My late leader of days long gone, the first Mayor Daley of Chicago, once poured out his heart about life in the political arena: “I have been vilified, I have been crucified, I have been ….criticized!” Well, I haven’t been vilified or crucified, but I have been criticized vigorously for my writings in this space on the reasoning in the Hobby Lobby case, and criticized by a long-time friend, the Editor of the Public Discourse, Ryan Anderson. My response reveals his critique, while at the same time it may sharpen and deepen the argument. We have here a matter of “friendly fire”: We don’t have a disagreement about the outcome of the case. We are both relieved that the Green and Hahn families were delivered from the mandates of Obamacare on abortion and contraception. But our disagreement runs to the root of the reasoning that brought forth that decision. My own argument is that the rationale for the case’s holding produces a jurisprudence that cannot give a morally coherent account of itself. That jurisprudence claims to protect religion while installing premises that denigrate religion and promise to be corrosive for our law. And the issues are worth drawing out because they reveal at the same time what may be called the Post-Hobby Lobby Illusions, the stories that our friends are willing to tell themselves as they seek to elevate into a reigning doctrine the slogans that have recruited their sentiments.
As Ryan Anderson rightly noted, my main argument has been drawn from the warning posted by John Courtney Murray years ago: that the religious back into a libel of religion as they reduce their position to a matter of “beliefs,” which claim to be valid only for those who share them. In this way, the religious detach their convictions and commitments from the claims of truth. But as I directed my forensic arts to this point, I was accused by Anderson of neglecting the second “prong” of the argument over the Religious Freedom Restoration Act (RFRA): that the ends of the government here should be accomplished with means far more tailored, far more restrictive.
On that that point Anderson could not be more wrong, with a misreading quite rare for him: My argument over several articles has been that the second prong was quite enough to carry the case. That point had been demonstrated handsomely in the opinions written by Judges Janice Rogers Brown in the Gilardi case and Diane Sykes in the Korte and Grote cases. Judge Brown had made clear what was “not at issue”: the case was not about “the sincerity of the Gilardis’ religious beliefs, nor does it concern the theology behind Catholic precepts on contraception.”
Even if one granted that there was, somehow, a public interest in diffusing contraceptives and abortifacients widely in the land, Judge Sykes pointed out that the government had many other means of doing that. The government could have offered tax incentives, or it could have simply given out the devices and paid for them with public monies. But in order to raise those public funds the government would have had to take on the constitutional discipline of justifying to the public the taxes it was levying to raise this money. How much simpler it is to place, on these private businesses, these private families, the burden of bearing what the government regards as a public obligation. What becomes engaged here then are constitutional principles that have been bound up with the very premises of a regime of law. Those principles were quite sufficient to carry this case—and carry it, may I say, with or without RFRA.
But my critique of Anderson’s position was leveled at his soaring defense of a “right to be wrong” as a supposed moral ground of religious freedom. Anderson was kind enough to cite the reasons I had spelled out, showing why a “right to do a wrong” was as incoherent as Aquinas and Lincoln both thought it was. My fuller response shows how the same reasoning that establishes the incoherence of a “right to do a wrong” would carry over to establish the same incoherence of that so-called “right to be wrong.” We find this confusion played out often over the “right to die.” I may have the means of striking Jones, but that doesn’t mean that I have the “right” to strike him. Similarly, I may have the means of killing myself, but that cannot establish the “right” to kill myself. A sentence needs to be added to establish what is “rightful” about killing oneself, for only in that way could one establish “the right to kill oneself.”
The point becomes even clearer, perhaps, if someone said, “I have a right to believe that two contradictory propositions may indeed both be true. Or that 2 + 2= 5.” Either one is an “incoherent ‘rights-claim’”– as incoherent as the claim that “I have the right to believe that I don’t exist.” And we ask, “who is the bearer of that right”? The one who does not exist? The argument cannot be salvaged by saying that he has a “right” to believe what he does, while he has no right, say, to act upon that belief by killing himself. What he claims to “believe” is inescapably false, and therefore what could possibly make it “rightful” for him to believe it?
These claims are simply incoherent as propositions, and for that reason alone, they cannot rise to the claim of a “right.” They cannot provide the ground of any moral defense of religious freedom. And for that reason Anderson’s invocations of Dignitatis Humanae are entirely misplaced: The claim to “dignity” cannot be detached from the moral ground that explains wherein a human being finds his dignity, the dignity that claims our respect. Nothing in James Madison or Dignatatis Humanae would extend respect and protection, say, for Satanists. No moral defense of religion, no account of the goodness or rightness of religious freedom, could possibly encompass a sect that rests on a radical affirmation of evil.
