The Catholic Thing
Judge Brown to the Rescue Print E-mail
By Hadley Arkes   
Tuesday, 05 November 2013

On the first day of the month, the D. C. Circuit Court of Appeals, the most important federal court of appeals beneath the Supreme Court, blocked the enforcement of the mandates of Obamacare on contraception and abortion. This bit of news is especially worth reporting, because the opinion of the court moved mainly along the lines that I have been arguing for in these columns as I’ve made the plea for a recasting of the argument over religious freedom.  But where the argument took a turn in its logic, it is a turn that finds the religious crafting their own undoing.

I’ve sought to remind readers in these columns that the Catholic position is wrongly cast when the argument pleads for a tolerance merely of religious “beliefs.”  The Catholic position, say, on abortion has been woven of the evidence of embryology and the moral reasoning of the natural law.  As Bishop Lori insisted for the bishops, the mandates on abortion are not wrong only for Catholics; they are part of an “unjust law” and binding rightly on no one.  

But when the argument is cast merely in terms of “beliefs,” the result is to produce an argument seeking only an “exemption” for Catholics from the laws imposed on others.  Not only does that argument subtly abandon Catholic teaching, but it forgoes an arsenal of defenses that would readily come into play in defending other freedoms under the Constitution.

The case of Gilardi v. U.S. Department of Health and Human Services involved two brothers, Francis and Philip Gilardi, owners of Freshway Foods and Freshway Logistics.  The Gilardis offer a self-insured plan of medical care for the 400 people they employ.  And they would be forced under Obamacare to become accomplices in policies they have been taught to regard as serious wrongs. 

The decision of the court was handed down by a panel of three judges, with the main opinion written by the formidable Janice Rogers Brown.   Judge Brown noted at the outset what was “not at issue”: the case was not about “the sincerity of the Gilardis’ religious beliefs, nor does it concern theology behind Catholic precepts on contraception.”  

In my columns here, I’ve argued that the law should bear the burden of supplying, in these cases, justifications as persuasive as the justifications it would be obliged to supply in other cases when it seeks to override the freedom of people to pursue the notion of the “good” that animates and justifies their own acts.   

In the case of abortion, the government should be obliged to show why the Gilardis are mistaken in thinking that abortions destroy innocent human lives. But the Gilardis would be compelled also to act directly in providing abortions, and that fact would bring into play another ensemble of constitutional arguments.  The government should be compelled then, as I’ve said, to meet a standard more demanding than something only “vaguely called” the public interest or safety. 

     The formidable Judge Janice Rogers Brown

And that is precisely the argument made by Judge Brown. Even if there is a “right” on the part of people to contraception, the Gilardis are not blocking the access of anyone to contraception.  And so, as Judge Brown observes:

the government has failed to demonstrate how such a right – whether described as noninterference, privacy, or autonomy – can extend to the compelled subsidization of a woman’s procreative practices. Again, our searching examination is impossible unless the government describes its purposes with precision.

Judge Brown has marked off a path here for holding the government to a standard quite demanding in order to justify the imposition of these policies. The lawyers often use the term “strict scrutiny,” but that strictness should apply in the testing the justification for virtually anything imposed with the force of law.

And in the path carved out by Judge Brown, many other powerful arguments will come into play in challenging the assumptions and rationales of the government. It hardly makes sense to invoke the “public safety” in order to foster the killing of small humans in the womb.  And on the matter of “health” and contraception, Judge Brown notes that the case may be rendered equivocal, for “the World Health Organization classifies certain oral contraceptives as carcinogens, marked by an increase for breast, cervical, and livers cancers.”

But then the conflict comes into play again between the claims of belief and the reasoning of natural law: Judge Brown argues that a right to contraception does not entail a right to compel the Gilardis to buy contraceptives for other people. But that moral argument would work just as powerfully to protect all other businessmen, even those who are not Catholic.  

Judge Brown insists that the case is not about “religious beliefs,” and yet she and her colleagues have upheld the Gilardis under the Religious Freedom Restoration Act, a law that was passed distinctly for the protection of the religious.  If that is the ground of the judgment, it produces, ironically, a rationale at odds with the natural law teaching of the Church, but it may also produce an inversion. 

George Washington famously said that we no longer speak of religious freedom as though it were merely “the indulgence of one class of people that another enjoyed in the exercise of their inherent natural rights.”  And yet, some of the religious have come to invert Washington by pleading now for a mere “indulgence” or exemption from the laws imposed on others.

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.
The Catholic Thing is a forum for intelligent Catholic commentary. Opinions expressed by writers are solely their own.


