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Compelling the Faithful to Recant Print E-mail
By Hadley Arkes   
Tuesday, 22 October 2013

Over my last few columns I have been trying to make the case for recasting of the arguments on behalf of religious freedom. Those arguments have come into play with a special poignancy now as people like the Green family, the owners of the Hobby Lobby craft stores, have sought to resist the mandates of Obamacare on abortion and contraception. 

The arguments put forth on behalf of litigants like the Greens have been interesting, but one way or another they keep falling back upon the claim of Catholic “belief.” Implicitly – and unmistakably – they give up the claim that Catholic teaching, say, on abortion, is based on a weave of science (embryology) and principled reasoning. It has been a model of “natural law reasoning,” with truths accessible to people across the religious divisions, and even to atheists. The wrongness of abortion is a wrongness that would hold for anyone, not merely for Catholics.  

I have been arguing, then, for a recasting of the argument that simply seeks to recover the understanding running back to Aristotle about the moral ground of the law: When the law overrides claims of personal freedom, the law bears the burden of showing that it is acting upon a principle of justice or rightness that would hold for anyone who comes within the reach of the law.

When the problem is viewed through that lens, it would become the burden of the law to show that there was something wrong with these understandings held by the Greens: that abortion destroys a human life; that the life in the womb is incontestably “innocent” in the sense that it cannot be the source of any intended harm; and unless there is a new, private right to kill for wholly private reasons, the taking of that life must be justified with reasons as compelling as the reasons we demand for the taking of any other human life.

As I pointed out earlier, the problem is deepened by the fact that people like the Green family are not challenging the fact that they are being connected through the nexus of the tax system to the general policies that support and promote abortion. But the Greens are now ordered to become the discrete agents themselves in supporting, facilitating – and implicitly endorsing – the abortions chosen by their employees. That kind of arrangement would have been seen in the past as a species of “class legislation,” simply commandeering the property of one private person, not for public use, but for transfer to the benefit of other private persons.  

            A weave of science and principled reasoning

The problem is deepened with the recognition that there is no need for this public provision of abortion. Abortions are readily affordable, and if they make as much economic sense as their advocates seem to think, it would make as much sense to borrow money to pay for them as to borrow money for a car or smartphone.

In the case of Elaine and Jonathan Huguenin in New Mexico, there was no need to punish them for declining to take photographs of two women arranging what they regarded as their wedding. There was no want of photographers willing to have that business. But it turns out that the people who have been arguing for years that there are no moral truths have absorbed the “logic of morals,” along with everyone else, and apply it now with a vengeance: The good is that which should be commended, encouraged, rewarded; the bad and wrongful is that which should be condemned, discouraged, punished. 

It was critical to stamp the Huguenins as “wrongdoers.” Lincoln remarked on the partisans of slavery in his age that silent acquiescence would not be enough. One had to be “avowedly with them,” he said.  For “this, and this only [would assure them]: cease to call slavery wrong, and join them in calling it right.”

The activists for abortion and same-sex marriage have identified their adversaries as the religious, and they will not feel unthreatened until the teaching that animates the religious is renounced at the core. The Huguenins and the Greens must be compelled to confess the rightness of abortion or the rightness of same-sex marriage. 

The libertarian professor of law, Eugene Volokh, likened this case of the Huguenins to the case on compelled speech under the First Amendment. Professor Volokh surely appreciated that the Huguenins were not strictly being required to speak words, say as the children of Jehovah’s Witnesses were once compelled to speak and perform the pledge to the flag.  But what Volokh apparently noticed here was that the moral insistence on punishing could be explained mainly by the desire to humble these people before a new orthodoxy, demanding now its place as a principle commanding reverence.

But the religious, with a certain sympathy and humility, steer away from demanding that their adversaries abase themselves in this way. The passion to demand that abasement marks an unlovely expression of fanaticism in our law. And for the judges, it should mark a telling sign of the intemperate passion that the Founders were seeking to avert on either side – on the side of irreligious no less than the side of the religious – as they became untethered from an anchoring prudence. 

