Compelling the Faithful to Recant

Over my last few columns I have been trying to make the case for recasting of the arguments on behalf of religious freedom. Those arguments have come into play with a special poignancy now as people like the Green family, the owners of the Hobby Lobby craft stores, have sought to resist the mandates of Obamacare on abortion and contraception. 

The arguments put forth on behalf of litigants like the Greens have been interesting, but one way or another they keep falling back upon the claim of Catholic “belief.” Implicitly – and unmistakably – they give up the claim that Catholic teaching, say, on abortion, is based on a weave of science (embryology) and principled reasoning. It has been a model of “natural law reasoning,” with truths accessible to people across the religious divisions, and even to atheists. The wrongness of abortion is a wrongness that would hold for anyone, not merely for Catholics.  

I have been arguing, then, for a recasting of the argument that simply seeks to recover the understanding running back to Aristotle about the moral ground of the law: When the law overrides claims of personal freedom, the law bears the burden of showing that it is acting upon a principle of justice or rightness that would hold for anyone who comes within the reach of the law.

When the problem is viewed through that lens, it would become the burden of the law to show that there was something wrong with these understandings held by the Greens: that abortion destroys a human life; that the life in the womb is incontestably “innocent” in the sense that it cannot be the source of any intended harm; and unless there is a new, private right to kill for wholly private reasons, the taking of that life must be justified with reasons as compelling as the reasons we demand for the taking of any other human life.

As I pointed out earlier, the problem is deepened by the fact that people like the Green family are not challenging the fact that they are being connected through the nexus of the tax system to the general policies that support and promote abortion. But the Greens are now ordered to become the discrete agents themselves in supporting, facilitating – and implicitly endorsing – the abortions chosen by their employees. That kind of arrangement would have been seen in the past as a species of “class legislation,” simply commandeering the property of one private person, not for public use, but for transfer to the benefit of other private persons.

            A weave of science and principled reasoning

The problem is deepened with the recognition that there is no need for this public provision of abortion. Abortions are readily affordable, and if they make as much economic sense as their advocates seem to think, it would make as much sense to borrow money to pay for them as to borrow money for a car or smartphone.

In the case of Elaine and Jonathan Huguenin in New Mexico, there was no need to punish them for declining to take photographs of two women arranging what they regarded as their wedding. There was no want of photographers willing to have that business. But it turns out that the people who have been arguing for years that there are no moral truths have absorbed the “logic of morals,” along with everyone else, and apply it now with a vengeance: The good is that which should be commended, encouraged, rewarded; the bad and wrongful is that which should be condemned, discouraged, punished. 

It was critical to stamp the Huguenins as “wrongdoers.” Lincoln remarked on the partisans of slavery in his age that silent acquiescence would not be enough. One had to be “avowedly with them,” he said.  For “this, and this only [would assure them]: cease to call slavery wrong, and join them in calling it right.”

The activists for abortion and same-sex marriage have identified their adversaries as the religious, and they will not feel unthreatened until the teaching that animates the religious is renounced at the core. The Huguenins and the Greens must be compelled to confess the rightness of abortion or the rightness of same-sex marriage. 

The libertarian professor of law, Eugene Volokh, likened this case of the Huguenins to the case on compelled speech under the First Amendment. Professor Volokh surely appreciated that the Huguenins were not strictly being required to speak words, say as the children of Jehovah’s Witnesses were once compelled to speak and perform the pledge to the flag.  But what Volokh apparently noticed here was that the moral insistence on punishing could be explained mainly by the desire to humble these people before a new orthodoxy, demanding now its place as a principle commanding reverence.

But the religious, with a certain sympathy and humility, steer away from demanding that their adversaries abase themselves in this way. The passion to demand that abasement marks an unlovely expression of fanaticism in our law. And for the judges, it should mark a telling sign of the intemperate passion that the Founders were seeking to avert on either side – on the side of irreligious no less than the side of the religious – as they became untethered from an anchoring prudence. 

What was working among the Founders was a religious and constitutional temperance as they sought to put the levers of official power at a more salutary distance from our religious life.



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. He is the author of 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 available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.