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“Conscience” in a Culture without Truths? Print E-mail
By Hadley Arkes   
Tuesday, 13 September 2011

In the Republican debate in South Carolina, Professor Robert George raised the critical issue of protection for claims of “conscience.” That question has cut most deeply, of course, on the matter of abortion. The Hyde-Weldon Amendment was brought forward under federal law to protect doctors and nurses who did not wish to become accomplices in abortion. But with Obamacare, the administration has issued regulations that notably weaken those protections, both for the provision of abortion and contraception.  

And now, with the movement toward same-sex marriage, another front has opened:  Once same-sex marriage was established in Massachusetts as part of the fundamental law, agencies of adoption were compelled to place children with couples of the same-sex or leave the field. Catholic agencies, faced with the challenge, chose to leave the field rather than comply.  

But as Walter Olson has pointed out, these developments have moved apace even when the states have not established same-sex marriage. It has been quite sufficient to have laws barring discrimination based on “sexual orientation.”  Those laws are enough to impose sanctions on photographers who express their unwillingness to take photos at a same-sex wedding.

But behind the arguments over claims of “conscience” there is an eerie truth that dare not speak its name:  The understanding of “conscience” has been deflated in our current law, along with the understanding of “religion.” John Paul II reminded us forcefully that “conscience” involves an appeal to an objective set of moral norms outside ourselves. The trend in the law, however, has been to accept as claims of conscience any beliefs personally and intensely held. 

As Justice Scalia has remarked, we are at the risk of backing into a system in which “each conscience is a law unto itself.” The laws on conscientious objection were once aligned with the God of Christians and Jews. But that gave way over time to the test of “belief in a Supreme Being,” and even that had to give way. The Supreme Court eventually came to uphold the claims of young men who were professed atheists, but held to political or ethical beliefs that the judges were willing to treat as the equivalent of a “religious” conviction.    
With this dispensation, we could imagine a state of affairs in which the laws forbid abortion once again, but a band of practitioners assert their claims of “conscience” to perform abortions as a matter of their own firm beliefs. They would assert the religion of irreligion.


          Mrs. Pelosi: Personal beliefs cannot stand in the way of abortion rights

Years ago, in the seminars arranged by Fr. Richard Neuhaus, we would bring together lawyers litigating over religious freedom, and some of them bridled when they were asked to explain how they would rule out such claims to religious standing. We had, after all, the union of prostitutes in California under the banner of COYOTE: Call Off Your Old Tired Ethics. What if they claimed to be a religious sect? 

The lawyers were impatient with these questions; they preferred to assume that we all knew what we meant by “religion.”   But of course the law must be in place to represent a distinctly moral concern and have a filtering effect:  The laws will not stand back and permit widows to be burned on funeral pyres under the name of religion, or even permit parents of Jehovah’s Witnesses to withhold blood transfusions from their children. There is no way for the law to avoid the question of what truly stands as a legitimate religion.

The law had a firmer clarity when it could simply take its bearings from James Madison’s understanding of religion:  “the duty which we owe to our Creator and the manner of discharging it.” That Creator was of course the God of Israel, and the duties were bound up with the Laws that sprang from that Lawgiver.     

With that understanding the law was anchored, not merely in beliefs, but in truths held with conviction about the Author of the Laws of nature and the moral force of those laws. The problem before us now is just what claims of “conscience” mean when they are detached from that body of truths.

We are flying an important banner when we unfurl the cause of “conscience,” but we are flying that banner in a culture that no longer understands us as we understand ourselves. Most people around us think we are simply invoking intense, personal beliefs when we invoke claims of conscience on abortion. 

And so Nancy Pelosi, resisting the Hyde-Weldon Act on conscience, recoiled from the notion that people could invoke their “beliefs” in a manner that frustrates the right to abortion. “This is the law of the land,” she said, “a constitutional right could simply be ignored.” She has hold of the problem:  The law must find its ground in reasons that would be valid for everyone who would be bound by the laws.

