinas, Summa Theologiae, I-II, q. 94, art. 2 (Fathers of the English Dominican Province, trans., Benzinger Brothers 1947). Right reason is a search for truth that is not only conceptual but also practical. The search for truth is inextricably combined with the application or implementation of the truth undistorted. In this way, the rational and the moral merge through the exercise of right reason. For a more contemporary explanation of right reason, see Austin Fagothey, Right and Reason: Ethics in Theory and Practice 99-101 (6th ed 1976). See also, Gaudium et Spes, No. 63, wherein the Second Vatican Counsel stated, "the Church down through the centuries and in the light of the Gospel has worked out the principles of justice and equity demanded by right reason both for individual and social life and for international life, and she has proclaimed them especially in recent times."

9. This is precisely what John Courtney Murray warned about in his commentary on the Declaration on Religious Freedom (Dignitatis Humanae Personae) promulgated by the Second Vatican Council. As Father Murray stated, "the Declaration nowhere lends its authority to the theory for which the phrase frequently stands, namely, that I have the right to do what my conscience tells me to do, simply because my conscience tells me to do it. This is a perilous theory. Its particular peril is subjectivism-the notion that, in the end, it is my conscience, and not the objective truth, which determines what is right or wrong, true or false."Declaration on Religious Freedom, from The Documents of Vatican II-with Notes and Comments by Catholic, Protestant, and Orthodox Authorities, Walter M. Abbott, SJ general editor, America Press (1966), p. 679, n. 5.

10. See, e.g., Robert Vischer, Conscience in Context: Pharmacists Rights and the Eroding Moral Marketplace, 17 Stanford L. & Pol. Rev. 83 (2006).

11. See,

12. Id.

13. Id.

14. Washington Post, April 2, 2005, Page A02, http://www/ . NARAL Pro-Choice and other "reproductive rights" lobbies have also been hard at work supporting the Illinois governor's initiative that is now facing legal challenges.

15. Johannes Morsink, The Universal Declaration of Human Rights-Origins, Drafting & Intent, (Philadelphia: University of Pennsylvania Press, 1999), at 261.

16. Id.

17. Professor Michael Scaperlanda has carefully studied and written upon this phenomenon in the context of parents desiring to use vouchers to educate their children in the manner they deem proper for the younger members of their family. See, Michael A. Scaperlanda, Producing Trousered Apes in Dwyer's Totalitarian State, 7 Tex. Rev. L. & Pol. 175, 195-202 (2002).

18. Arendt, Friedrich and B, etc. H. Arendt, The Origins of Totalitarianism (1958, new ed. 1966); C. J. Friedrich and Z. K. Brezinski, Totalitarian Dictatorship and Autocracy (2d ed. 1967); M. Curtis, ed., Totalitarianism (1979); S. P. Soper, Totalitarianism: A Conceptual Approach (1985); H. Buchheim, Totalitarian Rule (1962, tr. 1987); A. Gleason, Totalitarianism (1995).

19. Christopher Dawson, Christianity and European Culture: Selections from the Work of Christopher Dawson (1998), at 81.

20. Deus Caritas Est, N. 29.

21. Dawson, op.cit, id.

22. Id.

23. As Professor Steven D. Smith notes, the Casey decision "invoked the sanctity of conscience as a central rationale for a right to abortion." See, Steven Smith, The Tenuous Case for Conscience, 10 Roger Williams U. L. Rev. 325 (2005).

24. Robert Bolt, A Man for All Seasons (Vintage Books: New York, 1962), Act One, p. 13.

25. John Paul II, Evangelium Vitae, N. 70. In his earlier encyclical letter Centesimus Annus of 1991, he made a related observation: "As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism." Id., N. 46.

26. The Cider House Rules, Miramax Pictures, 1999.

27. Edmund D. Pellegrino, The Physician's Conscience, Conscience Clauses, and Religious Belief: A Catholic Perspective, 30 Fordham Urb. L. J. 221, 224 (2002).

28. Id.

29. Id. As Dr. Pellegrino points out, "We need not recite again the way the Soviet Union distorted the Hippocratic Oath to make it serve the purposes of Communism, the Nazi physicians' acquiescence in using their knowledge in the service of genocide, or the participation of physicians as instruments of torture or terrorism by so many petty dictators and war lords. The laws and social conventions of pathological societies justified all these violations of the ethics of medicine." Id. (footnotes omitted)

30. A quotation often attributed to Edmund Burke but not found in any of his works. See, .

31. Pellegrino, supra note NOTEREF _Ref127935477 \h 26, at 233.

32. Id., at 224.

33. This is a matter on which Pope Paul VI spoke at the conclusion of the Second Vatican Council. In his allocution at the conclusion of the Council, the pope said that the Church asks only one thing of the rulers of the world: "She asks of you only liberty, the liberty to believe and to preach the faith, the freedom to love her God and serve Him, the freedom to live and to bring to men the message of life." The Documents of Vatican II, Abbot edition, at 730. Some years later, in 1991, then Joseph Cardinal Ratzinger commented on the public nature of the Church and concluded that she must "be as public as the state itself." Joseph Cardinal Ratzinger, Called to Communion: Understanding the Church Today, Ignatius, at 77.

34. Pellegrino, at 253.

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