Here are two plausible necessary conditions for a law to violate freedom of religion or freedom of conscience:
- Legislation L violates x’s freedom of religion only if L requires x to do something that is contrary to the requirements of x’s religion.
- Legislation L violates x’s freedom of conscience only if L requires x to do something that is contrary to the requirements of x’s conscience.
I am pretty sure that (1) is false, and am inclined to think (2) is false as well. (Let me specify that I am using “legislation” to mean something like a putatively authoritative enactment of an authority. The reason I say “putatively” is that I want to allow for legislation that is so unreasonably that it is null and void, has no authority. Aquinas will say such legislation–my term, not his–is not a law.)
Let me start with (1). There is a simple counterexample. Consider legislation prohibiting public religious worship on Saturdays. Such legislation seems to be a paradigm of legislation that violates the religious freedom of Jews. But it is my understanding (and if the understanding is flawed, just make this a hypothetical) that Judaism does not require public worship on Saturdays–the requirements of prayer do not have to be fulfilled in Synagogue worship. Hence (1) is false.
Now consider (2). Suppose that Sam is a typical vegetarian on grounds of conscience. Now, consider legislation M1 that requires everyone to eat meat on New Year’s Eve, under penalty of a week in jail. This legislation is a paradigmatic case of a law that violates Sam’s freedom of conscience. (Note: I am not taking it to be clear that “violates x’s freedom of conscience” entails that the legislation is unjustified; obviously that legislation violates someone’s freedom of conscience is a strong reason against having such legislation, but since consciences can be mistaken in all sorts of spectacular ways, there may be times where such legislation is justified.) But note that except in really weird scenarios, M1 isn’t like that.)
But now consider legislation M2 that is just like M1, except that now the penalty is death. Surely if M1 violates Sam’s freedom of conscience, so does M2. But Sam is a typical vegetarian. And typical vegetarians, I think, hold that it is permissible to eat meat when the alternative is death. Thus, M2 does not require Sam to do anything that is contrary to the requirements of his conscience: it requires him to eat meat, but eating meat is permissible given M2.
One might try to handle the last case by saying that legislation violates freedom of conscience only if the law requires something that would be contrary to conscience were the legislation not there. But that doesn’t seem right, either. Imagine I find myself in a country, run by odd sorts of anarchists, that has only one piece of legislation, and it says: “When foreigners ask you whether your country has any legislation, you must answer in the negative, on penalty of a hundred lashes.” Such legislation clearly violates my conscience, since my conscience forbids me ever to lie, but if the legislation weren’t there, the required action would be permissible, since then it wouldn’t be a lie to answer in the negative.
So what’s going on? Maybe we can say this: Requiring x to do something that x’s religion or conscience (and in the case of sincere adherents, I think the former is typically a special case of the latter) is one of the most egregious forms of violation of x’s freedom of religion or conscience. But maybe one can also violate x’s freedom of religion or conscience by forcing x to live a life that departs too far from x’s religion’s or conscience’s picture of the religiously or morally flourishing life is like, the kind of life that the religion or conscience requires x to strive for. Thus, while rabbinical Judaism does not require (or so I am assuming) Synagogue worship, it strongly encourages it, and lack of such worship far departs from the Jewish picture of a religiously flourishing life. Likewise, the typical vegetarian does not think (or so I shall assume) that it’s wrong to eat meat when the penalty for not doing so is death, but eating meat is a grave departure from the vegetarian’s picture of a morally flourishing life (so a morally flourishing life is more than just the exercise of virtue). I am not too happy with the details of this formulation, but the basic idea seems right.