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CONSCIENCE, VOLITIONAL NECESSITY, AND RELIGIOUS EXEMPTIONS

  • Andrew Koppelman (a1)

Abstract

Why do we grant religious exemptions? Many distinguished scholars and judges have been drawn to the idea that conscience is entitled to special protection, because a person in its grip cannot obey the law without betraying his deepest, most identity-defining commitments. The weakness of this justification is shown by philosopher Harry Frankfurt's account of what he calls “volitional necessity,” which clarifies the structure of the argument that invocations of conscience imply. Frankfurt shows that a person can be bound in this way by allegiances that there is no reason to respect; volitional necessity can arise from anything at all that a person cares about. Conscience is thus a poor basis for claims upon other people. Accommodation must rather depend on some idea of the value of religion.

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1. See, e.g., Amy Gutmann, Identity in Democracy 151–191 (2003); William Galston, The Practice of Liberal Pluralism 45–71 (2005); Kwame Anthony Appiah, The Ethics of Identity 98 (2005); Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy 65–71 (1996); Martha Nussbaum, Liberty of Conscience: In Defense of America's Tradition of Religious Equality (2008); Rogers M. Smith, “Equal” Treatment? A Liberal Separationist View, in Equal Treatment of Religion in a Pluralistic Society 190–194 (Steven V. Monsma & J. Christopher Soper eds., 1998); Lupu, Ira C., The Trouble with Accommodation, 60 Geo. Wash. L. Rev.743 (1992); Smith, Rodney K., Conscience, Coercion and the Establishment of Religion: The Beginning of an End to the Wanderings of a Wayward Judiciary?, 43 Case W. Res. L. Rev.917 (1993); Rodney K. Smith, Converting the Religious Equality Amendment into a Statute with a Little “Conscience,” 1996 BYU L. Rev. 645. The Supreme Court cases are discussed below.

2. Luther probably never actually said it. See Diarmaid MacCulloch, The Reformation 127 (2004).

3. Thomas E. Hill, Jr., Four Conceptions of Conscience, in Nomos XL: Integrity and Conscience 14 (Ian Shapiro & Robert Adams eds., 1998). My analysis of multiple conceptions of conscience is in some ways similar to Hill's, but he is concerned about different accounts of the role of conscience in morality, whereas I am interested in different accounts of the role of conscience in the law's treatment of persons.

4. Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947).

5. Epperson v. Arkansas, 393 U.S. 97, 103–104 (1968).

6. Thomas v. Review Bd., 450 U.S. 707, 713 (1981); see also Marsh v. Chambers, 463 U.S. 783, 812 (1983) (Brennan, J., dissenting) (“[I]n one important respect, the Constitution is not neutral on the subject of religion: Under the Free Exercise Clause, religiously motivated claims of conscience may give rise to constitutional rights that other strongly held beliefs do not.”).

7. As the Court put it in a recent pronouncement, “the two Clauses . . . often exert conflicting pressures.” Cutter v. Wilkinson, 544 U.S. 709, 719 (2005).

8. I address this specific issue in Koppelman, Andrew, You Can't Hurry Love: Why Antidiscrimination Protections for Gay People Should Have Religious Exemptions, 72 Brook. L. Rev.125 (2006).

9. McConnell, Michael W., Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev.153, 160 (1997).

10. For a survey, see Laycock, Douglas, Theology Scholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty, 118 Harv. L. Rev.155, 211–212 & nn.368–373 (2004).

11. Quoted in United States v. Seeger, 326 F.2d 846, 848 (2d Cir. 1964), aff'd, 380 U.S. 163 (1965).

12. Quoted in Peter Irons, The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court 169 (1988).

13. Seeger, supra note 11, 326 F.2d at 848–849.

14. Id. at 847, quoting 50 U.S.C.A. §456(j) (rev. 1948).

15. Id. at 853.

16. Seeger, supra note 11, 380 U.S. at 166.

17. Id. at 187.

18. Welsh v. United States, 398 U.S. 333, 340 (1970).

19. Id.

20. Id. at 344.

21. Id. at 351 (Harlan, J., concurring).

22. Id. at 348.

23. Id. at 360 n.12. Harlan here conflates “nontheistic religion” with the “nonreligious.” This is confused. A nonreligious religion is an oxymoron.

24. Id. at 358.

25. Welsh v. United States, 404 F.2d 1078, 1092 (9th Cir. 1968) (Hamley, J., dissenting); rev'd, 398 U.S. 333 (1970). There were limits to the accommodation the Court would mandate. In Gillette v. United States, 401 U.S. 437 (1971), it upheld the exemption's restriction to conscientious objectors who objected to all wars but not those who objected to particular wars. There is also one dictum possibly retreating from the broad understanding of the scope of accommodation mandated in Seeger and Welsh. Wisconsin v. Yoder, 406 U.S. 205 (1972), mandated an exemption from truancy laws for Amish parents who wanted to withdraw their children from high school. The Court declared that “purely secular considerations” would not warrant an exemption:

Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau's choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.

