The Same Thing, but Different

A snapshot of our times: The band that calls itself the City Council of Washington, D.C. passes two measures, reflecting the local ethos, growing more assertive. One is the Reproductive Health Non-Discrimination Act (RHNDA). This bill would go beyond the familiar bars to discrimination based on “sexual orientation” and bar discrimination based on “reproductive health decisions.” A person working, say, for a Catholic institution could not be fired because she had an abortion, and yet more than that: a teacher could not be fired even though he openly derided and denied the moral teaching of the Church on this matter.

The second bill, the so-called Human Rights Amendment (HRA) would repeal the Armstrong Amendment of 1989. That Amendment sought to preserve the freedom of religious schools in the District to refuse to recognize, fund, or promote the homosexual life. The Armstrong Amendment reflected the authority still retained by Congress over the District of Columbia, an authority fixed in the Constitution. For over forty years now, there have been arrangements for home rule, but with Congress preserving the authority to veto bills like RHNDA, which test the willingness of a national authority to consent to measures that could never pass the national legislature.

For the proponents of these bills, that complication not only heightens the tension; it heightens also the significance of these bills. If these bills can pass without the resistance of a Congress that reflects the conservative sentiment still alive in this country, the prospects would seem all the better then for passing the same measures in cities across the land, where the local ethos is freer to enact itself into law.

These measures have become all too familiar, but things are not exactly the same. Three years ago even seasoned observers of politics found it hard to believe that the Obama Administration would actually pick a fight with the Catholic Church over mandates on abortion. But now there is a new brazenness in marking Catholic institutions explicitly as the enemy, and with the sense that there is a new constituency for this kind of politics.

The opponents of the bill have rightly raised the alarm over “religious freedom.” True enough, but the assault on freedom contained in these bills would have been turned away in the past based on axioms that do not require any mention of religion. Those axioms involve the freedom of a legitimate, private association to preserve its own integrity.

Take the matter from the other side: Is it legitimate for people to make the argument in public for a right to abortion? If it’s legitimate to hold that view, it must be legitimate to join, or associate, with others who hold the same view. It must be legitimate then to form an Abortion Rights Action League, with its officers and newsletters.


Let us say that an officer of high rank in this association defects and becomes pro-life. She would be fired. She could not invoke rights under the First Amendment – that she was fired for her political opinions. For her firing does not mark any move in the law to forbid people from holding that position. The defector is free to find a job elsewhere, making the case for the pro-life position.

In precisely the same way, teachers in Catholic schools would not be deprived of their rights under the First Amendment if they were fired for deriding the moral teaching of the Church. It would be the Catholics who would be deprived of their freedom of association: their right to preserve the integrity of a private school committed to Catholic teaching.

Now the curious thing is that these arguments have been made – the other side has been amply alerted to the fact that this kind of legislation would undermine their own freedom to preserve groups dedicated to abortion and gay rights. And yet, the sounding of that argument has not deterred them in the least.

My own sense is that the other side simply does not take seriously the prospect that this argument will ever really be deployed against them. Or, they have long since stopped taking seriously the notion of debating arguments and giving “reasons.” In fact, it has become a device on the side of the proponents of same-sex marriage to take offense at the very invitation to debate: They regard their position as so settled in its rightness that it should no longer be debatable.

And that touches the real key: the other side refuses to concede in the first place that an association that rejects their position on gay rights and abortion can possibly be a legitimate association. They insist on the rightfulness of their position. But if our side does not contest the substance of that claim – if it does not contest the rightness or justification of those policies – all it can do is seek an exemption on the basis of religious “beliefs,” which claim to be valid only for the persons who hold them. In this way, our side is forced to salvage its interests by detaching itself from any claim to the moral ground of our position.

Senators Ted Cruz (Texas) and James Lankford (Oklahoma) have already filed a motion to overturn the bills in Washington. But what of the leadership in the House? The fact that the leadership has held back, not yet resolved, may be another subtle measure of the changes in the air.

Hadley Arkes

Hadley Arkes

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and 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.

  • Michael Paterson-Seymour

    “Those axioms involve the freedom of a legitimate, private association to preserve its own integrity.”

