Wednesday, June 20, 2012

Laws violating religious freedom and conscience

This post is an oblique response to one of the lines of thought in a petition against Notre Dame University's lawsuit against the HHS contraception mandate.

If your religion or conscience (and on my view of conscience, the former is a special case of the latter if you sincerely accept the religious teachings) forbids you to obey a law, then the law violates your religious freedom or your freedom of conscience. (There is also a further question whether this violation is justified, and I won't address that question.) But the converse is not true. A law can violate your religious freedom, and maybe your freedom of conscience (that's a harder question), even if obedience is not forbidden by your religion or your conscience.

This is easiest shown by example. A paradigm example of a law violating religious freedom is a law prohibiting Christians from meeting to worship on Sunday under pain of death. But obedience to such a law need not go against the requirements of Christianity. Christianity does not require public Sunday worship when such worship seriously endangers innocent life, including one's own. Thus, there is no duty to get to Sunday worship if there is a hurricane, and to get to church one would have to leave the hurricane shelter one is in. Thus, a law that prohibited Christians from Sunday worship on pain of death would violate religious freedom without Christianity holding it to be wrong to obey the law. In case it's not clear that this law violates religious freedom, one can run this a fortiori argument. A law forbidding Sunday worship with a five dollar fine as a penalty would be wrong to obey according to Christianity, unless one is quite poor, and hence violates religious freedom. But if forbidding Sunday worship under pain of a five dollar fine violates religious freedom, a fortiori so does forbidding Sunday worship under pain of death.

For another example, consider a law explicitly prohibiting Jews from meeting to pray together on the Sabbath. It is my understanding that while rabbinical Judaism encourages meeting to pray together on the Sabbath, it does not require this (if I am wrong, just make it a hypothetical example). Thus, this would be a law that it is not wrong to obey, but it surely violates religious freedom.

In fact, one might even have a law that violates freedom of religion without requiring or forbidding the practitioners to do anything. For instance, consider a law requiring doctors who are not themselves Jehovah's Witnesses to forcibly administer blood transfusions to Jehovah's Witnesses when this is medically indicated, even when the Witness does not consent. Such a law violates the patient's freedom of religion, even though the patient is not being required or forbidden to do anything by the law. (The law may also violate the doctor's freedom of conscience.)

It is harder to see whether a law obedience to which does not violate conscience can violate freedom of conscience. There is a prima facie case for a negative answer: How can freedom of conscience be violated by something that doesn't require one to go against conscience?

But I think a case can be made that it is possible to violate freedom of conscience without requiring something contrary to conscience. The cases parallel the above two.

The case of Christian Sunday worship was one where something is required unless there are serious reasons to the contrary. Now, typical vegetarians do not think it is always wrong to eat meat. They would not, for instance, think that an Inuit child whose parents only make meat available to her in winter is morally required to refuse to eat it and thus starve to death. But now imagine a law put in place by the pork lobby that requires everyone to eat six ounces of pork daily, under penalty of death. If it is permissible to eat meat to preserve one's life, it would be permissible for the vegetarian to eat the pork. But surely there is something very much like violation of the vegetarian's freedom of conscience here.

The common thread between the Sunday worship and vegetarian cases is that these are situations where there is a strong duty to go against what the law says, but it is the law's penalty that provides a defeater for the law.

To parallel the case of rabbinical Jewish attitudes to Sabbath worship, consider a Kantian. Now, Kantians believe that there is an imperfect duty to help others, i.e., a duty where it is not specified to what degree and in what way one should help others. Imagine, then, a law that prohibited one from helping others except between 4:30 pm and 5:00 pm on Tuesdays. Such a law might not be such that Kantianism forbids one to obey it. But it is a law that surely in some important sense violates the Kantian's freedom of conscience, by forbidding that which her conscience very strongly encourages her to do, namely help people at other times, even if it does not specifically require it.


Danny Haszard said...

Well done blog.

Jehovah's Witnesses blood transfusion confusion

Jehovahs Witnesses take blood products now in 2012.
They take all fractions of blood.This includes hemoglobin, albumin, clotting factors, cryosupernatant and cryopoor too, and many, many, others.
If one adds up all the blood fractions the JWs takes, it equals a whole unit of blood. Any, many of these fractions are made from thousands upon thousands of units of donated blood.
Jehovah’s Witnesses can take Bovine *cows blood* as long as it is euphemistically called synthetic Hemopure.
Jehovah's Witnesses now accept every fraction of blood except the membrane of the red blood cell. JWs now accept blood transfusions.
The fact that the JW blood issue is so unclear is downright dangerous in the emergency room.

Danny Haszard

Unknown said...

That's one dour expression you have there Danny. Cheer up buddy! You've got good news to tell, right?

Unknown said...


Thank you for your thought provoking posts.

It seems to me that one's conscience is inextricably linked to one's moral perceptions. As such, a violation of one's conscience is also a violation of one's moral perceptions.

At what time might we argue that it is unconscionable to not violate another's freedom of conscience – a moral obligation to violate another's moral obligations, so to speak? For instance, suppose some Ammonite patriarch genuinely believed that the satisfaction of the gods was more important than the preservation of new life. As such, he is impelled to act upon his divine duty to sacrifice his new born child and therefore upholds his moral obligations before Molech. Few people today would see the exercise of this person's freedom of conscience as a violation of something more paramount. However, unless we have some objective ground for establishing a hierarchy of moral precedence, it would seem that the patriarch just mentioned has done nothing more than act upon his own moral duty; he has behaved socio-culturally well. Unquestionably, this gets us into the nature of moral duty and its objectivity. Yet, without something more a violation of one's conscience by another would seem to be simply the jostling of two or more consciences for dominance. Which conscience wins would have more to do with which one receives quantitative acceptance rather than any qualitative assessment.

Daniel Hill said...

Thanks for this, Alex. There is a curious corollary of something you say in your post: suppose going to church is very difficult for me because I might lose my job. I am resigned to losing my job and enduring poverty when -- result -- the state forbids going to church on pain of death. I now get to keep both my life and my job. So clamping down on religious freedom can, in a curious way, benefit the religious.