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Backing Happily into Heresies? Print E-mail
By Hadley Arkes   
Tuesday, 15 July 2014

Back in the 1970s a group of Orthodox Jews in New York faced this quandary: They seemed to have a better chance of winning their case in a civil court, while the outcome promised to be riskier in a rabbinic court. But they finally decided that they would rather lose in a rabbinic court than gain their victory in a civil court, for they didn’t wish to establish that, in matters of consequence to them, the civil law claimed a preeminence, or sovereignty, over rabbinic law.

The lesson they taught here has suddenly sprung into relevance again as we encounter serious arguments on the victory in the Hobby Lobby case, even among friends who have celebrated the outcome.

I, too, was relieved by the fact that the Green and Hahn families were not required by the Obama Administration to become accomplices in endorsing and funding abortifacients for their employees. But I’ve also set down in these columns some serious reservations about the reasoning that was put in place to give us this outcome. The lesson taught by those Orthodox Jews in New York was that, as we seek our ends, we should not install premises that strike at the moral ground of our own position.

I’ve argued in these columns that the Hobby Lobby case could have been won without setting into place these premises: that religious convictions are marked by “beliefs,” rather than “truths;” that we accept as a “religion” virtually anything that people tell us they regard as their religion;  that on the strength of these “beliefs” held “sincerely,” we give exemptions from the laws that are imposed on everyone else; and finally, as the Court said in Hobby Lobby, “it is not for [the government] to say that [our] religious beliefs are mistaken or insubstantial.”

With these premises in place, we merely await the imagination and audacity of the people who would gladly appropriate for their side the license that the Court has offered. It takes no high powers of prediction to anticipate this claim: “We sincerely believe that the organism growing in the womb is not really ‘human,’ or anything that we ourselves can regard as ‘fully human,’ with a standing that commands the protection of the laws.”  The Supreme Court has long given standing to beliefs passionately held as beliefs holding the same place as religion in the lives of people. And yet, it is not at all clear now why these beliefs, professed sincerely, would not qualify as “religious.”

But a case now bursting on us has delivered this matter from the realm of speculation with a dramatic force. The Wall Street Journal reports that the Obama Administration has come down on the side of Mr. Gregory Holt, who has converted to Islam and changed his name to Abdul Maalik Muhammad. Holt is serving a life-sentence for cutting the throat of his former girlfriend.


           The beard in question

In prison he claims a religious duty to wear a beard. But the wearing of beards by prisoners is barred in Arkansas, on several counts, as a risk for security. Things like needles, drugs, razor blades could be hidden in certain – shall we say? – unkempt beards.  But the Obama Administration has invoked the Religious Freedom Restoration Act (RFRA) on the side of Holt.

The Solicitor General argues that the state “should do more to justify the imposition of a substantial burden on religious exercise than rely on speculation and unjustified fears.” Mr. Holt had declared his own intention to “wage jihad against any court personnel, detectives, adverse witnesses, and. . .do whatever it takes to get these witnesses, as Allah is my witness.” 

The editors of the Journal could not help remarking on this solicitude for the religious freedom of jihadists on the part of an Administration that could summon no sympathy for Christians compelled to support abortions.

But the inversions of the Obama Administration are now so familiar that we hardly notice them, with a moral posture, in any case, upside down. What completes the picture though is the reaction of the editors of the Journal. They remark in passing that “religious freedom in America doesn’t depend on the content of belief, thank Allah.” In other words, the teaching of the Court is now spreading outward in the land, to otherwise sober readers and writers. They too are now starting to think that we cannot judge the content of beliefs, or test them by the standards of reason we bring to anything else.

But as John Paul II reminded us, Catholic teaching depended on the critical wedding of “faith and reason.” He argued that the connection to Greek philosophy had protected the Church from falling into superstition. It was the considerable service, he thought, of the “fathers of philosophy to bring to light the link between reason and religion.” So that: 

They no longer rested content with the ancient myths, but wanted to provide a rational foundation for their belief in the divinity. . . .Superstitions were recognized for what they were and religion was, at least in part, purified by rational analysis.

