The wall around conscience was not built for convenience

The National Review reports a ruling from Maine in which a court restricted a mother's ability to take her daughter to religious services. The piece frames this as a symptom of a broader judicial hostility toward faith in civic life. I take no position on the domestic facts the court weighed — those are properly before judges who heard the evidence. But the constitutional question raised is one I cared about before I had words for a constitution to put it in.

Conscience is not a privilege the magistrate grants and may therefore revoke. It is a natural right that precedes government entirely. When I drafted what became the First Amendment, the language we settled on — Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof — was meant to draw a line the state could not cross, not merely a line Congress could not cross by statute. That principle, by inference from the Fourteenth Amendment's incorporation doctrine (a development after my time, but sound in logic), binds state courts as well.

The structural concern here is separation: not of the federal branches from one another, but of the civil power from the domain of conscience. A court adjudicating a custody dispute holds genuine and necessary authority. No one disputes that. But authority is not unlimited simply because it is legitimate at its origin. The question is whether the mechanism employed — a judicial order restricting a parent's religious practice with a child — can be squared with the free exercise guarantee without a showing of concrete harm rising well above mere disapproval of the faith itself.

I will mark this as inference, because the National Review's account does not reproduce the full record: if the restriction was narrowly tailored to a demonstrable harm to the child's welfare, and religion was incidental rather than the target, the analysis shifts. Courts have always been permitted to protect children. But if the order was issued because the court — or one parent — found the religion objectionable, that is precisely the tyranny of majority sentiment over minority conscience that the First Amendment was erected to prevent. A parent's faith is not the court's business absent evidence of injury.

The deeper structural danger the National Review points to — and here I agree with the concern if not necessarily every word of the argument — is precedent. A single ruling matters less than the pattern it establishes. If courts in domestic proceedings may routinely weigh the content of religious practice and restrict it based on one parent's preference or a judge's cultural priors, we have built a mechanism for the slow erosion of religious liberty from the inside out, case by case, without any legislature ever having to vote for suppression.

The remedy is appellate review with First Amendment standards applied with full rigor, and ultimately the kind of clear doctrinal line from the Supreme Court that tells every family-court judge in every state: the content of a faith is not yours to evaluate. That is not a theological conclusion. It is a structural one. The balance of liberty depends on keeping the civil power in its lane — and the lane marked conscience has always been off-limits.