I have been highlighting James Madison’s words on religious conscience on the PowerBlog over the past several weeks. The HHS Mandate is not simply an issue that can be wished, compromised, or willed away. Rick Warren’s statement, “I’d go to jail rather than cave in to a government mandate that violates what God commands us to do” is tied to Madison’s thoughts below. Madison has an understanding here that a citizen must be faithful to his religious conscience above and beyond any whims of the state. In fact, a citizen that is loyal to the higher order first can be compelled to act in good faith concerning the civil law. Thus to Madison, the highest law is the “Universal Sovereign” and man’s duty to his Creator trumps any civil pronouncement. Virginia’s advancement on the issue of religious liberty specifically found its way into the Bill of Rights.

The text below comes from “Memorial and Remonstrance Against Religious Assessments” written by Madison in 1785 as an argument against a bill in the General Assembly of Virginia that sought to levy a general assessment for the support of teachers of religions:

We hold it for a fundamental and undeniable truth, “that religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.” The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considerd as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.


  • Aaron

    What if religious conscience dictates to a person that they violate the rights of another person? It seems to me incorrect to argue unqualifiedly that religious conscience trumps civil pronouncements. A government that found a person acting according to his/her religious conscience, but violating others’ rights through that act, would be justified in removing that person’s freedom; i.e., putting them in jail.

    • Dan B.

      Constitutional rights are not the same as benefits resulting from a law or regulation.  It is entirely possible for government to make a law or devise a regulation providing a benefit that contrarily affects a religion, even inadvertently impinging on religion or practice thereof (conscience).  Government should recognize exceptions to preserve a greater good–witness special CO status for those who cannot serve in the military as combatants.  It is up to government of do so to avoid such conflicts. 

      What does it imply when government refuses to accommodate?  What about forcing all children to attend public schools when neutral educational criteria can be met in other ways?  What would it imply if the state refused to accommodate?  And so on. 

      Such accommodations are part of our way of life–they are how we minimize the conflicts you mention.  Minimize–but not eliminate.  Witness:  polygamy, withholding medical treatment, not paying taxes for consciences’ sake.  Such messy cases are adjudicated as violations of law that applies to everyone–not as a religious matter.  Plaintiffs still get to make their case and argue their mitigations, where they get to be heard by a jury of their peers/judge. 

      There is no top-down, ready-made solution to conflicts such as these.  But what if government is unresponsive?  The solution is finally “political”–i.e., vote them out of office and replace them with more accommodating officials.  Don’t make more laws to “fix” what can only be resolved (maybe imperfectly) at the local level with people who understand the problem at hand and can work toward a better situation for the parties involved.

  • RayNothstine

    Aaron,

    Good point. I think that is why it is important to read Madison and others in context on this issue. In this essay, Madison is saying that the state can’t be utilized to violate the religious held beliefs and conscience of the individual. The Bill of Rights is certainly set up to protect people from having their rights violated by another person. In Madison’s time, America was almost entirely Christian, whether practicing or nominally. The issue you raise has added significance and even nuances because of a diversity of faiths today. Do some faiths with the they are manifested today not work as well under our Constitution? It seems there is certainly some evidence of that.

  • Elise Hilton

     “Where there is no manifest and overwhelming public good involved, the
    state must yield to the rights of conscience so as not to create a
    dangerous wedge between its people and respect for law.” – Rebecca Ryskind Teti