In the name of “religious freedom,” we are now being instructed by many of our friends that, for the purposes of the law, we cannot distinguish between a religion that protects innocent life and one that licenses killing as an obligation. We are walking in a haze, celebrating along the way, and backing happily into heresies, political and religious.

 
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and the American Founding. 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 (14)Add Comment
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written by Gian, July 15, 2014
The Conservative distrust of the State is largely to blame. The Conservatives need to eschew libertarianism and regain the pre-liberal understanding of the human community in which, following Aristotle, the City, the Family and the individual are three irreducible levels of the human organization. The liberalism, seeking to reduce the City to an accidental collection of individuals, inevitably ends in libertarian anarchy that leads to collectivism.

A proper understanding of the State will subsidiarity and solidarity leads to the recognition of general validity of pre-liberal political concepts. It also leads to a proper recognition of what property is and what ownership entails.
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written by Michael Paterson-Seymour, July 15, 2014
The question of religious freedom involves two competing values, as can be seen from the memorable Declaration of the Rights of Man and the Citizen”

On the one hand, “No one shall be disquieted on account of his opinions, even religious ones, provided their manifestation does not disturb the public order established by law” On the other hand is the requirement that “[The law] must be the same for all, whether it protects or punishes.”

The RFRA seeks to strike a balance, with its requirements of “compelling government interest” and “least restrictive means.”

As the great Catholic jurist Portalis, one of the authors of the Code Napoléon explained, “A host of things are necessarily left to usage, to the discussion of men learned in the law, to the decision of judges….The function of statutory law is to fix, in broad lines, the general maxims of the law, to establish principles that will be fecund in consequences, and not to descend to the details of questions that may arise in each subject. It is for the judge and the jurist, imbued with the general spirit of the laws, to direct their applications."
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written by schm0e, July 15, 2014
But the Masters of the Media won't be appeased by Reason. And have we not recently learned that they *must* be appeased?
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written by Paul, July 15, 2014
Excellent point!

The Supreme Court has destroyed the free exercise clause because of its unwillingness to recognize Christianity as a superior religion to any random beliefs; and its recognition that it would be insane to let people freely exercise any random beliefs (see Employment Division vs Smith).

To give the free exercise of religion clause meaning, and meaning also to the equal protection clause, "religion" to be construed as specifically referring to Christianity or Judeo-Christianity. Otherwise, the law descends into contradictions.

A basic principle of Christianity is that everyone is obliged to follow his own conscience in regard to who he associates with and who he doesn't associate with. That is how Christians become the "salt of the earth," ie the preservers of decency, by withholding cooperation from wickedness. It therefore presumes a polity which permits freedom of association and disassociation.

In order to have free exercise of Christianity, Hobby Lobby must be free to disassociate from abortion enablers.

Freedom of association and disassociation as the birthright of all men was the medieval understanding of the political implications of Christianity that was preserved in America in the Constitution and the English tradition of liberty even after Christian faith began to dissipate.

The Supreme Court should have said that all persons in America are free to exercise the Christian religion, and thus are free to associate or disassociate with whom they choose; and this freedom extends equally to all, not just practicing Christians. Because others are free to act as Christians, they are free, period. And this equal freedom is what "equal protection" means for non-Christians.

It must be clear that if you interpret "religion" as any arbitrary set of beliefs, and if you understand the equal protection clause to mean that if one person can practice his religion every other must be allowed to practice his, then you are interpreting the Constitution to advocate anarchy and lawlessness. It would make government impossible and lead to universal conflict.

Yet this seems to be the view that the Supreme Court has adopted. Their solution is to ignore the free exercise clause and assert that the only rights Christians have to follow their conscience are endowed upon them by Congress in legislation such as RFRA. This neuters the free exercise clause.

As Professor Arkes mentions, we have failed to defend the essential principles of religious liberty. We have failed to reason successfully with the Supreme Court, and failed to defend our natural and lawful rights.

