Writing in The Catholic Thing, Prof. Arkes discusses a recent decision on religious liberty by Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit moving along the lines of natural rights reasoning.
“In the Korte and Grote cases, Judge Sykes was willing to take as uncontested the sincerity of the plaintiffs in professing their beliefs. The decisive argument would move then to another ground. 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.”
“But Judge Sykes had to deal also with that other argument threading through these cases: that while the owners of these businesses may be Catholic and religious, the business itself is not. Judge Sykes brought into play here the example of the Kosher deli: ‘On the government’s understanding of religious liberty,’ she wrote, ‘a Jewish restaurant operating for profit could be denied the right to observe Kosher dietary restrictions.’ And in that way, ‘commonplace religious practices normally thought protected would fall outside the scope of the free-exercise right.'”
Read the whole piece here