Steven D. Smith


Although the framers of the First Amendment chose to protect "the free exercise of religion" and deleted language about 'freedom of conscience, " a widely-held modern assumption maintains that constitutional protection should extend to conscience generally, not just to religious exercise. But is this extension defensible? This article considers three classic rationales for religious freedom-the "separate spheres" rationale, the 'futility" rationale, and the "higher duties" rationale-and asks whether they justify protection of non-religious conscience. The article concludes that all of the classic rationales are vulnerable to serious objections. However, a somewhat different rationale, which might be called the "personhood" rationale, is more successful, and the personhood rationale warrants protection for both religious and non-religious conscience. In the final section, the article asks whether the personhood rationale is ultimately religious in character and concludes that even if it is, the scope of protection for conscience that it supports should not be confined to religious belief and exercise.