CHAPTER 9 Recasting Religious Freedom

Belated entries for two diaries, nearly fifty years apart.

June 7, 1965

My wife Judy and I, both twenty-four years old, arrive in Washington, D.C., for the first time, to look for an apartment.

But on that day we arrive in 1965, the Supreme Court leads the news, handing down the momentous decision in Griswold v. Connecticut. What was heralded that day in the press was a new “constitutional right to contraception.” More precisely, the holding was that people would be freer to purchase contraceptives without the restrictions of the law, especially if they were married and invoking their marital “privacy.” The right to “privacy” that contained a right of access to contraception will be extended fairly soon to unmarried couples and ensembles.¹ And in time that “privacy” will be converted into an understanding of “autonomy” for people to practice their own understanding of “sex.” That autonomy will become, in turn, the ground for recognizing—and protecting—the homosexual life. The circuit will be completed in quick steps: same-sex couples will be brought under the laws on marriage—and insulated from any adverse judgment cast in the law. Or rather the reverse: the adverse judgment will be rendered, with the threat of serious penalties, on people who pronounce an adverse judgment on the homosexual life, especially if they decline, as bakers or florists, to lend their endorsements to same-sex weddings. But long before that, the right to privacy, springing from Griswold, would be expanded in Roe v.

March 25, 2014

I am on my way to the Supreme Court to hear the oral argument in Burwell v. Hobby Lobby Stores, a case that brings together all of the “rights” that radiated from the Griswold case and Roe v. Wade. But those rights would be taken to a radical new level now in challenging the religious freedom to withhold support and approval for these new rights to contraception and abortion. With the sweeping force of Obamacare and a new right to medical care, the federal government has mandated private employers to cover contraception and abortion in their medical plans. The Green family, who own the Hobby Lobby craft stores, offered generous medical coverage to their employees. But they had religious and moral objections to abortion and contraception. So they refused to offer as a “benefit” things they regarded as morally objectionable and harmful.²

As I approach the Supreme Court on the day of the argument, I encounter a scene that captures at once the dramatic changes that the Court has sparked in the culture in the intervening years since Griswold in 1965. I find the landscape overflowing with the colors and shouts of people on both sides. Especially noticeable is the presence of young women not shrinking in reticence but carrying signs proclaiming such slogans as, “My employer has no business touching my contraception.” (I can’t help thinking that Mr. Green, of Hobby Lobby, would surely agree with that line. He had no inclination to have the laws bar young people from making their own decisions and purchasing their own contraception.) But in a glance, the vast cultural shift since 1965 could be taken in at once: By 2014, the teaching of the laws has produced a generation of young people who not only believe that they have a “right” to acquire and use contraception without the restraint of the law or the reproach of people around them. That right to contraception and abortion has become, for them, one of those deep, fundamental rights of the Constitution—it has become a deeper anchor of personal freedom under the Constitution than the freedom of speech and “the free exercise of religion.” Contraception and abortion are now bound up with their standing as “persons.” So critical are these medicines, devices, and surgeries that, regardless of whether it makes more rational sense for these young people to pay for these things themselves, they deserve to have those services paid by someone else, whether their employers or the taxpayers next door.

But what has been added to the mix most recently is a liberal administration sprung from a political party far more detached from religion than any party in our history had ever been. That party was now showing a barely guarded contempt for the religious. The party of the left had become fixed on abortion and contraception not merely as legitimate private choices but as intrinsic goods, which deserve to be encouraged and promoted with public funds—and now, public obligations. Once the provision of medical care was given the standing of a constitutional right, once anyone had freed himself from moral or religious hesitations about abortion and contraception, the authorities could shed any lingering reservations of their own. They could regard the directives on abortion and contraception as quite as binding now on the religious as the laws that bar discrimination based on race.

That scene caught precisely enough the changes that have now made our politics far darker and more threatening to the religious. What made the problem even thornier was that the same moral logic posing the challenge here to religious freedom in Hobby Lobby would remain quite the same even if the people so persuaded of the rightness of abortion and contraception were utterly free of any hostility to religion. Meanwhile, on the other side, the defenders of religious freedom managed to encumber their own cause by confounding moral judgment with religious “belief,” or detaching their religious convictions from the grounds of a distinctly moral judgment.

But in that respect, it turns out then that there is nothing novel here: The confusions revealed in our own day can be traced back to the most moving and earnest statement for religious freedom that sprang from America’s leading figure at the very beginning of our national life under the Constitution. Surely there could be nothing more eloquent on the matter of religious freedom than George Washington’s notable letter to the Hebrew congregation in Newport, Rhode Island, in 1790.

The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.

Ordinary folks may invoke their rights under the First Amendment without quite realizing that they are appealing merely to the “positive law” contained in the first nine amendments in the Constitution. But clearly their understanding runs deeper—to something closer to the sense of things conveyed by George Washington. In their natural understanding they do seem to think that they are appealing to something in principle right, something closer then to a natural right, which would be there even without the Constitution. Several years before George Washington’s letter, James Madison had invoked a comparable notion of the freedom of religion as nothing less than a natural right. In his “Memorial and Remonstrance against Religious Assessments” (1785), Madison insisted that “this right [of religious freedom] is in its nature an unalienable right.”

Of course, that “natural right” to be left undisturbed in the religious life did not necessarily entail the fuller set of “civil” rights that attached to citizens.

The natural right to practice one’s religion would not necessarily entail a right to citizenship or voting, and it was certainly never thought to confer a right to be exempted from the laws that governed everyone else. For those laws were understood to spring from the same ground of moral reasoning and Natural Law that entailed and protected the freedom of religion. The laws that barred homicide would bar the burning of wives on the funeral pyres of husbands even if the act were done in accord with a religious code.

And yet, if we take seriously the claims to freedom of religion as a “natural right,” we discover, with a sobering jolt, that the conventional and familiar arguments for religious freedom in the courts suffer a critical embarrassment. For those arguments are not offered in the currency of “natural rights,” with reasons that are accessible even to people who do not share the convictions of the religious.

