Issue Brief: Who Has Freedom to Exercise their religion?

Rights of Conscience


Conscience rights

The father of the Bill of Rights, James Madison, held a positive view to the right of conscience. Rather than just merely tolerating it, the right of conscience should be understood as a basic civil right awarded to all men by God. The founders agreed with Madison’s stance on the right of conscience and ensured to include it within the founding documents. This right is one that extends to today as it is a direct relation to our ability to answer to the God we believe to have given us our rights to begin with; it honors Him with a sense of responsibility to His ultimate law.


What is a Conscience Right and Who Has It?

The right to live and work in a way that is dictated by the standards of one’s conscience is something that all Americans are entitled to. No one should have to fear punishment from the government for simply doing what the First Amendment protects and “exercising” their religion freely. This freedom applies to all Americans and includes working professionals. Even those that are licensed professionals should be able to operate freely based on their religious convictions. This is nothing to be penalized for.
The U.S. Constitution already provides protections for such individuals and recent Supreme Court decisions have echoed it as well. Delaware laws should speak to such protections as well to provide important protections for professionals to live out their faith in the public square.

Constitutional protections enable Delawareans, including professionals, to live out their religious faith in the public square. Under the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” The First Article of Delaware’s Bill of Rights also provides that “no power shall or ought to be vested in or assumed by any magistrate that shall in any case interfere with, or in any manner control the rights of conscience, in the free exercise of religious worship.” In addition to these constitutional religious freedom protections, three recent Supreme Court decisions, Delaware’s Bill of Rights further strengthen the rights of conscience for professionals.​


Supreme Court Case Protections

In 2018, the U.S. Supreme Court handed down three significant decisions that further protect professional speech under the First Amendment. In National Institute of Family Life (NIFLA) v. Becerra, 138 S. Ct. 2361 (2018), the court rejected the idea that state-licensed professionals receive less First Amendment protection: “This Court has not recognized ‘professional speech’ as a separate category of speech. Speech is not unprotected merely because it is uttered by ‘professionals.’” 138 S. Ct. 2371-72. The Court goes on, “regulating the content of professionals’ speech ‘poses the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.’” Id. at 2374. The Court concludes, “‘the best test of truth is the power of the thought to get itself accepted in the competition of the market,’ and the people lose when the government is the one deciding which ideas should prevail.” Id. at 2374-2375. Based upon this reasoning, the Court ruled it was unconstitutional for California to compel pro-life pregnancy centers to promote abortion in its facilities. Right of Conscience violations should be reported to the Federal Health and Human Services under Secretary Azar Office, to the Office of Civil Rights by filing an official complaint.

In Janus v. American Federation of State, County, and Municipal Council 31, 138 S. Ct. 2448 (2018), the Court held Illinois could not require public employees to pay an “agency fee” to a designated union (used in part for lobbying, advertising, conventions, etc.) because the government cannot “compel[] individuals to mouth support for views they find objectionable.” 138 S. Ct. at 2463. The Court made clear that when the government “prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines” the right to free speech. Id.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), the Court ruled the Colorado Civil Rights Commission violated Jack Phillips’s religious freedom because it showed “clear and impermissible hostility toward [his] sincere religious beliefs” regarding marriage and it unequally applied Colorado’s nondiscrimination law against him. id. at 1729. In so holding, the Court established: 1) when laws and policies treat people unequally because of their religious convictions it is evidence of unconstitutional religious hostility, and 2) speech regarding marriage, sexuality, and gender are protected under the First Amendment. 138 S. Ct. at 1727.

Right of Conscience violations should be reported to the Federal Health and Human Services under Secretary Azar Office, to the Office of Civil Rights by filing an official complaint.

Talking Points

  • 01. The “right of conscience” is often used when referring to religious freedom, which is a constitutional right. 
  • 02.  The First Amendment to the Constitution guarantees a free “exercise” of religion, which is to say the robust and active practice of it. Individuals have the right to carry their faith and convictions with them in all aspects of life, extending beyond just their specific house of worship.
  • 03. Though the government is not to establish a state religion, the participation in different religious communities is not to be penalized. 
  • 04. Religious liberty, having a right of conscience, is not bigotry. miscarried at 20 weeks is able to have recognition for both their life and death. 


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