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Religious Freedom in Search of Its Argument Print E-mail
By Hadley Arkes   
Tuesday, 30 July 2013

In my last column, I dealt with the moral bind encumbering our friends who are trying to defend religious freedom in the courts.  On one side, it has become conventional to ask the judges to respect “beliefs” that are “sincerely held.”  But we are invited then to back into the libel of religion – the notion that religious teachings reduce finally to mere “beliefs,” which cannot claim the standing of truths. 

John Paul II and Benedict XVI cast up warnings about backing into that kind of untruth, treating everything as merely “subjective,” including claims of “conscience.”   We know, in common sense, that we do not respect just anything that a person claims sincerely to believe, and honor the claim on the ground solely that he holds it.

On the other hand, our friends may argue that their clients have “moral objections” to contraception and the supply of abortifacients to their employees.  But in that case they put themselves in the awkward position of denying the classic understanding that there is a moral ground to the laws.  

A “moral” judgment moves beyond statements of merely personal taste or private beliefs. It speaks to the things that are right or wrong, just or unjust more generally or universally – for others as well as ourselves.  

In the corresponding way, the law overrides claims of private choice, personal freedom, subjective belief.  It imposes a rule of justice that claims to hold for everyone who comes within the reach of the law. 

The laws that bar the killing of the innocent override claims of personal convenience and private interest, and even “sincere beliefs” that the victim is not really human.  

In the classic understanding, we do a portentous thing when we impose laws on other people, and that move will always call for a justification.   It used to be understood that those creatures we call “moral agents” have the capacity to reason about the grounds of their well being – and the rightful limits to their own freedom.  They have a presumptive claim to all dimensions of their freedom, and the burden lies with the law in supplying a moral justification for overriding that freedom.

Our friends have put themselves in an awkward position, then, when they seek to argue that people may be exempt from the laws binding on everyone else because they bear a moral objection to the laws.  Are they suggesting that the laws are based on something other than moral grounds – perhaps simply raw power – and yet still be valid as laws?  What would those non-moral grounds be? 


          The heavenly tribunal: A Matter of Life and Death (1946) by “The Archers”

But of course our problem arises precisely because the laws are based now on the premise that there is no wrong in taking innocent life in the womb.  And with that premise in place, it may indeed be rightful to compel employers to supply, for their employees, a “medical service” that the law has stamped now as rightful.  To ask the courts to accept a “moral objection” to these laws is to ask the judges to find that these laws are not defensible as laws, and should not be imposed on anyone.

And that of course the judges, and the political class, will not do.  Hence, the predicament.  It took years of misunderstanding to put us in this position, and it may take years to recast the arguments that deliver us from this bind. 

The recasting would begin by insisting again on that necessary moral ground of the law: Before the law would impose these new obligations on the owners of the Hobby Lobby stores, the law should bear the burden of showing that there is something deeply unreasonable about their understanding that human lives are destroyed in abortions.  Or that there is something unreasonable about their concern that the “contraceptive culture” brings an entirely different ethic in its understanding of sexuality and the marital relation.

The deep truth of the matter is that the religious tradition does not represent some eccentric “beliefs” peripheral to the life of the law, which beg for indulgence and exceptions.  But rather, the religious tradition has supplied the deep reservoir of understanding on which the laws have continued to draw, even while forgetting the source. 

What, after all, explains why homicide is such a portentous thing – why the taking of any human life is an intrinsically grave matter?  Cardinal Lustiger once raised a question about that slogan of liberalism: that our freedom ends at the point where we cause injury to others.  And the Cardinal asked, “Do we mean all others?” 

Liberalism these days disdains moral truths, but the Cardinal pointed out that liberals were really depending on the moral truth of “all men are created equal.”  The Jewish-Christian tradition supplies, overtly, that key premise of the law that liberalism is reluctant to acknowledge openly.  

Chesterton remarked that the Church has never said on behalf of democracy what Mr. Jefferson had said, but “that there will be rending of all religious peace. . .or even the end of the world and civilization, before the Catholic Church will admit that one single moron, or one single man, ‘is not worth saving.’”

There is much work to be done among lawyers and judges before this recasting of the law could take place. There will also be serious arguments over the question of whether judges have any rightful role in this scheme.  And to that question we will have to turn later.     

 
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 (11)Add Comment
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written by ib, July 30, 2013
Very good, Dr. Arkes, you are trying extremely hard to work within what has become a Giant Law-Monster. Although one may argue that it is not entirely evil, and does some good in U.S. society, I would object that it has imbibed the culture that "disdains moral truths" and divorced any working notion of natural law long ago. The "laws ... based now on the premise that there is no wrong in taking innocent life in the womb" are the foul, murderous fruit of the Giant Law-Monster. Can the Monster be persuaded with ANY legal arguments when it recognizes no unmalleable moral truths? I hope that it can, but suspect that it cannot.

Here's a little parable:
Jack, the renowned Giant-Killer, was one day captured by a many headed Giant and scheduled to be on some soon-to-arrive evening's dinner menu. As he had been in the clutches of many a Giant before, he knew that he could not beat the Giant through his own strength, no matter how courageous he was.

