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Recasting the Argument for Religious Freedom Print E-mail
By Hadley Arkes   
Tuesday, 08 October 2013

Over the course of two earlier columns, I was arguing for a need to recast the arguments in the courts on religious freedom.  My concern was that the defense of religious freedom was put forth as a plea to respect “beliefs.”  And yet that kind of argument backed into the libel of religion, by casting religious teaching as based on mere “beliefs,” with no firm claims to truth.

John Paul II had warned against the tendency to convert religious teaching into “subjectivist” claims of “conscience,” quite detached from moral truths. As we have pointed out often in these columns, the Catholic position on abortion has been a weave of embryology (the facts of science) and principled reasoning. The teaching has been put forth as a teaching in natural law, accessible to people across the religious divide.

And so the Church hasn’t sought merely an exemption for Catholics from the mandates of Obamacare on abortion and contraception. The bishops have insisted that these mandates form an “unjust law,” and they should be binding on no one.

The Green family, the owners of the Hobby Lobby craft stores, have resisted the mandates in Obamacare as orders directing them to violate their religious convictions.  But in the translation of the court, the Greens were asserting against the law their “belief that human life begins when sperm fertilizes an egg.”  I pointed out earlier that this was not merely a “belief,” but an anchoring truth in embryology.

I argued then for a recasting of the law simply by restoring the classic connection between the logic of morals and the logic of law. When we override the personal freedom of people by imposing a law, the law should be able to offer a “justification” in the strictest sense: that it is acting on a principle, or an understanding of right and wrong, that would indeed hold for everyone who comes under the law.

Several readers have written in to ask me to offer some jottings on what might be said here, and I’d offer these notes now at least as a beginning:

          Boon to science: new 3D ultrasound image of a human person

Before the law would impose the mandates on Obamacare, the law should bear the burden of showing that there is something deeply unreasonable about the understanding held by the Greens:  

  •       that the lives destroyed in abortions cannot be anything other than human lives;
  •       that those lives are inescapably innocent in the sense that they cannot be the source of any intentional wrongdoing;
  •       that the standing of these offspring as human beings cannot be in any way contingent on their height or weight, or whether they are speaking yet in sentences; 
  •       and unless there is a new right to kill for one’s own private interest, the justifications that must be offered for the taking of these human lives must be measured by the same standards we use in gauging the justifications that are given for the taking of any other human life. 

Unless the government can have something plausible to say on these points, it should back away from any presumptuous willingness to displace the moral code of this family with nothing more than the claim to serve something called only vaguely a “public good.”

The moral argument may be deepened by pointing out the claims that the Greens have forgone: They have not taken the path taken by others in objecting “conscientiously” to the fact that the money they are compelled to pay in taxes is being used for policies they find deeply abhorrent: e.g.  the support of the United Nations, the provision of welfare to unmarried women, or – even more keenly – the support for abortion. 

The Greens understand that they are already committed, through the nexus of the tax system, to the support of abortions funded and promoted as a general policy by the government.  But the question now is just why the Greens should be compelled to support abortion more directly and personally through the medical services they fund for their employees. 

In another day, the very notion of the public authority compelling a private person A to make payments, or transfer his property, to private person B, would have been marked as the plainest example of “class legislation” and a form of legalized theft.  If done by the federal government, it would have come clearly under the Fifth Amendment as a “taking of property” without due process of law.  

After all, if a service is mandated by the federal government, the federal government should be required to fund that service, not transfer a public service to private persons to bear at private expense.  That arrangement neatly avoids the discipline of constitutionalism, for it removes the need of the government to raise the money to cover its own commitments, and justify to the voters the added taxes that it is laying upon the public.

There is more to say on these matters, and I’ll say them next time.  On the surface these arguments do not look like a defense of a distinctly “religious freedom,” and that is right.  But as I argued earlier, our religious tradition forms the reservoir of moral understanding on which the law draws – most notably, on the meaning of “the human person,” and why there must be a burden of justification in taking his life or abridging his freedom.  These may sound like legal terms, but they spring from something deeper in our religious teaching.

