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Razing Arizona Print E-mail
By Hadley Arkes   
Tuesday, 11 March 2014

We are constrained in these columns with the rationing principle of dealing with one legal/moral travesty at a time.  And so, within the interval of our columns a crisis flared in Arizona over legislation on religious freedom. 

The controversy brought the usual fog of misunderstanding, made worse this time by accounts of the bill that became more lurid and grotesque as the critics freed themselves from any inclination to pause and read the bill itself. 

As the public “discussion” became ever more unhinged, a part of the Republican political class performed in its typical mode: suffering panic, losing nerve, and backing away. John McCain and Mitt Romney, winging it as ever, urged the governor to veto the bill.  And she did.

Anyone who read the bill with an awareness of the issues agitating our politics of late would recognize at once what was moving the drafters. There was an evident concern for those cases on religious freedom involving the mandates of Obamacare on abortion and contraception.

Those cases have been litigated under the Religious Freedom Restoration Act (RFRA), an Act that directs the government to frame its measures more narrowly and cite a “compelling interest” before it would restrict conduct guided by religious teaching.

Arizona already had its own version of RFRA.  The legislature was evidently filling in the law to support the arguments that have been made in the courts in defense of the religious:  namely, by making it clear that a business will not be detached from a religious character because it takes the form of a corporation.  And so the bill (SB1062) stipulated that a “person” bearing religious rights under the law could indeed be “any individual, association partnership, corporation. . .”

At the same time, there was apparently a concern for people who had been penalized for engaging in discriminations based on “sexual orientation,” because they had refused to take photos or bake cakes for same-sex weddings. The bill in Arizona sought to put a heavier burden on any action by the government that could force people to violate their religious convictions, whether that enforcement springs from statutes or regulations, or from suits brought by private parties.


          Gov. Jan Brewer

When John McCain and Mitt Romney urged Governor Brewer to veto the bill, were they aware that the bill was supporting the arguments made in the courts on behalf of the religious?  Were they now giving us their considered judgment that those arguments were indefensible?  One suspects that neither McCain nor Romney gave a moment of serious reflection to that point, even if they had been aware of it.

What seemed to move them rather were the charges, as hyperbolic as they were false, that the bill was inspired by a desire to refuse service to gays and lesbians in all varieties of commerce.  My own surmise here is that both men were showing the reflex taken as wisdom in a certain wing of the Republican political class:  to avoid anything that could be taken as criticism of gays and lesbians and same-sex marriage, lest they be branded as bigots.

The point has been made often in response to the criticism of the bill that businessmen in Arizona are already free to refuse to deal with gays and lesbians, for there are is no statute in Arizona that bars discrimination based on “sexual orientation.”  But of course that is not what inspired the bill, and there has been no sighting of any businessmen eager to shun the business of gays and lesbians, even if they could know who they were when they walked through the door. 

And yet, it was clear that the bill was inspired in part by the experience of people who were being punished for their refusal to treat same-sex weddings as real weddings. By implication the bill was anticipating a situation in which a local ordinance could indeed bar discrimination on the basis of sexual orientation, and the religious would be assured a certain protection.

But that possibility brought home precisely the problems we’ve seen with RFRA:  the protection would be carved out for the religious, on the basis of the “beliefs” they profess to hold, while the laws are imposed on everyone else.  A group of professors defending the law revealed more than they realized when they noted that the religious would have to establish the “sincerity” of their views.

Why the test of “sincerity”? Answer:  because the professors would not have the law judge the substance of religious doctrine or faintly suggest that certain claims to “religious” standing are specious and implausible.  Would the term cover Satanists or the Church of the Flying Spaghetti Monster? 

That is the central flaw running through the conception of RFRA, and it points precisely to the way the argument may be defeated in the courts:  The government will contend that the obligations of the law are being dissolved for a class called the “religious,” but that any person can proclaim now his own religion, no matter how inventive.

It is a formula for the unraveling of the law.  As Justice Scalia remarked, “each conscience [becomes] a law unto itself,” directed to its own version of God or anti-God.  Some of our friends can see as well anyone else just where this is likely to end.   But bewildered now by their setbacks, they simply put their heads down and sail into the wind with the same arguments.

 
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 (17)Add Comment
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written by Jack,CT, March 11, 2014
Dr Arkes,
Thanks for cutting thru all the "Muck"!
A law that was technical turned into politics as
usual,I was shocked Brewer gave in to the pressure
cooker.
Yes,it really was not that complicated a law!
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written by Manfred, March 11, 2014
Thank you for a great study, Dr. Arkes. In a sense you are describing the Tower of Babel. Recallin the parable that the people had gathered to build a tower to heaven so they would be as God. One morning they awoke and they all spoke different languages. The tower-building came to an end due to God's punishment for their arrogance.
Today, we are at the bottom of the slippery slope which began with the Reformation. There is no longer a Judaeo-Catholic consensus which obtains, nor is there a political consensus. McCain and Romney were both Republican presidential candidates, as I recall. The U.S. consists of 300,000,000 "nations" and "religions". And God, in order to punish us, is allowing all of this to happen. If it is imprudent to "fool mother nature", it is horrific when a country separates itself from God. Alexis deToqueville would not recognize America today.
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written by ken tremendous, March 11, 2014
I basically agree with your assessment of Arizona Dr. Arkes.

