Religious Freedom in Search of Its Argument


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

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & 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.