In this vein, it becomes critical to remind ourselves that the Catholic position on abortion does not appeal to faith or revelation. Rather, it draws upon the facts of embryology woven with reasoning from moral principles. Catholics argue that there are no principled reasons for removing the child in the womb from the circle of human beings that would not apply equally to many people walking around outside the womb. It is the moral reasoning of the Natural Law.

And so it was telling when Bishop William Lori spoke for the U.S. Conference of Catholic Bishops in resisting the controversial mandates under Obamacare on contraception and abortion. Bishop Lori made it clear that Catholics were not seeking an exemption from the mandate on contraception and abortion based on beliefs of their own that may not be shared by others. They were pronouncing the mandates to constitute an “unjust law, no law at all,” and therefore rightly binding on no one. This was not, he said, “a Catholic issue. This is not a Jewish issue. This is not an Orthodox, Mormon or Muslim issue. It is an American issue.”³

Bishop Lori framed the argument for religious freedom around the claims of “conscience,” but he made it clear that he was not using “conscience” as it has been used—and virtually unraveled—over the years in the claims of “conscientious objection.” In that cluster of cases, “conscience” has been taken to mean any conviction that a person holds with earnest passion. The bishop was appealing, rather, to “conscience” in the sense once explained with exquisite care by John Paul II in Veritatis Splendor: as an understanding ordered to a body of objective moral truths. John Paul II remarked on the facile tendency to accord to the “individual conscience the status of a supreme tribunal of moral judgment which hands down categorical and infallible decisions about good and evil”: “But in this way the inescapable claims of truth disappear, yielding their place to a criterion of sincerity, authenticity and ‘being at peace with oneself,’ so much so that some have come to adopt a radically subjectivistic conception of moral judgment.”⁴

What is lost, then, is the recognition that conscience is not directed inward to the self and one’s own feelings, but outward to the Natural Law and moral truths: With the corrupted or relativized version of “conscience” and religion, religious moral teaching can be reduced simply to “beliefs,” in the modern, vulgar sense. Step by step, even the religious began to fall in with what John Courtney Murray called a libel or abasing of religion—the tendency to reduce religion simply to claims of “belief,” or “simply a matter of personal experience, and religious faith to be simply a matter of subjective impulse, not related to any objective order of truth,” and not valid then for anyone who does not share those beliefs.⁵ Hence the line grown familiar among Catholic political figures from Edward Kennedy and Mario Cuomo to John Kerry and Joseph Biden: that they are personally opposed to abortion but would not impose their Catholic beliefs through the law. (In fact, of course, as the joke runs, they would not even impose those beliefs on themselves.)

But when it became clear that the argument for religious freedom is cast now as an argument in Natural Law, moving beyond “beliefs,” the problem of Obamacare and the mandates was transformed. The landscape for lawyers and judges was suddenly altered, leaving them less certain on the terms that would guide them. For consider this problem of two owners of businesses: Both of them object on moral grounds to the mandates of Obamacare on abortion and contraception. One is a Catholic, whose understanding has been informed by the Catholic reasoning on these matters. The other man claims no religious attachment; he has formed a moral objection to abortion, say, solely on the grounds of that principled reasoning that the Church itself offers as a teaching in Natural Law. Would we really say that the Catholic businessman had a stronger claim to challenge the law on grounds of religious freedom? For his reasoning was in no way different from that of the non-Catholic businessman, who reached his moral conclusion by drawing on the same empirical evidence of embryology, amplified by principled reasoning. Are the claims distinguishable on any grounds that matter? Does one position have a certain dignity as a claim of “religious conviction” or religious freedom that is not available to the man standing against the law with the same moral reasoning used by the Church? We might ask, then, with the labels stripped away, Is one man being deprived of his religious freedom, and the other deprived of nothing of comparable moral or constitutional standing?

This confusion over beliefs and reasoning came into sharp display when the Obama administration decided to move ahead to impose the mandates of the Affordable Care Act (or Obamacare) even on the religious owners of private businesses. The defenders of religious freedom chalked up a victory of sorts in the courts in Colorado and finally made it to the Supreme Court in Burwell v. Hobby Lobby (2014). The courts came to the aid of the Green family, the owners of the Hobby Lobby craft stores and Mardel, a chain of Christian bookstores. The Greens offered a program of health insurance to their employees, and under Obamacare they would have been obliged to cover, in their plans, contraceptives and abortifacients. The Greens asserted that they could not do that without violating their religious convictions. The Greens would win at the Supreme Court, but true to form, the Court was content to treat it as a telling and decisive point that the Greens offered as the grounds of their moral convictions their “sincere beliefs”—notably the “belief that human life begins when sperm fertilizes an egg.” Their “belief”? That would surely have come as news to the authors of all of the texts in embryology, who report that point as one of their anchoring truths.⁶ The Greens also professed to “believe” that they would be “facilitating harms toward human beings” if they helped to provide drugs that prevent implantation on the uterine wall. Since the blocking of implantation does kill the nascent life, we may ask: What belongs here to “belief” rather than truth?

My friends litigating religious freedom feel pressed to argue within the grooves of “sincere beliefs,” because that is the term that the courts have confirmed and the judges recognize. But in this way they have fallen in with a trend of cases that has seen “conscience” reduced, or relativized, to virtually anything that a person sincerely believes. At the same time, with the same line of reasoning, religion itself has been relativized until it is detached from any notion of God and the laws springing from that God. Well into the nineteenth century judges could invoke Madison’s understanding of religion as “the duty which we owe to our Creator and the manner of discharging it.”⁷ But as the judges dealt with claims of conscientious objection, the “conscience” they were protecting did not require the commands of a Lawgiver.