But I really wish you would step back and see the forest for the trees. I mean that the basic politically focused strategy you have helped champion of having religious conservatives ally with the two other pillars of the once mighty Reagan coalition--foreign policy hawks and economic conservatives--to achieve desired outcomes is dead DEAD DEAD!

Catholic conservatives have long been the useful idiots in this coalition--trading their votes to see trillions go to our puffed up defense establishment and trillions more go to tax cuts for rich people--all on the false hopes that our goals would be advanced too.

But let's just admit for once that the supposed "pro-life" party cares far more about dropping bombs, drone strikes and helping rich people pay less in taxes than it ever did about the issues central to believing Catholics.

I'm through with the GOP as well as the dated Reagan era strategy of pinning my hopes on a political party to stem the tide of the Western culture drift.

I doubt I'm the only one.

So please Dr. Arkes spare me the forthcoming 2016 quadrennial pleas that just electing one more Republican president and thus one more supreme court justice will bring us to the promise land.

You, along with the rest of us social conservatives, have been played! Forgive me for bailing out of the game entirely!
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written by grump, March 11, 2014
Another insightful column, professor. But when you consider that polls say 60% of Americans support "gay marriage" and the mass media are 100% behind the powerful homosexual lobby, it's not surprising that Brewer, McCain and Romney, among others, caved in the end. However, the upside is that next time we patronize a kosher deli we can demand that they make us a BLT or ham sandwich.
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written by Ted Seeber, March 11, 2014
The culture war has been lost, because it was never the intention of the representatives to fight.

I'm of the opinion that John McCain and Mitt Romney knew exactly what they were doing. And why.
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written by schm0e, March 11, 2014
Thank you from me, too, as I was previously misinformed about this; and yet it was clear from magnitude and sudden appearance of dust-up that something was rotten in Denmark.

If I may be permitted another cliche, the devil really is in the details. Probably because there's more opportunity to twist the truth there.
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written by Blake Helgoth , March 11, 2014
I second what Ken said. We've be duped!
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written by maineman, March 11, 2014
Thank you once again, Mr. Arkes, for clarifying the problem as it stands. It seems, as others here imply, that political means to stave off the increasing persecution of Christians no longer exist, precisely because the uncoupling of the culture from its moral substrate is an accomplished fact.

I believe that you have argued in previous columns that any sound legal argument must be grounded in reason and morality rather than mere belief. If so, then I think you are correct.

The trouble is that a new belief system has taken hold, a (self-refuting) materialist theology that puts lipstick on the old, discredited social engineering pigs of the last century and dresses up neo-paganism as the "progressive" wave of the future.

Up is down, wrong is right, immorality is the new morality, so says our state religion.

There is no room to argue for what is reasonable and moral anymore, and we can only watch and wait to see which Caesar decides to resume the persecution in earnest. Or so it seems.

It seems pretty much like it is in God's hands, anyway, which is fine with me.
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written by cermak_rd, March 11, 2014
Of course any person can claim their own religion. That's what the first Amendment means. How else could it be but that the Catholic Church is exactly legally equivalent to the Church of the Flying Spaghetti Monster?

That's what freedom of religion and absence of religious establishment mean. Anything else is to take GK Chesterton's Democracy of the Dead and turn it to an autocracy of the dead. Why should a tribe of people 4000 years or so ago (Jews) be able to form a new religion, but folks now can't? Joseph Smith formed his just around 150 years ago, and Jesus/Peter/Linus/Paul got theirs going just 2000 or so years ago. Perhaps the church of the Jedi will be bigger than the LDS church in 150 years time?
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written by Layman Tom, March 11, 2014
Ken, I'm curious. You say you are a social conservative. I'll take you at your word. This brings me to a question: I wonder what you'd suggest. For whom do you intend to vote and from where politically do you suppose they will hail? If socially conservative issues are your rally cry, do you truly believe the greater evil will satisfy you?

