Rights of Conscience

Overview

The freedom of religion includes not just the right to maintain a set of beliefs, but also the right to act according to one’s conscience. This freedom is listed at the forefront of our Bill of Rights and has historically been called our “First Freedom,” highlighting its revered distinction.[1]

The free exercise clause of the First Amendment of the United States Constitution reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”[2] There is a false notion that there is a “separation of Church and State” that intimidates people from letting their religious beliefs affect their public lives in society.

In fact, “recent Supreme Court decisions that have had the effect of excluding religious expression from the public square cannot be justified by the original intention or original meaning of the First Amendment.”[3]

The U.S. Constitution does not guarantee a freedom just “to worship.” It guarantees our right to practice and promote our faith in every area of civic life. Religion is not restricted to within the four walls of the church. Religious beliefs inform our consciences and affect our public lives morally and pragmatically.

Issue Analysis

Matters of conscience are not just theoretical. They affect real individuals and religious organizations alike. Attacks on religious liberty are increasingly impacting people and organizations, forcing them to choose between violating their conscience or stop doing the job they have chosen to do.

  • In Arizona, a pharmacist from Prescott faced the challenge of following his conscience at the expense of his career. Watch the story of this Prescott man and learn how Center for Arizona Policy worked to ensure no one would ever be faced with this difficult situation in our state again.[4]
  • Private businesses, such as Hobby Lobby and Hercules Industries, are in ongoing legal battles trying to prevent the government and the HHS mandate from forcing them to pay for abortifacient and abortion-inducing drugs that violate their sincerely held religious beliefs.[5]
  • In 2011, a lawsuit was filed by the ACLU against a married couple who own an inn in Vermont. The couple declined to host a reception for two lesbians seeking to celebrate their same-sex “marriage.” The innkeepers did not act out of discrimination, but out of their steadfast belief in marriage as the union of one man and one woman and their desire not to promote a contrary message.[6]
  • A town clerk from Barker, New York, was forced to resign due to her religious objection of signing marriage licenses after the legislature approved same-sex “marriage” in July 2011.[7] Town clerks from Volney, New York, also faced criminal prosecution for refusing to sign marriage licenses for same-sex couples, even if it went against a clerk’s moral values.[8]
  • In Maine, a high school guidance counselor’s social work license was challenged after the counselor appeared in a television ad that supported one man and one woman marriage. The 2009 complaint alleged that the counselor’s appearance in support of marriage made him unfit to practice as a social worker because of his “long history of being unsupportive of GLBTQ issues.”[9]
  • In 2009, an honors student in the Eastern Michigan University counseling program was kicked out of school after she refused to counsel a client about his homosexual relationship. Fortunately, the Sixth Circuit Court of Appeals affirmed the students’ First Amendment religious freedom after she was faced with no other choice but to file a lawsuit to challenge the university’s actions.[10]
  • In 2008, a photographer was brought under investigation by the New Mexico Human Rights Division for declining to photograph a “commitment ceremony” for a same-sex couple. The same-sex couple asserted her actions violated anti-discrimination laws for sexual orientation, while the photographer simply stated her Christian beliefs would be in conflict with the message encompassed in the ceremony.[11]
  • A pharmacist for Target in Michigan was fired after he refused to sell morning-after pills to customers. He claims that Target agreed to allow him to refer these customers to other pharmacies. He filed a federal lawsuit against Target in November 2007.[12]
  • An OB/GYN in California was sued after she refused to artificially inseminate a lesbian woman, even though she referred the woman to another doctor who successfully impregnated her. The California Supreme Court ruled against the doctor, stating that the doctor’s religious beliefs were not a valid reason to refuse to perform the elective procedure.[13]
  • In Colorado in 2013, a Denver baker was faced with possible jail time and a fine if he continued to decline to bake cakes for same-sex weddings.[14]
  • In 2008, Catholic Charities in Massachusetts stopped offering adoption services as the government was going to compel them to violate their religious belief by placing children with same-sex couples.[15]

State and Federal Laws

The First Amendment of the United States Constitution ensures that:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech …[16]

The free exercise of religion encompasses not only practice and prayer, but also the freedom to hold beliefs and act according to the conscience that is formed by those religious beliefs. A simple example is that the federal government allows an individual “who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form” to be exempted from conscription to fight in war.[17]

State Constitutions, including Arizona’s, also mirror the rights of conscience encompassed in the First Amendment. Arizona’s Constitution reads:

Perfect toleration of religious sentiment shall be secured to every inhabitant of this state, and no inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship, or lack of the same.[18]

Arizona’s Religious Freedom Restoration Act reinforces these protections by stating that the government may not substantially burden a person’s exercise of religion unless the government has a compelling interest and uses the least restrictive means of furthering that interest.[19]

