The Phases and Functions of
Freedom of Conscience
STEVEN D. SMITH
Conscience, or an inner capacity for judging some actions to be right and others wrong, seems to be virtually coextensive with—and essential to—humanity. Mark Twain observed that “[m]an is the only animal that blushes. Or needs to.” And blushing and even more so the need to blush are often enough the painful products of conscience. To put the point more positively, the attribute of conscience is understood by many to be central to what gives human beings a special “dignity.”1
If conscience is found wherever human beings are, the moral duty to follow conscience is widely accepted as well. Indeed, the duty may be a sort of practical tautology, reducing down (given human fallibility) to something like the proposition that “a person should do what he believes to be right”—which in turn seems pretty much equivalent to saying that “a person should do what he believes he should do.”
But the subject of this chapter is not simply conscience, but rather freedom of conscience. And from the observation that people have consciences and the (perhaps tautological) proposition that people should follow their consciences, nothing automatically follows with respect to freedom of conscience. Take it as established: You should do as your conscience admonishes. In itself, this proposition in no way entails that anyone else—the government, for example, or the church—owes any special deference to your (perhaps misguided) exercise of conscience. Thus, medieval authorities such as Thomas Aquinas and the canon law were not balking at logic when they taught that a person should follow conscience, even if its dictates contradicted church teachings, but did not go on to endorse anything like freedom of conscience.2
That idea appears to be a more modern phenomenon. This chapter will discuss that phenomenon in three sections, which correspond to three phases in the career of freedom of conscience. Section I will discuss the connection between freedom of conscience and religious toleration. Section II will consider what is often called the problem of free exercise exemptions. Section III will address the travails of freedom of conscience, and the partial but problematic convergence of conscience and autonomy, in an age of secular equality.