Constitutional Forum Constitutionnel
Volume 29 | Issue 1 | 2020

Richard Moon* 

The term “conscience” is used in two different ways in discussions about religious freedom. Sometimes, conscience is contrasted with religion. Freedom of consciencein contrast to freedom of religion, is concerned with the protection of fundamental beliefs or commitments that are not part of a religious or spiritual system.1 Together, freedom of conscience and freedom of religion protect the individual’s most fundamental moral beliefs or commitments.2

Other times, though, the term “conscience” refers to a particular kind of accommodation claim. In most religious accommodation cases, an individual or group seeks to be exempted from a law that prevents them from engaging in a religious practice — for example, from wearing religious dress or keeping religious holidays. In conscientious objection cases, however, the individual asks to be exempted from a law that requires them to perform an act that they regard as immoral or sinful. In many of these cases the claimant asks to be excused from performing an act that is not itself immoral, but supports or facilitates what they see as the immoral action of others, and so makes them complicit in this immorality. In this comment I will focus on this second use of the term conscience, and more particularly the conscientious objection claim made by some medical practitioners in Ontario to the requirement that they provide an effective referral to another doctor when they are unwilling, for moral or religious reasons, to perform a particular medical procedure(…)

* Distinguished University Professor and Professor of Law at the University of Windsor

1 The term “freedom of conscience” was once used interchangeably with freedom of religion to refer to an individual’s freedom to hold beliefs that were spiritual or moral in character. At this earlier time the moral beliefs of most individuals were rooted in a religious system. Freedom of conscience, though, is now viewed as an alternative to, or extension of, freedom of religion.
2 However, as I have argued elsewhere, the conscience part of section 2(a) is seldom raised before the courts and may have very little practical content. See Richard Moon, “Conscience in the Image of Religion” in John Adenitire, ed, Religious Beliefs and Conscientious Exemptions in a Liberal State (Oxford: Hart, 2019) 73.