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Comments (14)Add Comment
written by Jack,CT, November 05, 2013
I apreciate the suits in regards to "Abortions
and the pill' but one should relize most sins
are availabe and "Legal",so perhaps the "Law"
makes this particular "Sin" more tempting
BUT it does not put it in there hands to mouth
for consumption that is a decision.

One should never forget woman recieve free birth
control from planned parenthood and have for
decades,and if they wanted to pay for it they
could get a "Script" and all insurance" companys
FILLED it for less than 5 bucks!

So I feel the fight has to be in winning the
hearts,mind and "Spirits" of these men and
woman many married and Catholic.

The 'Cliche"' is something to be avoided but
my friends we need to "Pick and choose"
OUR Battles!
written by maineman, November 05, 2013
Thank you, Mr. Arkes, for yet another of your well thought out pieces on this matter. I would welcome, at some point, a similar treatment of the matter of same-sex "marriage", given that we are likely to be confronted, in the not too distant future, with a judicially imposed, nationwide mandate along the lines of Roe v. Wade that demands homage to this latest monstrosity birthed by liberalism.
written by Ernest Miller, November 05, 2013
I don't know, Jack, what if this is the straw that breaks the camel's back?
written by Sue, November 05, 2013
Another unintended consequence of current putative-prolife initiatives is the focus on the employer mandate at the cost of ignoring the harms of the individual mandate.

The USCCB does not speak for me in its granting the premise of employer-mandated coverage of health care in the first place. When they "go to the mat" for religious conscience in employers' providing contraception-free coverage, they are doing the heavy lifting of supporting the right of Government to order employers to provide health care in the first place.

This is one individually insured person in agony over choosing an ethical policy...who is speaking for me and for every person who wants to support health charity without supporting genocide, sterilization, test-tube repro, and assisted suicide, along with the technocratic state that would coerce these measures on the unwilling?
written by Jack,CT, November 05, 2013
Ernest stay away from
written by Athanasius, November 05, 2013
Another good article, Professor Arkes.

I have said this before, and I will say again, that this whole employer mandate issue would go away if health insurance was treated like every other consumer good and not treated as part of an employee's compensation. It is an accident of history (wage controls during WWII) that this occurred, and it is long overdue to return health insurance to the individual marketplace. There are still battles to fight there, but this would reduce one hurdle.

Think about it. We don't expect our employers to buy us cigarettes, alcohol, or pornography, so why do we expect them to pay for contraception and abortion?
written by Rich in MN, November 05, 2013
I was just typing my own thoughts regarding one possible aspect of your question in hopes of hearing Dr. Arkes' scholarly thoughts on the topic. Here is my rumination:

Arguing from the empirically self-evident (embryology, cancer studies, etc.) may also require pointing out the “Pandora’s Box” of accepting the alternative. For example, look at our other modern example of “smoke and mirrors” cherry picking – the redefinition of marriage. For millennia, the fundamental prerequisite of marriage (or certainly consummating marriage) has been the biological complementarity of those who have reached the age of puberty. Any first-year biology student or 13 year old boy can tell you that girls and boys have a self-evident biological complementarity that is ubiquitous in nature. (Amoebas do it alone but, hey, they’re just amoebas, after all….)

What happens when “desire” replaces “biological complementarity” as the fundamental requirement of marriage? What happens is that virtually ALL gay marriage proponents become discriminators – for how could they exclude others from the institute of marriage solely because those others have desires different from their own? And then the burden of proof would fall on the discriminators to show that they are not being unjustly discriminatory. For example, if someone believes in gay marriage but does not believe a 40 year old man should marry a 10 year old boy, or marry his pet, or marry something he brought home from his trip to Amsterdam – regardless of how sincere the other person’s desire for marriage is – then the gay marriage proponent must prove that they are not merely imposing their antiquated, religiously-informed medieval morality on that other person.
written by Seanachie, November 05, 2013
Considering the libertine views of several of the USSC justices, it seems to me that Judge Brown's decision will be reversed if the Gilardi case reaches the USSC. Reasoning appears to give way to effecting desired social engineering results at the USSC.
written by Tony, November 05, 2013
I believe the episkopoi of our American church have not been overseers, as the word implies, but overlookers. They overlook a lot, and oversee very little. I'd recommend three things to them, forthwith:

1. Listen to Hadley Arkes.
2. Listen to Hadley Arkes.
3. Listen to Hadley Arkes.

Even if they neglect to do 1 and 2, they can still redeem themselves by doing 3.

