The James Wilson Foundation on Natural Rights and the American Founding

“Recasting Religious Freedom” –Hadley Arkes in First Things

In the June/July 2014 issue of First Things, Prof. Hadley Arkes examines the grounds on which we can determine what is a religion in light of cases before the Supreme Court in a piece titled, “Recasting Religious Liberty.” (subscription required)

Some excerpts:

“(I)f we take seriously the claims to freedom of religion as a natural right, we discover that in the court the conventional and familiar arguments for religious freedom 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. There the defenders of religious freedom offer foremost an avowal of their earnest beliefs, sincerely held, whereas understanding religious freedom as a natural right leads us to a recognition that today’s defenders of religious freedom might find jolting, or at least uncongenial or impolitic: namely, the recognition that not everything that calls itself ‘religion’ has a claim to be viewed with the same respect.”

“Would we actually say that the Catholic businessman had a stronger claim to challenge the law on grounds of religious freedom, when his reasoning was in no way different from that of the businessman, who reached his moral conclusion with the same weave of the empirical evidence from embryology, amplified by moral reasoning–the same weave of reasoning that forms the teaching of the Church? Are the claims distinguishable on any grounds that matter?”

“(B)efore the law would impose the mandates of Obamacare on the owners of the Hobby Lobby stores, it should bear the burden of showing that there is something deeply unreasonable about the understanding maintained by the Greens: that lives destroyed in abortions cannot be anything other than human lives; that those lives are inescapably innocent in the sense that they cannot be the source of any intentional wrongdoing; that the standing of these offspring as human beings cannot be in any way contingent on their height or weight, or whether they are speaking yet in sentences. Unless the government can have something plausible to say on these points, it should back away from any presumptuous willingness to displace the moral code of a family.” 



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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790