As the years and the cases rolled on, then, “religion” was gradually purged of its defining substance. First it was divorced from any claims of truth. And in a further, exquisite move, the definition of religion was detached even from theism, let alone the Creator who endowed us with natural rights. The Congress had sought to preserve at least some plausible connection to “religion” in the statutes on conscientious objection. In 1948 Congress stipulated that “religious training and belief” referred to an “individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological or philosophic views or a merely personal moral code.”⁸ But that statute was tested and overridden in a series of cases of young men who explicitly denied that their religious views were connected to a Supreme Being. After this run of cases, the Congress removed the ingredient of belief in a Supreme Being. But then, with the Welsh case in 1970, Justice Black was willing to honor any convictions springing from “deeply held moral or ethical beliefs”—as though any views held passionately would take the place of religion. Justice Harlan remarked that Justice Black had “performed a lobotomy” on the statute. But he thought that the changes were plausible because he thought that it was wrong, finally, to give the preference to those people who claimed that their convictions sprang from religious belief.⁹

And so what were we left with? An understanding that reduced religion to a set of beliefs without knowable truths. The Court was willing to treat on the same plane as “religion” anything that a litigant professed to regard as a serious doctrine governing his life, even it were composed of cliches drawn from a superficial reading of philosophy, sentiments read on the back of a cereal box, or any species of nonsense. Working, then, within the broad reach of this reasoning, we have come to see “ministers” of the Church of the Flying Spaghetti Monster, with colanders on their heads, offering invocations before the meetings of local legislative assemblies. They have done it with a sense of parody, being honest with themselves—and after all, is there any moral doctrine that requires that all religions be “sincere”? Imposing a test of sincerity is just another way of smuggling in a moral test for religions. And in one of the most remarkable tricks of the eye we have administered to ourselves, we seem no longer to recall one of the most momentous cases in which the law did indeed invoke moral reasoning in making a judgment on what would stand as a legitimate religion in this country. Once the Church of the Latter Day Saints was purged of polygamy, it would stand on the plane of legitimacy in our laws and claim the right of “free exercise.”¹⁰

The truth that dare not speak its name is that even many friends of religious freedom have been content to argue for that freedom on terms that accept the reduction of religion to “beliefs” untested by reason, for they don’t wish to put themselves in the position of speaking the uncomfortable truth: that not everything claiming the name of “religion” in this country may be regarded as a legitimate religion.

But there is another hard fact that should come as a consolation: the canons of reason will ever be woven into the laws on religion. It is the enduring problem of reason and revelation.

It has been common, of course, to set reason apart from revelation, as two radically different ways of knowing. Protestants, especially, have seen a radical tension between reasoning from Natural Law and the word of God to be found in the Scriptures. A sense of that radical difference was sharpened by Karl Barth in the twentieth century, but more recently there has been a strong surge of scholarship showing how Natural Law was readily absorbed as part of Christian teaching by figures such as Richard Hooker and John Calvin.¹¹

But it was Saint John Paul II who cut through the problem with his striking encyclical Fides et Ratio (Faith and Reason).¹² John Paul II recalled that when Saint Paul undertook his mission to Athens, he entered into discussions with “certain Epicurean and Stoic philosophers.” As he reached outside the circle of Jews, he could not appeal to Moses and the prophets. He had to appeal to an understanding more widely accessible; as John Paul II wrote, he had to appeal to “the natural knowledge of God and to the voice of conscience in every human being.”¹³

Here, as he said, the fathers of the Church would build on the achievements of the Greek philosophers. For Greek religion had been polytheistic, with a persisting inclination, as John Paul II noted, to “divinizing natural things and phenomena.” But it was the considerable service of the “fathers of philosophy to bring to light the link between reason and religion”:

As they broadened their view to include universal principles, they no longer rested content with the ancient myths, but wanted to provide a rational foundation for their belief in the divinity. This opened a path which took its rise from ancient traditions but allowed a development satisfying the demands of universal reason. This development sought to acquire a critical awareness of what they believed in, and the concept of divinity was the prime beneficiary of this. Superstitions were recognized for what they were and religion was, at least in part, purified by rational analysis. It was on this basis that the Fathers of the Church entered into fruitful dialogue with ancient philosophy, which offered new ways of proclaiming and understanding the God of Jesus Christ.¹⁴

Greek philosophy was a powerful lever in fending off sophistry, and so it could become, as John Paul II recalled, “the hedge and protective wall around the vineyard” of the Church.¹⁵ As he put it in Fides et Ratio, a faith deprived of reason runs the risk of falling into feeling and sentiment, and “so run[s] the risk of no longer being a universal proposition.”¹⁶ He recalled the First Vatican Ecumenical Council, arguing against a divorce between reason and revelation: even if faith were superior to reason, the council declared, “there can never be a true divergence between faith and reason, since the same God who reveals the mysteries and bestows the gift of faith has also placed in the human spirit the light of reason. This God could not deny himself, nor could the truth ever contradict the truth.”¹⁷

But what is it then that revelation can reveal? John Paul II said that revelation “clearly proposes certain truths which might never have been discovered by reason unaided, although they are not of themselves inaccessible to reason”:

Among these truths is the notion of a free and personal God who is the Creator of the world, a truth which has been so crucial for the development of philosophical thinking, especially the philosophy of being. There is also the reality of sin, as it appears in the light of faith, which helps to shape an adequate philosophical formulation of the problem of evil. The notion of the person as a spiritual being is another of faith’s specific contributions: the Christian proclamation of human dignity, equality and freedom has undoubtedly influenced modern philosophical thought.¹⁸

As he wrote in the opening lines of the encyclical, faith and reason “are like two wings on which the human spirit rises to the contemplation of truth; and God has placed in the human heart a desire to know the truth—in a word, to know himself—so that, by knowing and loving God, men and women may also come to the fullness of truth about themselves.” Michael Novak would draw upon that understanding in his luminous book On Two Wings—on “Humble Faith and Common Sense at the American Founding.” And there he would indeed show that the precepts of common sense and the Natural Law were readily absorbed, without any sense of strain, by the most deeply religious at the time of the Revolution and the Founding.¹⁹ If there was one document that revealed it all, it was the sermon delivered by the Reverend Samuel Cooper to mark the inauguration of the new Constitution of Massachusetts in October 1780:

We want not, indeed, a special revelation from heaven to teach us that men are born equal and free; that no man has a natural claim of dominion over his neighbours, not one nation any such claim upon another; and that as government is only the administration of the affairs of a number of men combined for their own security and happiness, such a society have a right freely to determine by whom and in what manner their own affairs shall be administered. These are the plain dictates of that reason and common sense with which the common parent of men has informed the human bosom.²⁰

It was vital to know, then, that there was no disconnection between revelation and reason. As John Paul II had it, “the truth conferred by Revelation is a truth to be understood in the light of reason. It is this duality alone which allows us to specify correctly the relationship between revealed truth and philosophical learning.”²¹ Our late, beloved Father James Schall remarked that “if what is said to be revealed is irrational or contradictory, it cannot be believed, even according to revelation.”²² If Moses had come down from Sinai and said, “The Lord, our God, said not to worry overly much about taking what is not yours, or lying with other men’s wives”—if that were the report, we would have expected to find many Hebrews scratching their heads and asking, “Are you sure you got that one right?”

