My view: Restoring the right of religious conscience with an amendment

By Rodney K. Smith

Published: Sunday, March 4 2012 12:00 a.m. MST

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Religious freedom is under attack from the right and the left. James Madison, the father of our Constitution, referred to the right of conscience as "the most sacred of all property" — our greatest possession.

That right is no longer secure. To secure it, we need a constitutional amendment not more politically motivated accommodation.

Under his expansive health care initiative, President Obama mandated that all institutions provide insurance coverage for contraceptives, including the morning after pill, even though this mandate violated the religious conscience of Roman Catholics.

We narrowly averted a national crisis when the Obama administration agreed to "balance" the government mandate by accommodating the free exercise rights of Catholics. It is clear, however, that Obama had the power to disregard the right of conscience, if political winds blew in another direction.

Would President Obama have relented if the party seeking to have their religious conscience accommodated was less powerful than the Catholic Church?

In 1990, Justice Scalia, a conservative member of the Supreme Court, authored a decision in Employment Division v. Smith rejecting past Court precedent that provided more robust protection for the right of religious conscience.

Justice Scalia and the Court enunciated a new rule that today permits the federal government to violate religious conscience so long as it does so with a general law that is not passed for the purpose of discriminating against religion. In that single act, Scalia and the Court reduced religious conscience from a right to a mere privilege.

As the reach of the government expands, religious conscience will fall victim to general laws, in all areas touched by the federal government, especially for those who lack political clout. As an educator, for example, I can see it reaching its regulatory tentacles into private faith-based education.

This conflict is not new. George Mason and James Madison disagreed over the scope of the right of religious conscience when Virginia was adopting a declaration of rights.

Both Mason and Madison acknowledged that religion is a duty owed our Creator. Mason, however, believed that while religious conscience "should enjoy the fullest toleration," government was free to regulate religious conscience if it "disturb(ed) the peace, the happiness or safety of society."

Alarmed that Mason had transformed the most sacred of rights into a mere privilege to be granted or withheld government, Madison responded that the free exercise right could only be limited when the exercise of that right deprived another of an "equal liberty" and when that exercise of conscience "manifestly endangered" the "existence of the state."

For Mason, like Obama and Scalia, religious exercise was a privilege that could be accommodated by government. Madison, however, saw it as an inalienable right largely placed beyond the reach of government. Madison's view became the basis for our First Amendment.

Madison understood what Scalia and Obama do not, that conscience is our most significant possession.

Dr. Martin Luther King Jr. had an experience during the early stages of the civil rights movement that demonstrated the importance of the right of conscience.

One night, King received a vicious call threatening his family. As he sat worrying about his family, he realized "religion had to become real … (he) had to know God for (himself)." He prayed, "Lord, I'm down here trying to do what's right … I think the cause we represent is right. But Lord … I'm losing my courage. And I can't let the people see me like this because if they see me weak … they will begin to get weak."

King heard an inner voice saying, "Martin Luther, stand up for righteousness. Stand up for justice. Stand up for truth. And I will be with you, even until the end of the world." At that moment, King was called to lead a movement that transformed America.

King recognized the importance of conscience and taught, "If you haven't found something worth dying for, you aren't fit to be living."

Madison would see King's faith as the basis of a right; Mason, Scalia and Obama would see it as the basis of a mere privilege to be granted or taken away at the whim of government.

Religious conscience has been transformed from a right to a mere privilege. No right remains secure in a world in which the most sacred of all rights — possessions — can so easily be disregarded.

The only answer is to restore Madison's view of religious liberty by overruling Employment Division v. Smith judicially or, if necessary, by ratifying a constitutional amendment protecting religious conscience.

Rodney K. Smith is a First Amendment scholar who serves as a Distinguished Professor of Law at the Thomas Jefferson School of Law. This article also ran in the Christian Science Monitor.

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