The Right to Keep Your Conscience

A central reason for the founding of our country was religious freedom.   This is a big part of what makes America exceptional.   Freedom of conscience is central to human dignity and religious freedom.

If you forget how important this is look around the world and give thanks once again for the freedom we have to practice our faith, to believe or not to believe, in this country.  Even today, there is a constant flow of Muslims, Christians, Hindus and many others who come to the United States to flee religious persecution and discrimination.    Americans embrace pluralism which encourages a competition of ideas, including theological ones, and respect for differences.  Early on the Bill of Rights enshrined the free exercise of religion as a foundational freedom in the First Amendment of the U.S. Constitution.  This was designed by the Founders, many of whom ended up in America because ancestors sought religious freedom, as a way to protect freedom of conscience and freedom of religion from the subjectivity and arbitrariness of the use and abuse of the power of the state.

More recently you may recall that President Obama promised the American people  in selling Obamacare that you will be able to keep your current healthcare plan and it follows that employers who often currently provide healthcare to workers would also be able to keep the plans that they provide.   Obamacare was supposed to be focused on those who are uninsured and those with preexisting conditions and the massive expansion of federal power was justified on that basis.  You may also recall that the final democratic votes for Obamacare came from a handful of previously largely pro life House Democrats concerned about the government funding of abortion.  President Obama and his administration promised this would not be the case and that the existing détente on abortion in Congress and the Supreme Court that no American had the right to have an abortion paid for by the government or someone else would continue.  The Administration even put this in writing at the time.  Instead, through regulations the Obama Administration came up with something even worse than government funding of abortion; forcing citizens sincerely opposed for conscience reasons to fund abortions instead.

Understandably many across the political spectrum were offended when it turned out millions of Americans actually could not keep their insurance plans when the Obama Administration said they were not good enough (and it turned out not expensive enough).  Unfortunately, not enough Americans were offended enough to act when Obamacare regulations came out making it crystal clear that for those offended by abortion they would just need to deal with it and submit to the power of the state that said they needed to pay for it for their employees including faith-based organizations freely exercising their religion to help the poor and the needy.   Rosa Parks’ courage on the Montgomery bus had a transformative impact because the African American churches and community agreed to walk and boycott the buses for more than a year.  Those of us who value human dignity and freedom of conscience need to examine whether we are willing to walk rather than ride for more than a year as well.

As with the more recent, belated and lame attempt by the Obama Administration to mollify critics as millions were losing their affordable health plans, the Obama Administration tried to mollify those opposed by offering a “compromise” on conscience.  Just at with Sir Thomas More and Henry VIII, the one who decides whether something is an acceptable compromise or a violation of one’s conscience should be the party whose conscience is impacted not the one who proposes to change the status quo.  For many people of faith there is no “wiggle” room on abortion just as there is no “wiggle” room on slavery.  This applies whether they are a teacher, a mechanic, a cabinetmaker, a salesperson, a doctor, a mom, a pastor, or a business owner.  For orthodox Catholics birth control is also morally equivalent to abortion.  That view intended to promote human dignity and family should be respected not viewed as a political opportunity to divide and conquer.  The real public policy debate is not whether birth control is available but whether people opposed to it should be forced to pay for it.

Courageously and ironically at the same time, one of the plaintiffs before the Supreme Court who petitioned the Justices to be able to keep his conscience is from the Mennonite faith which comes from the Anabaptist Christian tradition.   Many Mennonites were persecuted for their faith and came from different European countries for religious freedom in America.   The family run business is based in Lancaster County, Pennsylvania.  Under Obamacare they can be fined $100 a day per employee adding up to nearly $100,000 a day.    This represents another potential example of ideological job killing from the Obama Administration.  Yet this job killing policy offends the First Amendment as well.

The other plaintiff’s Oklahoma based family business doesn’t want to pay for abortion or pay oppressive fines.  They prefer to pay for health care for their employees instead.  Amazingly for some liberal advocates in America, apparently including our President, this is more offensive than not providing healthcare to your employees.   If you’re wondering if their faith commitment is for real, hundreds of Hobby Lobby stores around the country are closed on Sunday with a faith driven belief in the importance of a day of rest.