After the Arizona Legislature passed expanded healthcare right of conscience protections, and the State Court of Appeals upheld the CAP-supported Abortion Consent Act, Arizona law now provides hospitals, clinics, and healthcare workers the right to refuse to participate in abortions if they object to the procedure on moral or religious grounds.[20] Recent changes add protection for pharmacists and other healthcare workers who do not want to provide any medication or device intended to prevent implantation of a fertilized egg, including so-called “emergency contraception.”[21] The law also protects any healthcare professional who does not wish to facilitate an abortion through a referral.[22]

Although healthcare workers have laws explicitly recognizing their right of conscience relating to abortion and abortifacients, additional issues and other professions must also be specifically covered. Many non-healthcare professionals encounter conflicts with their deeply-held moral and religious beliefs and until recently were left unprotected. Professionals like social workers, lawyers, counselors, and psychologists need protection for their professional licenses to practice in good conscience and within the freedom of their religious beliefs.

In 2012, CAP was able to work with the legislature and the governor to pass a bill into law that specifically protects Arizona professionals who are licensed by the state. Thanks to this law, these professionals cannot have their licenses suspended, denied, or revoked due to the free exercise of their religious beliefs.[23]

The need for this law is crucial as it addresses situations in which healthcare workers, including pharmacists, have objections to other procedures on moral grounds, like in vitro fertilization, sterilization, or removal of food and fluids from patients who are unable to communicate their wishes. It also extends to areas like the State Bar of Arizona.

Since 2008, the State Bar of Arizona has twice proposed a rule change that would penalize attorneys who “discriminate” based on “sexual orientation,” “gender identity,” or “gender expression.” These rules could be used to force an attorney to represent clients even if the client’s goals conflict with the lawyer’s religious beliefs. For example, adoption attorneys could be forced to place children with same-sex couples or risk losing their licenses because of their religious beliefs.

The 2012 law protects these professionals by ensuring that their religious liberty is not compromised at their place of business. Respect for religious beliefs and the right of conscience belong not only to churches, but also to individual inhabitants who live in this state. This conscience law is based on the legitimate right to pursue one’s chosen profession without having to violate one’s religious tenets or moral beliefs.

Need for Future Legislation

Unfortunately, religious-based organizations that adhere to the same beliefs as their church counterparts are often not afforded any legal protection. In 2002, the Arizona Legislature passed a law mandating that employers include prescription contraceptives in their insurance coverage, with a narrow exception for churches. Many religious-based organizations were not exempted due to then-Governor Napolitano’s veto of a broader right of conscience provision.

In Arizona, there remains a need to strengthen our religious liberty protections. While the laws described above certainly go a long way towards upholding the first freedom of professionals, a significant issue remains. Arizona’s Religious Freedom Restoration Act (RFRA) has been on the books since 1999 but has not been updated since. When passed, the law was originally in response to the courts striking down a federal law that would have provided religious liberty protections for all Americans by applying the strict scrutiny test to all government action by the state and its entities. As a result, many states – including Arizona – opted to pass similar legislation at the state level. Two much-needed updates to Arizona’s RFRA statute need to be included in the law.

  1. The right for a person to assert a RFRA claim if it is likely that an impending state action will substantially burden his/her religious exercise.Ultimately, a citizen should not have to wait until their rights are infringed before initiating legal action if infringement is likely to happen. Rather, they have the right to proactively assert their liberty and seek protection under the law from such infringement.
  2. A government enactment is not permitted to infringe on religious belief merely because the law allows for enforcement by a private individual. If a law arguably burdens an individual’s religious freedom, that individual should not be prohibited from asserting a RFRA claim or defense merely because the government is not a party to the lawsuit.

The critical need for this legislation came to light in the New Mexico photographer’s case mentioned earlier. The case was decided by the New Mexico Supreme Court on August 22, 2013. The New Mexico Supreme Court ruled in Elane Photography v. Willock that the state’s RFRA did not apply in a case where a private party sought to enforce a state law against another private party.[24] New Mexico’s RFRA is similar to Arizona’s, and Arizona’s law includes the same deficiency that was revealed by the Elane Photography case. It must be ensured that state laws that violate the religious liberty of private persons cannot be enforced simply because the government is not technically a party to a lawsuit or enforcement action.

CAP worked diligently with the legislature to pass these provisions in 2013, but unfortunately the bill was caught up in the budget debate and was vetoed. CAP remains committed to seeing these protections become law and will support similar legislation again in 2014.