I disagree with you on a lot of things, such as the military and economics. Yet it seems to me that we are fellow travelers on social issues. I cannot see a way around voting for whomever the republican establishment trots out as the next contestant on The Price is Wrong Show. Sure, I will work for whomever I like best and vote for him in the primaries, but when the Rino establishment gets their way and puts whichever pusillanimous sissy is next in against, in all probability, Hilary Clinton, I will suck it up and vote for the republican and hope he grows a backbone in office. The point is, that is the lesser evil and in politics, not voting doesn't teach anyone the lesson you intend it to. It only empowers your enemies. Ask yourself what lessons our party took from the defeats of Bush41, Dole, McCain, and now Romney. Each time, large swaths of Conservative republicans stayed home rather than vote for a Rino (or they voted for Perot) and each time we got slaughtered in the election. Afterwards, in every instance, the party establishment moved more left. The lessons they took were: "Hmmm, I guess we lost because the other side said bad things about us. We should try and change so they won't say those things next time." Never once did they say: "Gosh! Tom and Ken didn't come out and support us. I wonder why? Is it because we are no longer truly conservative and don't stand up for what we and they believe any more? Maybe we should eat our spinach and grow some backbone before the next election so those guys will come and vote." If they did, they would win in a landslide! It's not because they aren't being told. It's because they are lily-livered and afraid to go down swinging.

As much as I'd like to ditch the GOP, there's no other game in town for guys like us. All we can do is keep trying to swing the ship and that cannot be done from the sidelines. Facts are facts. The GOP is not strong and is giving up the store without much fight. But the Donkeys are socialists, or more accurately, Classical Fascists. (Not throwing bombs, it’s just the political classification that best describes where we are heading). They are actively going about destroying the fabric of our republic. They are dismantling the constitution and attacking the very religious liberties and natural law that our country was founded on. So in that context, I ask again, do you have any suggestions on what to do politically to stem the tide that doesn’t involve swallowing your principles and voting GOP? I hope you do, because I don’t see a way around it.

Peace
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written by Athanasius, March 11, 2014
There was a very good article on NRO yesterday about what would happen if you asked a baker to put a swastika on a cake. Every baker that was asked by the authors in NY refused to do so. So, there are still acceptable taboos. The real question is who determines what they are.

For many years our society based this determination on Judeo-Christian principles. Now our cultural elites base it on leftist-progressive principles, which are generally counter to our morals. They don't hold universal sway, but they own the culture: media, government, entertainment. We will lose if we seek legal protections while continuing to lose the cultural battle. We must actively fight and win the cultural battle.

Despite their claims to be "secularist", the left is really a fervent religious movement. Their god is the state, but since states are impersonal, their god is really the small band of elites who run the state. Just look at how the Soviet Union was run and you will see what I mean. These elites arrogate to themselves the authority that belongs to God alone. This is ultimately another form of pride, the original sin.

We must counter this through active witness to our faith, active participation in our sacraments and devotions, and active evangelization of the Good News of Jesus Christ! We must point out the lies of the sexual revolution, redistributionist agenda, and gaia-worshipping environmentalism that leads to elite control of the nation. We must promote Christian charity and stewardship as alternative models for helping the poor and the environment.

The way of the left is totalitarianism. Unfortunately, many a well-intentioned Catholic has been duped by the rhetoric of the left.

Above all, we must trust completely in our Lord.
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written by Ken Torrens, March 11, 2014
Wow Layman, a brilliant analysis and call to action! The problem with the GOP is that its been framed as "against this, against that, against that other thing"; very similar to what has happened to Catholics. You must stand for something or fall for anything. Can anyone please tell me five things conservatives like us stand for, elucidate it in 8 seconds, and in a simple marketable format? You just can't attract people long term meaningfully without it being about something. The anti-abortionists have actually held together because they are for the dignity of life. Five principles, maybe with simple Ross Perot style charts that the sheep can understand, that's the ticket!
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written by ken tremendous, March 11, 2014
Thanks for asking Layman Tom. Believe it or not I used to be a down the line conservative like yourself, but like more than a few I migrated away when it became obvious that the GOP economic and foreign policy agendas were not working for ordinary Americans (that's probably a discussion for another day though). I don't think it started this way or anyone intended it, but I think its hard to avoid the conclusion that the votes of religious conservatives are being used to support things that fit in at best uneasily with what they should be for.

My idea party would be someone with the economic views of Elizabeth Warren but with the social policy views closer to Santorum (I'm not quite a full Ron Paul on foreign policy). I actually think its easy to imagine a world where you had one party that consisted of plutocrats like Soros, and Bloomberg and the Koch brothers and one party for most everyone else. Believe it or not, I think most working class and lower class voters of all races would prefer a party like the non-Koch-Soros-Bloomberg one

But it's pretty obvious that currently I don't find a home in either party. The Democrats for all their rhetoric really care much more about gay marriage and sexual liberalism generally than in really curbing the influence of Wall Street. So nothing there. And the GOP, well, for all the recent talk about crony capitalism-- which at least hits the right notes--you really do need the government itself to come in and break up concentrations of power (doctors, big pharma, banks, patent trolls, occupational licensing boards, zoning commissions, copyright mavens etc.)or at least care about public policy and the problems of governance and so that goes nowhere as well.