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 (13)Add Comment
written by Bedarz Iliaci, October 07, 2013
"teaching in natural law, accessible to people across the religious divide."

However, for the people that lack supernatural convictions, the Natural Law becomes mysterious to them and they interpret the teachings of the Natural Law as dictates of Revelation.
For the natural realm is grounded in and points toward the supernatural and the moral order, in particular, is absolutely unintelligible without certain supernatural convictions.
Thus, a Hindu might find natural law convincing but an atheist may be consistent in refusing to acknowledge the natural law.

written by Jack,CT, October 08, 2013
I totally agree with the points u make
and I admire the Green family they have been
real advocates for life and religious freedom.

When i look at that little picture of that Perfet
little baby i sob for the lost....

Pray for all the lost souls especially those desperate

to the point of aborting God givin Life.
written by Jim T, October 08, 2013
I believe that another way of saying what you say, Professor, is that the law, insofar as it mandates abortifacients, lacks "a rational basis." Let me add that, with respect to the contraception mandate more generally, it is without a rational basis. I have published online my examination of the 1995 report by the HHS used to support this mandate and, despite its length and footnotes, it simply does not show a rational basis between government-mandated contraception and public health. Professor Alvare has made the same point. I do not see this argument being used in the courts. As one example: Just as use of phones tempts skiers to ski in risky backcountry, contraception tempts people to engage in sex. Sexual intercourse increases exponentially, but failure rates causing pregnancy of various types of contraception have been studied. One can do the math. And I must add that nothing in the HHS contraception mandate requires insurance providers to provide only, or to educate insureds about, those forms of contraception that would protect against STDs.
written by Grump, October 08, 2013
All well and good, Hadley, but the sad fact is that religious and moral arguments no longer hold sway in a postmodern secular godless world. In the Age of Relativism, one person's concept of right and wrong may be different from another but are given as much weight in the eyes of the humanist.

Up until a few decades ago, abortions were considered crimes and were forbidden by law in most of the developed world. Afterwards, one country after another relaxed abortion laws, making abortion simply a "medical procedure." And, for some, abortion has even become a praiseworthy act, which is the theme of many recent publications including Beverly Harrison's 1983 book, "Our Right to Choose."

To those who reject eternal law and support euthanasia and abortion, killing represents a "solution." When we see ourselves as totally degraded and not worthy to be seated at a heavenly banquet, then the words of existentialist poet Jean-Paul Sartre apply: We are "nothing but a useless passion."
written by spudnik, October 08, 2013
"...casting religious teaching as based on mere “beliefs,” with no firm claims to truth."

An excellent and under-appreciated point. I think this reflects a tendency within broader society though, and we seldom recognize the extent to which some have redefined words in their own minds in order to separate belief from truth. A few examples include the enforcement of a new orthodoxy (with punishment for heresy) under the banner of tolerance and diversity; the denial that Christians are persecuted on the basis that Christians are *by definition* the persecutors; and promoting debt-fueled consumer spending by calling it freedom. I interact with people whose minds work like this and it is troubling to see the extent to which their minds are incurious and impervious to facts even as they assure themselves that it is those they disagree with who reject evidence and reason. Lord have mercy.
written by Hadley Arkes, October 08, 2013
I want to thank the people who have written in today, and I’m especially interested in that report from Jim T. I hope that he’ll send me a copy of that article he wrote, making the case that these policies cannot justify themselves with a “rational basis.” For those are exactly the lines of the argument we need to make. I’ll be in touch with Helen Alvare as well. I’m more and more convinced that the argument cast in terms of “belief” simply retreats to a subjective notion of “conscience,” and it can deliver at most a claim to an “exemption” from a law imposed on everyone else. Implicitly, it relinquishes the ground of a moral argument, an argument based in reason. It is the conceit of the other side that its arguments are grounded in reason, and that our side finds refuge in “beliefs.” But the truth to be revealed here is that we can carry the burden of reasoning far better than they can. We can do—and do far better—what they profess to do.

