The Hollow Promise of Freedom of Conscience

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 aban* Assistant Professor of Law, Loyola University Chicago School of Law, Beazley Institute for Health Law and Policy. Thanks to George Anastaplo, Victoria Baranetsky, John Bronsteen, Erika George, Liz Glazer, Michael Perry, Alex Tsesis, Spencer Waller, Tess Wilkinson-Ryan, Robin Wilson, and Rob Vischer; and participants in the 2011 Washington University St. Louis Regional Junior Faculty Workshop Series for their helpful commentary on earlier drafts. Many thanks to the editors of the Cardozo Law Review for their thoughtful editing. This research was made possible by a summer research grant from Loyola University Chicago School of Law, and was facilitated by the able research assistance of Daniel Marino.