But to point out these things is to recognize that the understanding of religion at the Founding meant, as Madison said, “the duty which we owe to our Creator and the manner of discharging it.” This was the God of the Declaration of Independence, the Author of the Laws of Nature, including the moral laws. This was the God of the logos, of reason. As John Paul II said, it was a matter of “faith and reason”—that faith cannot be detached from the grounds of reason on which we tender respect and commendation.
I’m afraid that Anderson might confute the two when he offers, along with other friends of ours, this claim: The Greens and others were offering their “beliefs,” but that is the way in which they phrased what they really took to be truths. And so Anderson writes in this vein, “The Greens relied not only on their belief that life begins at conception but also on their belief that it is wrong to do anything that might kill that life.” But my friends have backed themselves into a logical trap here. We are asked to give a heightened respect to the “belief” held by the Greens because that belief, about abortion, happens to be true. In that case, is it not evident that the claim of respect for this belief rests on the underlying reasons and evidence that establish its truth? Well in that event, should our argument not come to focus in turn on the truth of the matter? Should it not be the substance of the issue that we are testing for truth, not merely the question of whether someone happens to believe it?
And yet, is that where Justice Alito placed the weight of his opinion in the Hobby-Lobby case? Did he take up space considering the truth of the claim made by the Greens that abortion destroys a human life? Or did he not place the accent of the argument decidedly on the side of beliefs held “sincerely”? And that appeal to “sincerity” is the telling sign that no argument was made on the moral substance of the matter, for it were, the judges would have been arguing about that substance. We might put the matter to ourselves in this way:
I “sincerely believe” the arguments I’ve been offering here. Would Anderson take that avowal as a ground quite sufficient for crediting my arguments and receding from his objections? Sincerity is often a winning trait, but the hard fact is that no judgment on any matter of consequence can possibly hinge upon it.
In a tone of disbelief, Anderson levels this curious charge at me: that, in my world, people would have to establish the truth of rightfulness of their beliefs before they can be safe from the reproach of the law. And so he writes:
Does an Orthodox Jewish butcher in a case about serving pork have to prove that eating pork is immoral? Or, for that matter, what about an Orthodox Jewish prison inmate: to succeed in a suit requiring the prison to serve him kosher meals, does he have to prove the righteousness of kosher dietary rules? And how about the Little Sisters of the Poor: will that case hinge on their proving that they have the right moral beliefs about all twenty FDA-approved contraceptives?
Again, that rather decisively misses point (and misstates my position): In a regime of freedom, people have a presumptive claim to all dimensions of their freedom, and the burden lies with the government to offer a “justification” for restricting that freedom. When the matter is viewed through that moral lens, there is no burden flowing to the Orthodox Jew to invoke a “right” to believe that eating pork is wrongful. The burden lies with the government in all of these cases to show why there is anything wrong in Jews holding to these views. That is strikingly different, of course, from the task of judging the claim of those who profess sincerely to believe that the offspring growing in the womb is not “alive” or “human,” and that nothing wrongful is done in destroying it.
I would remind my friends of this lesson taught years ago by some Orthodox Jews in New York: They could win their case in the civil courts, but they preferred to take their chance and lose their case in the rabbinic courts. They preferred to do that rather than concede implicitly that, in the matters of most profound interest to them, they would regard the civil courts as higher, more authoritative than the rabbinic courts. The lesson for my friends: Yes, we know that the lawyers for the Greens cast the argument in the way they did because they thought this was the line most likely to work. This was positivism through and through: we speak these words, detached from moral substance, because we think the uttering of these words will produce the right outcome. And indeed it produced five votes.
And what do we have?: a jurisprudence that will not survive one more Democratic appointee to the Court. My friends may wish to consider that, in gaining the outcome in this way, they have put in place moral premises that cannot supply a coherent defense of our freedom, including our religious freedom. But in going forward, in invoking Hobby Lobby, we are free still to make the argument on better, more reasonable grounds.
Ryan Anderson touches a thread running widely among our friends when he argues that the government should not be pronouncing on the content of religious convictions. “By limiting the jurisdiction of government,” he writes, “we prevent flawed, fallen, weak, error-prone human beings from deploying the force of government in oppressive ways.” There are two concerns here, taken quite seriously, and they may supply the subjects that we may usefully argue out, and think through more fully, in the days ahead. (1) There is a powerful desire to establish the point that government should not be pronouncing judgments on the content of religious beliefs. (2) And in the same vein, there is a felt need to constrain seriously the possibilities for “activist” judges meddling in religious affairs—and interfering with a sensibility unfriendly to religion.
