Professor Arkes and the Law

Don’t miss Hadley Arkes’ response, “Judging Beliefs and Shaping Laws: A Reply to Robert Miller.” 

In an article in First Things and several related pieces, Professor Hadley Arkes has argued that the plaintiffs in Burwell v. Hobby Lobby, most of their supporters in the public square, and Justice Alito in his majority opinion in the case have adopted a mistaken and dangerous understanding of religious freedom. Although he agrees with the outcome of the case, Arkes thinks the reasoning in Justice Alito’s opinion makes the case turn on the sincerity of the plaintiffs’ belief that abortion is morally wrong. That belief, Arkes rightly observes, is not a mere opinion adopted irrationally or idiosyncratically but a truth that can be justified by reasoned argument. He argues that approaching the case in this way implicitly accepts the libel that religion is merely a matter of opinions that cannot be rationally justified or defended.

Arkes also argues that this false understanding of religion produces “a jurisprudence that cannot give a morally coherent account of itself.” For instance, no one would say that a sincere believer in sati should get an exemption from the murder statute in order to immolate widows on their husbands’ funeral pyres. In denying such an exemption, Arkes argues that a court must, at least implicitly, judge the truth or reasonableness of the relevant belief. He also says that the religious nature of a person’s belief is irrelevant. A man with no religious faith who has accepted the reasoned arguments against abortion deserves an exemption from the HHS mandate no less than a man who believes the relevant propositions were revealed by God. Hobby Lobby, however, exempts the one man but not the other, and this, Arkes says, is incoherent.

More generally, Arkes thinks that a jurisprudence that requires the individual to prove he deserves an exemption from a law gets things backwards. Rather, whenever a law restricts individual freedom, the burden should be on the government to prove that the restriction is justified. He invokes Richard Epstein and commends the reasoning of Judge Sykes in Korte v. Sebelius and Judge Brown in Gilardi v. Dept. of Health and Human Services. According to Arkes, Judge Sykes and Judge Brown both held that the sincerity of the plaintiffs’ beliefs was irrelevant, but that the plaintiffs were nevertheless entitled to exemptions from the HHS mandate because the government could accomplish its end of distributing contraceptives without infringing the plaintiffs’ freedom.

Law-Making Depends on Many Kinds of Moral Considerations

In my view, some of this is right and some of it is wrong. I agree with Arkes that the law should be able to give a morally coherent account of itself, but I think that the moral considerations involved in making good laws are often more complex than Arkes allows. He sometimes seems to imply that, when the law regulates a certain kind of behavior, the moral quality of that behavior completely determines what the law should be: since the law should be moral, what’s right should be legal and what’s wrong should be illegal. In my view, however, the moral considerations relevant in determining how the law should treat a certain kind of action include but go beyond the moral quality of the actions in question. There is no simple relationship between what is moral and what is, or should be, legal.

Why is this? It helps here to return to first principles. An action is morally right only if, in the circumstances in which the agent chooses it, the action is ordered to the final end for human beings. Although we can easily know that certain actions are always wrong, it is often difficult to know which actions are right in a particular set of circumstances. In asking what laws we should have in relation to a certain kind of human behavior, we are asking which lawmaking actions related to that behavior, if any, are in fact ordered to the final end in the given circumstances. The fact that certain actions are not ordered to the final end (that is, are immoral), does not imply that certain other actions prohibiting or punishing those actions by law are ordered to the final end (that is, are moral). Sometimes, even though an action is immoral, prohibiting or punishing it by law is immoral too. In this way, there can, in a certain sense, be a moral right to do wrong.

Consider lying. Even if we follow Augustine and Aquinas and assume that all lying is wrong, it does not follow that we should have a law generally prohibiting lying. Even if the moral wrongness of lying provides a prima facie reason for prohibiting lies, there are countervailing considerations that show that, all things considered, a law prohibiting lies generally would not be ordered to the final end and so would be immoral. A law against the special kind of lies involved in fraud is morally justified, but some lies—telling your hostess that her dinner party was enjoyable when it was actually excruciating—are so trivial that incurring the costs of mounting a criminal prosecution would be morally unjustified.

Or consider the Twenty-Sixth Amendment, which provides that the right to vote of citizens of the United States eighteen years of age or older shall not be abridged on account of age. In one sense, this law is very unjust, for there is no morally relevant distinction between a person whose eighteenth birthday is tomorrow and a person whose eighteen birthday was yesterday, and yet the law gives the vote to one and not the other. More generally, the law enfranchises some irresponsible adults who don’t deserve the vote and disenfranchises some precocious adolescents who do. But in fact the law is just, because the morally relevant considerations go beyond whether the law enfranchises all and only the people who deserve the vote.

