Wisconsin is About to Change How It Deals with Religion — and It's About Time

When an individual’s right of religious liberty clashes with the state’s interest, is the individual still afforded his or her right of conscience?

This national debate, sparked by Rep. Diane Black’s (R-Tenn.) introduction of the Healthcare Conscience Rights Act last year, has been recently reignited at the state level.  The Wisconsin legislature, through Assembly Joint Resolution 43 and Senate Joint Resolution 38, has begun a public hearing process on an amendment to their state constitution codifying a “right of conscience.” 

The following is an excerpt from the proposed amendment:

"The right of conscience, which includes the right to engage in activity or refrain from activity based on a sincerely held religious belief, shall not be burdened unless the state proves it has a compelling interest in infringing the specific action or refusal to act."

In the amendment, the most highly scrutinized idea is that the right of conscience grants a right of individuals to “refrain from activity.” This would essentially allow an individual to not participate or meet state requirements for state or local programs to which he or she has a religiously based moral objection. In the state history of Wisconsin (from Wisconsin v. Yoder to the 2008 Tomah High School settlement), the right of conscience has continually been a contentious issue and this amendment attempts to standardize the state’s position. 

Even in its nascent stage, the amendment’s public hearing on August 20 kindled a dispute between Wisconsin secularists and religionists. The former group's position, advocated by the Freedom From Religion Foundation, argues the amendment gives too much leverage to religious groups and that religious objections could be utilized to refuse “medical care for gravely ill children,” to hold back birth control, to deny marriage rights, and the bill could even “allow priests to refuse to report child rape without penalty.”

The latter group's position is articulated best by Wisconsin Family Action, who seemingly had a heavy hand in the drafting of the amendment. Their argument claims that the amendment merely, “restores the former, heightened standard of review of religious liberty claims… That standard requires courts to always weigh legitimate free exercise claims against compelling state interests.” 

Looking at these two leading arguments, the debate has been framed around questions of civil rights. On the one hand, the religionist position argues that the civil right of religious liberty codified in the right of conscience should be protected at all costs because it would be unjust for an individual to be compelled to believe or act contrary to his or her religious convictions.  On the other hand, the secularist position argues that when there is any potential at all for one’s person "civil rights" to conflict with another’s right of conscience, the "civil rights" should take precedence.

Considering the history and constitutionality of religious liberty in the United States, those in favor of the amendment have a more comprehensive understanding of the position of liberty, and therefore hold the stronger argument.

This position, building off of both religion clauses of the First Amendment, has the most thorough understanding of what religious liberty entails. Liberty, by definition, is a state of being free, and being free necessarily means that one has a choice. In making this choice, a host of factors can convince an individual to choose one option over another — for example, reason, emotion, material necessity, or faith can guide one’s decision. However, in order for any individual to have the full power of decision-making, he or she must be able to choose which of these factors matters most, and must have the right to do so free from state interference. For religious liberty to be expressed most fully, it inherently depends on the right of conscience. 

Some may disagree with this analysis and say that in order for the government to best serve the common good, the religious liberty rights of some should be compromised so as to promote the broader good. However, the amendment as written provides exception if “the state provides it has a compelling interest.”  While some religious actions will of course not be protected (think Employment Division v. Smith or Reynolds v. United States), the amendment simply places a greater burden on the state to prove its compelling interest.  

Since both the United States and Wisconsin constitutions already systematize the right of religious liberty, the right of conscience amendment is merely reshaping the debate and making an implicit right explicit in the law. If the government cannot prohibit the free exercise of religion, after all, it would be contradictory for that same government to compel citizens to act contrary to their exercise of religion.