Wondering out loud: What if Catholics were to argue not from their wishes but from their absolute commitment to the fundamental moral law, one must not do evil? They could say, "I have no choice in this matter. It is evil to snuff out the life of an unborn child. I cannot be a part of that action. Nothing can weigh in the balance with that evil. I cannot do it for money or convenience; I cannot do it even if my life were at stake. I am not asking for respect for my choice. I am asking for recognition that I have no choice." And the same would go for the poison Pill.

"I cannot do evil, and this is evil. I am not claiming that I believe that this is evil. That would be tautological. I am claiming that it is evil, for me and for anybody, regardless of belief. If you cannot see that it is evil, I may someday show you why you have overlooked something crucial, but that will take some time. For now, I cannot engage in it. I have no choice. I cannot subsidize it, I cannot promote it in any way. You may believe that other evils are permissible. But once a person's conscience has been awakened to the evil of something formerly considered permissible, there no longer is any choice. I am not asking you to respect my choice. There is no choice. I must not do this. I cannot do this. No power on earth can make what is evil to be good; and no power on earth can bind a conscience when it directs a man not to do what the conscience tells him is evil."
written by Jack,CT, November 05, 2013
@Rich in MN,I read every response to things I leave
comments on and I find you to be a trad-
itionalist in regards to most topics and
I respect you for this.

Considering some of your remarks and I did
see that you were writing as you were think-
"what happens when desire replaces "biological"
I would hope that "Desire" would never be
ANY factor in a decision to get married Gay
or not.

The fearof "Gayness is Ancient but we are here
, so biology won and we need not worry i would
argue as "Gay People" were around then.

Finally I have no issue with your view on
marriage between a man and a woman.
I do take exception with this belief that
gay people promoe pedophilia or man/woman
beast love or that gay people would travel
abroad for the purpose of bringing "some-

Finally,I want to say again I respect the
belief that men and woman should only marry
but all the other stuff is I fear,FEAR BASED.

Anyway I respect your views I simply
wanted to exspress my counter view,God
Bless You -

written by Bedarz Iliaci, November 05, 2013
The 2nd Amendment is often invoked as necessary to protect individuals against State tyranny.

Now, as the tyranny approaches, and it certainly does not seem feasible to anyone that 2nd Amendment can do anything to protect any individual against the tyrannical State impositions.

Does that prove that the conservative argument for the 2nd Amendment is not as strong as thought to be and in reality, the 2nd Amendment is powerless against State tyranny
written by Bangwell Putt, November 06, 2013
Thank you to "Tony".

I am reminded of Dr. Robert Spaemann's explanation that "Utilitarianism makes it impossible to see the moral qualities of actions in the actions themselves because of the need to refer to a universal utility function. Experts are needed to determine this, even though these experts may be self-appointed. When young SS men during the Nazi regime were ordered to kill Jewish children ... they should have borne with the simple insight that one should not kill innocent children". ... No matter, we might add, what the "self-appointed" experts say.

In another passage, when writing about measures used to force soldiers to do the Nazi's evil bidding - threats that the soldiers must kill or be killed, Prof. Spaemann writes that we all must die but no one has to become a murderer.

We of course must accept that having the courage of our convictions can have serious, even dire, consequences. We will be "put to the test".
written by Rich in MN, November 06, 2013
Hi Jack CT,
Thank you for your reply. We may be misunderstanding each other's use of the word "desire." I am using “desire” in the sense of "wish," “want” or "longing." I think that “desire” is an integral aspect of marriage, certainly in our modern western culture; for we marry a person because we want to marry them. In fact, a marriage is not sacramental if we are not marrying of our own free will and “desire” to marry. However, in the case of marriage, “desire” has never, to my knowledge, taken precedence over the prerequisite condition of biological complementarity. Are there other circumstances or issues in which “desire” has taken precedence over empirical reality and common sense as the fundamental basis and motivating principle for recognition and protection by the state? (I mean this as an open question, not merely a rhetorical one.)

And, on another of your points, I recognize the danger of being misunderstood when I raise any other issue alongside gay marriage. Gay marriage and pedophilia are not the same thing (although, if GLAAD has not done so already, I do hope that they remove the link to NAMBLA from their website; that would certainly help disentangle the two issues). My point is merely that good law is based on sound reasoning. If we change the reasoning, it can resonate a lot farther than our particular issue at hand. That is the “Pandora’s Box” to which I was trying to allude.

Thank you for your feedback, and God bless you as well!
written by Jack,CT, November 06, 2013
@hey Rich in MN, thanks for taking the
time to read/respond.
You cleared up so

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