The Law is Executed by Imperfect Human Beings with Imperfect Information

Such considerations arise from the fact that the law is not self-executing but is, rather, an administrative system run by human beings who always have imperfect information and who often have inclinations to behave badly. Imagine that the law allowed a person to vote only after he convinced a court that he was mature enough to do so. In such inherently difficult cases, courts would often err, and the system would invite abuse, as each political party sought to enfranchise likely supporters and disenfranchise likely opponents. These are moral considerations distinct from the moral question of whether a particular individual should have the right to vote, but they are nevertheless crucially important in determining what kind of voting laws we ought to have. They show that we get a more moral system, all things considered, with a bright-line rule that yields unjust results in some relatively small number of cases.

In the law of religious freedom, the morality of the religious practices of the man who claims a right to religious freedom is relevant, but so too are many other considerations. Once again, it matters that the law is a system administered by imperfect human beings. In particular, long and sad experience has shown that legislatures and courts are not good at sorting out true religious beliefs from false ones, and majorities, whether religious or non-religious, tend to persecute religious minorities, which produces social strife and sometimes bloodshed. Even when a law is not aimed at restricting a minority’s religious practices, if the law in fact does so, such pernicious consequences often follow. This means that, sometimes, even though a certain religious practice is based on false beliefs and is morally wrong, nevertheless making a law to suppress that practice is wrong too. For just such reasons, our law includes provisions like the religion clauses in the First Amendment and the Religious Freedom Restoration Act (RFRA), which limit the government’s involvement and interference in religious matters.

Hobby Lobby and the Religious Freedom Restoration Act

This brings us back to Hobby Lobby. In that case, the plaintiffs’ main argument was that the HHS mandate, as applied to them, violated RFRA. RFRA provides that the government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government “demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

Justice Alito’s opinion in Hobby Lobby employs the multi-stage inquiry required by the statute. That is, the statute first places the burden of proof on the plaintiffs to show that their exercise of religion was burdened by the HHS mandate, and Justice Alito thus first held that the plaintiffs succeeded in showing this. In a sense, therefore, the case turns on the sincerity on the plaintiffs’ religious beliefs: if they did not really hold these beliefs, then they could not show that the HHS mandate burdened their exercise of religion, and the case would be at an end. But it is not true, as Arkes seems to say, that Justice Alito’s opinion makes the sincerity of the plaintiffs’ religious beliefs the only issue in the case.

For, even if a law does burden a plaintiff’s sincerely held religious beliefs, the result is not that the plaintiff automatically wins the case. Rather, the burden of proof shifts to the government to show that the application of the challenged law to the plaintiff furthers a compelling governmental interest by the least restrictive means available. That is why, after holding that the HHS mandate burdened the plaintiffs’ exercise of religion, Justice Alito went on to this further inquiry about compelling interests and least restrictive means (pages 38-49 in the majority opinion). After assuming for the sake of argument that the government’s interest in distributing abortifacient contraceptives was compelling, Justice Alito held that the means adopted were not the least restrictive available. Thus, the government had not carried its burden in the second part of the inquiry, and so Justice Alito held for the plaintiffs.

Sincere Religious Beliefs are Necessary but not Sufficient for Legal Exemptions

Nor is Arkes right that Judge Sykes in Korte and Judge Brown in Gilardi reached the same outcome without relying on the sincerity of the plantiffs’ religious beliefs. The very structure of RFRA makes that quite impossible, and both Judge Sykes and Judge Brown found, in the first part of the inquiry, that the plaintiffs sincerely held the relevant religious beliefs. Thus, Judge Sykes writes, “Checking for sincerity and religiosity is important to weed out sham claims. The religious objection must be both sincere and religious in nature,” and she noted that “no one questions [the plaintiffs’] sincerity or the religiosity of their objection.”

As for Judge Brown, when Arkes writes that “Judge Brown made clear what was ‘not at issue’: the case was not about ‘the sincerity of the Gilardis’ religious beliefs,” he misunderstands what Judge Brown was saying. In full, she wrote, “We begin with the peculiar step of explaining what is not at issue. This case is not about the sincerity of the Gilardis’ religious beliefs, nor does it concern the theology behind Catholic precepts on contraception. The former is unchallenged, while the latter is unchallengeable.” Judge Brown is not saying, as Arkes thinks, that the sincerity of the plaintiffs’ religious beliefs is legally irrelevant; she’s saying that, although legally relevant, the sincerity of the plaintiffs’ beliefs was not disputed by the government. The opinions of Judge Sykes and Judge Brown are essentially like that of Justice Alito: they found that the plaintiff carried its burden in the first part of the RFRA inquiry but that the government failed to carry its burden in the second part.

So Arkes has simply misread the opinion when he says that, under Hobby Lobby, any sincere religious believer can claim an exemption from a law of general applicability, including the sincere believer in sati who wants to toss a widow on her husband’s funeral pyre. Indeed, Justice Alito expressly says, “We do not hold … that [plaintiffs] can opt out of any law . . . they judge incompatible with their sincerely held religious beliefs.” The reason, of course, is that even if a law does burden a plaintiff’s sincerely held religious beliefs, the result is not that the plaintiff prevails in the case but merely that the burden shifts to the government to show that the application of the challenged law to the plaintiff furthers a compelling governmental interest by the least restrictive means available.

