I’d like to thank Robert Miller for taking the time to engage with my piece in First Things, “Recasting Religious Freedom.” That piece has come to mark the serious disagreements that have shown up among writers who celebrate the outcome in the Hobby Lobby case but are sharply divided on the reasoning in the case.
Over the years, I’ve come to savor Professor Miller’s essays, which have been a model of careful writing. But I don’t think he has shown his characteristic care in the critique he offered earlier this week. If Miller had read me in the pages of First Things over the years as I had read him, and if he had read my book First Things, he would have known that it was quite bizarre to impute to me the argument that “since the law should be moral, what’s right should be legal and what’s wrong should be illegal.”
If we understand the moral ground of the law, we understand that the government bears the burden of showing a “justification”—a proposition about the rightness or justice—of restricting personal freedom in the laws. Without a justification in the most demanding sense, there should be no law. But at the same time, the classic tradition has made room for “prudence”—for not applying the principles of right in their full stringency to every case. At times, it’s necessary for statesmen to make an accommodation with an evil for the sake of compressing it, as the American founders did with slavery. But nothing in that prudential accommodation could be taken to offset the wrongness of slavery. Nor could it possibly support the argument made by Miller that “sometimes even though an action is immoral, prohibiting it or punishing it by law is immoral too.” Lincoln accepted the prudential accommodation with slavery, but he did not think it immoral to act, where one still could, on the premise that slavery was wrong.
The Moral Ground of the Law
I dwell on this matter because we may encounter, in this exchange, some differences about what we mean precisely by the “moral ground” of the law. But let me take this to the matter of our reading, or misreading, of the arguments in the Hobby Lobby case, and the question of religion and the law. Miller remarks, late in his essay, that “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.” He uses the phrase “Arkes seems to say” because he has no evidence before him that I did say that. And the characterization is wrong in the same way that his account was mistaken when he said that, “According to Arkes, Judge Sykes and Judge Brown both held that the sincerity of the plaintiffs’ beliefs was irrelevant.” Let me remind Miller of what I did say.
I noted that, under the Religious Freedom Restoration Act, it was a requirement that a person assert a religious motivation for his claim to an exemption from the law. In my account of Judges Brown and Sykes, I wrote:
Both judges were dealing with cases arising under the Religious Freedom Restoration Act (RFRA), and so they could insist that the law undergo a “strict scrutiny”: the law would have to cite a “compelling interest” before it would force people to do something gravely at odds with the moral understanding cultivated in their religion. But that is to say, the judges would compel the government to justify its restrictions on freedom with the kinds of demanding tests that were once thought to be necessary in justifying the law when it would restrict any of our freedoms. When the problem was viewed through that lens, Judge Sykes showed how readily the case for the mandates would come apart.
Miller cites my line from Judge Brown that what was “not at issue” were the “sincerity of the Gilardis’ religious beliefs.” Miller points out that Judge Brown was saying that we take that sincerity as clear, as not contested, as the threshold requirement for the case. Yes, and I agree. But what is the plain meaning of what she is saying when she writes that the religious beliefs of the plaintiffs were not at issue, “nor does [the case] concern the theology behind Catholic precepts on contraception.” What else could she possibly mean but that the decision in the case must finally hinge on something else?
That “something else” is precisely what she and I and Justice Alito coincide in saying it is: that if there is indeed a public interest in diffusing contraceptives and abortifacients throughout the land, the government could have found some other way of accomplishing that end other than imposing on these private persons the burden of bearing a public obligation at their own private expense. In the past, this policy would have been seen as “class legislation,” confiscating and transferring the assets of person A to person B. It would have set off all of the alarms and whistles of a constitutional violation. And the constitutional principle at work here is informed by the understanding, deepened by our religious tradition, of what makes it portentous to take the lives or restrict the freedom of “human persons.” This is not an argument with a lesser moral standing.
Religious Exemptions Are No Substitute for Overturning Unjust Laws
The constitutional violation would have been the same if the businessman in the case had not been religious—even if he had made his way to the wrongness of abortion through the same moral reasoning that the Catholic Church uses. In my First Things piece, I asked on what grounds the law could coherently give an exemption to a Catholic and not to the man who used precisely the same moral reasoning as the Church, even though he was not Catholic. But Miller once again misread what I was saying if he read me there as asking for an exemption from the law for the non-religious. For, as I invoked Bishop Lori to point out, the Church itself was not asking for an exemption from the laws. The Bishops were insisting that the mandates formed an “unjust law,” and therefore that they should be binding on no one.
Some quickly rejoin that, of course, there is no way for the courts to acknowledge the wrongness of abortion without overturning Roe v. Wade. Yes, and that is another mark of the problem. They are seeking a “low door under the wall,” a way to evade the force of that “right to abortion,” not by challenging the substance of that “right” in the political arena and overturning it in the courts, but on the strength of the “beliefs” held sincerely by the “religious.”
Miller makes an earnest claim to carve out a special protection for the religious: “There are good moral reasons,” he says, “for affording specifically religious beliefs and practices extra protection in the law because of the especially great danger that majorities will persecute religious minorities.” But he doesn’t give us those moral reasons—he doesn’t give us the justification for exempting the religious from the laws he is willing to see imposed on everyone else.
And he withholds the key to the whole ensemble: For he does not explain here how we identify the class of people who claim this protection. Who are the “religious”? At the beginning of this regime we understood what was meant by religion: “the duty which we owe to our Creator and the manner of discharging it.” But that is not the definition that prevails today, and I gather that Miller would not confine the meaning of religion in that way. The problem for us is that the courts will now accept as “religion” virtually anything that a person professes to regard as his religion.
