Conscience Is Not Enough: The Right to Sacred Things

“Congress shall make no laws touching religion, or infringing the rights of conscience.”

So read one of the first drafts of the First Amendment, which was at the time actually the proposed Third Amendment. It was the Senate that forced the House of Representatives to change the wording into its final form, and unfortunately, we have very scarce notes of their deliberations and can only guess as to why they wanted the words changed. The final wording, of course, instructs that

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

We seem to assume the right of conscience to be fundamental, and it is fashionable in academic and legal circles to think the right of conscience is sufficient. But if it is, why did our Founding Fathers feel the need to change the First Amendment from a general protection of conscience to a more specific protection of free exercise? Under the wording of the First Amendment, it is actually the more specific wording that offers the broadest protection.

If only conscience is protected, and not exercise, this leaves the government plenty of room to regulate and quash the things that people find meaningful so long as the government never touches any individual’s mind. For instance, under the original draft of the First Amendment the government could theoretically ban something vital to a religious practice, like communion wafers or circumcision, and then justify it by saying no individual’s conscience was directly coerced. That a group of people finds these objects or practices sacred would be irrelevant, as secular governments must not investigate such matters. The only important thing is that the regulation was directed at inanimate objects, not individual’s minds.

Unfortunately, not even the current Free Exercise clause has kept us safe from this sort of reasoning. The Supreme Court has used this reasoning in Lyng v. Northwest Indian Cemetery, and it is quite possible we will see it again in Hobby Lobby v. Sebelius.

Academics like casting the First Amendment as a protection of conscience because it is individualistic, which is the one thing that all serious Religions are not. Any Constitutional regime committed to protecting Religious Freedom must take into account not only the individual’s conscience, but also the individual’s relation to the sacred. I imagine that is what the Founders had in mind when they changed Madison’s draft to specifically protect the free exercise of religion.