Christianity has enemies who will try to drive it out of existence. It is time to raise our game in its defense.
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written by Manfred, July 15, 2014
Thank you for another great column, Dr. Arkes. "beliefs" and "truths". The Court has to resolve religious issues based on "beliefs" and here is why: Jesus of Nazareth was the Son of God, the Second Person of the Blessed Trinity and the Messiah. Is this claim true or false? While there have always been heresies and errors, no Protestant sect or denomination existed before the year 1500 A.D. Is this statement true or false? Every "religion" existing at the time of the Founding Fathers, other than Roman Catholicism, was a system of "beliefs", some of which were based on some truths. So freedom of religion was always based on freedom of beliefs.
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written by Jack,CT, July 15, 2014
Very Well Said and one can only hope we
have not created a system all anew to
win" one fight!
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written by Mr. Levy, July 16, 2014
Prof. Arkes,

You said it so well, I wondered upon finishing the article what could be added. And yet I found the above comments instructive and insightful.

I am grateful for this website.

Thanks to all.
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written by Madisonian, July 17, 2014
Keep in mind there was a time in our nation's history when the proposition that persons of African blood are fully human was characterized as a mere religious belief. Well, today that former "mere religious belief" is recognized as an objective truth. Of course, that proposition was never a mere "belief", any more than the proposition that newly conceived human beings are fully human was ever a mere "belief." Sometimes, however, in order to ultimately prevail, one has to suffer one's position to move gradually, incrementally toward recognition. That's the case here. So I'm not troubled by the "belief" characterization. While Professor Arkes is right that there's still a long way to go between "belief" and recognized objective truth, what was at stake in Hobby Lobby was an effort by the Culture of Death forces to run all those who maintain the humanity of the pre-born out of the marketplace, and make us all either hypocritical accomplices, or second-class citizens. In that they failed. So it is a victory, but with more work to be done.
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written by Mr. Levy, July 18, 2014
Madisonian:

Your first sentence is entirely incorrect as a matter of historical fact, and I'm guessing you cannot provide an original source for it.

Both Benjamin Franklin and Alexander Hamilton, for instance, were members of anti-slavery societies, and neither of these men was known for his piety. They relied on unaided human reason to perceive the evil of slavery.

Other framers of the Constitution stated without religious reference during the debates in the summer of 1787 (as captured in Madison's notes) that slavery was an example of a monstrous tyranny of man over man.

Of course, religion played a large role in arousing Americans against slavery, especially in the 1840's and 1850's, but even then the anti-slavery position was not understood as "a mere religious belief," as you put it.
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written by Mr. Levy, July 18, 2014
Madisonian:

Apart from my objection to your first sentence, your overall point about the process of moral growth of a society is very interesting. The difference here is that the Supreme Court - not just popular opinion - is characterizing religion as merely belief. Inserting this characterization into our supreme law can cause much more pernicious and longer-lasting effects.
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written by Madisonian, July 19, 2014
Mr Levy: Au contraire: The proposition that blacks are fully human was indeed disparaged as a mere "belief" generally confined to one particular religious denomination, and as a factually erroneous belief to boot. Here are some original sources (brace yourself as they are ugly): Richard H. Colfax, Evidence Against the Views of the Abolitionists, Consisting of Physical and Moral Proofs, of the Natural Inferiority of the Negroes (New York: James T.M. Bleakley, 1833); Editorial, “Slavery and Civilization,” Richmond Enquirer, Friday, November 25, 1853: “... George Harisses [hero of Harriet Beecher Stowe's "Uncle Tom's Cabin"] are bred only in the imaginations of Mistress Stowes. The negro is not capable of the high intellectual development of this hero of romance…”; Editorial, “Nebraska Theology,” Richmond Enquirer, Tuesday, March 28, 1854: “… in New England and New York, there have been preached, within six weeks, 3,253 anti-[Kansas-]Nebraska [Act] sermons – and, in this large number, it is estimated that the Ninth Commandment [Eighth to Catholics] has been violated 55,421 times.“

While you are certainly correct that the opposition to slavery included people who employed only secular arguments, slavery's opponents were nevertheless widely characterized and accused of being -- and widely perceived by the public to be -- predominantly from the Presbyterian-Congregationalist denominational tradition - the faith community of Henry Ward Beecher, Theodore Weld etc. Today's situation as to abortion is analogous: nothwithstanding the fact that the pro-life movement has in its ranks prominent people who do not approach or argue the question from any religious orientation, the pro-life movement is nevertheless widely characterized and accused of being - and widely perceived by the public to be - from one, or a small number, of particular religious groups, namely practicing Catholics and Evangelical Christians.

