Recasting the Argument for Religious Freedom Print
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:


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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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