Libertarian philosopher and historian George H. Smith (1949–2022), in his collection of essays titled Freethought and Freedom, incisively remarked that “without freedom of conscience no other freedoms are possible.” It is my contention that freedom of conscience is under attack right now — in the third decade of the twenty-first century — more so than at any other time in history.
Freedom of conscience is not mentioned in the U.S. Constitution. The closest thing to it is found in the First Amendment, which reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The “establishment” and “free exercise” clauses of the First Amendment are generally thought of as protecting the freedom of religion, which is sometimes identified with the freedom of conscience. Related to this is the prohibition of religious tests for federal office found in the third clause of the Constitution’s article VI.
But freedom of conscience cannot be limited to just religion. The Universal Declaration of Human Rights (UDHR), proclaimed by the United Nations General Assembly in 1948, “sets out, for the first time, fundamental human rights to be universally protected.” Articles 18 and 19 relate to freedom of conscience:
- Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
- Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
The International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly in 1966, and effective in 1976, expanded these two articles and added a caveat to each one:
18.1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
18.2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
18.3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
19.1. Everyone shall have the right to hold opinions without interference.
19.2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
19.3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.
We may thus define freedom of conscience as the freedom of an individual to hold a viewpoint, belief, or thought — religious or otherwise — without state interference, coercion, or molestation.
Freedom of religion is certainly a major part of freedom of conscience. Americans generally take religious freedom for granted because it is so ingrained in American culture. Such was not always the case, however, especially in colonial New England. The story of the banishment of Anne Hutchinson and Roger Williams from the Massachusetts Bay Colony is well known. Even for several years after the adoption of the Constitution, the new states of Connecticut, Massachusetts, and New Hampshire had established churches.
But in many countries of the world, even in the twenty-first century, freedom of religion is precarious. In compliance with the International Religious Freedom Act of 1998, the U.S. State Department submits an annual report to Congress on international religious freedom that “describes the status of religious freedom in every country.” The report covers government policies violating religious belief and practices of groups, religious denominations and individuals, and U.S. policies to promote religious freedom around the world.” For example, in Saudi Arabia:
The country’s official religion is Islam and the constitution is the Quran and Sunna (traditions and practices based on the life of the Prophet Muhammad). The legal system is based largely on sharia as interpreted by the Hanbali school of Sunni Islamic jurisprudence. Freedom of religion is not provided for under the law. The law criminalizes “anyone who challenges, either directly or indirectly, the religion or justice of the King or Crown Prince.” The law bans “the promotion of atheistic ideologies in any form,” “any attempt to cast doubt on the fundamentals of Islam,” publications that “contradict the provisions of Islamic law,” and other acts, including non-Islamic public worship, public display of non-Islamic religious symbols, conversion by a Muslim to another religion, and proselytizing by a non-Muslim.
Most Americans and citizens of other “free” countries — whether they are religious or not — are justly horrified at such a disregard for religious freedom. But as I have maintained, freedom of conscience cannot be limited to just religion.
Violations of conscience
Violations of freedom of conscience are now a regular occurrence in America and other “free” countries. Last October, PayPal announced a disturbing revision to its terms of service, and then retracted it. Users who “promote misinformation” could lose their accounts and have $2,500 taken out of them for each violation at PayPal’s “sole discretion.” And aside from this, “prohibited activities” that could also trigger a $2,500 fine include any activities that relate to transactions involving “intolerance that is discriminatory.” But as we know all too well, bans on “misinformation” by tech companies and social media platforms are applied almost exclusively to those who question or criticize government policies, woke ideology, or a progressive worldview.
It used to be that you were just looked down on for holding “politically incorrect” ideas or called a crackpot or conspiracy theorist for thinking contrary to the official narrative of the regime historians regarding the causes of the Civil War, the necessity of the atomic bombing of Japan, municipalities adding fluoride to drinking water, the JFK assassination, the events of 9/11, the necessity of the Cold War, World War II as a “good” war, and the attack on Pearl Harbor. But now anyone who questions the integrity of the 2020 election, anthropogenic climate change, transgenderism, the merits of recycling, the effectiveness of the COVID vaccine, or the efficacy of the vaccines in general is shunned or canceled.
But, it is argued, these violations of conscience are committed by private actors. True, but violations of conscience are routinely committed by government entities as well, with even worse consequences. There is no greater current example of this than the tyrannical response of federal, state, and city governments to the COVID-19 “pandemic.” And there has been no greater violation of freedom of conscience than
COVID-19 vaccine mandates.
In New York City, all municipal employees were required to take the vaccine, and over 1,500 municipal workers were fired for refusing to be vaccinated. Businesses in the city were required to mandate that their employees got vaccinated. The city also required for a time that patrons of restaurants, bars, entertainment venues, and gyms be vaccinated or be refused admittance. California was the first state to require that all teachers and staff in K-12 public and private schools be vaccinated. The state has also announced a vaccine mandate for students but has not implemented it yet. The federal government, via the Occupational Safety and Health Administration (OSHA), issued an “Emergency Temporary Standard” (ETS) requiring that businesses with 100 or more employees mandate that they get the vaccine.
Businesses that refused to abide by the rule faced heavy fines of up to $136,532. President Biden also issued an executive order requiring vaccination for all federal employees. Although these mandates are no longer in force, the Department of Defense still requires that all U.S. troops and Defense Department personnel get vaccinated. And according to the Military Times, “at least 3,400 troops have already been involuntarily separated from service for refusing to get the COVID-19 vaccine in recent months.” Non-U.S. citizens are still required to show proof of being fully vaccinated before they are allowed to travel by air to the United States from a foreign country.
