Obeying Conscience: The Commands and Costs of Resisting the Law
Jeffrey B. Hammond
The following is an adapted excerpt from the chapter “Obeying Conscience: The Commands and Costs of Resisting the Law” from the book, Faith in Law, Law in Faith: Reflecting and Building on the Work of John Witte, Jr. (2024). Reprinted under Creative Commons Attribution Non-Commercial License (CC-BY-NC). This is part of a series of Literature Highlights dedicated to celebrating John Witte Jr.’s work. Read more here.
Conscience is making a comeback. To be sure, the working out of conscience is as old as Adam and Eve hiding from the Lord in the Garden of Eden after they ate the forbidden fruit. Socrates drank the poisonous cup because his conscience would not relent to the demands of the elders of Athens. And conscientious objection to war is no new thing—thousands of conscientious objectors have refused service in war, with objections to the Vietnam War the most resonant modern example. Some people have even made refusing to take the COVID-19 vaccine a matter of religious conscience. Conscience is not new, but it is asserting itself as never before. And the exercise of conscience has become a calling card among conservative Christians (including conservative Protestants) to distinguish the demands of their faith from that which is more culturally conditioned. Christians like the photographer Elaine Huguenin, the florist Barronelle Stutzman, the football coach Joseph Kennedy, and the baker Jack Phillips have all taken stands, particularly on culturally fraught issues like marriage and public prayer. All have suffered significant personal consequences for refusing the demands of state and federal law that otherwise would have compelled them to act in a way that, once done, would have left their very beings violated.
One should not think, however, that conscience and its exercise are limited to Christians who make grand gestures and bold stances for their faith. The otherwise anonymous Christians mentioned above, who have stepped out on legal ledges, sometimes to fall, for the demands of their faith (as they discern those demands) are nonexclusive examples of what it means to have and exercise a conscience. Some of these examples have discerned and deployed their consciences in wiser ways than others. Nevertheless, a sensitive conscience is available for every follower of Jesus, and deploying it is not meant solely for challenges the Christian might deem existential. It is a capacity to be honed and used in daily living. The well-developed conscience for the Christian is intimately tied to the Christian journey of sanctification. A clarifying point is in order: religiously informed conscience is related to, but not the same as, free exercise of religion. It is common for these terms to be conflated (287). Free exercise is both a constitutional category and a latticework of protections meant to absolutely protect internal beliefs and contingently protect outward acts. (303,304) Conscience, on the other hand, is the filter by which the person is motivated to believe or act or refrain from believing or acting in a certain way and for or against a particular end.
What is unique about Stutzman, Phillips, and the others mentioned above is that they assessed their consciences and then made decisions based on those consciences, and what resulted were state and federal free-exercise cases. Conscience is the interior forum. Free exercise is the outer fight. It is therefore important to continue to target and refine a distinctly Protestant view of conscience. This is not because Roman Catholic treatments of conscience are deficient. They are, however, particularly focused. Saint Thomas Aquinas, the fountainhead of Catholic theorizing on conscience, has emphasized the role of reason in determining the demands of conscience. (112) It is an important observation that should not be bypassed or glossed over. Unsurprisingly, though, a uniquely Protestant treatment of conscience will lift up revelation and spiritual leadership over against reason and calculation.
This chapter is dedicated to my teacher Professor John Witte. Both in his law school courses in legal history and constitutional law, and in my work with him as a research assistant, Professor Witte taught me about the magisterial Protestant teachings on conscience, beginning with Martin Luther’s famous (if partly apocryphal) declaration to the emperor at the Diet of Worms in 1520: “My conscience is captive to the Word of God. Thus I cannot and will not recant, because acting against one’s conscience is neither safe nor sound. Here I stand; I can do no other. God help me. Amen.” He taught me about the history of freedom of conscience claims in the Western legal tradition, and especially in the history of American constitutional law. And he commissioned me to coedit a large volume on Christianity and the Laws of Conscience in the Cambridge Law and Christianity Series that he edits.
