Use of this restrictive definition dramatically limits permissible exemptions from general laws. As a result, his Free Exercise analysis tends to be much more restrictive than his Establishment analysis. Choper further acknowledges that his four principles do not maximize liberty of conscience in any theoretical sense. Despite his purported devotion to the liberty of conscience, he justifies his restrictive results on the ground that, as a matter of competence, the judiciary is not capable of applying a definition that examines the theological and psychological dimensions of religion or conscience. To do this on the ground that the judiciary is incapable of dealing with such complex material fails to recognize that courts regularly examine analogous psychological evidence and sophisticated scientific material, material as complex as theology, in reaching decisions in many cases.
Fairness demands as much.
To argue, as Choper does, that a broad definition of conscience is unmanageable is unjustified. Exercise of conscience can never be adequately protected under the Choper model, because religious adherents are permitted to tell only a small and largely nonspiritual part of their story. Certainly, courts are not always correct in assessing such complex material, but this recognition is more of a call to caution and understanding that it is a call to avoidance of the sort advocated by Choper. For him, exemptions under a broad definition would be debilitating, hindering the work of government, ultimately leading to even more severe restrictions of religious liberty on other doctrinal or pragmatic bases. This conclusion is suspect for a number of reasons.