On the other hand, there has long been a curious lapse of memory when it comes to the most notable instance of man challenging God’s moral judgment and having the temerity to ask God for reasons. That, of course, was the notable case in which God had told Abraham that he planned to go on to Sodom and Gomorrah and destroy those hotbeds of a morality that was just too far in advance of cable television. But would God unleash his punishment in a sweeping, undiscriminating way, making no distinctions between the innocent and the guilty? “Far be it from You,” said Abraham, “to do such a thing, to put to death the innocent and the guilty…. Will not the judge of all the earth do Justice?”²³ If moral truth came solely from “revelation,” was Abraham suggesting to God that He had forgotten for a moment His own revelation? Or does the encounter make sense only if it presupposes some standards of moral judgment, accessible to our reason, that God himself could have been expected to acknowledge?

And yet, some of our soberest conservative judges seemed have reached the melancholy conclusion that in order to secure religious freedom from the people hostile to religion, it is probably best that we hold back from a reasoning overly strenuous as we judge various religious teachings as legitimate or illegitimate, defensible or indefensible. That seems the most plausible explanation for the willingness of Justices Alito and Gorsuch to take that intrepid step in the case of the Masterpiece Cakeshop: “Just as it is the ‘proudest boast of our free speech jurisprudence’ that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive.”²⁴

Were the justices really ready to hold that the First Amendment protects anything and everything offered under the name of religion—including anything that is in principle wrong or despicable—that “offensiveness” is simply in the eye of the beholder? Once again there was that needling, persistent challenge of Satanism. How could the affirmation of radical evil be consistent with anything that we could consider “religion,” rightly understood?

Putting aside for just a moment this strain of coherence, this detachment of religious freedom from the grounds of a reasoned defense, it is apt to ask, How is all of this consistent with originalism and the American Founding? As Lincoln reminded us, the Union, the American regime, is older than the Constitution.²⁵ The Union began, as Lincoln held, with the Declaration of Independence, with God the Creator who endowed us with unalienable rights. To recall again Madison’s understanding, religion is “the Duty we owe to the Creator and the manner of discharging it.”²⁶ That God is the Author of the Laws of Nature, including the moral laws. There is no understanding about God and religion more bound up with the American laws from the beginning. The notion of “religion” utterly bereft of grounds of moral judgment could hardly be reconciled with the God of the Declaration of Independence; it could not be part of any original understanding.

The redoubtable, late Harry Jaffa once offered this commentary on the scene of Moses coming down from the mountain with the Ten Commandments: “Imagine Moses,” he wrote, “descending Sinai and finding the cult of the golden calf, and being told by Aaron that the people had just discovered their natural right to religious freedom!”²⁷ But what Jaffa offered as laughable is now taken entirely seriously—accepted even by some Catholic defenders of religious freedom. One scholar of the law who has worked thoughtfully in this vineyard has remarked that “the fundamental human right to religious freedom is grounded in the truth about the human person; it is enjoyed and should be protected whether or not one’s religious beliefs are true.”²⁸

It does not require any special genius to grasp that we can have a deep respect for people as human persons without being obliged to credit as true and plausible everything they happen to believe or consider true. And yet this argument for a sympathetic relativism has gained credit even among the professoriate when it comes to the matter of religious freedom. But, as Harry Jaffa observed, “there is certainly a rational component of any religion comprehended by the protections of the First Amendment. The free exercise of religion does not include the right to human sacrifice, to suttee, to temple prostitution, to the use of hallucinatory drugs, or to any other of the thousand and one barbarous and savage religious practices that have been features of barbarous and savage religions.”²⁹

My friends litigating cases would accept that understanding, though they would be averse to speaking of “barbarous and savage religions.” But even so, the same friends have been willing to leave unchallenged the acceptance of Satanism as a sect claiming religious standing. In Town of Greece v. Galloway (2014) the Supreme Court refused to find an establishment of religion when a town council invited ministers of local churches to offer invocations. The Court did not object when some of the prayers were quite emphatically Christian in character.³⁰ But as this practice has spread in the land, the reigning assumption has been that the invitations to speak should be available to all sects claiming to be “religions,” with no discrimination. There is no requirement that a religion encompass the G-word (God), the Creator who endowed us with the standing of rights-bearing creatures. Under this dispensation the Satanists in the country have found a new growth industry, offering invocations before the meetings of local legislative councils. The affirmation of radical evil no longer counts as a point of disqualification.

It seems to go serenely unnoticed that the willingness to acquiesce in this style of ecumenism is not in fact a position of large-natured tolerance and “neutrality” toward religion. As Gunnar Gundersen has argued, it is rather a slide back into paganism. Imagine that we have a scheme that offers public celebration of a different religion every day. There will be days for Catholics, Presbyterians, Baptists, Muslims, Satanists, and the burning of incense for new sects on the scene. Implicit in the scheme is that none of these religions rests on a teaching that is arguably truer than the others. Instead of “respecting” these religions, the scheme begins by refusing to respect the truth of these religions, or to respect the adherents of these religions as they understand themselves.

But quite apart from any other point of embarrassment, the notion of religion purged of any standard of moral judgment contains an incoherence that destroys it from within. Gundersen made the decisive point: If we detach the understanding of religion from any moral test of what is offered in the name of religious teaching, then we have removed as well the moral ground for treating religion itself as a “good.”³¹ If there are no truths underlying our judgments of good and bad, then what is the ground on which we claim religion itself to be a “good” that should be respected in our public life? Why do we cast protections around religion with the Religious Freedom Restoration Act? Why do we insist that the government tailor the means to its ends more narrowly when it penalizes people for holding to their religious views? Why should religion evoke that kind of concern when we cannot impute anything true to its teaching?