No religious group has claimed an exemption from the laws of homicide on the strength of “beliefs” that the victims are not really human. That radical claim to “belief” has been made mainly by the religion of secularism in this country.

And what the other side cannot understand then is this:  When we invoke rights of conscience in relation to abortion, we are not asking our “beliefs” to be honored. We are planting in the law the premise that the right to abortion has been founded in the most grievous errors of reason.


Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.

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Comments (15)Add Comment
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written by Manfred, September 13, 2011
I think the question is: why has abortion become the sine qua non? A recent report stated that members of a large minority group in this country are no longer choosing to marry. Still fecund, they are having children who are being raised by single mothers with modest or no incomes. Their outlook is bleak. The gov't., rather than face being responsible for millions of more wards to care for, such as the American Indian at present, is resorting to this extreme in order to protect itself from these enormous costs. I don't defend this, I am merely explaining the cause. By the way, who was the governor of MA when same-sex "marriage" was signed into law?
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written by M., September 13, 2011
The unbeliever cannot be a "good citizen". Fr Neuhaus.
"Ethics is transcendental" Wittgenstein.
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written by M., September 13, 2011
Oh and Prof. Arkes rocks. Infant born alive. And you can tell too by his voice/manner. (James Madison Program mp3)
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written by Other Joe, September 13, 2011
Forcing people to act against their conscience is one of the hallmarks of tyranny.
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written by Robert, September 13, 2011
Careful in your evangelizing of the past. Madison made no public mention of his faith after he chose to pursue the law in 1773. Any private mention is hearsay, and most paint a picture of a reservedly spiritual man at that. There is as much evidence that he was a Deist after 1773, as there is that he was a Christian.
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written by Still Anonymous, September 13, 2011
That's funny, M.

It seems that in every regard, from criminality, to divorce, stable family environment, and other areas that are ostensibly of concern to the "family values" crowd, unbelievers outperform believers of every stripe.

Someone had better notify unbelievers that Fr. Neuhaus has declared they cannot be good citizens, because they are *really* acting out of character here.
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written by Thoms C. coleman, Jr., September 13, 2011
Both abortion and sodomy are mere wedge issues that give those who want to destroy Christian civilization a sense of moral superiority and an excuse to painst Chrstians as bigots. The unwitting fellow travelers believe they have taken the moral high ground of social justice and that the ignorant Christian reactionies are on the side of injustice. Now that widespared racism and abuse of woekrs are no longer credible, the cause of sympathy for those whom Christianty would deny the pleasures of martical love, along with the right to destroy incovenient lives, have become the centerpieces by which Armicans identify themselves as enlightened and humane. Millions of Americans who believe that sodomy is not natural, healthy, or moral are afraid to tell the truth for fear of being disowned by their on families and even their pastors who have re-invented Chritianity. I know I am not the only TCT reader who has been castigated by a priest for reminding others what Holy Mother Chruch inerrantly teaches on thess matters. So afraid are such people of being accused of being agasint social justice that they are willing to mislead the flocks entrusted to thei care rather than incur the scorn of Aermica's soi-dissant intelligentsia.
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written by MIchael, September 13, 2011
Re: Still Anonymous

Huh?
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Understandably 'Anonymous'
written by Brad Miner, September 13, 2011
I have to second Michael's "Huh?"
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written by TeaPot562, September 13, 2011
@Still Anonymous:
How have unbelievers out-performed believers? Many colleges, hospitals and other beneficial institutions have been founded by religious denominations. These over time may be corrupted by tenured professors who do not share the beliefs of the founders of the institutions.
Where are the colleges, maternity homes and hospitals founded by atheists?
TeaPot562
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written by M., September 13, 2011
@still anonymous. Bunk!

On every measure believers are better citizens. Just last week Putnam's book and comprehensive surveying was reported in the media.

And Vox Day in the first chapter of his "The Irrational Atheist" with UK prison statistics shows unbelievers a whopping four times more likely to be criminal. By selecting only those who identify as the high church version of philosophical atheism as if it were the whole cohort of unbelief atheists distort the true picture of unbelief's social affects.

