Freedom of Conscience as Religious and Moral Freedom

Abstract

[For a later version of material in this paper, see this paper: "Human Rights Theory, 4: Democracy Limited: The Human Right to Religious and Moral Freedom" (2015), http://ssrn.com/abstract=2610942.]

In a paper I posted to SSRN last month — “The Morality of Human Rights” (June 2013), available at http://ssrn.com/abstract=2274381, — I explained that as the concept “human right” is understood both in the Universal Declaration of Human Rights and in all the various international human rights treaties that have followed in the Universal Declaration’s wake, a right is a human right if the rationale for establishing and protecting the right — for example, as a treaty-based right — is, in part, that conduct that violates the right violates the imperative, articulated in Article 1 of the Universal Declaration, to “act towards all human beings in a spirit of brotherhood.” Each of the human rights articulated in the Universal Declaration and/or in one or more international human rights treaties — for example, the right, articulated in Article 5 of the Universal Declaration and elsewhere, not to be subjected to “cruel, inhuman or degrading treatment or punishment” — is a specification of what, in conjunction with other considerations, the imperative — which functions in the morality of human rights as the normative ground of human rights — is thought to forbid (or to require).

A particular specification is controversial if and to the extent the supporting claim — a claim to the effect that the “act towards all human beings in a spirit of brotherhood” imperative forbids (or requires) X — is controversial. My aim in this essay is to elaborate and defend a particular specification: the right, internationally recognized as a human right, to freedom of conscience — to freedom, that is, to live one’s life in accord with the deliverances of one’s conscience.

A more focused name for the right is the right to religious and moral freedom. Jocelyn Maclure and Charles Taylor begin their book Secularism and Freedom of Conscience (2011) by stating that “[o]ne of the most important challenges facing contemporary societies is how to manage moral and religious diversity.” One indispensable strategy for managing religious and moral diversity is, as I explain in this essay, the right to religious and moral freedom — to freedom to live one’s life in accord with one’s religious and/or moral convictions and commitments.

In the final part of the essay, I explain why we are warranted in concluding that the internationally recognized human right to freedom of conscience — to religious and moral freedom — is part of, is entrenched in, the constitutional law of the United States.

The final version of this essay — which is a modest revision of a chapter in my new book, Human Rights in the Constitutional Law of the United States (2013) — will appear in a forthcoming issue of the Journal of Law and Religion.