And indeed we now hear that argument from the adversaries of religion. They have asked why religious beliefs should be accorded any higher degree of deference than the other things that people feel passionate about, whether it is a passion for unions and the minimum wage or a passion to save the environment. That challenge has been made, and it cannot be answered by a response that seeks to protect religion by denying that it has any moral teaching. Or by denying that the religious may be rightly governed, along with everyone else, by laws that truly command what is rightful and forbid what is wrongful. Almost no religious group in this country would claim to be exempted from the laws that bar discrimination on the basis of race.

And so, in a kind of jujitsu, the new teaching offered by Justices Alito and Gorsuch in the case of the Masterpiece Cakeshop can be tested in a “hypothetical” of this kind, which cannot be far removed from a case ready to happen: Suppose that, instead of Jack Phillips, we had a baker who had been an earnest evangelical of the fundamentalist, Bob Jones persuasion. He sincerely believed that there is a ground in Scripture mandating the separation of the races. And so he refused to make a cake, not for a same-sex couple, but for a couple who were celebrating an interracial marriage. He would put himself at odds with the requirements of the law running back to the Civil Rights Act of 1964. Does anyone seriously believe that the Court including Justices Gorsuch and Alito would protect this baker under the same ruling they used to protect the Masterpiece Cakeshop baker?

But why have these accomplished judges settled in with a proposition of this kind so inconveniently at odds with the understanding of religion and God that was bound up with the Founding? The best answer that occurs to me is that the justices have come to recognize, often with regret, that they are actors with an inescapable role to play in statecraft. They may have to make some of the same prudential moves that people in the political branches are routinely pressed to make.³² My own hunch is that the justices have come to see the landscape of the law as growing ever more menacing for the religious. It may be that, in their reckoning, the wave of political intolerance has now risen so high that they think there is a better chance of securing freedom by drawing a wider line to protect all manner of political speech and all manner of religious conviction, no matter how zany. They may be willing now to protect some aggressive racists and even Satanists, if that is the cost of protecting legitimate religion and religious institutions.

But as the late Stan Evans used to say, “the problem with pragmatism is that it doesn’t work.”³³ The Satanists and the self-styled Nazis and racists have been a fringe minority not because most people have studied the doctrines of these groups, but because there has been a hovering sense of something deeply unrespectable and wrong about them. If the law now begins to teach that the doctrines of the Satanists and the Nazis are no less legitimate than any other principles or slogans, should we really be surprised if this sweeping away of moral judgment removes the inhibitions that may still be holding some people back from being drawn to these groups?

And then the further turn of the screw: If we declare now, in a grand casting away of moral judgment, that there are no grounds for discriminating between legitimate and illegitimate religions based on what they teach, and no grounds on which to show that religion counts as a “good,” but as something no better or worse than anything else—what would hold back the large and growing party in our society that has become hostile to religion? What would prevent that party from imposing its secular religion, its new orthodoxy of abortion, same-sex couplings, and transgenderism? It is already inclined to impose this new orthodoxy, without apology, on Christian hospitals and charities and schools, and to treat the complaints as mere noise. And if religion bears no distinct truth, why would the complaints of Christians now be different in any way from the complaints of other people who find their interests overridden, their freedom diminished, because they are on the losing side when the votes come in?

But critics may rightly ask, What alternative are you offering? I would suggest that we brace ourselves for a move out of the groove grown familiar—that we detach ourselves from the impulse to defend religion by reducing it to a matter of “belief” with little claim to “truth.” The issue may be joined rather by contesting the very substance and justification for the laws that have been used as battering rams against the religious. No instrument in that arsenal has been more powerful than the statutes and regulations at all levels of government that bar discrimination based on “sexual orientation.” That has been the device for putting Catholic Charities out of business when it would not place children for adoption with a same-sex couple. It is also the device that has been used with such crushing effect on people who will not make cakes or arrange flowers for same-sex weddings. It was used against Jack Phillips in Colorado even before Colorado installed same-sex marriage in its laws. Almost no religious group would challenge the validity of the laws that bar racial discrimination, for we have come to see why it would be deeply incoherent to draw adverse moral inferences about the goodness and worth of people on the basis of race, as though race exerted a deterministic control on the conduct of any person. But no compelling principle of that kind can possibly explain why it would be “wrong” for people to have an aversion to such “sexual orientations” as, for example, pedophilia or bestiality. For after all, even the gay activists make discriminations and cast judgments here. There has been a serious debate among them over the years as to whether to treat as legitimate the North American Man/Boy Love Association or the pedophiles. And that says nothing about the zoophiles, the people inclined to bestiality, or sex with animals. But if even the gay activists think they can regard certain “sexual orientations” as illegitimate, how could the law be justified in barring, in a sweeping way, all discrimination based on sexual orientation?

To insist that these rights apply only to “consenting adults” is once again to smuggle in a moral judgment on the orientations that are legitimate or illegitimate. As the members of the Man/Boy Love Association could argue, there is no danger of pregnancy in relations between an older man and a teenage boy, and no danger of the necessity of taking life in an abortion. The youngster can be alerted to the physical or medical dangers in a sexual relationship as he may be instructed in the dangers of tractors and dangerous equipment when he works on a family farm. And since there is no prospect of begetting children—if it is simply a matter of mutual pleasure—the teenager can surely claim to be the sovereign judge of what gives him pleasure. The members of the Man/Boy Love Association would pose a challenge in asking, Why should the “sexual orientation” of pedophilia be any less legitimate than the orientation toward any other variety of same-sex relations?

But apart from these questions at the very core of the matter, there has been some rather striking evidence that some sexual “orientations” may be seriously unstable. Paul McHugh noted that “a 10-year study of 79 non-heterosexual women… in 2008, reported that 67 percent changed their identity at least once, and 36 percent changed their identity more than once.”³⁴ In other words, we do not even have a clear definition of the “protected class” here, the people licensed to launch lawsuits and stir prosecutions.

In contrast, then, to avowals of feeling and “beliefs,” substantive arguments could come into play on the question of these laws on “sexual orientation.” Such arguments would make no reference to religion or “beliefs.” To challenge the very premises and substance of these laws is to challenge the justification for the laws and for the punishments they mete out.

