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 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.