Backing Happily into Heresies?

Back in the 1970s a group of Orthodox Jews in New York faced this quandary: They seemed to have a better chance of winning their case in a civil court, while the outcome promised to be riskier in a rabbinic court. But they finally decided that they would rather lose in a rabbinic court than gain their victory in a civil court, for they didn’t wish to establish that, in matters of consequence to them, the civil law claimed a preeminence, or sovereignty, over rabbinic law.

The lesson they taught here has suddenly sprung into relevance again as we encounter serious arguments on the victory in the Hobby Lobby case, even among friends who have celebrated the outcome.

I, too, was relieved by the fact that the Green and Hahn families were not required by the Obama Administration to become accomplices in endorsing and funding abortifacients for their employees. But I’ve also set down in these columns some serious reservations about the reasoning that was put in place to give us this outcome. The lesson taught by those Orthodox Jews in New York was that, as we seek our ends, we should not install premises that strike at the moral ground of our own position.

I’ve argued in these columns that the Hobby Lobby case could have been won without setting into place these premises: that religious convictions are marked by “beliefs,” rather than “truths;” that we accept as a “religion” virtually anything that people tell us they regard as their religion;  that on the strength of these “beliefs” held “sincerely,” we give exemptions from the laws that are imposed on everyone else; and finally, as the Court said in Hobby Lobby, “it is not for [the government] to say that [our] religious beliefs are mistaken or insubstantial.”

With these premises in place, we merely await the imagination and audacity of the people who would gladly appropriate for their side the license that the Court has offered. It takes no high powers of prediction to anticipate this claim: “We sincerely believe that the organism growing in the womb is not really ‘human,’ or anything that we ourselves can regard as ‘fully human,’ with a standing that commands the protection of the laws.”  The Supreme Court has long given standing to beliefs passionately held as beliefs holding the same place as religion in the lives of people. And yet, it is not at all clear now why these beliefs, professed sincerely, would not qualify as “religious.”

But a case now bursting on us has delivered this matter from the realm of speculation with a dramatic force. The Wall Street Journal reports that the Obama Administration has come down on the side of Mr. Gregory Holt, who has converted to Islam and changed his name to Abdul Maalik Muhammad. Holt is serving a life-sentence for cutting the throat of his former girlfriend.

           The beard in question

In prison he claims a religious duty to wear a beard. But the wearing of beards by prisoners is barred in Arkansas, on several counts, as a risk for security. Things like needles, drugs, razor blades could be hidden in certain – shall we say? – unkempt beards.  But the Obama Administration has invoked the Religious Freedom Restoration Act (RFRA) on the side of Holt.

The Solicitor General argues that the state “should do more to justify the imposition of a substantial burden on religious exercise than rely on speculation and unjustified fears.” Mr. Holt had declared his own intention to “wage jihad against any court personnel, detectives, adverse witnesses, and. . .do whatever it takes to get these witnesses, as Allah is my witness.” 

The editors of the Journal could not help remarking on this solicitude for the religious freedom of jihadists on the part of an Administration that could summon no sympathy for Christians compelled to support abortions.

But the inversions of the Obama Administration are now so familiar that we hardly notice them, with a moral posture, in any case, upside down. What completes the picture though is the reaction of the editors of the Journal. They remark in passing that “religious freedom in America doesn’t depend on the content of belief, thank Allah.” In other words, the teaching of the Court is now spreading outward in the land, to otherwise sober readers and writers. They too are now starting to think that we cannot judge the content of beliefs, or test them by the standards of reason we bring to anything else.

But as John Paul II reminded us, Catholic teaching depended on the critical wedding of “faith and reason.” He argued that the connection to Greek philosophy had protected the Church from falling into superstition. It was the considerable service, he thought, of the “fathers of philosophy to bring to light the link between reason and religion.” So that: 

They no longer rested content with the ancient myths, but wanted to provide a rational foundation for their belief in the divinity. . . .Superstitions were recognized for what they were and religion was, at least in part, purified by rational analysis.

In the name of “religious freedom,” we are now being instructed by many of our friends that, for the purposes of the law, we cannot distinguish between a religion that protects innocent life and one that licenses killing as an obligation. We are walking in a haze, celebrating along the way, and backing happily into heresies, political and religious.

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.