Yoder at 216. Justice Douglas objected that this passage was inconsistent with Seeger and Welsh. Yoder at 247 (Douglas, J., dissenting in part). The majority did not respond.

26. Eisgruber, Christopher L. & Sager, Lawrence G., The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct, 61 U. Chi. L. Rev.1245, 1269 (1994). Slavery and white supremacy have been understood at various times to represent aspirations of the highest order. See Dailey, Jane, Sex, Segregation, and the Sacred after Brown, 91 J. Am. Hist.119 (2004); Mark Graber, Desperately Ducking Slavery: Scott, Dredand Contemporary Constitutional Theory, 14 Const. Comment.271, 310–315 (1997); Forrest G. Wood, The Arrogance of Faith: Christianity and Race in America from the Colonial Era to the Twentieth Century (1990). The basic problem is a familiar one. See, e.g., G.W.F. Hegel, Philosophy of Right 90–92 (T.M. Knox trans., Oxford University Press, 1952).

27. Quoted in Jon Krakauer, Under the Banner of Heaven: A Story of Violent Faith xxi (2003). Lafferty is less idiosyncratic than one might hope. Perpetrators of “honor killings” of female relatives accused of unchastity, who are responsible for thousands of murders annually worldwide, typically defend their deeds in similar terms. Thus a Jordanian convict who had strangled his sister for leaving her husband for another man explains:

I reminded myself that this act had the backing of the whole family. Even my mother agreed that it had to be done to restore our honor and, as my hands tightened, I recited the Koran. I also reminded my sister that if she said “Allah is great and Mohammed is the only prophet” then she could still go to Paradise. Thanks God she listened and did what I asked her. I pray every day for God to forgive her. What you have got to get into your head is that this is our way. It had to be done.

Quoted in Sue Lloyd Roberts, Honour Killing, Sunday Mail (Queensland, Australia), Nov. 15, 1998, at 4.

28. Employment Division v. Smith, 494 U.S. 872 (1990). This result was reversed, with respect to federal law, by statute, which the Court has willingly followed. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).

29. Christopher L. Eisgruber & Lawrence G. Sager, Religious Freedom and the Constitution 243 (2007).

30. See Garrett Epps, To an Unknown God: The Hidden History of Employment Division v. Smith, 30 Ariz. St. L. Rev. 953, 959–965, 978–985 (1998).

31. See Douglas Laycock, The Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1, 25–26; William Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U. Chi. L. Rev. 308, 321 (1991); Michael W. McConnell, Accommodation of Religion, 1985 Sup. Ct. Rev. 1, 27.

32. 42 U.S.C. §2000cc-5(7)(A). Some of the state statutes mandating religious accommodation have similar language. See Ariz. Rev. Stat. Ann. §41–1493 (West 2004); Fla. Stat. Ann. §761.02 (West Supp. 2004); Idaho Code §73–401 (Michie Supp. 2004); 775 Ill. Comp. Stat. Ann. 35/5 (West 2001 & Supp. 2004); Mo. Ann. Stat. §1.302 (West Supp. 2004); Tex. Civ. Prac. & Rem. Code Ann. §110.001 (West Supp. 2004). But see 71 Pa. Cons. Stat. Ann. §2403 (West Supp. 2004) (adopting a more restrictive definition of a substantial burden).

33. City of Boerne v. Flores, 521 U.S. 507 (1997).

34. Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988).

35. See, e.g., Eisgruber & Sager, Religious Freedom, supra note 29, at 91–92, 242–244; 1 Kent Greenawalt, Religion and the Constitution: Free Exercise and Fairness 192–200 (2006); Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 125–126 (1992).

36. Lyng, supra note 34, at 451.

37. Id. at 450. David C. Williams & Susan H. Williams, Volitionalism and Religious Liberty, 76 Cornell L. Rev. 769, 796, 826–834 (1991), suggest that Lyng may reflect a volitionalist conception of religion, according to which only the free choices of individuals could be the basis of significant religious consequences. That view, they note, is theologically controversial, rejected not only by some Native American religions but also by Judaism and Calvinism. The inappropriately exclusive focus on conscience that I am describing is at least highly consistent with the inappropriate discrimination among religious beliefs that they describe; perhaps they and I are offering different descriptions of the same pathology.

