Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, February 28, 2012

Bradley, "The Law as Therapist"

The HHS mandate has "nothing to do with health," writes my colleague, Gerry Bradley, in this piece.  And, he points out -- correctly, I think -- that this controversy is just the tip of the iceberg, in terms of the effort to secure protections through law for the human right to religious freedom:

. . . The contraception mandate is a pressure point created by broad and powerful social currents, but there are many such points (abortion and same-sex “marriage” among them), because the tectonic plates that underlay the mandate extend way beyond the Pill. Their momentum is far from spent, and their clash with religion will settle the meaning of religious liberty for some time to come. . . .

Later, he writes:

The emerging picture, and the force behind today’s recurring challenges to religious liberty, is this: So long as one remains in the strictly “private” sphere of home, social club, and sanctuary, one is free to hold misguided opinions about contraception, abortion, and marriage. But once one sets foot in “public” — defined expansively to include the workplace, shops, any place that receives state funds, and religious ministries that serve persons outside the faith — the rule is no discrimination, full stop. (RG:  I tried to make the same point, in my own op-ed a few days ago, here.)  It is all aboard for the new “equal sexual liberty” orthodoxy.

In the new dispensation, invisible fencing will be enough to corral “religious doctrine.” The public sphere is — so the story goes — the home of rational discourse. Church doctrine is the realm of irrationality and superstition and of fantastic theories about the unknowable. “Doctrine” does not need to be kept out, so much as it must be disqualified from entering.

This lengthy reconnaissance allows us to see both the raw power of the ideological threat to religious liberty and the reasons why courts are beguiled by it. In this worldview, there is nothing special or distinctive about religion. Religious acts have the same dignity and value — according to this vision — as do the various choices, relationships, and acts by which other people express their deepest selves, or actualize their deepest desires, or display their most self-defining thoughts or emotions. (Perhaps even less value: Religions tend to be — in this construal — morally judgmental and politically divisive.) Religious liberty is one way of exercising the super-liberty of Casey. Having sex and getting an abortion are other ways. They are all species of the same genus. . . .

(Read the whole thing.)


Garnett, Rick | Permalink

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