In essence, conscience is a monitor. It is a faculty of knowledge, discernment, and judgment, that compares a person’s thoughts, words, and actions in light of that person’s deeply held and firmly committed-to moral standards. Conscience does have a filtering function—everything that one thinks or does is poured through her conscience to see if it resonates with her previously staked out ethical positions. But if conscience has a monitoring function, it also has a straightening function. If a person’s spine is bent, then the person cannot walk straight. But once the backbone is righted, the person can both see what is in front of him and then take confident steps. Similarly, failing to heed the conclusion provided by conscience’s monitoring function leads the person to speak distorting words and walk crooked steps.
But that same conscience, once obeyed, empowers the person to see what is in front of him—that is, his world properly calibrated by his own ethical standards. And once corrected by conscience, the person can then walk confidently, with integrity, knowing that his actions are aligned with what he knows to be right. The Bible seems to endorse the role of conscience as a monitor or a mirror. For example, in a famous extended passage on conscience, the Apostle Paul indicates that it can have intuitive knowledge of right and wrong whose provenance is separate from the principles of morality themselves. Paul explains:
Indeed, when Gentiles, who do not have the law, do by nature things required by the law, they are a law for themselves, even though they do not have the law. They show that the requirements of the law are written on their hearts, their consciences also bearing witness, and their thoughts sometimes accusing them and at other times even defending them (Romans 2:14–15, NIV).
The consciences of the law-abiding Gentiles were innate monitors. The moral demands of God’s law were “written on their hearts” that “bore witness” to their actions—either praiseworthy, in following the law, or blameworthy in disobeying it. Notice the distinction that Paul makes: the demands of the law are separate from the Gentiles’ hearts that both knew and kept those demands. Also notice that in “bearing witness,” their consciences always told the truth about the actions they undertook as knowers of the law. That their consciences would cause their thoughts to sometimes accuse them must mean that those consciences were honest, not merely reflexively endorsing actions that happened to meet the requirements of the law. Although conscience has monitoring and straightening functions, it is not necessarily an “all or nothing” proposition.
A person can perfectly obey the demands of conscience and have no qualms about the resulting actions. Or a person can be confronted with a particularly troublesome dilemma—one that musters significant consequences to his career, reputation, or relationships— and can choose actions that his conscience is warning against. In that respect, the person “sears” his conscience against a robust application the next time such a harrowing dilemma is put to him. (See 1 Timothy 4:2, which speaks of “the insincerity of liars whose consciences are seared” [ESV]). It is true that if the person obeys his conscience after first disobeying it, this will have an effect of restoring him to moral wholeness. It is also true that if he disobeys his conscience in a particularly thorny situation, it will be incrementally harder to obey the next time hard circumstances confront him.
Biblical theology helps the Christian see that conscience is a Bible-spanning concept and a basic constituent of God’s people. The Holy Spirit is the agent that enlivens the Christian’s conscience, and in the process of sanctification, the Christian cooperates with the Spirit to refine her conscience. Law is a background system of control that spars with conscience. It is therefore instructive to see how law interacts with conscience.
Much of law, maybe even most of it, is meant to fill in the blanks for a particular regulatory scheme that does not spark interest in or concern by the public. Simply, much of law is simply the working out of the rational will of the lawmaker, or determinatio (284-89). Determinatio implies the good faith effort of the lawmaker to make the substance of a law fulfill the law’s goals. Further, determinatio has much to do with the coordination function of law. So, to use a well-known example, if the goal is to have a system whereby traffic freely moves with a minimum of accidents, it is not necessarily an ethical problem that cars must be driven on the right-hand side of the road or that the speed limit is 35 miles per hour. Those realities exist because sides of the road and speed limits must be chosen, or else chaos will ensue (21). Determinatio implicates need. A side must be chosen, or else the goal (clean water, safe driving, buildings that stand) will be foiled. Conscience, however, implicates the self. It implicates the person’s deepest-held values and innate sense of right and wrong. In making a conscientious choice, the person compares the demands of the law with what she knows to be right and wrong.
