We’ve all been whipped into a frenzy over Rush Limbaugh’s idiotic insults of a Georgetown law student, a controversy I have been fastidiously trying to ignore. Errors often compound faster than interest, and responding to one outlandish statement with apoplexy and outrage only feeds the belly of the coarsening entertainment beast.
And after all, there is a substantive discussion still to be had about such matters, right? Given that we cannot trust others to it, we shall have to have one ourselves.
Consider, for instance, the conservative introspection over whether they too quickly adopted a view of “conscience” that would inevitably come back around against them. As my friend Katie Geleris writes at the splendid Humane Pursuits:
By using this argument, conservatives have conceded that the moral duty to protect life and not destroy it obligates only those who accept that responsibility, not every person. Even if this argument succeeds, conservatives will merely have defended subjective, privatized religion—so-called “conscience”—of an acceptably tame modern variety, rather than a worldview that is objectively true and universally binding.
Conservatives should not content themselves with fighting for a larger religious exemption that protects their “right to free exercise” if the government is still able to eschew any notion of its duty toward the good of the society it governs. Freedom of conscience—religious liberty—is an instrumental good, not an end in itself nor a natural right. Appeals to fictional fundamental rights will only take conservatives so far; what will they do the next time such an issue arises?
Katie leans on a particular story of “rights” that ties their emergence to Hobbes and Locke. A common enough tale, but probably not accurate. Annabelle Brett blurs the lines between the modern rights tradition and its scholastic forbearers, and her case is a good one. Rights may be a “fiction” (though I am also skeptical of that), but they are not quite so “modern” as we often think.
Set aside, though, the historical question. There’s an interesting concern here about the degradation of “conscience” as a category of moral reflection and how it might get all turned about against conservatives in the future. The worry is a real one, and similar to the concerns about the term I register early on in this little book. Whatever else we say about “conscience,” it needs to be tied down well lest it go adrift.
Of course, as Nathaniel Peters points out response to Patrick Deneen’s similar remarks, the argument from “conscience” on behalf of liberty is a sort of stop-gap measure. As he puts it:
Religious liberty strives to protect a minimum standard: The government cannot coerce a person to perform an action that his conscience deems wrong on religious grounds. It shields the private exercise of religion not to keep the exercise of religion private, but rather as a necessary prerequisite for making it public.
“Religion” here is the contested category, of course, and I don’t think we should grant religious institutions a carte blanche freedom to do whatever they want in the name of their religion. The hypothetical pagan society that makes a go at reintroducing human sacrifice is wrong, politically and religiously, and the government has the right and duty to say so.
But that is, of course, different than our current scenario. Here the government is not merely recognizing a wrong that has been committed and judging accordingly: they are compelling religious institutions to act against their consciences. And in such cases, the argument from conscience takes on a new validity.
Recognizing the principle of “conscience” is one way in which government’s acknowledge that their citizens can be and often are held to a deeper moral code than that which is inscribed in the laws of the land. It does not specify the nature of this moral code, nor should we think that the government’s deference should be paid to only religious variations. But in establishing a sphere of liberty beyond its coercive authority, a government opens its laws to the possibility of revision in light of better clarity about the contents of the moral law.
To put it another way, the argument from “conscience” is a modest one. But modest arguments demand modesty in return. The government’s refusal to infringe upon the conscience of its citizens could be an artificial freedom that only pretends to be neutral. Or it could be that the government has a sense of its own limitations, and that the nature of the goodness by which it must judge harms unfolds slowly throughout the social structures that it has authority over.