Our Conscience Rights Extend Beyond the Church Parking Lot

COMMENTARY: Our robustly defended conscience rights, essential to a pluralistic society, are under relentless attack from secularists and progressives. And things are only going to get worse.

(photo: Jim Lopes/Shutterstock)

“The citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy — a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship.”

George Washington’s Letter to the Hebrew Congregation in Newport, Rhode Island has informed U.S. domestic policy for generations. But now our robustly defended conscience rights, essential to a pluralistic society, are under relentless attack from secularists and progressives. And things are only going to get worse.  

A person’s most fundamental values traditionally are informed by his or her religious convictions. Claims to rights of conscience, therefore, often arise when government treats religion unfairly. Temporary restrictions by the government on communal worship during the current coronavirus pandemic are permissible, if necessary, provided they are made on equal terms with other activities, showing no special disfavor to religion. 

This means that Louisville’s Democratic mayor, Greg Fischer, was rightly blocked by a federal court from prohibiting drive-in Easter services while allowing drive-in restaurants to operate. Fischer had “criminalized the communal celebration of Easter,” said Judge Justin Walker. 

By the same token, it should also mean that Nevada’s governor, Steve Sisolak, can’t limit the number of faithful attending church services to a flat 50-person rule when he’s perfectly happy for casinos to operate at 50% of their fire-code capacities. Unfortunately, the Supreme Court decided in July, by a 5–4 vote, not to intervene at the early stages of litigation. 

But conscience rights extend beyond the church parking lot. In addition to freedom of worship, they provide the freedom to live out the tenets of faith and conscience in the public square, including protection from having to act against religious teaching or moral beliefs. The Little Sisters of the Poor’s objection to the Affordable Care Act’s mandate to provide contraceptives in employee health insurance plans is a perfect example. In July the Supreme Court recognized the Trump administration’s authority to take steps to protect the sisters’ and other religious and moral objectors’ conscience rights. The March for Life, a pro-life organization not affiliated with any particular religion, also turns to these conscience rules because of its moral opposition to the contraceptive mandate.

As the Supreme Court explained in Welsh v. United States, a Vietnam War-era decision that a person may qualify for a moral exemption to participation in war, exemptions are in order when a person’s opposition stems from “moral, ethical, or religious beliefs about what is right and wrong, and that these beliefs be held with the strength of traditional religious convictions.” 

Unfortunately, the vehemence of the enemies of conscience rights is undiminished by rulings that go against them. Quite the opposite, in fact. Pennsylvania’s attorney general, Josh Shapiro, intends to continue his assault on the federal government’s conscience rules exempting religious and moral objectors such as the Little Sisters and the March for Life from the “contraception mandate.” So, despite repeated victories before the high court, the conscience rights of the Little Sisters will require continued and vigilant protection.   

Pro-abortion politicians are determined to sweep away conscience rights rules put in place by the Trump administration. But they won’t stop there. Federal laws including the Church Amendments and the Weldon Amendment that protect hospitals and medical professionals from being forced to perform abortions and sterilizations are in danger if the “abortion is healthcare” mantra is victorious. 

One reason secular dogmatists oppose conscience rights so vehemently is that they often allow faith-based groups to work with state and local governments in social services without having to leave their religious convictions at the door. So they are worried about what might happen this coming fall, when the Supreme Court will consider whether to revisit a 1990 decision – Employment Division v. Smith – that, by refusing to grant First Amendment protection to religious opposition to “generally applicable laws,” placed an obstacle in the way of conscience rights. 

The case to be heard by the high court in November, Fulton v. City of Philadelphia, involves the foster care program run by the Archdiocese of Philadelphia. For decades, the archdiocese worked with the city of Philadelphia to place children in need of loving foster homes. But then the shadow of secular dogma fell over City Hall. 

When the Catholic agency declined to certify same-sex couples as foster parents — as it had to, in conformity with the universal teaching of the Catholic Church — it lost its contract. The head of the agency, attempting to co-operate with the city to the greatest degree that Catholic consciences will allow, agreed to refer to another agency any same-sex couple that approached them (none ever had). The city demanded ideological conformity.

What will be the result if Philadelphia’s exclusionary policy prevails? Children in need and foster parents waiting to receive them will lose a trusted agency. Catholics will not have their conscience rights violated head-on; instead, their consciences will be used as an excuse to stop them from providing children with happy and stable homes. And that is just as pernicious. 

The broader picture is that public institutions are being swamped by a secular ideology that seeks to control minds as well as behavior. In such a situation, rights of conscience are an individual’s last line of defense.

Recent court decisions and administrative orders have protected those rights, but don’t bet on this trend continuing without significant pushback. The plans by liberal politicians, lobby groups and their media allies to extinguish conscience rights are already far advanced. Therefore, the battle to defend them must continue.

Andrea Picciotti-Bayer is the director of the Conscience Project.

Joe Biden leaves after attending Mass at St. Ann Catholic Church on Nov. 21 in Wilmington, Delaware.

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