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.

Wednesday, July 23, 2014

Arkes replies to Garnett re: RFRA, Hobby Lobby, etc.

Prof. Hadley Arkes asked me to post the following reply to my recent post, and I am happy to do so:

I’d like to respond to a couple of the concerns that Richard Garnett raises in his post today on my arguments about Hobby Lobby.   I need to recall to him and my other friends that I have been thoroughly sympathetic to the use of RFRA.  What I've argued is that RFRA is apt and useful because it creates, for the religious, that zone in which the government would have to bear a heavier burden of justification when it restricts personal freedom.  The saving grace of RFRA is that it secures, for the religious, the kind of protection that the courts used to offer more fully for many others when the judges were far stricter in testing the justifications for laws that restricted private rights.

But as Garnett rightly says, my own view [is] that the case could have been argued on deeper foundations.  One friend of mine, experienced in litigation on religion, argued that Hobby Lobby could have been argued even more clearly on the Takings Clause.  Richard Epstein and the libertarians would invoke principles of freedom of association in fending off these intrusions into a private family arranging its private business.   Are they wrong for conceiving other ways of arguing the same case?  What I've been pointing out is that these arguments, draw from the principles of a regime of law,  are not diminished moral arguments. For they draw their meaning from the understanding of the "human person," a term given deeper resonance by our religious teaching.   Only those beings we call “moral agents” can impart a moral purpose to inanimate matter;  and so yes, it is no trivial matter to justify the restrictions placed on these kinds  of beings, as they seek, even in prosaic matters, to honor their own understanding of the ways of life rightful for them.  My pitch has been that if we begin from the classic understanding of the moral ground of the law, and the burdens of justification that the government should rightly bear, we will have provided an even former moral grounding for religious freedom.

But I have a question in turn:  Garnett says that he doesn’t agree with my argument against a “right to be wrong,” but he never sets out that argument or actually explains why it is wrong. 

He also cites this passage of mine in which I sought to bring together the strands of the argument that, taken together, would have a powerful effect in striking at the very ground of the law:

I’ve argued … that the Hobby Lobby case could have been won without setting into place these premises: that religious convictions are marked by “beliefs,” rather than “truths;” that we accept as a “religion” virtually anything that people tell us they regard as their religion;  that on the strength of these “beliefs” held “sincerely,” we give exemptions from the laws that are imposed on everyone else; and finally, as the Court said in Hobby Lobby, “it is not for [the government] to say that [our] religious beliefs are mistaken or insubstantial.”

Now I’m curious:  Have I not given an accurate account the strands that have actually been woven through these cases?  If I have any of these wrong, I would be glad to find out that I’m wrong. But if those strands are there, as I’ve marked them out here, why would they not be the carrie[r]s of principles quite destructive for the laws?

Forgive me one more point on a question I posed in First Things, and which I haven’t seen addressed yet:   

The Catholic Church doesn’t argue on abortion by appealing to revelation or belief.  It argues in the reasoning of natural law, a combination woven of embryology and principled reasoning.  And so I raised the question of whether the protections here under RFRA would apply to the Catholic businessman, reasoning on the matter in the style of the Church, but not to the businessman who uses precisely the same moral reasoning used by the Church, even while he disclaims any religious affiliation?   As I've pointed out, this was exactly the problem faced by Congress in the Civil Rights Restoration Act of 1988:  Would they give an exemption only to religious hospitals in sparing them the obligation to perform abortions?  Or would they honor also the moral objections of those hospitals that were morally opposed to abortions but had no religious definition?

One could simply say, I suppose:  yes, we are simply working with the positive law, which offers its protections here only for the religious under RFRA. The others may have to seek a remedy in other ways.  But that hardly gives a coherent moral account of the jurisprudence we are shaping.

Arkes' reply clarifies nicely one of our disagreements.  He says that "the case could have been argued on deeper foundations" and, in response, I say, "no, it could not."  The "Takings" and "freedom of association" arguments that Arkes mentions are, at the present time and given the current legal givens, losing arguments (regardless of how deep their foundations go and regardless of their moral appeal).    

Next, Arkes says "Garnett says that he doesn’t agree with my argument against a 'right to be wrong,' but he never sets out that argument or actually explains why it is wrong."  This is true.  Such an explanation didn't and does not seem (to me) necessary, as it was provided in Ryan Anderson's response to Arkes (and, I think, in Dignitatis Humanae).   

Third, Arkes writes:  

One could simply say, I suppose:  yes, we are simply working with the positive law, which offers its protections here only for the religious under RFRA. The others may have to seek a remedy in other ways.  But that hardly gives a coherent moral account of the jurisprudence we are shaping.

Once again, I think Arkes has helpfully identified our clear disagreement.  I would "simply" say precisely what Arkes says, above.  The question whether a "coherent moral account" can be given of our current positive-law arrangements regarding religious freedom is an interesting and important one, but that question is (very) different from ones having to do with the arguments to be made in real-world, present-day courts, to judges charged with interpreting and applying not first principles of morality but unsurprisingly imperfect statutes and doctrines.

https://mirrorofjustice.blogs.com/mirrorofjustice/2014/07/arkes-replies-to-garnett-re-rfra-hobby-lobby-etc.html

Garnett, Rick | Permalink