So in the meantime I think believers should maybe step back from politics and get more involved in their communities and try to influence the culture that way. Not much of an answer maybe but it is the best one I have.

Go read Rod Dreher's column at the American Conservative entitled "The Benedict Option for Politics" and you'll get a rough sense of where I am coming from.

I don't know who I will vote for in 2016. I'd like to think I'll hold my none and vote for the Republican (I have supported the GOP preseidential candidate in every election of my adult life) but it really depends on who gets nominated. Last time I could barely support Romney though. Maybe I'll only vote in local elections.

You?
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written by Hadley Arkes, March 11, 2014
I want to thank the readers who wrote in today, but I really have to say something in response to Cermak Rd, and I say it with regret because, with a name like that, he must be from my native Chicago. But I really must deliver him from a misunderstanding that could be crippling. There is no way in which religion was understood by any of the Founders as just anything a person would be shameless enough to offer, whether Satanism or witchcraft. Some might have agnostic or hidden atheist but no one who took religion seriously was relativistic in this way. My landsman from Chicago seems to forget that the American regime began with a clear understanding of God, in the Declaration of Independence: the Creator who endowed us with natural rights. The whole scheme depended on the understanding of the universe and the rankings of nature contained there. As the understanding ran, no man was by nature the ruler of other men in the way that God was by nature the ruler of men, and men were by nature the ruler of dogs and horses. And this was not a local God, a God for this "tribe" of Americans. This was the Author of the Laws of Nature, including the moral law. This was the God of the logos, of reason. This understanding pervaded the Founding. It would be an entirely false account of the American regime and the Constitution to suggest, in any way, that the First Amendment was relativistic about religion--any more than it was relativistic about government by the consent of governed, or about constitutional government itself.

On another matter quickly: I appreciate the strains suffered by Ken Tremendous, and so many of us grew up in the Democratic party--until that party did a decisive turn. The hard fact of the matter, as true as it is surprising, is that the Republican party has become the pro-life party in our politics. Ken may be drawn to Elizabeth Warren, but he should not doubt for a moment that a Warren Administration would be as committed as the Obama Administration to abortion as a public good, to be funded and promoted at every turn. And it would be as zealous in bringing the control of medicine under national political control with rationing finally governed by political criteria. On the things that matter, we delude ourselves if we think we can hold back from choosing.

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written by Frank J. Attanucci, March 12, 2014
Every so often, one comes across a political essay which, when read, seems to "cause the scales to fall from one’s eyes," for in it the author gives clear expression to that which, heretofore, seemed to lay just beyond the reach of one’s comprehension. One senses that something has changed, but what? Thomas F. Powers’ brilliant: "The Transformation of Liberalism, 1964-2001," is just such an essay. So much becomes clearer in its light - including the recent events surrounding Arizona SB 1062.

I cannot recommend it enough.
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written by cermak_rd, March 12, 2014
Hadley Arkes,

Yes, I'm a Chicagoan.

The Declaration does make use of Nature's God, but I'm not sure it is anything more than a rhetorical flourish.

The commentary (esp by Madison) during the Constitutional Convention does suggest a strong Christian framework, but in the end, none of the religious sentiments went into the Constitution and the first amendment says what it says, and, more importantly, has been interpreted by the SC to say what it says.

Christians, of course, could have maintained the upper hand by simply evangelizing more and better, but the citizenry we have is the citizenry we have.
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written by Graham, March 12, 2014
Anyone who has attended law school in the last forty years or so -- I graduated in 1994 -- knows the animus toward Christianity in general and the Roman Catholic Church in particular that motivates legal pedagogy. So, all the legal and constitutional analysis aside, it is mostly about this. As with the terrorists in September 2001, it is necessary to neutralize Christians first in order to finally "deal with the Jews" as well as those who promote and live by the Church's understanding of marriage. Mark Helprin a few years ago responded to a question about the survival of Israel with the response that he doesn't believe the nation he served in uniform will survive. Our current president is not helping in any of this because he is the perfect conformist product of American legal education. As a Catholic I will only support the Sacramental and Natural Law understanding of marriage just as I supported the protection of the unborn in law school those many years ago as Catholics and evangelicals sat in silence while the social justice activists shouted me down with nods of approval from the professor.

With the destruction of religious liberty all the obstacles to equality absolutism and sexual libertarianism are obliterated. And with this destruction I tend to agree with Erik Prince late of Blackwater when he says that "there is no advantage to being an American anymore." No advantage and nothing to fight for anymore. I am a Catholic first, a Southerner second, and being demoted to second class citizenship, no longer an American in any historic sense of that name. It's time to stop living in a fantasy where "the system works." There is a point where how something is being done IS what is being done. We saw that, and not for the first time, in Arizona. Recall the California "wilding in the streets" that occurred after the election in 2008.

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