However, it is hard to think of a situation in which a law that is rounded out by the technical, detail-oriented choices of the lawmaker implicates conscience (285). Rather, for most laws, the law simply is, and the person should have no problem in obeying it. But most laypersons do not have a strong sense of what it takes to make law. They do not consider that most law consists of mundane details and not dichotomous applied ethical puzzles. I contend that the vast majority of people in the United States and other Western countries give little thought to the deeper purposes that go into creating and enforcing law, and rather think of law in terms of the consequences that will come to them if they break it. These people reflexively are Austinian positivists.
In brief, the legal positivism coming from the nineteenth-century jurist and legal philosopher John Austin essentially sees law as a system of social control consisting of orders from a sovereign backstopped by the prospect of force. This is what law is. The lawmaker says, “Do X, but if you don’t, your freedom will be limited or you will receive some other punishment.” Most people accept this and the fact that it is a system of social control ultimately rooted in consequentialism. Obey the law and skirt the consequences. Break the law and suffer the consequences. And this form of consequentialism is a cousin to its intellectual forebear, utilitarianism; for Austinian positivism, at bottom, is perhaps not about gaining the “pleasure” that comes with obeying the law, but avoiding the pain that comes with disobeying it. Those consequences can be significant: loss of freedom, loss of money, restrictions on one’s business, and loss of reputation and concomitant branding as someone who breaks the law.
Austinian positivism is a worldview that prizes, above all else, pliant citizens who willingly bend themselves to the expressed will of the lawmaker. It is a view of society that is top down and prizes the authority held by the lawmaker over against the lack of authority and agency held by citizens. If law is threats backed by force, then the number-one objective of someone with an Austinian worldview is not to have force applied to them. That must mean, of course, that that person obeys the law, whether they want to or not, and whether or not that law violates the person’s most deeply cherished values that reflect their deepest and most authentic sense of self. For the Austinian positivist, it is more important to comply and keep regular order than to veer out of line and challenge a law that she thinks is unjust. A view of law that focuses on determinatio trusts the lawmaker in fashioning law. A view of law that sees it as threats backed by force is apprehensive of both law and those that enforce it.
There is a third way, however. The person who takes this middle path can acknowledge the dual realities of the modern administrative state: that the lawmaker must have wide latitude to “fill up” the details of a regulatory scheme, and the citizen must be wary of certain laws that carry heavy punishments. The citizen knows not to murder because that crime carries the very real possibility of indefinite imprisonment or forfeiture of life. In this way, Austinian positivism has a chastening effect—keeping the citizen in line. The Christian should not lose sight that there is more than a hint of Austinianism in the Bible. Conscience is not a “get out of jail free card” for any and all legal or moral obligations. In fact, the vast latticework of legal obligations the conscientious Christian will abide by as a matter of course and will not give a second thought to resisting. Conscientious disobedience is extraordinary and not routine.
To the extent that the person senses that her innermost, religiously informed, and religiously formed self is at stake, to that extent she will make conscientious decisions to refuse to do what the law demands. If, however, she perceives that what is most “core” about her vis-à-vis what the law demands is not at stake, she will not believe it necessary to make a conscientious decision. One last point about the values/identity approach: one should not be naive and expect this way of thinking about conscience to be restricted to socially conservative Christians. This is a particular Protestant and personal approach.
There are three possibilities for action after the Christian has made a conscience-based decision. The Christian may refuse to obey the legal mandate that, if obeyed, would violate her conscience. Or the Christian may ignore her conscience and obey the legal mandate. Or the Christian may initially refuse to obey the offending legal mandate but later relent and obey it. The contemporary examples of Christian conscience set out in this chapter—Jack Phillips, Barronelle Stutzman, and Elaine Huguenin—have been of the first type, that is, of refusing to participate in the action mandated by existing law. And all three creators experienced significant consequences to their businesses and reputations for refusing to create an artifact that represented, to them, something false.