38. Eisgruber & Sager, Religious Freedom, supra note 29, at 243–244.

39. Harlan's position is not altogether clear. When he focuses on “the intensity of moral conviction with which a belief is held,” Welsh, supra note 25, 398 U.S. at 358, it is unclear whether the intensity matters only because it concerns morality. The ambiguity persists when he speculates that the reason for exempting religious conscientious objectors is “the fact that ethics and morals, while the concern of secular philosophy, have traditionally been matters taught by organized religion and that for most individuals spiritual and ethical nourishment is derived from that source,” combined, however, with “the assumption that beliefs emanating from a religious source are probably held with great intensity.” Id. at 366. So Harlan invokes both morality and intensity without explaining what they have to do with one another. On the other hand, when he concludes that he will vote to reverse the conviction, he explains that he does so because “petitioner's beliefs are held with the required intensity,” id., implying that this is the decisive factor. In the discussion that follows, in order to have a clear position to address, I am assuming that the position stated in the text is the one held by Harlan.

40. For a taxonomy of utilitarian positions, see Will Kymlicka, Contemporary Political Philosophy: An Introduction 13–20 (2d ed. 2002).

41. See Jeremy Bentham, The Psychology of Economic Man, in 3 Jeremy Bentham's Economic Writings 435 (W. Stark ed., 1954).

42. Jesse Choper, Securing Religious Liberty 74–80 (1995); John H. Garvey, What Are Freedoms For? 52–54 (1996). For criticism of this idea, see 1 Kent Greenawalt, Religion and the Constitution: Free Exercise and Fairness 130–132 (2006); Greenawalt, Kent, Religion as a Concept in Constitutional Law, 72 Cal. L. Rev.753, 803–804 (1984).

43. Immanuel Kant, Religion within the Limits of Reason Alone (Harper, 1960) (1794), famously heaped scorn on this conception of religion.

44. Michael G. Baylor, Action and Person: Conscience in Late Scholasticism and the Young Luther 24–25 (1977). For earlier uses of the concept, see Linda Hogan, Confronting the Truth: Conscience in the Catholic Tradition 36–42 (2000).

45. For overviews of Catholic uses of the term, see Hogan, supra note 44; Charles E. Curran, Conscience in the Light of the Catholic Moral Tradition, in Conscience: Readings in Moral Theology 3–24 (Charles E. Curran ed., 2004).

46. Peter Abelard, Ethics, in Ethical Writings 24, 29 (Paul Vincent Spade trans., Hackett, 1995); Baylor, supra note 44, at 27–28; Hogan, supra note 44, at 73–75.

47. Thomas Aquinas, Summa Theologiae, Ia IIae, q. 19, a. 5, v. 18, 63 (McGraw-Hill/Blackfriars, 1966).

48. For Aquinas, this excuse was available only in very specific circumstances: “ignorance does not excuse, in the case of an erroneous conscience, if it is either ignorance of the moral principles involved, which all men are obliged to know, or if it is ignorance arising from negligence in perceiving the factual circumstances of the act in question.” Baylor, supra note 44, at 55. Aquinas appears to have been implicitly responding to Peter Abelard's very broad understanding of excusable ignorance, in which error appeared always to excuse sin. See id. at 53. However, Abelard's views were in this respect identical with those of Aquinas, since Abelard also thought that knowledge of natural law was innate. See John Marenbon, The Philosophy of Peter Abelard 265–281 (1997). In assuming that everyone shares an innate knowledge of right and wrong, both of them were perhaps too optimistic. See Gary Watson, Responsibility and the Limits of Evil: Variations on a Strawsonian Theme, in Agency and Answerability: Selected Essays 219–259 (2004).

49. Brian Tierney, Religious Rights: An Historical Perspective, in Religious Human Rights in Global Perspective 25 (John Witte, Jr. & Johan D. van der Vyver eds., 1996) (quoting the Ordinary Gloss to the Decretals, which explained two judgments by Innocent). “Aquinas did not make clear whether he believed that a well informed conscience could ever be in conflict with ecclesiastical authority.” Baylor, supra note 44, at 57 n.138. That problem, of course, came to a head with Martin Luther. The present paper does not discuss Luther because in all respects that are pertinent here, his ideas about conscience resemble those of Aquinas. See Baylor, supra note 44, at 261–262. Luther's most important innovation in this area was his view that invincible ignorance does not excuse: one is obligated to follow conscience, but doing so is not the path to salvation. Absent faith and grace, all action is sinful. See Baylor, supra note 44, at 152–153, 243–244.

50. Feldman, Noah, The Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. Rev.346, 357 (2002).

51. St. Thomas Aquinas, Selected Political Writings 77–79 (A.P. D'Entreves ed., Barnes and Noble, 1981). There is some tension within this position, since the heretic may be exercising his own rational faculties to the best of his ability. Aquinas found it necessary to deny this and to claim that the heretic is willfully denying the truth. See David A.J. Richards, Toleration and the Constitution 87–88 (1986).

52. Thus John Finnis thinks that the more sound inference from Aquinas's premises is that faith must be “voluntary and free from coercive pressures.” John Finnis, Aquinas 293 (1998). Similarly, Vatican Council II, Dignitatis Humanae [Declaration on Religious Freedom] (1965), says: “the exercise of religion, of its very nature, consists before all else in those internal, voluntary and free acts whereby man sets the course of his life directly toward God. No merely human power can either command or prohibit acts of this kind.” This forbids laws that aim at religious coercion, but one can agree with all this while being dubious of exemption from otherwise valid, generally applicable laws. See, e.g., Bradley, Gerard V., Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism, 20 Hofstra L. Rev.245 (1991).