    Lord Acton pointed this out more than a century ago and identified its underlying reason: “Civil and religious liberty are so commonly associated in people’s mouths, and are so rare in fact, that their definition is evidently as little understood as the principle of their connection. The point at which they unite, the common root from which they derive their sustenance, is the right of self-government. The modern theory, which has swept away every authority except that of the State, and has made the sovereign power irresistible by multiplying those who share it, is the enemy of that common freedom in which religious freedom is included. It condemns, as a State within the State, every inner group and community, class or corporation, administering its own affairs; and, by proclaiming the abolition of privileges, it emancipates the subjects of every such authority in order to transfer them exclusively to its own. It recognises liberty only in the individual, because it is only in the individual that liberty can be separated from authority, and the right of conditional obedience deprived of the security of a limited command. Under its sway, therefore, every man may profess his own religion more or less freely; but his religion is not free to administer its own laws. In other words, religious profession is free, but Church government is controlled. And where ecclesiastical authority is restricted, religious liberty is virtually denied.”

  • Manfred

    Thank you for the well researched, well written piece we have come to anticipate Dr. Arkes. May I suggest that what we have witnessed over the last five years is the beginning of Sharia Law in the United States, being imposed by our first, and hopefully last, Muslim President? I maintain that Our Lord has allowed militant Islam to become re-energized in order to scourge the West for its apostasy. The evidence would be that the West appears incapable to defend itself.

    • CeliaKhan

      No, you may not suggest that, you noxious, bigoted man. How dare you presume to gratuitously smear Muslims.

      • didymus46

        I don’t know, “CeliaKhan,” there are millions upon millions of Muslims who would not regard that as a smear at all. That is the goal of those who identify with the caliphate And they are legion. But no, Obama is not a Muslim; he’s pretty much an atheist, at least by his actions. However, he does have a certain creepy affinity for Islam.

  • pj

    It’s worse than that.

    First, Christians have an explicit obligation to be the “salt of the earth,” i.e. to preserve the freshness of society, by withholding cooperation from wickedness and extending it to virtue; by dissolving relationships with the wicked and developing them with the good. This means that freedom of association and disassociation is an essential precondition for the practice of Christianity. Laws controlling our choice of relationship partners effectively prohibit the practice of Christianity.

    Second, although these laws are often framed in apparently neutral terms, they are anything but in application. In practice, they are never allowed to be enforced against the left, only against Christians and conservatives. If an anti-abortion advocate were to sue Planned Parenthood for failing to hire him because of his views on reproduction, his suit would get nowhere; nor would these government commissions entertain his claim. These laws are written for one purpose only — to oppress Christians and conservatives, with the goal of eradicating us.

    We are witnessing the rise of an anti-Christian totalitarianism in the United States. And it is long past time to draw lines and resist.

  • Francis Miller

    The hatred of the Church is so vehement that it obscures all consequences that acting upon it incur. These statutes can of course be turned against their instigators that is quite clear. And so Lucifer blinded by dire hatred rose up against God and suffered so grievous a defeat lasting for eternity that one must question the act itself. Could anything good have come of it? Will anything good come of these local legislative actions? No. Government is necessary but it is not good. Expecting goodness from government is the same as Lucifer expecting his rule in heaven.

  • What a good idea- a Catholic Journalist should apply to be the head of Press Releases for Planned Parenthood in Washington DC. If they don’t get the job it is a lawsuit for discrimination, if they do get it, they can publish pro-life screeds on Planned Parenthood’s dime and cannot be fired for it.

  • Matt

    Yesterday we have the news that a Catholic school in NJ has released its Catholic theology teacher for a public posting of an argument that marriage is between man and women with the observation that there are those with an agenda to tear down the traditional concept of Western Civilization. The Monsignor associated with the school and Diocese’ bishop supports the dismissal for purposes of inclusiveness and they point to Pope Francis words for the “new” spirit. – one that can not tolerate the truth of natural law. So it is not only external to the church – it is internal as well – right to the top.

    • Navymum

      What is the name of the school? If this is true, we must know the name!

    • Thomas J. Hennigan

      This is one of the results of the recent Synod on the Family with its confusing statements. If an Institution, school, hospital or whatever is not Catholic, the Church should correct this situation or else close it down. What’s the use of having all these supposed Catholic institutions when they only pay lip service to Catholicism. So, Notre Dame and a whole lot of universities which are no longer Catholic should be deprived of the name Catholic. It could be argued that they are falsely advertising what they are not, as the bishop has the autority to decide what is Catholic and what is not in his diocese. Of course, no bishop is willing to take on the Jesuits. If soem bishop does so, it would also hit these institutions where it most hurts them, no the Catholic faith, but the bank account.

  • SnowBlossoms

    The battle has begun, in earnest, for the soul of the entire world, Satan has been completely loosed. I believe the time has come for us to let go of the world, our attachments to it, and stand for Christ even if it means we lose everything, our jobs, our lives, everything- to defend Christ and His Church, to defend the Truth. May the Blessed Mother, clothed with the sun, crush the head of the serpent and grant us the Grace to stand firm and fight the good fight!