A couple of lessons can be drawn from the “resist first” approach—one that forthrightly engages conscience and, at the same time, steers close to an Austinian view of law, in that consequences of noncompliance are laid bare. First, the creators mentioned above have viewed success—or at least the absence of conflict with respect to their career or anything else—as not as important as obedience to the big-picture principles of what they believe the Bible teaches. They perceived the demands of integrity to be far more important than the relative temporal success brought by going along with mandates they despised. Second, Christians who follow this “resist first” approach should expect their lives, after the decision to resist, to be much more difficult. It is not only that their professional lives likely will not flourish, but those lives will be beset with problems they might not have anticipated when they made the choice to resist.
Take, for example, the most obvious problem: litigation. When the wedding creators chose not to make custom creations, those who were refused service did not quietly slink away. They believed that their actionable legal rights were violated, and they pressed those rights before courts and other enforcement bodies. Civil litigation is hard; it is burdensome; it creates stress and uncertainty in plaintiffs who file complaints and defendants who file answers. There are consequences to refusing to do what the mandates require, and it is not obvious that a person should expect to escape those consequences because she is convinced that her reasons for refusing are just or align with the resistor’s religious beliefs. Crippling fines, loss of customers, much less loss of the business itself, family strife, and loss of peace, are just some of the repercussions that flow to the person who resists. No one wants this kind of fallout in their life. They invite it and should expect it, however, if they resist what the law demands. If they somehow escape life-altering aftereffects, they should count themselves fortunate.
The Christian who takes a “refuse first” approach to conscience should not expect to get an exemption from the law’s demands, and she should be ambivalent about receiving one. Biblical conscience is primarily about obeying the Bible’s directives, as the Christian understands them. Conscience-based obedience has a distinct “in for a penny, in for a pound,” flair to it. The conscientious Christian will soberly reflect on and internalize this prediction from Jesus: “If the world hates you, keep in mind that it hated me first” (John 15:18, NIV), and from Paul: “For it has been granted to you on behalf of Christ not only to believe in him, but also to suffer for him” (Philippians 1:29, NIV).
Second, the Christian who obeys a questionable legal mandate chooses between two options. First, he might have justified to himself that the legal mandate does not implicate the core of his Christian faith. For example, with respect to the wedding-vendor cases, the Christian could view providing creative services for gay couples as a way of demonstrating Christian charity or acceptance. But, on the other hand, the Christian may have considered the consequences of disobedience to be too much to bear. This person lacks courage. For this Christian, the status quo and an undisturbed life are superior to stepping out and making their actions congruent with their beliefs. But the most perplexing action to take in the face of the prompting of conscience is to first resist what the conscience believes to be an evil mandate and then later give into that mandate. The person who takes this route counts the cost of conscientious resistance and, after traveling on that road and experiencing the consequences of resistance, turns back and relents to the mandate. This is the route of rationalization—of justifying that going back on conscientious resistance, once made, will make for an easier life. This route does not start out as consequentialist, but it ends up there. ♦
Jeffrey B. Hammond is a Professor of Law at Faulkner University’s Thomas Goode Jones School of Law in Montgomery, Alabama. He teaches courses in law and theology, constitutional law, jurisprudence and legal theory, and legal ethics. He is a Senior Fellow of Emory University’s Center for the Study of Law and Religion. His scholarship focuses on the intersection of Christian theology and legal theory. In 2021, Cambridge University Press published Christianity and the Laws of Conscience: An Introduction, a volume in the Cambridge Studies in Law and Christianity series that he co-edited with Helen M. Alvaré. Hammond graduated from the Emory University School of Law and the Candler School of Theology in 2001.
Recommended Citation
Hammond, Jeffrey. “Obeying Conscience: The Commands and Costs of Resisting the Law”. Canopy Forum, August 28, 2024. https://canopyforum.org/2024/08/28/obeying-conscience-the-commands-and-costs-of-resisting-the-law/
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