53. Catechism of the Catholic Church §1776, 438 (United States Catholic Conference, 1994), quoting Pope Paul VI, Gaudium et spes §16 (1965).

54. John Locke, A Letter Concerning Toleration 26 (James H. Tully ed., Hackett, 1983) (1689).

55. Id.

56. Id. at 27.

57. Id. at 38. As noted above, the Vatican's Declaration on Religious Freedom reaches a similar conclusion.

58. This is emphasized in Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom 64–67 (1995); and Fish, Stanley, Mission Impossible: Settling the Just Bounds between Church and State, 97 Colum. L. Rev.2255, 2258–2269 (1997).

59. The shifting meaning of the term is noted in William Lee Miller, The First Liberty: Religion and the American Republic 122–123 (1986).

60. Locke, supra note 54, at 48. Steven Smith explains in greater detail why Locke's separate-spheres and futility rationales for toleration do not entail any protection for conscience as such. Smith, Steven D., What Does Religion Have to Do with Freedom of Conscience?, 76 U. Colo. L. Rev.911, 917–922 (2005). Premises like Locke's may, however, generate suspicion of government's claims to be pursuing legitimate public interests; one may worry that such claims are sometimes a mask for religious persecution. This was the view of Roger Williams; see Timothy L. Hall, Separating Church and State: Roger Williams and Religious Liberty 103–111, 120–121 (1998). Williams was solicitous of conscience, but that solicitude was rooted in his theology, was specific to religion, and did not imply exemption from legitimate, generally applicable laws. See Edmund S. Morgan, Roger Williams: The Church and the State 126–135 (1967).

61. James Madison, Memorial and Remonstrance against Religious Assessments, in The Mind of the Founder: Sources of the Political Thought of James Madison 7 (Marvin Meyers ed., rev. ed. 1981).

62. When he presents his argument for exemptions, he frequently begins by quoting this passage from Madison. See McConnell, Michael W., The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev.1409, 1453, 1497 (1990); McConnell, Michael W., The Problem of Singling out Religion, 50 DePaul L. Rev.1, 29 (2000); McConnell, Michael W., Why Is Religious Liberty the “First Freedom”?, 21 Cardozo L. Rev.1243, 1246–1247 (2000). He deploys the same quotation to different effect in Michael W. McConnell, Establishment and Toleration in Edmund Burke's “Constitution of Freedom,” 1995 Sup. Ct. Rev. 393, 425–426, there using it to argue that religion is an important bulwark against totalitarianism because it holds that government is not the highest authority. That argument does not necessarily entail exemptions. Nor is it specific to religion; any human want not dictated by the state can be a basis for resisting state power. Sexual desire is one example. See George Orwell, 1984 (1949).

63. McConnell, Origins, supra note 62, at 1453.

64. McConnell, Problem, supra note 62, at 30; see also Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1151–1152 (1990).

65. McConnell, Problem, supra note 62, at 30. Note here the appeal to the intensity of the desire to disobey the law (as opposed to the soundness of the conscientious objection). McConnell here comes dangerously close to Harlan's position.

66. McConnell offers it as an interpretation of the original sources, but none of them state this general principle as clearly as he does, so his originality here should be admitted. Perhaps the principle was inchoate in some early practice, but that is different from saying that it was consciously adopted and followed. McConnell's claims about original intent are rebutted in Hamburger, Philip A., A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev.915 (1992). His specific reading of Madison is challenged in Munoz, Vincent Phillip, James Madison's Principle of Religious Liberty, 97 Am. Pol. Sci. Rev.17 (2003).

67. This coinage is offered with acknowledgment of the many other scholars who have also defended religious exemptions. McConnell's defense is, in my view, the most thoroughly worked-out of these.

68. The withholding of protection from nonreligious conscience is defended in McConnell, Origins, supra note 62, at 1488–1500; and McConnell, Establishment, supra note 62, at 455–456. When he discusses the Seeger and Welsh cases, he does not directly address the merits but he writes that “in those cases, the Court relied on the interpretation of a statute, and only Justice Harlan took the position that the Constitution forbids the singling out of religion.” McConnell, Problem, supra note 62, at 6; see also McConnell, Origins, supra note 62, at 1491 n.420. That McConnell's rationale does not reach the Seeger and Welsh cases is also argued in detail in Smith, What Does Religion, supra note 60, at 922–924. McConnell argues that claims of nonreligious conscience were specifically and deliberately rejected by the framers of the First Amendment, but this is anachronistic. As he admits, “[t]here was no recorded controversy in preconstitutional America in which the right of ‘conscience’ was invoked on behalf of beliefs of a political, social, philosophical, economic, or secular moral origin.” McConnell, Origins, supra note 62, at 1494. The framers could not have specifically rejected an argument that never occurred to them.

