What is liberty of conscience?
I have a question for you, basically about terminology. Here is a quoted passage, which I have never understood.
Should religious organizations and their members be treated as unequal under the law for certain purposes connected with gender? US constitutional law has standardly granted special latitude to religion, by contrast with other forms of commitment and affiliation. Religious reasons for exemption from military service, or for refusing to work on a particular day, are granted a latitude that is not granted to other forms of conscientious commitment, such as the familial or the artistic or even the ethical. This remains controversial for the way it appears to privilege religion over nonreligion and thus, it might seem, to violate the Establishment Clause…[S]uch privileges given to religion, though highly contestable, can be strongly supported by pointing to the special importance of liberty of conscience as a fundamental right and the consequent need to give religious freedom special protection…
It may be obvious what I don’t understand. If liberty of conscience has special importance, why is that a reason for privileging religion while not privileging other forms of conscientious commitment? They all have to do with liberty of conscience, right? If so, why is liberty of conscience in the concluding sentence taken to refer to religion and not other forms of conscientious commitment? Perhaps I’m wrong and liberty of conscience actually does refer only to religion – but if so, why? Surely ‘conscience’ doesn’t mean ‘religious conscience’ so why would liberty of conscience refer only to religion? Help me out here.
OB,
Oh come on, you’re surely forgetting – it’s only religious folk that HAVE a conscience.
The rest of us are amoral / immoral / wickedness & perdition promoting heathens…
They keep repeating it so often, it MUST be true.
Now, if YOU can’t get the basics right, what hope is there for the rest of us, hmm?
:-)
p.s. You’ll have remembered to do your daily abominating of the gaysexuals, yes?
;-))
OB wrote:
“If so, why is liberty of conscience in the concluding sentence taken to refer to religion and not other forms of conscientious commitment?”
Why indeed. A clear definition of “liberty of conscience” should be a key bullet point on national constitutions and bills of rights, but instead its typical implicit and unfounded assumption is allowed to pass unchallenged during most public and academic debate.
I suspect that few theists will be happy addressing this question. It strikes at the heart of the matter. For one thing, its implicit assumption is rationally indefensible, for another, to have that assumption highlighted in a public debate only for it to then be exposed as a logically and empirically unfounded one would not be optimal for the theist’s cause.
The fact that this fundamental question goes un-addressed in most public and academic debate here in the UK shows that we are a long way from being the secular society that some claim we have become. A secular society would never allow matters of superstitious belief to outweigh other foundational beliefs.
Religions tend to have a habit of threatening people with punishments such as Hell or disfellowshipping if they do or fail to do certain things; I suppose you could argue that people should not be forced to choose between defying the law and contemplating, say, an eternity of infinitely intense torture. (I probably would have tried to argue that when I was more afraid of hell and less convinced of the benefits of secularism.)
That argument seems to rest on a denial of the liberty of conscience of religious believers, however: it is to say that they do not have full responsibility for their own beliefs and actions, and I don’t think the law should encourage such a stance.
So I wonder whether what is described as ‘liberty of conscience’ is really in a ‘liberty’ to submit to an authority other than the State.
The excerpt actually doesn’t state that liberty of conscience is restricted to religion. I understand the sentence to state that liberty of conscience is so fundamental that ‘one of’ the clearest external signs of that liberty – i.e. religion – needs special protected.
Why non-religious external signs don’t get that special protection may be one of a host of reasons e.g. to protect a fundamental right from the travesty of nitwits claiming special protection as a cover to exploit sect members or …
Why should one want to define liberty of conscience (a perfectly intelligible notion) further? What good could it do but restrict the very liberty one wants to protect? What’s fundamentally wrong with not defining it and granting some specials to clearly definable notions? Is there something to be jealous about?
I do not need special rights for my own liberty of conscience. I’m happy enough with liberty of conscience itself. That is about what I need – no need to group all up in a bunch or new flock, & claim special rights. For the little time the religious flocks still exist – let them have it!
“Why non-religious external signs don’t get that special protection may be one of a host of reasons e.g. to protect a fundamental right from the travesty of nitwits claiming special protection as a cover to exploit sect members or …”
I take it you ironise. Scientology?
[Catholicism?]
More to the point, as OB is trying to point out, ‘l of c’ within a religious context lets you get out of things, like military service, or just plain work, that ‘l of c’ outwith that context doesn’t. your ‘religious conscience’ gets a heck of a lot more ‘liberty’ from social obligations than any other kind does. That’s what’s fundamentally wrong with the current definition: it’s a crock.
G & D, I was answering OB’s question. I will be the last to argue that religion is good or anything of the sort. That’s that but this is this: catholics have a right to act as catholics just as we’re in our right to make fun of them, or to disagree with them or to do both at the same time. The legislator has the right to award ‘special’ protection if that’s within human rights – which means inter alia that it needs to define who’s in & who’s out of the ‘special’ protection.
