Obama and the Culture War Endgame

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The report came last week from my friend and colleague Austin Ruse: the White House was putting the steps in place for a policy that would “require charitable humanitarian groups to accept LGBT applicants in order to qualify for government funding, even those religious groups that might have religious objections.” This move would add yet another step to an executive order issued last July, prohibiting federal contractors from discriminating on the basis of “sexual orientation” and “gender identity.”

As Austin noted, “faith-based groups were already wrestling with that order,” and this next step takes the move to a plane ever more aggressive, ever plainer in its purpose and intention. Back in 2012, even seasoned political observers were astonished that the Obama Administration would actually wish to pick a fight with the Catholic Church by ginning up the “war on women.” But it is now, plainly, more than that. It is nothing less than a move toward the endgame of driving serious Christians and Orthodox Jews from the public square altogether.

The anchoring point is to establish the clear, commanding rightness of abortion and the liberation of things sexual from the confines of nature and moral restraint. Those who deny these things, in word and deed, are doing wrongful things, and in the “logic of morals,” the right is to be promoted, the wrongful denounced and repressed.

And to make the point even more emphatically, the wrongful must not be allowed any sanctuary beyond public reproach. The law, and our public policy, should offer not a whisper of endorsement. And the ultimate end: to make it shameful for respectable people to express such views in public.

Once again we see the curious, but predictable inversion. The people who began by denying radically any grounds for casting moral judgments on others now turn about and thunder the unyielding logic of a Categorical Imperative. But that Imperative is linked now to their own, indefensible moral predicates.

And so, they demand that the moral truth here be commanded and respected “though the heavens may fall” – regardless of the consequences that may fall upon us. Would they really have Catholic Charities cease their valuable work in arranging adoptions if they would not place children with same-sex couplings? Would they really forego the lives saved in the work done by religious charities as they deal with floods and famines and earthquakes abroad?

Yes, for this valuable work would come at a cost in principle, for them, too grave to be borne.

“The Flight of the Prisoners” [beginning the Babylonian exile] by James Tissot c. 1900 [Jewish Museum, New York]
“The Flight of the Prisoners” [beginning the Babylonian exile] by James Tissot c. 1900 [Jewish Museum, New York]

The public purpose in these humanitarian missions could be noticeably impaired if the government denied itself the services of these private, religious organizations. But that is separate from the question of whether these private entities can survive without these grants from the federal government (most likely, they could). And that is even more different from the question of whether these religious groups have a “right” to receive these grants.

If the federal government were not deeply involved in foreign aid, with missions of rescue abroad, no one would claim a “right” to engage in such a project with the funding of the government. But now that the programs are in place, a serious moral and constitutional question may indeed be raised by the barring of the religious.

In a 1993 case, young James Zobrest, afflicted with deafness, had the benefit of an interpreter in his public school. That aid flowed to him under the laws of the United States and Arizona. But he was denied that aid when his family shifted him for high school to the Salpointe Catholic School. It was claimed by the county attorney that the use of public funds in a Catholic school violated the Establishment Clause of the Constitution.

The U.S. Supreme Court overturned that decision, but with reasoning too much engrossed in the question of which parts of the curriculum the public funds could be supporting. The more decisive point, however, was this: If there were no public provision for interpreters, James Zobrest would suffer no wrong in being denied them. But those interpreters came to him under the laws of the federal government and Arizona. To deprive him of that benefit solely because he had shifted to a Catholic school was nothing less than creating a disability based solely, decisively on his religion.

The same point of principle would be engaged in barring religious organizations from receiving grants for their work abroad. But there would be little leverage for bringing suit, and nothing here is exactly covered in the Constitution. To bar groups from grants is not exactly to impair the “free exercise” of religion (First Amendment) or to attach a “religious test” for the holding of office (Art. VI).

But as Justice Scalia remarked in a similar case in 2004, when the government bars benefits “to some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.” Those words were not exactly in the text of the Constitution. But Justice Scalia draws the conclusion with the surety that they were entailed by the very logic of “religious freedom.”

Some friends complain that, when judges move outside the text of the Constitution, there is nothing to confine their judgments. But Justice Scalia shows us again how one can move outside the text and find, in the deeper principles, both guidance and constraint.

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.