69. Cotton Mather, Optanda 46 (1692), quoted in Feldman, supra note 50, at 376.

70. Moses Dickinson, A Sermon Preached before the General Assembly of the Colony of Connecticut 35 (1755), quoted in Feldman, supra note 50, at 376.

71. Locke, supra note 54, at 51.

72. Michael Walzer, Conscientious Objection, in Obligations: Essays on Disobedience, War, and Citizenship 126 (1970) observes: “As long as the conscience was Protestant, it moved within a limited historical tradition, and this was a tradition with which the legislators were entirely familiar. There were a number of things besides war-making that certain Christians scrupled at (the taking of oaths, for example), but not an infinite number.”

73. Hamburger, supra note 66, at 929 n.64, 940.

74. See generally id.

75. At one point, McConnell adopts a broader definition of religion, stating that “[t]he essence of ‘religion’ is that it acknowledges a normative authority independent of the judgment of the individual or of the society as a whole.” McConnell, Religious Freedom, supra note 35, at 172–173. He states that he does not mean to exclude nontheistic religions and that all he means by God is “the ultimate object of religious devotion.” Id. at 172 n. 248; see also McConnell, Origins, supra note 62, at 1493, 1497. But absent God, it is not clear how a conscientious objection can be religious on his account. “From the religious point of view, the difference between religious and secular forms of conscience is that the former represent an obligation to an authority higher than the individual, while the latter are manifestations of mere individual will or judgment.” McConnell, Origins, supra note 62, at 1498–1499. A personal and monotheistic God appears to be the only entity that could hold such authority. The moral requirements of Theravada Buddhism, for example, which are offered as an insight into reality available to any person simply by reflection on experience, would, on this account, necessarily be a manifestation of mere individual judgment.

On another reading of “normative authority,” McConnell might be taken to be referring to what Charles Taylor, Sources of the Self: The Making of the Modern Identity 4 (1989), calls “strong evaluation”—discriminations of better and worse that are independent of our desires and offer standards by which those desires are to be judged. That does acknowledge a moral authority beyond the individual, but strong evaluation takes secular as well as religious forms. See Koppelman, Andrew, Naked Strong Evaluation, 56 Dissent105109 (Winter 2009) (reviewing Charles Taylor, A Secular Age (2007)).

76. Torcaso v. Watkins, 367 U.S. 488, 495 (1961).

77. Id. at 495 n.11. To say that Buddhism rejects theism is something of an overstatement. While the historical Buddha had no interest in theological questions, some forms of Buddhism make theological claims, sometimes assigning divine status to Buddha himself. For a general overview of these issues, see Masao Abe, Buddhism, in Our Religions 69–137 (Arvind Sharma ed., 1993).

78. There are, concededly, monotheistic interpretations of Hinduism, but not all Hindus subscribe to these.

79. He was utterly indifferent to such metaphysical issues. See Walpola Sri Rahula, What the Buddha Taught 13–14 (rev. ed. 1974). To the extent that Buddhism (at least in its original form, which survives as Theravada Buddhism, but also in some forms of Mahayana Buddhism) takes any position on the existence of God, it regards God as a projection of psychological needs that are themselves in need of taming. Id. at 51–52.

80. Sandel, supra note 1, at 68.

81. Id. at 67. Sandel inconsistently insists both on the primacy of conscience because of its importance to individual identity and on the value of religion because of “its place in a good life or, from a political point of view, its tendency to promote the habits and dispositions that make good citizens.” Id. at 66. These are obviously not the same thing: conscience as Sandel describes it refers only to the internal mental state of the possessor, while the habits-and-dispositions argument rests on external contingencies that may not be present. Lafferty is bound by duties he cannot renounce, but that is not enough to make him a good citizen.

82. Id. at 68 & n.66. As we see above, McConnell is unwilling to draw this conclusion, but it is not clear why; Seeger's and Welsh's moral compunctions do not appear to have been within their control.

83. Galston, supra note 1, at 67.

84. Appiah, supra note 1, at 99.

85. McConnell, Origins, supra note 62, at 1497.

86. Harry Frankfurt, Duty and Love, 1 Phil. Explorations 4 (Jan. 1998).

87. Harry G. Frankfurt, The Reasons of Love 46 (2004).

88. Harry G. Frankfurt, The Importance of What We Care About, in The Importance of What We Care About 86 (1988).

89. Id. at 87; see also Harry G. Frankfurt, Taking Ourselves Seriously and Getting It Right 43–45 (Debra Satz ed., 2006).

90. Harry G. Frankfurt, Freedom of the Will and the Concept of a Person, in The Importance of What We Care About 12 (1988).