What was working among the Founders was a religious and constitutional temperance as they sought to put the levers of official power at a more salutary distance from our religious life.

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. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.
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Comments (15)Add Comment
written by jan, October 22, 2013
'[W]hat Volokh apparently noticed here was that the moral insistence on punishing could be explained mainly by the desire to humble these people before a new orthodoxy, demanding now its place as a principle commanding reverence. But the religious, with a certain sympathy and humility, steer away from demanding that their adversaries abase themselves in this way.'

But do we really? And how can we do this, if '[t]he wrongness of abortion is a wrongness that would hold for anyone, not merely for Catholics'?

If it is wrong for everyone, then everyone must do his duty to make the law reflect this 'orthodoxy,' until all 'humble themselves' before it.

We must intransigently demand 'Thy Kingdom come.'
written by Jim Soriano, October 22, 2013
When I read the headline, Compelling the Faithful to Recant, I briefly thought the article would be about suggestions to loosen the elite's grip on cultural attitudes, thinking, wrongly, that they are the "faithful" advancing the new orthodoxy and the ones who need turning, getting them to recant. How do you turn the courts on abortion, in other words, or Christie on same-sex marriage? Alas, the faithful in the article turned out to be mere citizens. But we already know that the state is trampling private conscience. That's a given. What we don't know, or at least not well, is the answer to my misreading the headline: what practical measures can be taken to turn elite opinion in the culture wars?
written by RP, October 22, 2013
"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life…"

The Catholic Church has done this. Therefore, according to the Supreme Court, neither the House, nor the Senate, nor the President can violate that right through passage of Obamacare, nor any one else in any other instance.

Similarly, with the owners of Hobby Lobby. Similarly, the couple in New Mexico who refused to photograph the "wedding" of homosexuals.
written by Athanasius, October 22, 2013
I have come to the conclusion that atheists can have no coherent morality other than "might makes right". Natural law implicitly assumes a supernatural standard against which to measure right and wrong even if that standard hasn't been explicitly identified as the God of the bible. Wasn't it Doestoevsky (sp?) who said, "If there is no God, then all things are permissible"?

Of course, with the help of St. Thomas Aquinas' 5 proofs we can show the fallacy of atheism. But we must build a reasonable theism into the culture. A strong argument can be made (Dr. Benjamin Wiker has done so) that the current leftist/liberal/progressive/statist movement in our society is indeed a religion, whose foundations rest on assumptions that require just as much faith as those of Jews and Christians.

We must remarry faith and reason, and show how reasonable natural law is. To really believe what these leftists put forth requires a special kind of stupidity. Unfortunately, a large segment of our population has shown itself to this special kind of stupid.
written by Jim T, October 22, 2013
Before attorney Ted Olson defended same-sex marriage in California, he represented an online dating site that refused to offer its services to homosexuals seeking to meet other homosexuals. He caved even though there were many sites limited to groups such as Jewish, Catholic, homosexual. Similarly, one can obtain contraceptive without forcing everyone to buy it for you. Agreed that these folks, and their fellow travelers (to use a bygone phrase), want us to bow down and offer sacrifice to their idols. Standing nearby is not good enough.
written by Rich in MN, October 22, 2013
The phrase, "claims of personal freedom," caught my eye. In my view from the peanut gallery, it seems that the law supports certain personal freedoms quite vigorously and dogmatically. Wasn't it our dear brother, Anthony Kennedy, who argued in 1992 Casey v PP that our lifestyles have adapted themselves to the availability of contraception and, since abortion functions as emergency contraception, therefore abortion must remain legal? Talk about the tail wagging the dog in that moral argument!

Please forgive my crass cynicism but how do you argue with a judge who seemingly starts at his desired outcome and argues "bass ackwards"?
written by Howard Kainz, October 22, 2013
The catch is that the "natural law that applies to all" implies a Lawgiver, which sounds a bit too religious to many ears.
written by Theodore Seeber, October 22, 2013
All of this has convinced me that American Freemasonic Federalism has proven itself to be utterly incompatible with the Kingdom of God, the once and future King Jesus Christ, and His Vicar the Pope.