In the past even liberal legal minds and social thinkers have appreciated the inviolability of conscience as central to meaningful toleration and classical liberalism.   They understood that even though one may not agree, it’s foundational to respect one’s right to have a different view.  Today it seems as demonstrated in the Supreme Court oral arguments in March, that some Justices supportive of abortion couldn’t even concede, let alone respect, that the plaintiffs found aspects of the Obamacare government requirement as promoting abortion and thus in violation of their consciences.  Apparently, it was too difficult for some Justices to create such a category in their mind, let alone read the First Amendment’s guarantee of the Free EXERCISE of religion.

There is a reason that even though the law is generally a teacher more than 40 years after Roe v. Wade, much of America is still firmly opposed to elective abortion.  All of America should be opposed to forcing people to take life when they sincerely believe it to be so.   Only extremists would argue you must pick between your conscience and your livelihood and the jobs of those who work for you.  In this context the government becomes theologian in chief and not protector of the Constitution.  Only ethical and religious perspectives that allow for or sanction abortion become acceptable in the land.  Justices and legislators get to decide whether Mother Theresa or her American equivalent aiding the orphan and the dying merits conscience protection or just her participation in prayer.  This is the privatization of religion and the gutting of conscience.

Tragically our own US Department of Justice, not the French one (remember their revolution was also not only anti-monarchy but anti religion as well), is arguing that business owners (also known as job creators and healthcare promoters in some parts of our society) cannot pick and choose what laws they will obey since they already chose to form a corporation to protect them and their families from some cases of personal liability.  In plain English, our Justice Department argues that if you want to protect your family’s assets from private lawsuits then the government has the right to violate your conscience.

Conscience is a big deal.   William Penn who eventually received the charter for the Commonwealth of Pennsylvania from England’s King Charles II because of a debt owed by the King to his father had a commitment to freedom of conscience and religion after his conversion to the persecuted faith of Quakers.  Because of the implications of the minority faith perspective and his objection to limitations on basic freedoms, he was brought to trial in London.  Earlier Penn was put in the Tower of London for eight months for writing a religious tract.   According to Hans Fantel In  William Penn: Apostle of Dissent  Penn said “My prison shall be my grave before I will budge a jot: for I owe my conscience to no mortal man.”  This time the jury which was instructed to make a judgment without hearing the defense came back saying that he was not guilty.  The judge sent the same jury back to try again (even more activist than our judges today).  The jury came back again with the same result and the judge sent the jury to jail for several nights to think on it further.  This violation of consciences of both the accused and the jury among other things ultimately produced seminal cases on the rights of juries and the use of the writ of habeas corpus.  Hopefully our Supreme Court Justices will respect conscience instead.

In contrast to the Obama Justice Department, freedom of conscience should appeal to all those who treasure the First Amendment.  Even for those who argue or believe there is a “compelling governmental interest” in providing “free” abortions, violating the conscience of Americans helping workers provide for their families is not the “least restrictive” way to do so.   Yet it is legally required even by those who do not believe that the Declaration’s promise of the “right to life, liberty, and the pursuit of happiness” includes the right to life to show that there is not a way that is less burdensome on those who object.

In America, these are governmental abuses of power which violate our core constitutional protections that rise to the level of being worth shutting down the government.   This is not a difference of opinion on policy but a violation of conscience through the power of government.  Just as China’s one child policy should offend both pro-choice and pro-life Americans, forcing one to fund an abortion against one’s will should create a broad political coalition against the fundamental violation and for conscience.  But we hardly heard from Republicans or Democrats in Congress about this aspect of Obamacare during the now vanished government funding and fiscal debate of this past year.   Americans should have the right to keep not only their healthcare but their consciences as well and to freely exercise their religion with or without Obamacare.

This principle of the right to keep your conscience as central to human dignity should appeal to all Americans including those who support abortion.  Anyone who has a conscience may some day want the right to keep it.

Let’s hope that at least five Justices feel the same way.


Randall J. Brandt, Strategic Consultant, Attorney, and Mediator.  Previously served as Policy Director for Rick Santorum for President in 2012, Senior Advisor at the U.S. State Department’s Office of International Religious Freedom, and Deputy Staff Director and Counsel at the U.S. Senate Republican Conference.