The Supreme Court Says Conscience is Everything. Or Nothing. It Depends.
This article is part of our “Kennedy, Carson, and Dobbs: Law and Religion in Pressing Supreme Court Cases” series.
If you’d like to check out other articles in this series, click here.
The Supreme Court has long recognized the individual human conscience as sacred territory. One of the most famous expressions of this principle comes from Justice Robert Jackson in the 1943 case of West Virginia State Board of Education v. Barnette. He wrote: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
Over and over again, the Supreme Court has declared that every person’s conscience has a special standing in the constitutional order. Until now.
In its recent decisions in Kennedy v. Bremerton School District and Dobbs v. Women’s Health Organization, the Court considered two very different choices that have this in common: They are matters of conscience. One is a choice to engage in prayer on public school grounds. The other is a choice to abort a pregnancy. The Supreme Court recognized the first as a choice that belongs to an individual. The Court viewed the second as a choice that belongs to the majority of voters in a given state. The Court shrouded the first in an almost absolute protection against interference. The Court treated the second as entitled to no consideration at all.
In short, the Supreme Court now believes that the value of your conscience depends on who you are and what you think. This is a radical departure from the approach to conscience reflected in numerous Supreme Court decisions, including Barnette. The Court has plucked the fixed star from its place and has hidden that light under a bushel.
Let’s look more closely at these cases.
In Kennedy, a high school football coach adopted a practice of kneeling midfield after games to offer a silent prayer. Although he initially prayed by himself, the exercise grew over time. Students began to join him and he began to offer inspirational remarks. The school became concerned that these activities conflicted with the Establishment Clause of the First Amendment and directed Kennedy to stop.
Kennedy told the school that his sincerely held religious beliefs compelled him to continue praying, but that he would do so only under certain circumstances. Kennedy indicated that he would wait until the game was over and students were headed toward the locker room or the bus or were otherwise occupied. Concerned that this approach might still violate the Establishment Clause, the school responded by telling Kennedy that he could not engage in any actions that appeared to endorse prayer while he was on duty as coach.
The controversy did not go away. Sometimes players from the opposing team joined him on the field to pray. Sometimes members of the community did so. The school remained concerned about the demonstrative nature of the prayer while the coach was still on duty. Finally, the school placed Kennedy on administrative leave and decided not to re-hire him for the next season. Kennedy sued under both the free exercise of religion and free speech clauses of the First Amendment.
In upholding Kennedy’s right to engage in these prayers, the Supreme Court described how the lower courts had gotten things wrong. The lower courts had given Kennedy’s conscience no weight whatsoever, instead pivoting to the Establishment Clause and agreeing with the school’s view that it had the power to restrict his religious practice. This approach, the Supreme Court declared, did not give adequate weight to Kennedy’s beliefs and commitment to pray, which were plainly protected by the free exercise clause.
The lower courts had followed the test set forth in Lemon v. Kurtzman, which focused on the question of whether the practice at issue created an appearance of government endorsement of religion. In Kennedy, the Supreme Court found that this was the wrong question and jettisoned the Lemon test. That test had been widely criticized but it had endured for roughly half a century. Justice Scalia once compared it to a ghoul in late-night horror movie that keeps coming back to life.
The Court declared that the right question in Establishment Clause cases is a simple historical one: Would the practice at issue have been permissible in the eyes of the Founding Fathers? If so, then that ends the inquiry. In this case, the Court reasoned, nothing in the history of the Establishment Clause suggested that the founders would have viewed the coach’s brief and personal post-game prayer as problematic.
The Court concluded its opinion by celebrating Kennedy’s faith and his right to exercise it. “Respect for religious expressions,” the Court declared, “is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head.” The lower courts had blundered by not placing sufficient value on the individual human conscience. The Establishment Clause did not hold veto power over that “indispensable” component of freedom.
In Kennedy, the Court sees conscience as an individual matter, very much in the spirit of Barnette. The Constitution leaves to me the decision of whether I will pray faithfully or rail against God, whether I will salute the flag or burn it, whether I will pledge allegiance or take a knee. I have the freedom to make those choices without putting them to a vote.
Of course, it is possible that within a given community there is some consensus around such matters. In a particular state, for example, most people might view the Lord’s Prayer as a sacred text that should be recited daily. But we don’t throw up our hands and say we’ll let the majority arrive at some sort of “collective conscience” on behalf of all of us. To the contrary, the Bill of Rights exists to insulate individual choices from popular whims and tyrannies.
And that brings us to Dobbs. In this case, the Supreme Court considered a challenge to a Mississippi law that severely restricted access to abortion. The Court not only upheld the law, but overruled its decision in Roe v. Wade, a precedent that had stood for almost half a century.
Dobbs is a long, complex, and fraught decision about which much can be said. For present purposes, the most interesting part of the majority opinion is that it acknowledges that the issues implicated by abortion are moral ones and matters of conscience. In this context, however, the Court gave no weight at all to the individual conscience of a woman deciding whether to have an abortion.
To be clear, if the Court had done so it would not necessarily have reached a different result in the end. It might have found that the woman’s right to freely exercise her conscience is outweighed by a conflicting value, such as a compelling state interest to protect the unborn. In my view, however, it’s important to put that argument aside so we can see the extraordinary nature of the Court’s reasoning here.
In Kennedy, the football coach’s choice to pray after a football game received so much deference that it seems as if nothing short of a disapproving note co-signed by Thomas Jefferson and James Madison would have induced the Court to find the practice unprotected. In Dobbs, however, the Court treats a woman’s choice to abort a pregnancy as just another one of life’s many decisions. Indeed, the Court resorts here to the weak language of the woman’s “interest” in making this choice.
Presumably it would make no difference to the Court if the woman made this decision after praying devotedly, consulting the sacred texts of her faith, and talking with her ordained spiritual advisor. Her conscience would still count for nothing. Nothing at all.
To compound the offense, Dobbs relocates this matter of conscience to the will of the majority within each state. The states can figure out how to balance the competing “interests,” the Court declares. But this reasoning empowers the states to give the woman’s conscience no weight at all — which is exactly what a number of states have done in the “balancing” process that has ensued post-Dobbs.
Imagine a similar move in Kennedy. Envision the Court saying: “Well, some people find prayer by public school employees inspirational; others find it offensive; it’s a decision best left to the collective conscience; we’ll let the states sort it out.” Such a result is unthinkable. And it should have been unthinkable in Dobbs as well.
The Court’s notorious troika of recent decisions also includes New York State Rifle & Pistol Association v. Bruen. In that case, the Court struck down New York’s century old firearms regulation under the Second Amendment. At the end of the opinion, the Court huffily declares that the Second Amendment is not a second-class right.
It is tragic that the same Court felt such comfort in endowing women with a second-class conscience. ♦
Len Niehoff is a Professor of Practice at the University of Michigan Law School, where he teaches courses in Civil Procedure, Ethics, Evidence, First Amendment, Media Law, and Law & Theology. His most recent book is Free Speech: From Core Values to Current Debates, published by Cambridge University Press.
Niehoff, Len. “The Supreme Court Says Conscience is Everything. Or Nothing. It Depends.” Canopy Forum, July 27, 2022. https://canopyforum.org/2022/07/27/the-supreme-court-says-conscience-is-everything-or-nothing-it-depends/