Home -> Law Blog Directory -> Academic Blogs -> Legal Theory Blog

Academic

: Legal Theory Blog

Sawicki on Freedom of Conscience

By Lawrence Solum

Nadia N. Sawicki (Loyola-Chicago School of Law, Beazley Institute for Health Law & Policy) has posted The Hollow Promise of Freedom of Conscience on SSRN. Here is the abstract:

Freedom of conscience has long been touted as a fundamental principle of American society. Two hundred years ago, Thomas Jefferson asserted that no law ?ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority." Indeed, many current policy debates ? including debates about the right of medical providers to refuse involvement in controversial procedures, and the right of voluntarily enlisted military personnel to withdraw from armed conflict ? are predicated on the theory that claims of conscience are worthy of legal respect. This Article challenges established assumptions, demonstrating that the principle of freedom of conscience has little concrete support in positive American law.

This Article first fills a gap in legal scholarship by broadening traditional understandings of what it means to make a claim of conscience to include cases such as tax evasion, civil disobedience, terrorism, and discrimination. It then analyzes the law?s treatment of conscience across these various substantive realms, critiquing each of the justifications that have been offered for treating some cases more favorably than others. The Article concludes that positive American law does not in fact support a general principle of freedom of conscience; rather, it accommodates conscience only in sui generis cases that align with generally accepted moral principles. By raising our consciousness of conscience in this manner, the author hopes to reframe the debate about the normative value of conscience in American society and promote a more principled jurisprudence of accommodation for conscientious beliefs.

Full post as published by Legal Theory Blog on August 31, 2010 (boomark / email).