In the classic understanding, we do a portentous thing when we impose laws on other people, and that move will always call for a justification, an explanation of what makes it just or rightful for others as well as ourselves. With that sense of things we may return to the Green family, the owners of the Hobby Lobby stores, and their litigation over Obamacare: Before the law could impose the mandates of Obamacare on the owners of the Hobby Lobby stores, those proposing the law should bear the burden of showing that there is something deeply unreasonable about the understanding held by the Greens. The Greens are not contesting that, under the laws, people have a right to choose contraception or abortion for themselves. But that right has never challenged the freedom of others to turn away from those things for themselves in moral disapproval. Nor should it bar them from refusing to endorse or support abortions for those who come under their private support.

In the case of the Green family, the moral argument here may be deepened by pointing out the claims that the Greens have forgone: They did not make the kinds of arguments we have seen in the past on the part of people who object “conscientiously” to the fact that the money they are compelled to pay in taxes is being used for policies they find deeply repugnant. They were not complaining, as people complained in years past, that their money was being used to support the United Nations, provide welfare to unmarried mothers, or even to fund abortions. The Greens understood that they were already committed, through the nexus of the tax system, to the support of those abortions funded by the government. The question in the Hobby Lobby case was why the Greens should be compelled to support abortion directly and personally through the medical services they fund for their employees. In an earlier day, the very notion of the public authority compelling a private person A to make payments, or transfer his property, to private person B, would have been marked as the plainest example of “class legislation” and a form of legalized theft.³⁵ If undertaken by the federal government, it would have come clearly under the Fifth Amendment as a taking of property without due process of law. Chief Justice Chase caught the sense of this matter in the famous legal tender cases, when he remarked that the constitutional provision on the taking of property “does not, in terms, prohibit legislation which appropriates the private property of one class of citizens to the use of another class; but if such property cannot be taken for the benefit of all, without compensation, it is difficult to understand how it can be so taken for the benefit of a part without violating the spirit of the prohibition.”³⁶

To put it another way, if a service is mandated by the federal government, the federal government should be required to fund that service, not transfer a public service to private persons to bear at private expense. That convenient device simply avoids the discipline of constitutionalism. For in freeing the government from the need to raise the money to cover its own commitments, it frees the government from the need to justify to the voters the taxes it is laying upon them to raise that money. In the case of abortion, the surgery is readily affordable by most people who desire to have it. If an additional child is really an economic burden, then it would make as much sense to borrow money for the abortion as to borrow money to pay for a car or a smart phone.

The readiest general rationale for the public funding of abortions is that the measure is necessary for the public safety or health. But abortion is not a procedure that relieves any illness or cures any disease, for pregnancy is not an illness. And if the offspring in the womb cannot be anything other than human, then abortion could hardly enhance the “public safety” by withdrawing the protections of the law from a whole class of human beings.

What I have been sketching here is a mode of defending the embattled religious by appealing to the constitutional rights that are drawn from the same moral root but do not hinge on matters of ineffable “belief” or “sincerity.” Just at the time that I was making this argument in public settings, two accomplished federal judges, in two different federal circuits, were offering some examples of how these arguments could be cast: in early November 2013, Judge Janice Rogers Brown writing for a panel in the D.C. Circuit in the case of Gilardi v. U.S. Department of Health and Human Services (HHS), and about two weeks later Judge Diane Sykes, in the Seventh Circuit, writing for the appellate panel in the companion cases of Korte v. HHS and Grote v. Sebelius. It was telling, I think, what both judges made clear was not at issue in these cases. As Judge Brown wrote, the D.C. Circuit case was not about “the sincerity of the Gilardis’ religious beliefs, nor does it concern the theology behind Catholic precepts on contraception.”³⁷ And Judge Sykes was willing to leave uncontested the sincerity of the plaintiffs. The judges engaged these cases at a different level. A “right to contraception” was not at issue because the owners of these businesses had not barred the access of anyone to contraceptives. Judge Brown noted that “the government has failed to demonstrate how such a right… can extend to the compelled subsidization of a woman’s procreative practices.”³⁸ The employer may not bar his employees from using contraception, but how can that create an obligation on his part to fund it?

Judge Sykes observed that the government cited two “public interests” here: first, that the “public health” would be enhanced by the wider availability of contraceptives; and second, that “gender equality” would be advanced if women could be as liberated from the prospects of pregnancy as men were. But even if it were the case that a vast public good would be served by diffusing contraceptives more widely in the land, why would any of this justify a policy of forcing an unwilling person to bear a direct personal responsibility in funding these services for any other particular person? As Judge Sykes pointed out, contraceptives could be distributed to the population at large in many other ways: The government could provide “contraception insurance”; it could “give tax incentives to contraception suppliers to provide these medications and services at no cost to consumers; it can give tax incentives to consumers of contraception and sterilization services.”³⁹ The government could also just buy the contraceptives and give them away—but with funds it would have to raise by taxing the public.

In other words, these ends of public policy could be accomplished quite readily without compelling any particular person to buy contraceptives for anyone else—and to violate his religious principles.⁴⁰

Judges Brown and Sykes both insisted that religious beliefs really had nothing to do with this case. In their reasoning, the matter was treated most aptly by testing in a demanding way the justifications that should be required in any case of imposing laws, restricting personal freedom, and commandeering personal property. It was a style of judging that was more familiar before the New Deal and the advent of the administrative state. But that mode of judging was available to Judges Brown and Sykes now because, while the judgment did not hinge on religion, the cases were being argued under the Religious Freedom Restoration Act (or RFRA). That act put upon the government the burden of showing whether its ends could be attained with measures that did not restrict the freedom of people to be governed by their religious convictions. In other words, under the banner of religious freedom, the Congress had authorized judges to do what judges had done in the past and ought to do under the premises of a constitutional order: to test in a demanding way the laws that would restrict personal freedom in any domain, including the freedom to run a business. The Congress had carved out a domain in which judges were free to do what they should be able to do across the board, in all other cases.

