GUEST POST PHILIP GREEN PART TWO

The second argument to which the soi-disant defenders of religious freedom resort, is the appeal to “conscience;” without, however, actually displaying any. What do we mean by submission to the commands of conscience? One of the most well-known of all historical examples answers the question with clarity: In 1942 in Vichy France, in the Huguenot town of Chambon-sur-Lignon, Pastor Andre Trocme preached a sermon to his parishioners, in which he exhorted them to give shelter, despite the danger they would incur, to Jews fleeing the deportations, “lest innocent blood be shed.” In the next three years 5000 Jews passed through or were sheltered in the town; not a single one was ever betrayed to the Vichy police or the Gestapo. Years later, asked by an interviewer why his family harbored Jews knowing that execution awaited anyone caught doing that, a peasant farmer shrugged his shoulders uncomfortably and replied, “someone in trouble comes to your door–what can you do?” To act from conscience, in other words, is not to submit to the commands of a coercive or threatening authority (unlike Catholic Bishops, Pastor Trocme had no ecclesiastical power over his congregation); nor merely  to follow unswervingly the rules of whatever association you belong to: Sandy Koufax was being a good Jew but not following conscience when he refused to pitch in a World Series game on Yom Kippur. Rather it is willingly to put ones own self in jeopardy in order to protect, or avoid doing harm to, or secure justice for, others. (In fact, those who’ve investigated conscientious resistance during the Holocaust--e.g., Kristin Monroe and Norman Geras--have found no correlation between acts of resistance and religious belief.)  Recently, for example, the Vatican reprimanded and demanded submission from an organization of American Catholic nuns, who were charged with promoting “radical feminism” and having “serious doctrinal problems,” due to their support of the poor and marginalized. In other words, they have been acting in accordance with their consciences, and have been commanded to cease and desist. So much for “conscience:”

it is a rare Catholic physician indeed who has to fear sanction for refusing to perform an abortion–or to prescribe birth control pills.       

            As for the argument that religious ethics ontologically stand upon a higher ground, or what is sometimes called the “divine command theory” of ethics, it is not only dogmatic but also  self-contradictory, in that its force is contingent upon the existence of one true religion. If there is not one true religion but rather there are conflicting theistic versions of the Good and the True--conflicting divine commands--then to invoke “religious principles” against a particular instance of coercion is at the same time to deny the religious principles of those who favor that kind of coercion, or who simply favor the toleration of a plurality of different belief systems. Should Jehovah’s Witnesses go to jail for refusing to register for the draft, while Catholic gynecologists and priests should be rewarded with praise for refusing to allow the prescription of abortifacients by health care plans that receive direct or indirect public subsidy? Should Islamists who believe, correctly or not, that fidelity to the Koran compels honor killings or retaliatory rapes, be indulged for engaging in those practices? Given that religion is by nature based on faith and not observable facts, there is no simple resolution to the brute fact of two religions or religious variants having differing moral codes. Moreover, the pejorative distinction that the godly always make between their reasoning and that of their allegedly “secular” opponents is merely self-serving. Anyone can claim to be doing what god wills; or can insist, the way Unitarians or Friends or various liberal Protestants might do, that in their conception of things “god” in fact has the values associated by theocrats with secular humanism.

            On the other hand, if there is but one true religion, one unerrant set of moral rules, then theocracy is being institutionalized, and the one true church has implicitly declared war on all of those of us who do not follow its precepts. There may be reasoned arguments, e.g., against abortion–that personhood begins at conception, that the fetus feels pain–but they stand or fall on their strength as arguments. They are no stronger because they are said to be god-given, and perhaps even weaker, in that when implemented through legislation by a numerically dominant voice the high ground of principle becomes merely the amoral stance of might makes right. If having the most votes to coerce others is the goal of debate, then the ethical high ground has already been ceded. In the real world of political action, even abortion is like any other object of political determination: it is not outlawed because it is wrong, it is wrong because it is outlawed. In any event, all arguments from inerrancy of scripture or ecclesiastical authority raise the epistemological question of how anyone comes to know the will of God, and why any of us should believe that someone else’s scriptures reveal anything of the kind. Furthermore, few if any religions can claim to be based on texts that detail their deity's will concerning every possible situation. These gaps often concern situations that the writers of ancient religious scriptures couldn't have foreseen, such as those involving advanced technologies, especially biological and medical ones. In this respect scripturalism is much like constitutional originalism: it reads our own present interpretations into the minds of other beings, or in this case non-beings, whose otherness to us is both total, and totally opaque. Any of us making an ethical case may call on endless witnesses from heaven or earth, but there is still no more in the end than the person making that case, just like every other person who makes an ethical case.

Thus arguments purporting to rest on the high ground of principle or conscience based on religious doctrine or membership in a religious association are either arbitrarily self-serving, dogmatic, or self-contradictory. They deserve neither more nor less credence than any contrary principle based on any equally cogent set of assertions. At this point though the theocrats make their final stand on the alternative high ground of the First Amendment to the American Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...”

            All of us, though (except perhaps Catholic bishops) know what the “free exercise of religion” consists of: the right to state one’s religious beliefs, to congregate together to “exercise” or live by them, to pray in public, to proselytize others. It not only does not mean but could not conceivably mean the “right” to do, in the public sphere, whatever one feels like doing, whether or not contrary to legitimately established public law, because according to your religion that’s the right thing to do, and contrary behavior is wrongful. To be sure, the Supreme Court has held on various occasions (not always without dissent) that there certainly is and ought to be a private sphere into which the State cannot be allowed to intrude. The State, e.g., cannot force Catholic women to purchase birth control aids (most of them will do so in any event), nor prohibit women in general from doing so (ditto). It also cannot force women to have abortions; nor–though this obvious corollary is under threat from the Church and its allies–prohibit them from doing so.  These invasions of privacy the Church is happy to see enforced. But whether such items must be included in public or publicly subsidized health care packages, is no more or less a matter of “the free exercise of religion” than any determination about “public health:” the person who doesn’t want to use them doesn’t have to, and if he doesn’t want others to use them, that’s none of his business until and unless public law makes it his business. The only argument the Church attempts to make in this context is that if it self-insures its employees, it is not acting “publicly.” But that’s perverse: there would be no health insurance of any kind without the full panoply of public policies, commands, and exemptions that make it possible in the first place.

            In sum, that leading the life you want to lead can consist of preventing other people from leading the life they want to lead is not a principle of religious freedom; it is rather, as John Stuart Mill put it, “so monstrous a principle” as any that exists. It is the end of religious freedom.