The late Fr. Richard John Neuhaus, founder of First Things (the journal, not the book), coined the following maxim, which he appropriately called Neuhaus’ Law: “Where orthodoxy is optional, orthodoxy will sooner or later be proscribed.”
According to Fr. Neuhaus, in theology, orthodoxy entails that there are right and wrong beliefs, that some beliefs fall outside or inside what is permissible within a theological tradition. So within Catholicism, on the matter of divine providence and human freedom, one can embrace Molinism or Thomism, but not Open Theism. Catholic theology allows a variety of options on many theological issues, but those options must remain within the confines of Scripture and Sacred Tradition.
If the requirement to embrace orthodoxy becomes optional, however, it follows that it is wrong for a church to require that its members believe that there are right and wrong beliefs. Consequently, “when orthodoxy is optional,” as Fr. Neuhaus put it, “it is admitted under a rule of liberal tolerance that cannot help but be intolerant of talk about right and wrong, true and false.”
For this reason, a new “orthodoxy” will arise, one that entails that it is in fact wrong for a church to act as if there are right and wrong theological beliefs. Thus, the cleric who suggests an ecclesiastical trial to prosecute an alleged heretic will be marginalized and punished by his superiors for his suggestion.
Inspired by Fr. Neuhaus’ Law, I’d like to offer my own maxim, one that applies to law, politics, and culture in the same way that Fr. Neuhaus’s applies to theology: “Whenever a practitioner of a traditional vice appeals to the right of privacy as the justification for the state to leave him alone to engage in that vice, he will inevitably demand that the state require that those who morally disapprove of his practice cooperate with it, either materially or formally.”
Take, for example, contraception. Almost universally considered a vice in the Christian West until the 1930s when the Church of England changed its views, it was only in 1965 that the U.S. Supreme ruled, in Griswold v. Connecticut, that statutory prohibitions of the sale and use of contraception are unconstitutional.
To justify this jurisprudential innovation, the Court’s plurality opinion appealed to something called the “right of privacy,” which the Court confessed is not explicitly stated in the Constitution, but rather, implied by several provisions in the Bill of Rights. This newly minted right, according to the Court, is tightly tethered to the Fourth Amendment, which “explicitly affirms the `right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’”
It is clear from the Court’s opinion that on certain questions – especially those that touch on the philosophies with which a citizen is legally permitted to associate – the government cannot constitutionally employ its powers to inhibit or proscribe those associations. They are within a protectable “zone of privacy.” Thus, a right to purchase and use contraception is like the right to purchase and read a book. In order for it to be a true liberty right, it means that one may exercise it by either refraining or acting.
Thus, it was not surprising that in 1992, Nadine Strossen, president of the ACLU, a group that defends contraceptive rights, testified before Congress in support of the Religious Freedom Restoration Action, expressing in her prepared remarks the principles that the ACLU had defended in Griswold: “At risk were such familiar practices as. . .permitting religiously sponsored hospitals to decline to provide abortion or contraception services.”
It was clear to the ACLU in 1992 that the right to purchase and/or use contraception or abortion services extended to corporate entities, including those that are in the business of offering medical care within the confines of their theological tradition.
The ACLU has since reversed itself and now argues that the government may in fact coerce corporate legal persons to purchase contraception and abortion-causing drugs, and distribute them to others contrary to the conscientious objection of these legal persons.
You can see a similar trajectory on a variety of other questions that were first framed as matters of privacy and personal liberty: abortion, same-sex relations, casino gambling, proliferation of obscenity, and non-marital cohabitation. The initial argument in each of these cases was an appeal to moral pluralism in which the champions of liberation maintained that, although it is perfectly reasonable for traditionalists to say these practices are vices, it is wrong for them to force that reasonable belief on others who may not find it to be reasonable.
And yet, in each of these cases, traditional moralists were eventually required either to cooperate materially or formally with some of these practices (e.g., the HHS mandate and Hobby Lobby, the photographer in New Mexico, the landlord in Alaska) or to try, often unsuccessfully, to navigate around other practices that have become ubiquitous in the cultural infrastructure of their communities (e.g., casino gambling, the proliferation of obscenity).
As I have noted in other places, politics, like nature, abhors a vacuum. For this reason, a society with official practices and institutions that presuppose that the law can never, in principle, provide any right or wrong answers to the deep moral questions that divide us will eventually come to embrace what Pope Emeritus Benedict calls a “dictatorship of relativism that does not recognize anything as definitive and whose ultimate goal consists solely of one’s own ego and desires.”
In such a culture, persons of conscience, such as the Green Family, who own Hobby Lobby, are inexplicable, for such persons are not ruled by their own egos or desires. That is why they must be marginalized and punished.