What I’m arguing is that there is nothing morally diminished when we defend the rights of the religious by invoking the same principles of law that come into play in other instances: when we defend the rights of human persons not to be enslaved, not to have their lives taken, their earnings confiscated, their liberties restricted without justification. For these principles are all drawn from the same moral core, and they begin with that recognition of the human person as a bearer of rights. What people may no longer notice is just how deeply those principles of constitutionalism are woven in with our religious tradition. Or to put it another way, the whole notion of natural and constitutional “rights” is amplified when the human person is seen through the lens of our religious understanding. Pope Leo XIII caught this point in the opening sentence of his 1888 encyclical On The Nature of Human Liberty. He observed there that “Liberty, the highest of natural endowments, being the portion only of intellectual or rational creatures, confers on man this dignity,” that he is the bearer of rights.⁴¹ We don’t impute “liberty” to cows and horses, creatures without reason. They cannot direct themselves to ends rightful or wrongful; they cannot impart a moral purpose to inanimate matter. Chesterton said that animals have no religious sense: When was the last time, he asked, that you heard of a cow giving up grass on Friday?⁴² He might as aptly have asked, When was the last time you heard of a cow or any other animal making a promise and keeping a commitment even when it no longer accorded with its interests or inclinations? Our language of law speaks of persons, of their rights and wrongs and their “injuries,” the unjustified harms they suffer. These terms are part of the logic of law, and they were woven in the laws before the advent of Christianity. But these terms are given a deeper resonance by our religious tradition. For with Christianity something else comes into play to tell us what is so deeply portentous about the taking of a human life, or why it is not trivial to restrict the freedom or take the property of those beings we call “moral agents.” As the late Gertrude Himmelfarb once observed, we can be remarkably unaware of how much we are living on our religious capital—and how our ordinary language has been given its deeper meaning by a religious teaching long absorbed.⁴³ Our religious teaching has formed the deep moral reservoir on which the law has drawn.⁴⁴ What other teaching could have shaped Lincoln’s understanding when he remarked that “nothing stamped with the Divine image and likeness was sent into the world to be trodden on, and degraded, and imbruted by its fellows”?⁴⁵ The law has lived, and continues to live, on the moral capital of our religious teaching, even while the awareness of that connection has fled the memory of most lawyers, or been happily put out of mind by them.

In my book Natural Rights and the Right to Choose, I recalled an incident from years before, when I had been commissioned to write a piece on the newly opened Holocaust Museum in Washington. As I moved through the halls with a friend, I suddenly came upon a sight that has been encountered by many visitors to the museum: a vast vat filled with shoes. They were the shoes of the victims, collected by the Nazis as they sought to extract anything they could use again or sell. And what came flashing back instantly, at that moment, were those searing lines of Justice McLean, in his dissenting opinion in the Dred Scott case: You may think that the black man is merely chattel, but “he bears the impress of his Maker, and [he] is amenable to the laws of God and man; and he is destined to an endless existence.”⁴⁶ He has, in other words, a soul, which is imperishable; it will not decompose when his material existence comes to an end. The sufficient measure of things here is that the Nazis looked at their victims and thought that the shoes were the real durables.⁴⁷

Some of my colleagues back in the academy had taken as their signature tune that line from Nietzsche, amplified by Dostoevsky, that God is dead and that everything is permitted, presumably because without God some lose their surety that there are real grounds for moral judgments. My colleagues have been people of large natures, and they are prepared to engage their sympathies for all species of hurts suffered by the mass of mankind. But even they would have to concede that they cannot give the account of the wrong of slavery or the wrong of genocide that Justice McLean was able to give. They cannot give the same account that serious Christians and Jews can give. And that is how our religious tradition bears every day on our law.

It is only because of how we are seen through the lens of religious teaching as moral agents that we are seen as rights-bearing persons. And it is then that the full range of our rights comes into sight. Those rights and freedoms may involve rather prosaic things: the right of a woman to braid hair for a living or the right of a man to shine shoes. Those rights may not take a large role on the public stage, but there is nothing trivial in the right of ordinary people to make a living—because there is nothing trivial about the human persons who bear that right. And so, when we protect the right of Mr. Green of Hobby Lobby not to be compelled to supply his employees with abortifacients or contraceptives, we are defending him in rights that are bound up in the same moral package with his rights of religious freedom. There is nothing diminished in that manner of defending Mr. Green. The Natural Law comes into play when we test the “justifications” that are offered for restricting the freedoms of people, whether freedoms grand or small. And as we defend the religious by engaging these same principles of Natural Law, we are not merely pleading for tolerance of their “deeply held beliefs.” The defense of religious people like Mr. Green, in his right not to have his property confiscated, will be grounded now in principles that can stand as objectively true and rightful even for people who do not share his religious beliefs. And if a further dividend is to be welcomed, the law is also placed on a ground that can be understood by ordinary people, even those not burdened with a degree in law.

But to put it in another and stronger way: Mr. Green of Hobby Lobby and Jack Phillips, the Masterpiece Cakeshop baker, will find the most apt ground for their defense in the same principles that would defend the freedom of businessmen and other people who share their moral concerns on matters like abortion, contraception, and same-sex marriage even as they profess no religious ground for their convictions. To see things in that light is to bring out a more buoying truth: that our religious tradition does not come into our law and our lives as a set of eccentric “beliefs,” merely begging for indulgence and exemptions to the laws laid down for others.

With all of the threats to religious liberty in our day, and the litigation over matters of “belief,” we seem not to have noticed that the Court, in recent years, has stumbled on to one of its most powerful levers for protecting the religious—and perhaps without quite appreciating what it was putting in place.

That curious want of noticing may be due to the fact that this lever for the religious is nowhere found in the text of the Constitution. Nonetheless, even more curiously, it was Justice Scalia, that stickler for the text, who first caught the matter, in a moment of unfeigned outrage. The case was Locke v. Davey (2004).⁴⁸ Joshua Davey was a student at Northwest College, a Christian college in Washington State, who had been awarded a scholarship that the state had made available to students in the top 15 percent of their high school classes. But when Davey pursued a degree in pastoral ministries, he lost the scholarship. The law in Washington explicitly refused support for studies “devotional in nature or designed to induce religious faith.”