91. Id. at 20.

92. Frankfurt, Reasons, supra note 87, at 20.

93. Id.; see also Frankfurt, Taking, supra note 89, at 14–16.

94. Harry Frankfurt, Reply to John Martin Fischer, in Contours of Agency: Essays on Themes from Harry Frankfurt 27 (Sarah Buss & Lee Overton eds., 2002).

95. See Harry G. Frankfurt, Rationality and the Unthinkable, in The Importance of What We Care About 177–190 (1988).

96. Frankfurt, Reasons, supra note 87, at 65.

97. Nor need it be Taylor's “strong evaluation.” Volitional necessity can be present in someone who has no strong evaluations, so long as their inclinations are wholehearted.

98. T.M. Scanlon, Reasons and Passions, in Buss & Overton, supra note 94, at 167. See also Sarah Buss and Lee Overton, Introduction, in Buss & Overton, supra note 94, at xii.

99. Frankfurt, Reasons, supra note 87, at 97. Similarly, in an essay defending the value of truth, Frankfurt several times digresses to note the gratified feeling of confidence conferred by the conclusive demonstration of a proposition. Harry G. Frankfurt, On Truth 11–12, 55–56, 87–93 (2006).

100. Frankfurt, Rationality, supra note 95, at 188.

101. For elaboration, see Harry G. Frankfurt, Autonomy, Necessity, and Love, in Necessity, Volition, and Love, 138–139 (1999).

102. Rubenfeld, Jed, The Right of Privacy, 102 Harv. L. Rev.737, 753 (1989).

103. Id. at 754–755.

104. A similar move, which, however, does not emphasize volitional necessity, is made by Joseph Raz and Steven D. Smith. Both focus on the importance to the actor of what he wants to do. Raz thinks that the case for accommodating conscientious objectors depends on self-definition: “The areas of a person's life and plans which have to be respected by others are those which are central to his own image of the kind of person he is and which form the foundation of his self-respect.” Joseph Raz, The Authority of Law: Essays on Law and Morality 280 (1979). But Raz understands that this rationale entails nothing specifically about conscience. “A law preventing dedicated novelists from pursuing their vocation with the freedom essential to it is bad, and bad for the same reasons, as a law conscripting pacifists to the army.” Id. at 281. Smith would support exemptions because “having and acting on core beliefs is central to what makes us ‘persons,’” and conscience, which he takes to refer to this integration of belief and acting, therefore should be protected. Smith, What Does Religion, supra note 60, at 932. Core beliefs need to be moral, of course, so Smith's position here may be the same as Raz's.

105. “Even though a person's interests are contingent, they can belong to the essential nature of his will.” Frankfurt, Autonomy, supra note 101, at 135. Frankfurt observes that “[p]eople care about many of the same things because the natures of human beings, and the basic conditions of human life, are grounded in biological, psychological, and environmental facts that are not subject to very much variation or change.” Frankfurt, Reasons, supra note 87, at 65; see also id. at 29–30; Frankfurt, Taking, supra note 89, at 37. But he also concedes that “there are likely to be some people who genuinely and wholeheartedly love what we ourselves fear and despise.” Frankfurt, Reasons, supra note 87, at 30; see also Frankfurt, Taking, supra note 89, at 50.

106. Frankfurt, Reasons, supra note 87, at 98. Two illustrations from Nazi Germany may be helpful. Rudolf Hoess, who was in charge of Auschwitz, explained as he awaited execution that “[w]hether this mass extermination of the Jews was necessary or not was something on which I could not allow myself to form an opinion, for I lacked the necessary breadth of view.” Rudolf Hoess, Commandant of Auschwitz: The Autobiography of Rudolf Hoess 144 (1959). Magda Goebbels, explaining in her last letter her decision to kill herself and her six children in Hitler's bunker, is a model of wholeheartedness:

Our splendid idea is being destroyed, and with it everything beautiful, admirable, noble, and good that I have known. The world that will come after the Führer and national socialism won't be worth living in, and that's why I've brought the children here. They're too good for the life that will come after us, and a merciful god will understand me when I give them salvation myself.

Quoted in Ralf Georg Reuth, Goebbels 357 (1993).

107. Frankfurt, Importance, supra note 88, at 86; Harry G. Frankfurt, Concerning the Freedom and Limits of the Will, in Necessity, Volition, and Love 80 (1999).

