The James Wilson Foundation on Natural Rights and the American Founding

“The New Jurisprudence of ‘Beliefspeak’” –Prof. Arkes in Library of Law and Liberty

Writing for the Library of Law and Liberty, Prof. Hadley Arkes cautions us not to be “bedazzled” by the outcome of Hobby Lobby. Instead, he cautions us to remain wary of how the decision’s underlying logic undercuts principled arguments for religious freedom. 

Some excerpts:

“If I had been a member of the Court in the Hobby Lobby case, I would have written a concurring opinion, celebrating the outcome. But I would have registered the gravest reservation over the reasoning by which this good result has been produced for us. [Other] Judges managed to produce the same outcome in comparable disputes; but they did it without engaging in the gratuitous move of reducing ‘religion’ to ‘beliefs’ held ‘sincerely,’ quite detached from the canons of reason and claims of truth.”

“Justice Ginsburg drew out these implications that could possibly spring from the decision of the Court as we encountered:


employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others).

Some of our friends have accused Justice Ginsburg of wild speculation here because they doubt these cases will arise. But our friends may be replicating the confusion between predictions and principles: Ruth Ginsburg should be read not as offering a prediction, but daring us to explain the ground of principle on which we would deny these claims, made on the basis of ‘belief.’ I think that my side could well provide an answer for most of these challenges . . . We return the argument to the domain of reasons tested for evidence and truth.”

“For years those of us who have argued the pro-life side have encountered the insistence that our moral objections to abortion involve nothing less than the imposition of our ‘religious beliefs’ on others. In response, we have insisted over the years that a moral argument cannot be reduced to mere beliefs; that it is woven of evidence and principled reasoning and ever subject in turn to challenge and testing on reasoned grounds. But now, if we take our friends seriously, the Greens and Hahns are to be defended only by insisting that their moral argument is translated into claims of belief, and those claims are not to be tested with the canons of evidence and reason. With that move, I submit, we would be absorbing the upside-down concepts of our adversaries. Legislating on abortion would be done then on the basis of nothing more than ‘beliefs’ held ‘sincerely.’ We would indeed be imposing our religious beliefs on others.”

“I’d beg my friends to take a sober second look, to be far more careful before embedding in our law these claims to ‘rights’ or ‘rightful liberties’ depending on ‘beliefs’ that may not be tested for their truth or coherence—and from those materials fashioning a law for us on a matter of deep moral consequence. This is the kind of thing that may not only disfigure our jurisprudence, but corrode the minds of the next generation of lawyers, who will make it their business to learn this new ‘beliefspeak.’ To mix the metaphors, we may be drawn here to ‘fool’s gold’ and find ourselves playing with fire.”

Read the whole piece here.

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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