In this regard, it is instructive to see what happens if the believer in sati sues, claiming the murder statute infringes his free exercise rights. Under RFRA as interpreted by Justice Alito (and Judges Sykes and Brown), the sincere believer in sati would be able to show, in the first part of the RFRA inquiry, that his exercise of religion is substantially burdened by the murder statute. The burden would then shift to the government to prove that the murder statute, as applied to the plaintiff, was furthering a compelling governmental interest by the least restrictive means available. Since protecting the life of an innocent is unquestionably a compelling governmental interest, and since accommodating the man who wants to immolate the widow while still protecting her life is a physical impossibility, the means adopted by the government are the least restrictive available. The government would thus carry its burden in the second part of the inquiry and win the case.

Should Courts Judge the Truth of Religious Beliefs?

But although he has misread Hobby Lobby, Arkes is correct about something much more important when he insists that, in religious freedom cases, the court must in some way consider the truth or reasonableness of the plaintiff’s religious beliefs. For, in applying RFRA, although the courts do not directly assess the truth or reasonableness of the plaintiff’s religious beliefs, they do assess whether the governmental interest being furthered is compelling and whether the means adopted are the least restrictive available. These inquiries often involve substantial moral questions that bear on the truth or reasonableness of the plaintiff’s beliefs.

In the sati example, when the courts holds that protecting innocent human life is a compelling governmental interest, it would undoubtedly be relying on the moral judgments that killing the innocent is gravely wrong and that the murder statute is morally justified. Those judgments are not precisely about sati; there is no inquiry into the origins of sati or its theological justifications. But the judgments involved do imply that sati is morally unjustifiable.

Arkes also notes that, under Hobby Lobby, a man who believes that God has revealed that abortion is wrong gets an exemption from the HHS mandate but a man who accepts only purely rational arguments that abortion is wrong does not. This, he says, is morally incoherent because there is no morally relevant difference between the two men. Now, I follow Aquinas in thinking that a law that requires a man to act unjustly does not morally bind anyone; hence, I agree that the man who accepts rational arguments against abortion but has no specifically religious objection to the HHS mandate deserves an exemption from the regulation. But I disagree with Arkes when he concludes that RFRA and Hobby Lobby are morally incoherent in exempting the religious believer and not the rationalist.

There are good moral reasons for affording specifically religious beliefs and practices extra protection in the law because of the especially great danger that majorities will persecute religious minorities. The fact that other people may be treated unjustly for reasons unrelated to religion does not make affording special protection to religious believers incoherent. I agree with Epstein that a constitutional law that provided much stronger protections for individual liberty and private property would be a better system (see his monumental new book, The Classical Liberal Constitution), but even in 1791, when such a system was widely accepted, the founders concluded that religion required special protection in the Constitution.

And this brings us back to Arkes’s concern that Hobby Lobby and its defenders are unwittingly lending credence to the false idea that religion is merely a matter of blind faith in doctrines that cannot be rationally justified or defended. Arkes is right to be alarmed that this foul idea is prevalent in our public discourse (see Brian Leiter’s Why Tolerate Religion? as reviewed by Michael Paulsen), but he is quite wrong that it appears in Hobby Lobby. For one thing, although the RFRA analysis in that case never requires the court to inquire directly into the truth or reasonableness of the plaintiff’s religious beliefs, the second part of the RFRA inquiry does indirectly bear on precisely these issues.

More important, however, when the law limits the courts’ power to inquire into the truth or reasonableness of religious views, this is not because the law is assuming that religious beliefs lack rational foundation. Rather, it’s because allowing courts to exercise this power on a large scale would be too dangerous: judges are no better than anyone else at sorting out true religious (or moral) beliefs from false ones, and they are just as liable as everyone else to regard beliefs different from their own as false and unreasonable. By limiting the court’s inquiry to whether a law serves a compelling governmental interest by the least restrictive means (not whether the law is morally right or whether the conduct restricted is morally wrong), the law seeks to confine the court to easier questions where error is less likely.

This is an imperfect system to be sure, but if we allowed courts a general power to pass on the moral quality of religious practices, the result would not be highly accurate moral decision-making but the imposition of the views of that small section of the population likely to become federal judges. Arkes chooses examples involving the killing of human beings (abortion and sati), where presumably moral clarity is easier to achieve, but even here, infamously, the federal courts have gone gravely wrong on abortion. Imagine what they might do on questions concerning the proper modes of worship, sexual morality, or the education of children. Just as it is immoral to give whiskey and automobiles to teenage boys, so too is it immoral to give courts a generalized power to decide which religious and moral beliefs are correct, and for the same reason: the results are likely to be disastrous.

In saying that Hobby Lobby endorses the false notion that religion is a matter of irrational convictions, Arkes has simply misread the case. More generally, the holding in Hobby Lobby is perfectly coherent, if we attend to all the morally relevant considerations in the case, including those that concern which powers may safely be confided to the government.