Talking Points

  • The Constitution doesn’t only guarantee our “freedom to worship” but our freedom to practice and promote our faith. Americans don’t have to leave their faith and convictions at their church door; we have the right to carry it with us in all aspects of our lives.
  • The First Amendment protects the free exercise of religion. An individual should not be denied a professional license or certificate required to do their job because of the exercise of their religious beliefs.
  • Participation in religious communities should be celebrated, not penalized. Persecuting individuals for their religious beliefs creates second-class citizens who are seen as less valuable to their industry because of their faith.

Conclusion

The growth of discrimination against professionals for their religious views requires action to proactively preserve their rights of conscience. State law must comprehensively and undoubtedly ensure that no individuals in Arizona will be forced to choose between their career and their sincerely held religious beliefs. 

© January 2014 Center for Arizona Policy, Inc. All rights reserved.
This publication includes summaries of many complex areas of law and is not specific legal advice to any person. Consult an attorney if you have questions about your specific situation or believe your legal rights have been infringed. This publication is educational in nature and should not be construed as an effort to aid or hinder any legislation.


[1] Religious Liberties, CitizenLink, www.citizenlink.com/analysis/religious-liberties/ (last visited Sept. 25, 2013).

[2] U.S. Const. First Amendment.

[3] Wayne Grudem, Politics According to the Bible 502 (2010).

[5] Bob Allen, High court asked to hear Hobby Lobby case, abp news, Sept. 23, 2013, www.abpnews.com/culture/social-issues/item/8873-us-asks-high-court-to-hear-hobby-lobby-case#.Uk8YJBBmNxk (last visited Oct. 4, 2013); Sam Baker & Elise Viebeck, OVERNIGHT HEALTH: HHS says enrollment process improving, The Hill, Oct. 3, 2013, www.thehill.com/blogs/healthwatch/health-reform-implementation/326489-overnight-health (last visited Oct. 4, 2013).

[6] Lesbian couple: Vt. Resort barred reception, Associated Press, July 19, 2011, available at www.foxnews.com/us/2011/07/19/lesbian-couple-vt-resort-barred-reception/.

[7] Town clerk Laura Fotusky quits citing gay marriage opposition, Huffington Post, July 13, 2011, www.huffingtonpost.com/2011/07/13/town-clerk-laura-fotusky-_n_896869.html (last visited Sept. 25, 2013).

[8] Celeste Katz, Nassau DA Kathleen Rice to clerks: Don’t even think about refusing gay marriage licenses, NYDailyNews.com, July 8, 2011, available at www.nydailynews.com/blogs/dailypolitics/2011/07/nassau-da-kathleen-rice-to-clerks-dont-even-think-about-refusing-gay-marriage-.

[9] Kevin Miller, Yes on 1 advocate targeted after TV ad, Bangor Daily News, October 29, 2009, available at www.bangordailynews.com/2009/10/29/politics/yes-on-1-advocate-targeted-after-tv-ad/.

[10] Jeremy Tedesco, The Julea Ward Settlement: A Win for Religious Liberty, Jan. 4, 2013, www.townhall.com/columnists/jeremytedesco/2013/01/04/the-julea-ward-settlement–a-win-for-religious-liberty-n1478423/page/full (last visited Sept. 25, 2013).

[11] Todd Starnes, NM Court Says Christian Photographers Must Compromise Beliefs, Fox News, Aug. 22, 2013, http://radio.foxnews.com/toddstarnes/top-stories/nm-court-says-christian-photographers-must-compromise-beliefs.html (last visited Jan. 7, 2014).

[12] Target druggist sues over “Morning-After” pill, Associated Press, December 1, 2007, available at www.wilx.com/news/headlines/11993791.html.

[13] North Coast Women’s Care Medical Group v. San Diego County Superior Court, 189 P.3d 959, 44 Cal. 4th 1145 (2008).

[14] Gay Colorado couple sues bakery for allegedly refusing them wedding cake, Associated Press, June 7, 2013, www.foxnews.com/us/2013/06/07/gay-colorado-couple-sues-bakery-for-allegedly-refusing-them-wedding-cake/ (last visited Sept. 26, 2013).

[15] Catholic Charities pulls out of adoptions, The Washington Times, March 14, 2006, available at www.washingtontimes.com/news/2006/mar/14/20060314-010603-3657r/.

[16] First Amendment, supra note 2.

[17] 50 U.S.C. § 456.

[18] Ariz. Const. Art. 20 § 1.

[19] Ariz. Rev. Stat. § 41-1493.01.

[20] Ariz. Rev. Stat. § 36-2154.

[21] Id.

[22] Id.

[23] Ariz. Rev. Stat. §§ 41-1493.04 and 41-3751.

[24] Elane Photography v. Willock, No. 33,687 (N.M. 2013).