The latter definition can be opposed or resisted but it is not a matter of pure reason that, in context, the matter has to be this or that. Forming groups is a basic right & once groups are formed in a law-abiding way there can be no issue in principle to act differentially with respect to these groups.
Anyway, the future is for those that do not need ‘special’ protection ;-)
But JoB, this whole question is not about the right to form groups, or the right to believe (or not believe) in whatever one wishes. Of course legislators have no business on that level and individuals have the right to believe in whatever they damn well want. That is not contentious.
Rather, this question is about what legal/conventional rights and dispensation should be conferred on members of groups formed around a particular ‘conscientious commitment’. That’s where it becomes the business of legislators and becomes a matter amenable to ‘rational’ analysis — and a matter of rightful interest to the public at large.
No one is trying to control the right of an individual to hold a metaphysical belief, or to subscribe to a particular collection of moral beliefs (whether justified by metaphysical beliefs or not), OB’s question is about the current unequal treatment, both analytically and legally, of a particular class of conscientious commitment, the one known as religious belief.
The question remains, why should the class of conscientious commitment known as *religious* belief take precedence (before the law and within cultural and social convention) over any other form of commitment (Secularism, foundational political beliefs, etc).
You said “The legislator has the right to award ‘special’ protection if that’s within human rights”. That is well understood, but it begs the question. “Rights” and “protection” are not trivial matters and should not be conferred for arbitrary reasons (of course!!). They require a rational justification. *What is* the justification for unequal treatment of categories of belief?
“privileges given to religion, though highly contestable, can be strongly supported by pointing to the special importance of liberty of conscience as a fundamental right and the consequent need to give religious freedom special protection” taken on its own could be the standard religion = ethical system argument and would that it were, as it is easy to show how unethical (msot) religion is.
But, “Religious reasons … are granted a latitude that is not granted to other forms of conscientious commitment, such as the familial or the artistic or even the ethical.” Clearly religious is not equal to ethical here, which leaves me far more puzzled as to why the privileges?
Is it that liberty of conscience is only for those who are prepared to knuckle under and obey the orders of religious heirarchy?
Where is this passage from, Ophelia? It may be worth looking at the whole work (or then again ignoring it for being vacuous).
Could it be that, at the time the US constitution was written, the only forms of conscientious commitment that were widely recognisable were religious? Ophelia’s question is a good one. Bertrand Russell, for instance, went to prison for his pacifist beliefs, but at the same time Quakers were exempted from military service. Governments, in such situations, can recognise institutionalised conscience, but individual conscientiousness may seem too easily and conveniently adopted by individuals for personal rather than conscientious reasons. This is obviously not sufficient, but in the absence of more reliable ways of identifying conscientiousness, governments will likely fall back on what has worked for them in the past.
Roger, again, just trying to answer the question of OB. I’m not sympathizing at all with ‘special’ treatment. However – this one is up to the legislator and he legislates clearly all through the West (e.g. allowing male celibates-only as a catholic priest). If I were legislating I would have a reflex to abolish all of these specials (although reason in this case has more to deal with than just an element of principle). Then again, if I were legislating – I’d certainly oppose attempts to extend coverage of specials & more so if the definitions used or of increasing vagueness.
But I’d also never be inclined to claim special treatment as part of ‘secular’ groups – that defeats the purpose.
JoB wrote:
“if I were legislating – I’d certainly oppose attempts to extend coverage of specials & more so if the definitions used or of increasing vagueness.”
Amen to that! :)
JoB
“The excerpt actually doesn’t state that liberty of conscience is restricted to religion.”
Yes it does. The issue is what justifies “privileges given to religion” – given to religion in particular and not to other “forms of conscientious commitment.” Therefore saying it can be strongly supported by pointing to the special importance of liberty of conscience has to be claiming that liberty of conscience (for the purpose of this particular argument at least) is indeed restricted to or specific to religion.
To answer Mike’s question – it’s from an article by Martha Nussbaum, ‘Religion and Women’s Human Rights,’ in her Sex and Social Justice. It’s on page 110.
I think ‘liberty of conscience’ is more or less a term of art; it really does seem to refer to religion rather than any other kind of conscience. (Google it and you’ll see what I mean.) But I’m not sure within what discipline it’s a term of art, and I’m even less sure why so many secular disciplines seem to have acquiesced in this arrangement.
Ophelia,
I beg to differ – the privileges of x being restricted does not imply that x is being restricted.
But now I at least know it was meant as a rhetorical question so I’ll desist.
JoB (again)
“he legislates clearly all through the West (e.g. allowing male celibates-only as a catholic priest).”