But we don't need statistics to begin with; who could seriously question whether the sanction (what happens to you if reject the good), the inspiration (why do the good) and the content (what is the good) that Jesus Christ reveals is superior as a moralising belief system? Is there any doubt what the world would be like if everyone were a committed disciple of Christ? A planet of saints?

Fr Neuhaus states a simple truth – a citizenry unfamiliar with the sources of the rights we enjoy cannot be expected to act in ways that tend to preserve these rights. Mark Steyn's bitter experience with a people who no longer respect freedom of speech.
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written by Hadley Arkes, September 13, 2011
The comments collected here have an almost random character, for most of them bear little relation to the argument in my piece. James Madison is probably responsible for a good measure of the fallacies that have crept into our law and public discourse on religion. But his understanding of religion as focus on our relations to our Creator and the duties we owe him--that coincides quite well with the understanding contained in the Declaration of Independence. It states an understanding that serves well as the understanding at the core of that regime brought forth in the Declaration. It is far better than any definition that seems to command assent in our current, distracted culture. Madison's understanding was reiterated over a hundred years later by the great Justice Stephen Field in one of the Mormon cases, Davis v. Beason in 1890.

Something must have crept into the airconditioning when Still Anonymous read Fr. Neuhaus's essay on whether atheists can be good citizens. If by a "citizen" we merely mean one who obeys the laws, that is not exactly a morally elevated standing--it is hardly higher than that of a resident in a hotel. But if by a "citizen" we mean a person who understands the principles that define the character of that regime he respects, the regime that has won his allegiance, then he should be in a position to render a moral defense of that regime. To the extent that the atheist insists on denying any moral order or truths that command his respect as truths, he cannot fill the moral demands that attach to a "good citizen."
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written by M., September 14, 2011
Apologies Prof. Arkes, my experience of trying to comment on essays like yours is one of intimidation. One wants to comment intelligently and add to the discussion but my learning is lacking. At best I can acknowledge one or two concepts to indicate that something is being cogitated. Perhaps that is all you can expect? It will trickle down into our understanding eventually.

The James Madison link was something much more trivial than you were able to glean. It was only to indicate where someone could hear you lecture. It was 'Making Men Moral' for the Robbie George lead James Madison Program at Princeton.

Again apologies.
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written by Tony, September 14, 2011
I second Professor Arkes' comments above. My study of cultures from ancient Mesopotamia through the Renaissance suggests that people are never really united by a common pursuit of pleasures, or a shared material benefit, but only by those things that pierce to the deepest core of our beings. Nothing else but a shared participation in a transcendent good can ever unite men of radically different tastes and temperaments and education and wealth. That is a plain fact. A wholly secular city ceases to be what the Romans called a civitas and the Greeks called the polis; it degenerates into a densely populated geographical area, with not much to bring people together. Witness the symbolically and historically barren commemoration of 9-11; individual stories, yes, but no shared meaning, no larger context, no anchor in truths that our forebears held sacred. The "secular city" is a contradiction in terms, as is "secular humanism."
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written by Hadley Arkes, September 14, 2011
Fpr M: No apologies were needed here--the response on James Madison was stirred by the comment that derided Madison. I would join the derision in part, but not in Madison's understanding of what we mean by "religion."

I'm glad,though, that you told me more about what you meant by a talk on MP3 --I gathered that you were giving a compliment, but I couldn't tell what lecture or talk of mine you were marking. It looks like you're referring to a talk I did in a program honoring Robby George, but not at Princeton--this was at Union University in Tennessee. I was called in to speak in place of Fr. Neuhaus, who had just died. I didn't know that the talk was available online somewhere. And you say that the link could be found at the website for the James Madison Program. I don't recall now exactly what I was saying then, and so I'll have to listen myself. Thanks for the lead--and the plug.

And thanks too for Tony for that fine commentary, which really extended my piece, and bore in a telling way on the recent ceremonies in commemorating 911.

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