And so we are left with this situation: We are asked to give exemptions from the law, not on the basis of reasoning that would show why the law was wrong or why the law should not cover a certain class of cases (such as conscripting into the military service people who are blind). We are asked to credit this chain of propositions: that we may give an exemption based on claims to religion; that we may not challenge the religious standing of anything that a person earnestly claims to regard as his religion; and that we may not cast judgments, testing the plausibility or truth of what people claim to “believe.” As the Court put it in Hobby Lobby, “it is not for us to say that [the] beliefs [of the plaintiffs] are mistaken or insubstantial.”
Respecting Religion Doesn’t Mean We Can’t Judge Its Truth
I’ve been joined by Daniel Robinson and others in pointing out that respect for “religion” has never carried the condition that the “beliefs” offered by the religious may not be judged for their truth or plausibility. Francis Beckwith pointed out in a recent piece what should have been evident all along: that the claims made for legal exemptions or protections for certain “beliefs” cannot themselves offer their argument based merely on beliefs. As Beckwith points out, that case for the special standing of “beliefs” must be a philosophic case, and as a philosophic argument it must be open to the test of what make that argument, not merely readily accepted, but true, commanding the reasoned assent of the rest of us.
As Beckwith demonstrates, the courts have persistently had to judge whether certain religious beliefs could be judged reasonable or unreasonable. This is the work of judges, because this is the work of the law. But Miller argues that he would remove the judges—and presumably, any other part of the government—from this task. According to Miller, the law rightly “limits the courts’ power to inquire into the truth or reasonableness of religious views.” And this is not, he says, because religious beliefs lack a rational foundation. Rather, it is because “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.”
This is not only deeply curious, but also ironic. For in the jurisprudence that Miller and others would put in place with RFRA, the authority to make decisions about what laws are “compelling” enough to justify restricting religious freedom has been shifted from the legislatures to the judges. That was one critical point of RFRA: to shift the scheme from the one described by Justice Scalia in Employment Division v. Smith (1990). In that scheme, it fell to the rigors of the legislative process to determine the laws that a body of elected officials thought it was justified to impose on the public. If the law was “generally applicable”—if it bore no traces of a malign purpose to create disabilities distinctly for the religious—then the law should be changed by making the arguments and gaining assent in the political arena. But RFRA shifted to the judges the authority to gauge whether the interests pursued by the legislature were important enough to justify overriding religious freedom.
In that move, there was a radically wrong transfer of power. Clarence Thomas raised the question in the Grutter case as to why the taxpayers of Michigan had a “compelling” interest in supporting an elite law school in which most of the graduates might not be staying in Michigan. Whether it is a higher or lower interest of the people of Michigan to tax themselves to support that law school, or whether it is better to let people keep more of their earnings for themselves—that is the kind of question that only the people of Michigan are in a position to judge. Once we are dealing with legitimate matters of legislation, which offer no violation of the Constitution, there is nothing in the tool kit of the judges that gives them the principles for judging the interests of the people of Michigan that are higher or lower, more or less “compelling.”
And yet, as far I can tell, that is the shift of power that has been supported by my friends who have defended the regime of RFRA. Yet some of them deny, as Miller does, that the judges have available to them the principles or reasons for making these judgments. To say that he doesn’t trust the judges to do it may be the same as saying that he has little confidence that people in authority can make judgments on the laws that are “justified” or “unjustified.” Could it be that this is because he has lost confidence that there is indeed a discipline of reason that may guide and restrain judges, as it guides and restrains everyone else?
Morality, Reason, and the Law
And so it may be that, in the end, what divides us is indeed an understanding of the moral ground of the law, and that critical connection between morality and reason. Forgive me, then, for ending with an appeal back to the classic understanding of this subject.
Aristotle understood that the mark of the polis was the presence of law. Law arises out of our nature as creatures who can do more than emit sounds to indicate pleasure or pain, but declare what is right or wrong, just or unjust. When we move to the level of a “moral” judgment, we move away from statements of merely private taste and personal choice; we begin to speak about things that are more generally or universally right or wrong. The law moves by displacing claims of personal freedom with a public rule binding on all. Strictly speaking, then, we can be justified in enacting “laws” only when we can truly speak about things that can be rightfully binding on all because they are made on the basis of reasons valid for all. In other words, every law needs to be gauged in that demanding way for a “moral justification.”
That is the test for those people who shapes laws for us, whether as legislators or as judges. The law may restrain me from walking to my apartment in Washington because the fire department is fighting a fire. My liberty is impeded, but my rights have not been impaired, because my freedom has been restrained for reasons that patently form a “justification.” There is nothing inscrutable here; these are decisions made by ordinary people every day. They also depend on principles far more precise—far more readily understandable—than Miller’s standard, that “an action is morally right only if, in the circumstances in which he agent chooses it, the action is ordered to the final end for human beings” (emphasis mine). I sought to show in my book First Things that we have access to far more precise principles in judging what is “justified” or “unjustified.”
That is where this argument may finally have to settle, for things are seen in a strikingly different lens if we take seriously that connection between the “logic of morals” and the “logic of law.” And we may find, as a late colleague of mine once put it, that “we have principles we haven’t even used yet.”
Hadley Arkes is Edward Ney Professor of American Institutions at Amherst College and the Founder and Director of the James Wilson Institute on Natural Rights & the American Founding.