108. Susan Wolf, The True, the Good, and the Lovable, in Buss & Overton, supra note 94, at 233.

109. Quoted in Roland H. Bainton, Here I Stand: A Life of Martin Luther 185 (1950).

110. Harry Frankfurt, Reply to Susan Wolf, in Buss & Overton, supra note 94, at 251–252. The value of the ideal of wholeheartedness is also questioned by J. David Velleman, who observes that identifying wholeheartedly with one of our motives is a common defensive fantasy, a denial of the ambivalence that is an inescapable part of our emotional life. Coping with such ambivalence is a marker of emotional maturity. J. David Velleman, Identification and Identity, in Buss & Overton, supra note 94, at 91–123. Frankfurt responds that ambivalence need not compromise the coherence of my identity if I stand decisively for some and against other ambivalent emotions. Harry Frankfurt, Reply to J. David Velleman, in Buss & Overton, supra note 94, at 124–128. But ambivalence need not signify “a disease of the will,” as Frankfurt claims. Frankfurt, Reply to Velleman, at 127. It may be that there is a plurality of values and that an attempt to inconsistently accommodate them all in part is the best way to respond to the value that exists in the world. (The willingness to accommodate conscience, when the conscientious belief is one that the state regards as mistaken, may be a salutary instance of just this kind of ambivalence.) If that is a real possibility, the state has no good reason to privilege wholehearted identities over ambivalent ones.

111. See Wolf, supra note 108; Scanlon, supra note 98; and Barbara Herman, Bootstrapping, in Buss & Overton, supra note 94, at 253; Alan Soble, Love and Value, Yet Again, 6 Essays Phil.(Jan. 2005), available at www.humboldt.edu/~essays/soble2rev.html; Christine M. Korsgaard, Morality and the Logic of Caring, in Harry G. Frankfurt, Taking Ourselves Seriously and Getting It Right 55–76 (Debra Satz ed., 2006).

112. Gary Watson, Free Agency, in Agency and Answerability: Selected Essays 28 (2004).

113. Id. at 22.

114. Harry G. Frankfurt, Identification and Wholeheartedness, in The Importance of What We Care About 159–176 (1988). Such a commitment, if it is to deliver the promised stability, does appear to require grounding in something other than the act of choice, which is always vulnerable to subsequent revision. See Charles Taylor, The Ethics of Authenticity 31–41 (1991). Frankfurt addresses this objection by relying on naturalism: there are things that, for biological reasons, we cannot help caring about, such as our children. See the discussion supra at note 105. But there are sources of stable identity that this move cannot account for. Biology is a poor explanation for Magda Goebbels's decision to kill her children.

115. See, for a particularly clear statement, Harry Frankfurt, Reply to Gary Watson, in Buss & Overton, supra note 94, at 160.

116. Gutmann, supra note 1, at 171.

117. “Conscience,” in ordinary usage, need not contain a moral component. Timothy Macklem, Independence of Mind 88 (2006), observes that I may reasonably think that conscience requires me to do the dishes before going to bed or make my bed before going to work, even if I live alone. But conscience without a moral component does not figure prominently in anyone's defense of accommodation of conscientious objection, with the possible exception of Justice Harlan, who is considered above.

118. Pope John Paul II, Veritatis Splendor [The Splendor of Truth], Encyclical Letter, Aug. 6, 1993, pars. 58, 59.

119. John Paul understood this perfectly. See id. at par. 64.

120. See Bennett, Jonathan, The Conscience of Huckleberry Finn, 49 Philosophy123 (1974).

121. Sometimes discussions of conscience optimistically treat it as a reliable guide to moral truth that is inscribed in every human heart. For example, in Charles Dickens, Oliver Twist (1837–1839), even the despicable Sykes is tormented by his conscience after he murders Nancy. This is romantic nonsense. Dan Lafferty's conscience is clear.

122. Catechism, supra note 53, §1793 at 441.

123. This difficulty is pressed in Smith, Steven D., The Tenuous Case for Conscience, 10 Roger Williams U. L. Rev.325 (2005). The official Church response to this difficulty, Dignitatis Humanae, supra note 52, insists on the right of individuals to seek the truth in religious matters even if they follow false religions, but the Declaration does not unambiguously take up the issue of religious exemptions from otherwise valid, generally applicable laws.

124. David A.J. Richards, Toleration and the Constitution 140 (1986).

125. Id. at 144.

126. Id. at 141.

127. He describes his personal history in David A.J. Richards, The Case for Gay Rights (2005). Richards's position on the scope of conscience is followed by Underkuffler-Freund, Laura, The Separation of the Religious and the Secular: A Foundational Challenge to First Amendment Theory, 36 Wm. & Mary L. Rev.837, 963 (1995), citing him with approval. According to Underkuffler-Freund, “one begins with the assumption of freedom of conscience (or free religious exercise) and allows state interference only in those cases that present particular extremity or danger.” Id. at 967. Since she understands conscience to encompass all desires to act that are the product of “free human reason,” id. at 963, the consequence appears to be that all laws are presumed to be unconstitutional in all their applications. It is anachronistic to attribute this view, as Underkuffler-Freund does, to the framers of the Constitution.