Here we may find two of the leading Post-Hobby Lobby Illusions. I think we could show that (1) is quite unworkable. It will not be possible for the law to avoid casting judgments on the religious beliefs that animate conduct, and even more critically on the acts that define “religious” activity. As for (2), I’d argue that it’s just the reverse of what our friends expect: The scheme that springs from Hobby Lobby will require far more persistent interventions by judges, with far more fine-tuning, than a decision of the Court along the lines that I sketched in, following Judges Brown and Sykes. On that, more in a moment.
We all wish to limit the reach of the government, mainly to bar the government from doing wrongful things. But there is a danger of being snared by an old illusion: that we can simply mark off subjects that the government cannot reach. For reasons I’ve sought to explain in other places, that becomes not merely impracticable but a logical impossibility. (“The Mirage of Enumerated Powers,” Claremont Review of Books, Winter 2010/Spring 2011) I drew on Kant to point out that every act, every subject we can name, can be part of a means-ends chain leading to a harm inflicted without justification. Every activity we can name will have a moral dimension, forcing us to face judgments of right and wrong, and yes, drawing in the community at times, casting judgments in the law. Nothing had been more characteristic of local law than the law on the family, with marriage, divorce and the custody of children. But even the laws on these subjects could incorporate discriminations based on race, and as they did, those laws touching the most prosaic of subjects could run afoul of the “fundamental law” of the Constitution. And so, assigning the custody of children on the basis of race, in mixed racial marriages, suddenly became the business of federal courts.
Anderson recognizes that of course the community will not tolerate the burning of widows or the sacrifice of children, as it refused in the past to recognize polygamy. But then what else are we doing than casting judgments on the “content” of religious conviction and, yes, stamping certain religions as illegitimate religions if they incorporate these practices. For some of our friends, this matter is made even more unworkable by the fact that they will not settle on the very meaning of that “religion” that the government is not supposed to judge.
Finally, on the matter of reining in the judges. In the Hobby Lobby case, as I would have it, the judges would simply invoke a classic principle of our law and say that this was a case of placing the burden of a public obligation on a private family to bear at their own, private expense. It was an attempt to get around the constitutional discipline of the Takings Clause, as Chief Justice Salmon Chase explained years ago: If it were wrong to take private property for public use without just compensation, one could not evade that principle by taking that property and transferring it to other private persons, perhaps one’s own political hangers on. In the cast of judgment I described, there would be no need for the judges to pronounce on whether the government had a “compelling interest” here, to be given weight under RFRA. For indeed, that should not be the business of judges to pronounce on the ranking of all those legitimate interests that might be pursued by the government. Nothing in the kit of judges can provide the grounds of judgment on whether it may be a higher interest to let taxpayers keep more of their money than to use that money to subsidize students in college. The judges can simply return that judgment on “compelling interests” to the Congress: The Congress should face the question of whether the diffusion of contraceptives and abortifacients in the land is an interest of high enough rank that the people’s representatives and the Administration are willing to justify to the public the taxes that would be needed to raise the money for the purpose of providing these “goods” with public funds.
But now, in striking contrast, with the cases springing up from Hobby Lobby, the judges may be called in to judge whether the authorities in Arkansas used the “least restrictive” means under RFRA when it barred a Muslim prisoner recently from wearing a bushy, unkempt beard. The prisoner claimed a religious obligation to the wearing of that beard. The authorities in the prison invoked a concern for security as prisoners could hide in those beards needles and razors. The simplest policy was to insist on clean shaves, barring beards. The Obama Administration, curiously, could summon no sympathy for the Green family, compelled to become accomplices in abortions for their employees; but in its capacious nature it now urges the courts to consider whether a policy on beards can trimmed to something more accommodating. If the judges can be drawn into the regulation of beards, under the strictures in RFRA, where indeed could the limits be found? We would have to engage in prodigies of self-deception to tell ourselves that, in working under the charm of RFRA, we have somehow put at bay an expansive judiciary, intervening ever more in religion.
I make an earnest plea then to those who have joined in working for the outcome in the Hobby Lobby case. We do not show ingratitude for that outcome as we register a deep concern about the reasoning, the grounds of principle, on which that outcome was delivered to us. There should be nothing here that friends should be unwilling to talk about, and none of us would be diminished if we found that there were reasons even better, more compelling, than the reasons that once summoned us.