Violation of freedom of conscience
June 21, 2012 — 7:03

Author: Alexander Pruss  Category: Religion and Life Virtue  Tags: , , ,   Comments: 5

Here are two plausible necessary conditions for a law to violate freedom of religion or freedom of conscience:

  1. 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.
  2. 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.

  • Mr Pruss,
    I admit I find myself confused by your counterexamples. In your first such example, you say that your rule of religious violation is false because the example doesn’t meet the requirements of the rule of violation, because worship is not “contrary to the requirements of x’s religion.” But isn’t that just a case of the situation not being applicable to the rule rather than proving the rule false?
    However, even so, it is still a matter of violation of the freedom of religion because it removes the freedom of religious expression. For example, in Catholicism, there are several religious vocations–marriage, holy orders (priesthood, etc), religious orders (monks, nuns and friars)–two of which in the Roman rite, require celibacy. If however, the state made it mandatory that all citizens marry, though celibacy is not necessary for salvation, religious freedom is still infringed upon because a tenant of the faith–that religious vocations, some of which require celibacy, are a part of God’s plan for humanity–is denied to the body of faith as a whole. If a person receives a call to a celibate life, even if celibacy is not required for salvation, their freedom of religious expression is still violated as they are unable to fulfill a part of their faith (that some vocations require celibacy).
    With your vegetarian eating meat under penalty of death, you note that it’s permissible for the average vegetarian to eat meat if threatened with death because the value of self-preservation outweighs the value of denying oneself meat. However, even if one value outweighs another, that doesn’t mean freedom of conscience regarding the lesser value simply because a greater value is threatened. The legislation is still violating one’s freedom of conscience to exercise practice of that lesser value, even if, and I would argue especially if, threatening violation of a greater freedom and value–indeed the violation is compounded as now two values are violated.
    If I have, however, misread your examples, I apologize and ask for clarification.

    June 21, 2012 — 8:19
  • I should clarify that I am counting legislation that prohibits an activity, say Saturday worship, as legislation that requires abstention. Abstention from worship is contrary to the religiously flourishing life.

    June 21, 2012 — 8:57
  • By the way, I like the religious life example. I think it could be another counterexample to 1. Though one might worry that if x is called to the religious life, then x is [i]required[/i] to enter religious life.

    June 21, 2012 — 14:04
  • John Alexander

    Consider a denomination such as Congregationalism, that allows its individual members (either as local churches or member of a local church) to interpret Scripture according to their own understanding and conscience. Within that denomination A considers abortion to be permissible until the fetus develops a central nervous system while B considers abortion to be impermissible unless it conforms to the principle of double effect. Imagine that B gets a law passed that conforms to his beliefs so that A cannot legally act on her beliefs. This would clearly violate A’s freedom of religion and conscience because A can no longer act on her beliefs. Now imagine that A get a law passed that conforms to her beliefs. This would not violate B’s freedom of religion or conscience as B would still be able to act on her beliefs.
    It seems that in order for your argument to work there must be one overarching theology that is correct while the others are not. However, I do not see that such a theology exists.

    June 21, 2012 — 17:00
  • John:
    A law that prohibits something that one takes to be merely permissible does not violate one’s conscience. I believe that in itself there is nothing wrong with driving on the left side of the road. But the law that prohibits this does not violate my conscience. To violate conscience, one needs something stronger, such as a law that prohibits something that one takes to be morally required, or at least necessary for a morally flourishing life. Of course you can modify your case to be like that: you can suppose that A considers himself or herself to be morally obligated to have or perform certain abortions prior to the development of the central nervous system, or that A considers having or performing such abortions to be necessary for his or her morally flourishing life.
    With such modifications, I agree that on the account I’ve been giving the law prohibiting abortion violates A’s (mistaken) conscience. But I also explicitly said that I am understanding “violates conscience” in such a sense that violation of conscience is not always impermissible. That a law violates conscience counts against the law, but some such laws are nonetheless morally necessary. Thus, prohibitions on “honor killings” are obviously morally necessary, but some people’s (mistaken) consciences may require such killings.

    June 29, 2012 — 9:36
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