August 13, 2013
Arkes on "religious freedom in search of its argument"
At The Catholic Thing, Prof. Hadley Arkes returns to a theme he's been developing in some recent columns and -- using Tom Farr's recent testimony before a House committee as an occasion -- notes what he calls "a critical need to recast our arguments over 'religious freedom' as they are offered not only in the courts but in the political arena." Here's is what strikes me as the crucial section of his piece:
The God of the American Founders was the God of the Declaration of Independence – the Author of the Laws of Nature, including the moral laws. He was that Creator who endowed us with rights. And he was not a local god, of this tribe of Americans. He was the God of the logos, of reason, the Creator of that human person who was marked, in his highest nature, by that gift of reason.
As I’ve argued in these columns, our case for religious freedom should start there, not with the invocation merely of beliefs, but with the things that our religious tradition teaches us about the canons of reason as the ground of our judgments – and the grounds of the law.
And yet that touches the truth that seems reluctant to speak its name these days even among people who have devoted themselves to the defense of religious freedom: that we risk coherence when we treat, as equally plausible and legitimate, any group that flies under the title of “religion.”
If the people at the State Department seem at sea or wanting in conviction, we have to ask, “Have our own friends, working on religious freedom, helped make these distinctions clear and given guidance to them?”
With all due respect to Prof. Arkes -- and agreeing entirely with him that some claims invoking "religion" or "religious liberty" are less plausible than others, and that some claims invoking "religion" or "religious liberty" should lose while others should win, and that the reasons matter why religious freedom is our "first freedom" -- I am not sure I see a need, at this moment, in the courts or in the public square, to push our religious-liberty arguments back to foundations and first principles, especially if this involves debating the question whether the "God of the American Founders" is, in fact, the God of the "radical jihadists" or of other "groups that fill our landscape . . . and carry the banner of 'the religious.'"
In one of his earlier columns, commenting on the Hobby Lobby case, Prof. Arkes said that "[o]ur friends litigating freedom feel pressed to argue within the grooves of 'sincere beliefs,' because they are the terms that the courts have confirmed and the judges recognize. The Greens are a generous, loving family, who deserve to prevail. But there needs to be another way of making the argument in the courts, and that is our task to come." He is right, I'm sure, that religious faith and religious freedom are really about more than just "beliefs" and their "sincerity." It seems to me, though, that the arguments to be made in courts and to judges are indeed the ones that -- for better or worse, and whatever their theoretical inadequacies or gaps -- "the courts have confirmed and the judges recognize."
In his second column on this topic, Prof. Arkes suggested: "The recasting would begin by insisting again on that necessary moral ground of the law: Before the law would impose these new obligations on the owners of the Hobby Lobby stores, the law should bear the burden of showing that there is something deeply unreasonable about their understanding that human lives are destroyed in abortions. Or that there is something unreasonable about their concern that the “contraceptive culture” brings an entirely different ethic in its understanding of sexuality and the marital relation."
It seems to me this is not extremely different than the compelling interest test that is being litigated. That test does not concern specifically measuring the moral reasonability of the claimant's views versus the government's views, but it does impose a burden on the government that from the government's secular perspective amounts to a need to show that the claimant's position is not just wrong but intolerable in the situation. Therefore it isn't altogether clear to me that the religious liberty litigants are urging someting very different than what Prof. Arkes wishes they were proposing.
Prof. Arkes says that objections to abortion etc. are moral and not merely religious. And that's true. But being forced to violate those objections is also a religious harm and not merely a moral harm. I don't think there's anything inconsistent between arguing natural law morality as the grounds for such beliefs, and in recognizing that violating this morality also has religious implications.
Posted by: Matt Bowman | Aug 13, 2013 5:20:51 PM
While it is true that "throughout the history of human intellectual endeavor, sovereignty has cut across the diverse realms of theology, political thought, and psychology", at the end of the Day, the history of man, is the history of our Salvation; whenever we have separated ourselves from The Word of God, and denied The Spirit of The Law, we have suffered greatly as individuals, and as God's people.
That which divides us, keeps us from being in communion, for the purpose of our inherent right to Religious Liberty has always been so that we can come to know, Love, and serve The True God, The Communion of Perfect Love that Is The Blessed Trinity, and hopefully, be with God forever with our Loved ones, in Heaven.
Posted by: Nancy D. | Aug 14, 2013 9:56:02 AM
I don't doubt they are a "generous, loving family," but the suit doesn't turn on that. Anyway, I appreciate this post and don't think it correct to try to find the "God" of 1776 and "start there" when determining "religious freedom." Joseph Story (to be fair, not speaking for everyone) at one point sounded like he considered the 1A basically for Christians. We need to understand "religion" as it is understood today, a much broader understanding.
Posted by: Joe | Aug 14, 2013 11:51:12 AM
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