There are theological issues with Article 1 and Article 3 of the US Constitution itself, that cannot be reconciled with a government of Subsidiarity and Solidarity.
written by Dan Kennedy, October 22, 2013
As usual, Hadley has it exactly right. Will we listen? I confess that I'm not holding my breath. Frustrating...
written by Kurt, October 22, 2013
What I believe is missing in this discussion is a recognition of, and a need to deal with, the fact that the Greens and Huguenins are not really complaining of anything done to them, individually or personally; rather, they are complaining of what their corporations -- Hobby Lobby and Elane Photography -- are being required to do. Having availed themselves of the many protections and advantages of the corporate form -- which, for example, shield these individuals from liability for wrongs their corporations may commit -- it is difficult for me to see why their corporations should have the additional privilege of being imbued with consciences worthy of deference. After all, as the Lord Chancellor of England is said to have said centuries ago, a corporation has no conscience because it has "no soul to be damned and no body to be kicked." In other words, a corporation cannot claim that a government policy violates its conscience, as it has none.

I am not suggesting that the Greens and Huguenins are wrong in their moral positions. Rather, I raise the issue of the moral standing of the corporation, which is the real issue in these cases. Does Google or Exxon/Mobil have the same moral standing as Hobby Lobby? How about the corporate manufacturers of abortifacients? Under what circumstances does a corporation have the right to disobey the law, or to be granted an exemption from it? Individual Quakers have long been allowed to avoid armed service in the military (although not military service altogether) -- but corporations owned by Quakers have still had to pay taxes that supported wars. How is Hobby Lobby different?
written by Hadley Arkes, October 22, 2013
I’d like to let our friends and readers know that I’ll be doing a fuller lecture this Friday in Washington at the Cosmos Club at 2:30 on “Recasting the Argument for Religious Freedom.” I’ll be able to do more in that lecture than I can do in dealing with the subject in segments strung through our columns.
After seeing the comments today, I feel the need to remind even my friends of Aquinas’s line: that we know the divine law through revelation but the natural law through that reasoning that is accessible to human beings as human beings; we might say “natural” to human beings. We don’t have to keep invoking God and the Lawgiver, and as Benedict reminded us a couple of years ago, those “laws of reason” are part of the logos and the Creation.

There are no illusions here: judges who have settled in with a right to abortion will not respond readily to a line of argument that would compel them to look again at the evidence and the principled ground that the Supreme Court serenely ignored in reaching its cardinal holding in Roe v. Wade. But what I am arguing is that we can give a more coherent account of ourselves if we come forth with the reasons that explain the things we are seeking to defend—and in turn challenge the courts to meet those arguments. That makes far more sense than offering simply “beliefs” that we ask judges to credit as something precious to us. That gives us merely an exemption merely from a law imposed on everyone else. And as Bishop Lori said of the mandates on Obamacare, they form an “unjust law.” They should be binding on no one.

Our lawyers will keep invoking “beliefs,” because that mode of argument may simply give us a better chance of winning in certain cases. That is an argument highly likely now to fail, but even if it succeeded it is not an argument that explains, in the most compelling way, what we are seeking to defend. And as a dear friend of mine says, it may be better to lose with our most coherent arguments than win with the rationales that make a caricature of our position.

