Law Commons^™

What Does Religion Have To Do With Freedom Of Conscience?, Steven D. Smith

University of Colorado Law Review

Although the framers of the First Amendment chose to protect "the free exercise of religion" and deleted language about 'freedom of conscience, " a widely-held modern assumption maintains that constitutional protection should extend to conscience generally, not just to religious exercise. But is this extension defensible? This article considers three classic rationales for religious freedom-the "separate spheres" rationale, the 'futility" rationale, and the "higher duties" rationale-and asks whether they justify protection of non-religious conscience. The article concludes that all of the classic rationales are vulnerable to serious objections. However, a somewhat different rationale, which might be called the "personhood" rationale, …