And Now Comes Judge Sykes

In my last column I reported on a notable decision in the D.C Circuit of Appeals blocking the mandates of Obamare on abortion and contraception.  The opinion, written by Judge Janice Rogers Brown, had coincided in its main lines with the argument I had been pleading for in this space as part of a project of recasting the argument over religious freedom.  

But this fine outcome had little to do with me:  In her own sense of the logic of law, Judge Brown moves along a path of reasoning that just happens to accord with the reasoning that I would identify with natural rights.  And then only one week later, we had a similar, resounding decision by another accomplished woman in the federal courts, Judge Diane Sykes in Milwaukee (Seventh Circuit).  In the companion cases of Korte v. Department of Health & Human Services and Grote v. Sebelius, Judge Sykes dealt, once again, with the Catholic owners of private businesses.  And once again it was a matter of compelling Catholic owners to become accomplices in policies that were deeply at odds with the moral teaching they had absorbed as Catholics.

In the Gilardi case, Judge Brown had made it clear that the argument would not depend on the “sincerity. . .of religious beliefs.”   The appeal would be made instead to those constitutional principles that are bound up with the dignity of “the human person,” as that sense of dignity has been deepened and amplified by our religious tradition. 

In the Korte and Grote cases, Judge Sykes was willing to take as uncontested the sincerity of the plaintiffs in professing their beliefs.  The decisive argument would move then to another ground.  Both judges were dealing with cases arising under the Religious Freedom Restoration Act (RFRA), and so they could insist that the law undergo a “strict scrutiny”:  the law would have to cite a “compelling interest” before it would force people to do something gravely at odds with the moral understanding cultivated in their religion. 

But that is to say, the judges would compel the government to justify its restrictions on freedom with the kinds of demanding tests that were once thought to be necessary in justifying the law when it would restrict any of our freedoms.  When the problem was viewed through that lens, Judge Sykes showed how readily the case for the mandates would come apart. As Judges Sykes observed, the government identified “two public interests – ‘public health’ and ‘gender equality.’” As the argument ran, the wider availability of contraceptives would be useful for public health and for “promoting the autonomy of women” by liberating women, no less than men, from the “risks” of pregnancy and childbirth.

But as Judge Sykes pointed out, contraceptives could be diffused to the population at large in many other ways. The government could provide “contraception insurance”; it could “give tax incentives to contraception suppliers to provide these medications and services at no cost to consumers; it can give tax incentives to consumers of contraception and sterilization services.”

      The accomplished Judge Diane Sykes

The government could also buy the contraceptives and give them away, but with funds it has to raise from the public by justifying taxes.  In other words, these ends of public policy can be accomplished quite readily without compelling any particular person to buy contraceptives for anyone else – and compelling him at the same time to violate the moral principles taught in his Church.

But Judge Sykes had to deal also with that other argument threading through these cases: that while the owners of these businesses may be Catholic and religious, the business itself is not. Judge Sykes brought into play here the example of the Kosher deli:  “On the government’s understanding of religious liberty,” she wrote, “a Jewish restaurant operating for profit could be denied the right to observe Kosher dietary restrictions.”  And in that way, “commonplace religious practices normally thought protected would fall outside the scope of the free-exercise right.” 

But what we have here is the curious claim that a business in a secular society must be detached from any moral definition, and therefore from any religious character.   Some of us would answer by repairing to the opening lines of Aristotle’s Politics:  Every action implies an understanding of a good to be attained. Whether we are seeking change or resisting change, whether we are going to school or going to work, every act implies a rough understanding of a state of affairs that is good or bad, better or worse. 

The standards of good or bad, right or wrong, are not in the clouds;  they are irreducibly practical, in forming the grounds of our acts.  In the same way, every association implies a good that provides the rationale for how and why people come together. 

The Kortes owned a construction company, the Grotes manufactured “vehicle safety systems.”  The businesses were directed to products and services thought useful and legitimate, including the good of attaining safety in vehicles.  And if a business – any  business or association – cannot be detached from an understanding of the “goods” it is constituted to seek;  if every association has then a moral definition; the question is now turned about. 

It would have to imply nothing less than a disability imposed on the religious alone if the only source of moral understanding barred from the character of a business is the understanding drawn from religious teaching.


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.