Martha Nussbaum, Liberty of Conscience: In Defense of America's Tradition of Religious Equality 19 (2008), proposes a complex position in which the reasons for accommodation are modified by institutional constraints, so that religion receives special treatment only because a broader accommodation would not be administrable. The object of protection, she says, should be “conscience,” by which Nussbaum means “the faculty in human beings with which they search for life's ultimate meaning.” Conscience should be protected because it is valuable and vulnerable; it “needs a protected space around it within which people can pursue their search for life's meaning (or not pursue it, if they choose).” Id.; see also id. at 37. On the other hand, “fair or unfair,” id. at 102, the text of the free exercise clause does single out religion. The best reason for this singling out is that nonreligious reasons for seeking accommodation “are more likely to be personal and individualistic, thus far more difficult to assess for sincerity and significance.” Id. at 165. Nussbaum approves of the Court's extension, in Seeger and Welsh, of the definition of religion to include “forms of committed searching for meaning that had no group affiliation,” id. at 171, but she acknowledges that this stretch perpetuates a different kind of unfairness because it will “reward articulate people and penalize those, equally sincere, who cannot give a good account of themselves.” Id. at 172.

Nussbaum resists a formulation in which the object of searching is given objective value: “We live in a country in which many people are skeptics, doubting that there is such a thing as the ultimate meaning of life, and where many others have dogmatic anti-meaning views.” Id. at 168 (here disagreeing with other writings of mine). But absent some account of the value of the object of the search, it is not clear how Nussbaum can maintain the distinction between her position and that of Richards. Nussbaum, unlike Gutmann, does not give special weight to the will to be moral. Those with dogmatic antimeaning views can hardly be said to be searching for life's ultimate meaning. The boundaries of protection in Nussbaum are thus uncertain.

128. Richards, Toleration, supra note 51, at 144.

129. Welsh, supra note 18, at 340.

130. See Andrew Koppelman, Corruption of Religion and the Establishment Clause, 50 Wm. & Mary L. Rev. 1831, 1905–1908 (2009); Freeman, George C. III, The Misguided Search for the Constitutional Definition of “Religion,” 71 Geo. L.J.1519 (1983); Greenawalt, Religion as a Concept, supra note 42; Eduardo Peñalver, Note, The Concept of Religion, 107 Yale L.J. 791 (1997); Greenawalt, Religion and the Constitution, supra note 42, at 124–156; but see Macklem, supra note 117, at 120–126; Richards, Toleration, supra note 51, at 142. A complication I merely note here is that if the will to be moral is the object of deference, one does not avoid Wittgensteinian vagueness because morality may also lack an essence and be constituted by a set of family resemblances. J. David Velleman, How We Get Along 3, 154–155, 161–162, 183 (2009).

131. Greenawalt, Religion as a Concept, supra note 42, at 773.

132. Seeger, supra note 11, 380 U.S. at 183, quoting David Saville Muzzey, Ethics as a Religion 95 (1951).

133. Id. at 187, quoting Paul Tillich, The Shaking of the Foundations 57 (1948). Both of these formulations denote ideas more capacious than “conscience,” even though Seeger is often cited for the proposition that conscience is what the court is protecting.

134. For a discussion that emphasizes this, see the defense of accommodation of conscientious objectors to the draft in John Rawls, A Theory of Justice 370–371 (1971).

135. Another factor that helps to account for the result in these cases is that if the statute were construed as requiring theism, it would be drawing its lines in an impermissible way by discriminating among religions. So in order to save the statute, the Court had to broaden it, and once it had done that, the statute was broad enough to exempt Seeger and Welsh, whether or not their claims were religious. This constitutional argument obviously depends on the premise that it is unconstitutional to define “religion” too narrowly.

136. It is not, however, beyond the scope of Andrew Koppelman, Corruption of Religion and the Establishment Clause, 50 Wm. & Mary L. Rev. 1831 (2009); Andrew Koppelman, Is It Fair to Give Religion Special Treatment?, 2006 U. Ill. L. Rev. 571; Koppelman, Andrew, No Expressly Religious Orthodoxy: A Response to Steven D. Smith, 78 Chi.-Kent L. Rev.729 (2003); and Koppelman, Andrew, Secular Purpose, 88 Va. L. Rev.87 (2002).

* Thanks to Marcia Lehr for research assistance, to Michael McConnell and Elliott Ashton Welsh II for enlightening conversations, and to Ron Allen, Dan Brudney, Sam Fleischacker, Rick Garnett, Jon Garthoff, Kent Greenawalt, Richard Kraut, Anthony Laden, Martha Nussbaum, Michael Perry, Richard Ross, Regina Schwartz, Winnifred Fallers Sullivan, audiences at the World Congress of Constitutional Law, Athens, and the Northwestern University, University of Chicago, and Emory University law schools' faculty workshops for helpful comments on earlier drafts. Special thanks to Steven D. Smith, who commented on multiple drafts.

CONSCIENCE, VOLITIONAL NECESSITY, AND RELIGIOUS EXEMPTIONS

  • Andrew Koppelman (a1)

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