Whose Conscience is It?
Most people who object to the SCOTUS ruling in the Masterpiece Cakeshop case, including some of the Justices, argue either that the baker used his freedom of conscience as a cloak for bigotry, or that he conscience was misguided and irrational. Justice Neil Gorsuch responded to these arguments in his concurring opinion joined by Justice Samuel Alito[1]. As a side note, this is my first encounter with Justice Gorsuch. He seems to demonstrate a type of open-mindedness that I admire, the ability not only to articulate one’s own opinion, but also to carefully consider all dissenting opinions and discern their relations to one another in the conceptual space.
I find the following particularly thought-provoking: It shows a sensitivity to the dignity of individual’s conscience that is lacking in other, including my own, discussions.
In Thomas a faithful Jehovah’s Witness and steel mill worker agreed to help manufacture sheet steel he knew might find its way into armaments, but he was unwilling to work on a fabrication line producing tank turrets. Of course, the line Mr. Thomas drew wasn’t the same many others would draw and it wasn’t even the same line many other members of the same faith would draw. Even so, the Court didn’t try to suggest that making steel is just making steel. Or that to offend his religion the steel needed to be of a particular kind or shape. Instead, it recognized that Mr. Thomas alone was entitled to define the nature of his religious commitments—and that those commitments, as defined by the faithful adherent, not a bureaucrat or judge, are entitled to protection under the First Amendment.
The Court has no authority to adjudicate the sincerely held religious beliefs of the people. Conscience, by definition, concerns the individual alone. It is up to the individual to follow his conscience, and express it in his conduct; It is up to the Court to recognize and protect it. SCOTUS has held that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection”[2]. The individual “drew a line, and it is not for us to say that the line he drew was an unreasonable one”.
This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe.
–James Madison[3]
Conscience v. Law
Questions arise: Does the freedom of conscience mean every individual is a law unto himself? Shall the conscience of the individual be protected even if and when it directly contradicts the law of the State?
Answers to those questions vary depending on the ideology of the person being asked, whether he believes the individual or the community is paramount. It may also depend on whether he happens to be on the side of the majority. Ultimately, however, these views are nothing more than opinions. Why should one opinion have precedence over another in matters of law?
Man’s wisdom to point out what is good, is no greater than his authority to exact the keeping of it; the one is as easily deceived as the other is despised.
–Tertullian. “Apology”[4]
From a Christian perspective, conscience is the Moral Law of God written in the hearts of men, and the collective conscience of the people are expressed in part in the written laws of the state. On the one hand, conscience has precedence over law, in the sense that conscience is the source of law, and in the sense that the specific law has precedence over the general, i.e., lex specialis; on the other hand, law has precedence over conscience, in the sense that law is conscience fully articulated, approved by reason and tested by general experience.
We do not violate conscience just because it may seem unreasonable or incomprehensible to us. A law, whether written or unwritten, is binding even if it is not understood, although understanding the law is beneficial and therefore preferable. On the other hand, we do not accept every personal moral preference or opinion as dictated by conscience. A sincere conscience is always binding on the individual himself, whereas prejudice tends to be directed against other people.
To protect the freedom of the conscience of the individual is to recognize his dignity as bearing the image of God. The government has the God-given authority to execute justice, which include giving each individual his due. However, the government may be, and has been, wrong in its understanding and execution of justice, and therefore must show the utmost restraint in matters of conscience, both because it is accountable to the Sovereign Lawgiver and because it is obligated to protect the weak.
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References:
- ^1. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 US _ (2018). Oyez. Accessed October 27, 2018. https://www.oyez.org/cases/2017/16-111
- ^2. Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981). Oyez. Accessed October 27, 2018. https://www.oyez.org/cases/1980/79-952.
- ^3. “Founders Online: Memorial and Remonstrance against Religious Assessments”. National Archives and Records Administration. Accessed October 28, 2018. https://founders.archives.gov/documents/Madison/01-08-02-0163.
- ^4. “Ante-Nicene Fathers Vol. 3.Latin Christianity: Its Founder, Tertullian“. Christian Classics Ethereal Library. Accessed October 27, 2018. http://www.ccel.org/ccel/schaff/anf03.html.