written by Florence, October 23, 2013
"When the law overrides claims of personal freedom, the law bears the burden of showing that it is acting upon a principle of justice or rightness that would hold for anyone who comes within the reach of the law." Is this a recognized cause of action? Is Mr. Arkes saying that, in addition to the political process, every law is subject to being challenged in court on the basis of its "rightness"? And what is the definition of "personal freedom" that triggers this principle? If a city passes a law prohibiting smoking within 20 feet of building entrances, does that infringe on "personal freedom" sufficiently so that a smoker could challenge the law in court and compel the government to show that it is "acting on a principle of justice or rightness"? Isn't this simply a recipe for courts routinely second-guessing legislatures, not just on constitutional grounds, but on any old grounds of "not rightness" that someone wants to raise?
I understand what Mr. Arkes is saying about the natural law basis for opposing laws like the contraceptive mandate, but those arguments need to be made in the political arena. Once the law (or regulation) was passed, then challengers had to search among the various legal bases for relief available. One of those is that the law impinges on free exercise of religion (either under the First Amendment or the Religious Freedom Restoration Act.) There is no cause of action against a law just because it is a Bad, Unjustified Law. That's why the Greens and others are forced to assert simply that the law violates their *beliefs.*
The one place for wiggle room is that, under RFRA, if the plaintiff establishes that the challenged law impinges on his religious freedom, the government THEN has the burden of showing that the law furthers a compelling governmental interest. Only at that point can the Greenes make the sort of arguments that Mr. Arkes proposes.
written by Rich in MN, October 23, 2013
Dr. Arkes,

Thank you so very much for all of your hard work in this cause. The soul of our western world is being hijacked, and we have become so sated with our bread and our circuses that far too many of us either do not see it or do not care.

My thoughts and prayers are with you.
written by Louise, October 24, 2013
Florence, thank you for articulating what has been roaming around in my brain in an unformulated state as I have been reading Hadley's articles. It does seem that his approach would only increase judicial activism.

I do think Hadley's arguments are well placed in the legislative venue and also in briefs supporting prolife laws and amendments being challenged in court, especially the personhood amendments when that time comes. In this regard, if memory serves me, the USSC pointedly placed the seeds for the reversal of Roe v Wade into its decision when it stated something about the lack of evidence of the humanity of the child at that time or some such thing which now escapes me, not having read that decision for awhile.
written by Rich in MN, October 25, 2013
As Dr. Arkes searches for the most coherent way of presenting "the reasons that explain the things we are seeking to defend—and in turn challenge the courts to meet those arguments," I agree that even using the term 'natural law' is probably poisonous to the argument. Better might be to use terms such as "empirically logical," "reasonable," and "self evident" (or even "prima facie" in its more colloquial meaning). In that vein, I am wondering if there are principles of jurisprudence and supporting legal precedent whereby one can argue that they are respecting the more empirically logical, self evident understanding.
For example, any first-year biology student can tell you that there is a trajectory to each person's existence that begins at conception and ends (in the physical realm) at death. (Those cherry pickers who state "Well, Thomas Aquinas said that the human was not animated until 6 weeks gestation" might as well add "and Ptolemy said that the sun revolved around the Earth!") To respect the implications of that understanding is a logical, reasonable thing to do. To demand that one disregard that "prima facie" fact is unfair and does that person moral harm by compelling them to participate materially in what is morally objectionable. On these grounds, the HHS mandate should not be imposed upon those who find it morally repugnant.
Similarly, any first-year biology student (or 13 year old boy, for that matter) can tell you that there is a self-evident biological complementarity between a male and a female. One can even make the case that this complementarity includes an emotional, psychological component that makes men and women non-interchangeable as people and as parents. Furthermore, there is an intuitive, possibly instinctual, desire for children to know, love, and be loved by their biological parents, and there are studies that support the conclusion that children are best served when they are raised by their biological parents. In cases where that is not possible (e.g. with the death of the parents), children are best served when they are raised by two parents of the opposite sex. To respect the implications of these understandings is a logical, reasonable thing to do. To demand that one disregard these "prima facie" facts is unfair and does that person moral harm by compelling them to participate materially in what is morally objectionable. On these grounds, forcing photographers to photograph gay weddings, or forcing any parties to participate in any way in gay weddings or adoptions, is unfair to them because it compels them to violate self-evident truths that the parties hold morally binding.
These examples could be extended to a lot of other 'hot button' issues. For example, if someone believed they were Napoleon, would the courts compel us to bow? No, we should not be compelled to respect someone's belief or desire that is contrary to what is self-evident. Similarly, if John believes he is Johnnette, can he use the women's showers with the "other" girls? Is not this contrary to what is self evident?

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