There was only one thing to do: trick the evil monster into sealing its own fate. But how to do it? Jack fell to thinking. He had beaten many a Giant by playing their own vices against them: pride, avarice, lust, envy, gluttony, anger, sloth, ... their monstrous sins were also monstrous weaknesses ... What will he come up with?
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written by Michael Paterson-Seymour, July 30, 2013
But this is to misunderstand the nature of law. “Law is the expression of the general will.” (Déclaration des droits) This goes back to the Roman law - Velitis iubeatis, Quirites? ("Citizens, are you going to approve and order... ?") Or, as Ulpian says in the Digest (D 1.4.1.) Quod principi placuit legis habet vigorem or "That which pleases the prince has the force of law.” Law is not a judgment, which may be true or false; it is a command.

Pascal understood this very well: “He who obeys them [the laws] because they are just, obeys a justice which is imaginary and not the essence of law; it is quite self-contained [elle est toute ramassée en soi], it is law and nothing more.”
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written by Jasmine Webb, July 30, 2013
well done Professor Arkes
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written by Manfred, July 30, 2013
"The Jewish-Christian tradition supplies, overtly, that key premise of the law which liberalism is reluctant to acknowledge openly." When has the Jewish-Christian tradition done anything but condemn SODOMY as an abomination, yet it soon will be the law of the land. Our fellow citizens do not believe in God. They do not believe in Hell. They are entirely pragmatic and they will never listen to our arguments. Augustine cited the Ark. Those in it survived the Flood. All others were doomed. In 1960 a Pope made a choice-release the Third Secret of Fatima as he had been instructed or call a Council. Well, here we are. It is obvious we have been punished ever since that fateful day.
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written by Jack,CT, July 30, 2013
Great Read
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written by Athanasius, July 30, 2013
We need to build a culture in which faith and reason are recognized as two sources of truth that cannot contradict each other. Reason without faith has no ultimate anchor on which to know what truth is, so it leads to moral relativism and might making right. Faith without reason leads to arbitrary declarations on human origin that also lead to might making right.

But a reason illumined by faith knows it ultimate purpose is in God, the eternal standard of truth, and a faith consistent with reason stays truth to the Logos, the eternal Word of God.

We know America and the West are heading toward moral relativism, but our arguments in favor of freedom of religion need to such that they are reasonable. We must not allow our just cause for freedom for faith illumined by reason to also justify false claims of faith that allow other depravities such as we see in the Muslim world.

St. Thomas Aquinas always looked toward a middle ground for a virtuous solution, seeing either extreme as falling into a vice of excess or deficit. Faith and reason together are the way to win the argument.
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written by Ernest Miller, July 30, 2013
Genesis (6:6) says it all: "And the LORD was sorry that he had made humankind on the earth, and it grieved him to his heart."

After Noah the chosen people, a tribal population of about 600,000, were selected from a world population of 10,000,000 (McEvedy and Jones 1978). These folks failed and now God chooses among gentiles.

Jesus tells us in Matthew (7:14) "But small is the gate and narrow the road that leads to life, and only a few find it."

Of a world population of 7.1 billion, fewer than 36 million will find passage. So why all the fuss trying to harness secular citizens with God's laws? Let's work to protect our own kind so unlike the chosen people, we succeed?
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written by cminca, July 30, 2013
How about this--if someone is so dead set against providing medical insurance to someone than they should not set up a business or employ people?

If someone cannot find it in their hearts to bake a cake or take a photograph--then they should not sell those services to the general public?
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written by Kevin in ABQ, July 30, 2013
There are real Truths out there. The thing is, when one of the foundations of government is the free exercise of religion, often times, people of different religious beliefs argue as to what the genuine truths are. For example, we Catholics believe that blood donation is intrinsically good - it allows another person to live. However, Jehovah's Witnesses believe that blood transfusions are intrinsically evil, applying the ban on eating blood to receiving blood transfusions. How is the court to decide what is intrinsically good and intrinsically evil when people of different faiths cannot agree? We know that freedom of religious practice is important to (a) prevent persecution and (b) allow the Gospel to be freely chosen, instead of being imposed. Unfortunately, though, in the court of law, freedom of religion destroys the idea of intrinsic goods and intrinsic evils because the different religions cannot agree on them and because the court cannot impose the beliefs of one group of people on all of the people.
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written by Chris in Maryland, July 30, 2013
cminca -

No.

Abortion and contraception are not medical procedures, and buying them is an affordable, personal choice, not an illness to be insured against, and having someone else pay for them is not a civil right.

All pro-contraception and pro-abortion preferences can be paid out of personal funds, and supplemented by private foundations funded by pro-contraception and pro-abortion contributors.

Let pro-contraception and pro-abortion take care of their own preferences, instead of shirking the responsibility for their own preferences.

The free exercise of religion is an unalienable right, Congress shall make no law probibiting the free exercise thereof.
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written by HighwayMan, August 03, 2013
Prof. Arkes is strolling down memory lane. Over a century ago, with the Protestants driving the cart, Natural Law was cast aside. In its place, the Protestants rose up Positive Law.
Positive Law has no place for morals, or beliefs, or religion. Positive Law rests solely on Power, the more raw, ruthless, and vicious, the better.
What is to be done? I suggest we emulate the Jews and emigrate out of this benighted land. It wouldn't be the first time God's people hit the road.......

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