I don’t think that our friend Bilarz Iliaci quite understands what others of us take to be an argument in the natural law. As Aquinas said, the divine law we know through revelation, but the natural law we know through that reasoning that is accessible to human beings as human beings. The American Founders understood that it was wrong for human beings to rule other human beings in the way that humans were compelled to rule dogs and horses. No esoteric knowledge there. We are talking, not only of ther things that human beings in all places know, but as a friend of mine puts it, the things “we cannot not know.”
written by Frank J. Attanucci, October 08, 2013
In his comment, when Mr. Arkes writes: "as a friend of mine puts it, the things 'we cannot not know'," I suspect that he is referring to the excellent book by J. Budziszewski, "What We Can't Not Know: A Guide." In the Introduction to the book, Dr. Budziszewski summarizes his thesis as follows:

"Certain moral truths are not only right for all, but at some level known to all. They are the universal common sense of the human race, as well as the foundation of its uncommon sense. It makes a difference that they are right for all; otherwise there would be nothing for moral reasoning and persuasion to be about. It makes a difference that they are known to all; otherwise even though moral reasoning and persuasion would be about something, they could never get started.

"To penetrate to the unknown, the mind must begin with what is known already..." (p. 16).
written by Bedarz Iliaci, October 08, 2013
Prof Arkes,
While you are absolutely correct in theory, how do you understand why secular people have problem with the Natural Law? Why is abortion not recognized as murder, why there is confusion in definition of marriage?

If these are things "we cannot not know", why don't the judges of the Supreme Court do not know them?
written by Avery Tödesulh, October 09, 2013
Thank you, Hadley, for writing this post with its strong use of Natural Law as the basis for moral thinking. Pope Francis seems to want to return to a 1960s Bernard-Häring-style of moral theology where all right and wrong comes down to biblical injunctions, i.e., what-did-Jesus-do, and the Natural Law is pooh-poohed as a philosophical after-thought. For this Pope, it seems that Natural Law approaches are "philosophy from textbooks that came from decadent or largely bankrupt Thomism." Thank you for not pivoting to Bergoglio.
written by Chris in Maryland, October 09, 2013

Of course the SC Justices who believe in abortion rights believe they are killing human beings. Just ask Justice Ginsberg - as she is quoted in defense of Roe - the purpose of Roe etc is to get rid of "undesirable" people. That is her justification - verbatim... she used the word "undesirables."

They aren't pleading uncertainty, saying "we don't know these beings are human beings." They are saying "these human beings don't matter to us." They are saying "YES" to homicide.
written by Chris in Maryland, October 09, 2013
So in the culture war - the people defending human life need to start saying that the people defending homicide are immoral.
written by Bedarz Iliaci, October 09, 2013
To argue with a person, requires a certain consensus on the premises. Otherwise, the argument can not start.

Now, the pro-abort party has the axiom of self-ownership as its moral premise. And this premise underlies the economic theory of the Right as well. That I suggest, is one reason why the pro-abort argument gets a purchase on the public square and why the Right fails to counter it sufficiently.
It is because the Right dares not challenge the self-ownership axiom. Because to challenge this axiom would lead to unpredictable ramifications for justification of the American capitalism.
written by Chris in Maryland, October 10, 2013
Bedarz, for Judeo-Christian believers to communicate with a person of different persuasion, first requires a rational basis. In this modern day, since many people don't have a rational basis (the weakness of relativism), starting with a rational premise is the key to coming to a consensus, even if another party doesn't begin the discussion with a rational basis. As long as one party has one, it can communicate and critique the other. One may (or may not) compel the opposed to admit error if the opposed begins with the assumption that there is no moral consensus...but one can never convince or persuade the other if one doesn't first have a rational basis.

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