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Revitalize sacred right of religious conscience

By Rodney K. Smith

Published: Sunday, Feb. 27 2011 12:00 a.m. MST

Tracy Flanagan prays during Mass at the Cathedral of the Madeleine in Salt Lake City, Utah, Wednesday, Feb. 17, 2010.

Jeffrey D. Allred, Deseret News

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The First Amendment protects religious liberty with sixteen words, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..." The wisdom that gave those words life is being disregarded today at our peril. It is time to revitalize the right of religious conscience.

The author of the First Amendment, James Madison, understood that religious conscience provides the moral foundation of a free people.

Shortly after the First Amendment was ratified, Madison wrote an essay regarding property and liberty in which he declared that, "[The right of] conscience is the most sacred of all property." Earlier, in a draft provision designed to protect religious conscience in Virginia, Madison declared that "religion, or the duty which we owe our Creator, and the manner of discharging it" is an inalienable right and added that all men "are entitled to the full and free exercise of it according to the dictates of conscience."

John Adams, our second president and an influential leader in the founding generation, also wisely stated, "[W]e have no government armed with power capable of contending with human passions unbridled by morality and religion. ... Our Constitution was made for a moral and religious people. It is wholly inadequate to the government of any other."

In the increasingly valueless business and political world of the 21st century, we have faced crises caused by moral relativism. Enron was followed by a global economic crisis rooted in selfishness and failure of integrity or conscience.

An example will be helpful. At Southern Virginia University, where I serve, members of our women's softball and soccer teams chose to decline to play in championship games occurring on their Sabbath. They were ridiculed by some and were even initially threatened with being sanctioned for their choice; nevertheless, they demonstrated personal integrity by their willingness to pay a high price to be true to their duty to God. It is hard to conceive of such young women ignoring ethics in any context to further their own selfish desires. People of conscience are better than that.

Based on his draft for a right of religious conscience in Virginia, Madison believed religious conscience could be limited by government only if: 1. one's exercise of religious conscience would limit another's "equal right of conscience"; or 2. "the existence of the State [would be] manifestly endangered," by its exercise. An equal liberty – another's equivalent right of religious conscience – is an appropriate limit, as is the manifestly endangered standard, because the continuing existence of the state is a necessary condition to the very existence of the right. No other right was given such broad protection against state infringement.

Madison and the framers also recognized that religious conscience has its dark side. Much suffering has been wrought historically at the hands of religious zealots. We are victims of such acts in our age. The framers wanted a vibrant right of conscience; but, in order to deal with its dark side, they penned a unique limit on religious exercise: a non-establishment provision. Under this provision, no national religion could be established and all religions had to be treated in an equal or non-preferential manner.

I fear we are forgetting the wisdom of a vibrant right of conscience. Writing for a majority of the Court in Employment Division of Oregon v. Smith in 1990, Justice Antonin Scalia disregarded precedent in rejecting the existing First Amendment test that required the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest, a test consistent with the wisdom of the framers. In rejecting the wisdom of the framers, Scalia offered a tepid test permitting infringement of the right of religious conscience so long as government does so under neutral legislation of general applicability.

Under Scalia's test, religious belief but not religious exercise is protected. For example, the exercise of one's religious conscience could be limited in the interests of a general law promoting some government-prescribed sense of morality or a law designed to further a newly formed equality right. Government prescribed morality and equality would trump the sacred right of religious conscience.

Many states have responded to the Court's disregard of religious conscience by restoring a test that more nearly approximates Madison's views. This move is to be applauded. It is time for all states and the federal government to adopt constitutional provisions that will protect the full and free exercise of religious conscience.

Rodney K. Smith is president of Southern Virginia University.

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