But what if someone doesn’t want to get the COVID-19 vaccine? What if someone thinks that the vaccine doesn’t work? (And if the vaccine does work, then whom is he harming by not getting it but himself?) What if someone thinks that the risks of the vaccine are greater than the benefits of the vaccine? What if someone thinks that the vaccine has not been adequately tested and therefore wants to wait a while before getting it? What if someone thinks that the vaccine is unnecessary? What if someone thinks that adults shouldn’t need to get any vaccines? What if someone thinks that the vaccine is harmful? What if someone thinks that the vaccine is deadly? What if someone thinks that although the vaccine might be a good thing, he questions the government’s pressuring people into getting it? What if someone is not sure about the effects of the vaccine on his children and wants to err on the side of caution and not get them vaccinated? What if someone just wants to weigh the evidence and make up his own mind about the vaccine?
The answer can be found in the world of professional wrestling. The popular wrestler Dwayne Johnson — known as The Rock — would often while doing an interview — famously, and to great comic effect — ask the interviewer a question about what he thought about something, but then when the unsuspecting interviewer started to answer, Johnson would immediately shout out: “It doesn’t matter what you think.” As far as the government is concerned, it doesn’t matter what you think about the COVID-19 vaccine. And this is what is so insidious about violations of freedom of conscience: They target not actions, but nonactions — thoughts, beliefs, opinions, feelings, viewpoints, conclusions, attitudes, notions, perspectives, judgments, and ideas. But even before the “pandemic,” there was a violation of conscience that was, and still is, just as insidious. And even worse, this violation of conscience is universally accepted by people from all walks of life and every political persuasion. I am talking about anti-discrimination laws.
A man used to be lauded for having discriminating taste, but now he is lambasted for being discriminatory. Notice the difference between discrimination in the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966). It started out innocuously as: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” But then it was insidiously expanded: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Likewise in the United States, the list of protected classes keeps growing. What began in the Civil Rights Act of 1964 as discrimination against an individual’s race, color, religion, or national origin now includes the constructs of sexual orientation and gender identity.
Consider the ongoing case of Jack Phillips, the owner of Masterpiece Cakeshop in Denver. In 2013, he was accused by Colorado’s Civil Rights Commission (CCRD) of discriminating against a homosexual couple because — based on his religious beliefs — he refused to bake them a cake for their “wedding.” An administrative law judge ruled in favor of the couple. The decision was appealed to the Colorado Court of Appeals, which again ruled in favor of the couple. The U.S. Supreme Court eventually heard the case in 2018, but it ruled in favor of Phillips because “the Commission’s actions here violated the Free Exercise Clause.” Soon after the decision, Autumn Scardina requested that Phillips bake him a “gender transition” cake that was pink on the inside and blue on the outside. When the baker refused, another discrimination complaint was filed with the CCRD. After Phillips countersued, the state of Colorado and the baker mutually agreed to drop their lawsuits. But then Scardina filed a civil suit in state court and won the case. Phillips was fined $500 and appealed. What he believed about religion, thought about sexual orientation, concluded about same-sex marriage, and felt about gender identity was irrelevant to the government entities that ruled against him. Phillips hit the nail on the head last year when he said, as reported by the AP, that he was fighting for the rights of all Americans to live according to their consciences “without fear of punishment” by government.
Antidiscrimination laws are the ultimate violation of freedom of conscience because they target not actions, but nonactions. Discrimination — against any individual or group, on any basis, and for any reason — is not aggression, force, coercion, threat, or violence. It is therefore a crime in search of a victim. Every real crime needs an identifiable victim who has suffered measurable harm to his person or measurable damages to his property. The law should only be concerned with conduct and actions, not thoughts and opinions. Discrimination should therefore never under any circumstances be a crime. Thinking a certain way about a person because of his race, color, religion, sex, sexual orientation, gender identity, appearance, language, disability, age, national origin, socio-economic status, political party, or hair style may be bigoted, sexist, homophobic, xenophobic, racist, illogical, intolerant, narrow-minded, closed minded, absurd, immoral, or foolish, but the right to discriminate is essential to a free society.
In a free society, everyone has the natural right to believe, think, or imagine whatever he wants to believe, think, or imagine about any individual or group, and then to choose to associate with or not associate with, employ or not employ, rent to or not rent to, serve or not serve, date or not date, loan money to or not loan money to, go into business with or not go into business with, sell to or not sell to, or buy from or not buy from any individual or group on the basis of those beliefs, thoughts, or imaginations. Those beliefs may be erroneous, those thoughts may be irrational, and those imaginations may be nonsensical, but in a free society, everyone is entitled to have his own beliefs, thoughts, or imaginations. They may be based on stereotypes, prejudice, or bigotry, and the acts of discrimination that they engender may be arbitrary, capricious, or subjective, but in a free society, the right to discriminate is essential and absolute. Discrimination should be lawful because in a free society, no one has the right to any particular employment opportunity, hotel to stay at, house to buy, apartment to rent, person to date, spouse to marry, friend to hang out with, church to attend, club to join, association with any group, membership in any organization, or business to patronize.
The libertarian position on discrimination has nothing to do with racism, sexism, prejudice, bigotry, or hate; it has everything to do with property rights, freedom of contract, freedom of association, and, most importantly, freedom of conscience.
This article was originally published in the January 2023 edition of Future of Freedom.