The proposition that pre-born humans have full human rights is disparaged as a mere belief, and an erroneous one at that. We all remember Joe Biden saying during the Vice-Presidential Debate with Paul Ryan that pre-born babies having the right to life is, to him as a Catholic, an "article of faith" - but because it's just an "article of faith," it would be wrong to "impose" it on the nation.

You and professor Arkes make a good point. I prefer to be an optimist, and I suggest a more hopeful way of looking at it could be this: The Hobby Lobby decision inflicted a kind of "judo move" on the Culture of Death forces. The Culture of Death forces' tactic (displayed by Biden in the scene noted above) had long been to relegate the pro-life position to mere "article of faith" status, so as to wall it off from effecting legal or policy change. More recently, they switched tactics, and attempted - through the contraception mandate - to simply run pro-lifers out of the marketplace. What the Supreme Court's decision has now done, however, is hold them to the consequences of their article-of-faith characterization, by saying, okay, so if it's indeed an article of faith, you've got to treat it like one: unless you can satisfy the compelling interest/least restrictive means test, you've got to respect it, you've got to accommodate it, you can't coerce its adherents to violate it, and you can't treat its adherents as second class citizens.

In this way, their attempt to run us out of the country was thwarted. Human nature being what it is, people are curious when other people stand up and refuse to buckle in the face of coercion and persecution. That curiosity causes them to investigate, to ask, what is this principle that these people believe in so much that they were willing - and able - to resist all that incredible pressure? Which is why persecutions have always backfired in the history of the Church, and why I'll take the "mere belief" characterization. The administration is foolishly continuing to prosecute its campaign of coercion against the Little Sisters and others, which will continue to furnish occasion for persuasive witnessing to principled conviction on a prominent national stage. That's better for our side.
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written by Mr. Levy, July 20, 2014
Madisonian:

It serves me right for guessing that you did not have original sources to share!

Thank you for your response (which is yet further proof that the commenters on this blog are among the best educated on the net).

If I may say so, it could be that we are both right. As I understand it, the debate over slavery grew warmer and the opposing sides grew more extreme in the 1830's, 1840's, and 1850's, and religion played a greater role following the Great Awakening of the 1830's; whereas in the founding period, the slavery debate, even if intractable, was less dominated by radicals and not so greatly a religious cause (and I am not in any way conflating the radicals with the religious). The sources you cite are from the later, more radical period, while my sources were from the earlier, more moderate period.

But perhaps you were not arguing that "there was a time in our nation's history when the proposition that persons of African blood are fully human was characterized [SOLELY] as a mere religious belief"; but instead that "there was a time in our nation's history when the proposition that persons of African blood are fully human was characterized [OFTEN or SOMETIMES] as a mere religious belief."

I admit I assumed - mistakenly, it seems - that you meant the latter when perhaps you meant the former.

Regarding your second point, laid out in your last two paragraphs, it is true I am not as hopeful as you - but I am open to persuasion, and you make a very thoughtful case. Let me consider it further. In the meantime, I hope you will share more comments in the future.

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written by N.D., July 23, 2014
Of course there is a rational foundation for our belief in The Divine, however, this foundation is not grounded in philosophy, it is grounded in Christ Himself, The Truth of Love, The Word Made Flesh. Compared to Christ, Philosophy seems like mere straw.
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written by Nancy D., August 22, 2014
Once you make the erroneous claim, that there is no truth in regards to the inherent personal and relational Dignity of the human person, that existing in relationship as a son or daughter, a husband or wife, depends upon location, it is only logical to assume, that our unalienable Rights that have been endowed to us from God, the purpose of which can only be what God intended, will become merely a matter of opinion; that change, being the change, that will change everything, as we render onto Caesar, what belongs to God.

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