With that law, the state was taking a strong, perhaps overly strong, position on separating Church and State. But that was, the Court held, compatible with the original meaning of the First Amendment, which begins with the words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Strictly speaking, nothing in this policy interfered with Davey’s freedom to practice his religion. Nor was Davey being barred from public office because of his religion—a “religious test” for office forbidden under Article VI. No right mentioned in the Constitution was violated. Justice Scalia, in contrast, thought there might be a denial of “the free exercise of religion” here because Davey was being punished or penalized for his religion. But there was no “right” to a publicly funded education, and if the State had not provided the scholarship, Davey would not have been considered “punished” because he didn’t have one. As Scalia pursued the matter in his dissent, he summed up the wrong at issue: Washington offered a wide benefit on scholarships, but it “carved out a solitary course of study for exclusion: theology…. Davey is not asking for a special benefit to which others are not entitled…. He seeks only equal treatment—the right to direct his scholarship to his chosen course of study, a right every other Promise Scholar enjoys.”⁴⁹ What was coming into play was the principle of equality, but joined now with a right not to suffer a disability on the basis of religion.

And then, a few years later, mirabile dictu!, everything came together in Trinity Lutheran Church v. Comer (2017).⁵⁰ The state of Missouri was trying to reduce its accumulation of used tires by bringing them into a “Scrap Tire Program” where they could be used in creating rubber surfaces for playgrounds. In the sacred cause of “recycling,” the state would offer grants to schools that wished to replace their gravel yards with the safer surface. Trinity Lutheran Church had a small learning center with a playground. But when the school applied for the grant, it ran into a provision of the constitution of Missouri: “That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such….”

This time the Court came down heavily against the exclusion of the religious. Chief Justice Roberts made a game and half-hearted effort to distinguish the new case from Locke v. Davey, but he quickly settled into the rule that would now take hold: “Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character.” As Roberts recognized, the constitution of Missouri did not deprive Trinity of its rights to hold services, and it barred no one from political office. But the critical point distilled now—at long last—was that the Court would not countenance “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified” simply because it was a religious institution.⁵¹

There it is, reduced to its simplest, clearest expression. That principle had the advantage also of drawing the adherence of two of the liberal justices, Breyer and Kagan. The Court seemed almost absentmindedly to trip into this simple rule, which should have been evident long ago. But now it has been settled, with the liberal wing of the Court signing on—or at least some of the time.⁵² And this rule, so long in the fashioning, promises to be one of the most powerful tools that can be used now in defense of the religious.

There are many grounds of hope, then, as well as dangers to be averted, if people can forbear taking the “low door under the wall”: the lure of seeking an exemption from the law solely on the basis of a religious “belief,” which disclaims any test for its truth. That move has always had a beckoning appeal. And it is all the more appealing now, in the desperation arising from the sense of having lost in the “culture war” and with the courts seeming to have turned now decisively hostile. It is powerfully tempting to seek a safe harbor by carving out protections for “religious belief.” But that is an illusion that will eventually be dissolved, for such a move already concedes the main issue in principle: it concedes the rightfulness of compelling other people to fund abortions as long as one can get a religious exemption for oneself. Once that point is conceded, it is simply a matter of whether the political class in charge is pleased to move at a decorous pace or whether it is disposed to tighten the controls at once, even at the cost of humiliating the religious. And so a Catholic college newly opened in Massachusetts may be required to cover same-sex couples and abortion in its medical insurance. Or to have an outreach program for its gay, lesbian, and transgender students. Or it may be given a leave from those requirements so long as it admits no one but Catholics or has a governing board composed entirely of priests. The authorities in Boston proved willing to see Catholic Charities in Massachusetts close down entirely if the organization would not renounce Catholic teaching and place children with same-sex couples.⁵³

The willingness to settle for “exceptions” is simply a breathing stop on the way to surrender or dhimmitude. That outcome is made all the more likely because the seeking of exemptions is a move to remove oneself from the political battle and the possibility of finding allies. The lure of religious exemptions works to deflect the religious from the true heart of the matter: the need to engage the very substance of the issue, whether it is the undeniable human standing of the child in the womb or the moral incoherence of the “right” to declare one’s own sex. Nothing less will settle or resolve these issues, or give us the framework for living civilly together even as we continue to be morally divided.

We may give the last word here to the matchless Father Ronald Knox, that notable priest, theologian, essayist, and writer of detective stories. The full sweep of the relativist vision, in politics and religion, was encompassed by Knox in a satire in 1928, not to be surpassed. It was titled “Reunion All Around” and written in the style of a monograph of the seventeenth or eighteenth century. It offered an argument for the union of all “Mahometans, Jews, Buddhists, Papists, and even Atheists,” in the Church of England, as the Church shows its willingness to water down virtually any doctrine that might get in the way of bringing in everyone. For all of its archaic typography and style, it has the chilling ring of modernity; it could have been written even more aptly last week.

In this scheme, the papists prove more difficult than the others—the author allowed that their children might have to be put to the sword. Or they might have to be barred from marriage and the privilege of having issue. But as the scheme is extended, the author finally reaches the matter of the atheists. The sticking point in their case is “only one single Quarrel to patch up, namely as to whether any God exists or not.” If the consciences of the Atheists can just be eased on that point, they may be able to accept the forms of worship in the Church, especially as they are emptied of any divisive substance.

So the author encourages the theologians to take the line, in proper humility, to allow that though “God is Immanent and yet Transcendent, [still] we cannot see the whole Truth… until we have reconcil’d ourselves to the last final Antimony, that God is both Existent and Non-existent.” Those of us on different sides of this question are evidently looking at just half of the truth, and that awareness gives rise to a soaring possibility of sweeping inclusion: “that when we have study’d each other’s points of view, and come to understand them a little better, by common Discussion and common Worship, we shall all of us recognize the Divine Governor of the Universe as One who exists, yet does not exist, causes Sin, yet hates it, hates it, yet does not punish it, and promises us in Heaven a Happiness, which we shall not have any Consciousness to enjoy.”⁵⁴

With this happy resolution, we shall transcend altogether those vexing divisions in matters moral and religious, and so, as the pamphleteer says, “in these days of Enlightenment and Establishment, everyone has a right to his own Opinions, and chiefly to the Opinion, That nobody else has a right to their’s.”⁵⁵