No, legislators have nothing to do with the celibacy of catholic priests; that’s not the issue at all. It’s no good pretending there are only easy questions here. The issue is cases where there are exemptions from secular law that apply to religious groups and not to other groups, religious commitments and not other commitments. No exemption is needed for a catholic priest to be celibate, because there is no secular law forbidding men to be celibate.
There are however (for instance) laws against discrimination in employment, which are in tension with religions that require their clerics to be male. There are laws against cruelty to animals which are in tension with religious requirements for kosher or halal butchery. And so on.
It wasn’t meant as a rhetorical question, JoB, and you’re wrong about the quoted passage; you seem to have misunderstood its meaning.
Its because the rules which privilege religion convictions but not analogous ethical convictions weren’t written to satisfy deep philosophical commitments. They were written as part of a pragmatic agreement to ensure a minimal level of cultural harmony and cohesion.
In other words, its power. Its purely a question of power. Religions have it, and they use it to ensure a certain amount of legal deference to them. Individual and idiosyncratic ethical commitments are not attached to large, power wielding social structures. So they matter less.
I think the language “liberty of conscience” applying to religious belief exclusively goes back to the historical arguments for religious liberty itself – Locke, the French Revolution, etc. Religion gained its special status within the realm of protected liberties primarily in reaction to the Wars of the Reformation, the persecution of Protestants in France and Catholics in England, and on and on: Being a particularly egregious and arbitrary excuse for persecution of citizens for long stretches of the past, religious belief/affiliation became (long before the invention of this term) a “suspect category,” requiring special legislative care and attention. Ironically, it is precisely because of the fundamental irrationality and persistent violence associated with religious belief and affiliation, especially when entangled with state power, that special protection for religion under the law is thought to be desirable.
Can’t say as I agree with the way it plays out in practice, though. Frankly, I think the Free Exercise clause is a disaster – at least in how it is interpreted. No protection for religion is needed beyond those offered in the rest of the First Amendment: Freedom of speech protects the right of the religious to express and share their beliefs. Freedom of association (which by precedent and interpretation has long been inferred both from the freedom of speech and “the right of the people to peaceably assemble”) protects the right of the religious to organize into churches as they see fit. The right to petition the government for redress of grievances gives the religious the same right as everyone else to protest the violation of the prior enumerated rights. The religious neither need nor deserve any special privileges beyond these, and there is nothing other than tradition and thin rationalizations supporting any interpretation of the free exercise clause to grant them more than that.
Thanks, G – that’s the kind of thing I was hoping for; it does help clarify. I kind of hoped you would comment!
I have the same view of the Free Exercise Clause, especially now that there’s an active movement to use it as a way to combat secularism. I recently remarked quite cautiously to Brian Leiter that I had reservations about the Free Exercise Clause; he promptly replied that ‘the Free Exercise Clause should never have been written!’ – which made me laugh. I had the idea that one wasn’t allowed to hate the damn thing, and I do hate it.
One wonders how many of the framers of the US Constitution would not only be amazed, but horrified, to discover that their work of circumstance had survived so long, and been erected into, yes, let’s face it, Holy Writ, in which what matters is not what ought to be done, but how a fixed text can be reinterpreted.
Oh yes. Lots of Murkans wonder that every day. ‘Strict constructionism’ – pah. Might as well consult the Bible and have done with it.
O.B and G the U.S constitution may not be perfect by at least your rights do not depend on the whim of politicians like they do in the U.K!
No question, Richard. We’re very well aware of that – but there’s a lot of territory between not valuing the constitution and being a strict constructionist.
Fair comment but isnt the constitution a kind of take it or leave it document because if you open it up to change every special intrest group from the n.r.a to the n.a.a.c.p will be wanting to stick in their own clauses and amendments.
But Richard, how do you think the dam’ thing was written in the first place? For NRA substitute ‘New England merchants’, for NAACP substitute [somewhat ironically] ‘Virginia slaveholders’. And for ‘shit out of luck’ read ‘the original inhabitants of the land’, who were just about to be shafted so far, hard and fast that they didn’t get a chance to stop running ’til Andrew Jackson had put them across the Mississippi.
Rights are lovely, when someone lets you have them. Don’t kid yourself.
Thanks for the information. Suprised to see that it is Martha Nussbaum. Admittedly I know little about her, but from what I can gather she would not sanction religion. I probably wrong and it turns out she is a Buddhist nun; or she is quoting someone else.
Still, I’ll check this out later.
Looked up some stuff on Ms. Nussbaum and stand corrected. Don’t know who I was thinking of,bu I have her confused with somebody.
No, Richard, the constitution isn’t a take it or leave it document; it already is ‘open to change’; it is subject to amendment; it has been amended many times, it’s just that amendment faces high hurdles. But in any case strict constructionism is about interpretation, not amendment. It refers to judges and especially Supreme Court justices, not to legislators.