The James Wilson Foundation on Natural Rights and the American Founding

“Response to Prof. Robert Miller—Again”—Prof. Hadley Arkes

by Hadley Arkes on August 26, 2014
Courts, History, Society & Culture

Prof. Arkes seeks to restate here several points that remain critical on the problem of religion, morality, and the law after an exchange with Prof. Robert Miller in Public Discourse here, here, and here. Among them would be these:

1. It is not necessary to invent a right to be wrong in order to confirm a regime of freedom in religion—and anything else.  A classic view on the moral ground of the law would begin with the claim of human beings to all dimensions of their freedom, not merely the freedoms mentioned in the Bill of Rights.

2. Some of our friends would invoke the Religious Freedom Restoration Act (RFRA) with the purpose also of protecting religion from the judgments cast by people in official authority on the content of religious belief and practice.   And yet the irony is they find themselves backing into arrangements in which the decisive judgments will be made nevertheless by judges, by the branch that has been the least responsive to the religious

Prof. Miller is charitable in ascribing to me a commanding authority on what I “believe” I said. But again, I’d resist the conversion of things to “beliefs”: I’d hold to what I did say, and I see no conflict in the passages that Prof. Miller generously cites. I’ve been unwavering in my rejection of what I’ve called this new jurisprudence of “Beliefspeak.” And yes, I’ve registered a deep concern for the heavy accent placed by the Court in Hobby Lobby on the weight accorded to “beliefs” held “sincerely”– and which could not be tested for their plausibility or truth. At the end, Justice Alito would make the same reckoning made by Judges Diane Sykes and Janice Rogers Brown in other cases: that the measures chosen by the government did not offer the “least restrictive means” of attaining the ends of the government. My point has been that the case could have been decided on those grounds alone, invoking old and familiar principles of constitutionalism. And that could have been done without carving out a domain of authority accorded to “beliefs” of a “religious” nature, insulated from tests of truth–and without an account of exactly what kinds of beliefs count as “religious.”

What could be said in favor of Religious Freedom Restoration Act (RFRA), as I’ve put it, is that it preserves for the religious a level of constitutional protection that used to be available to everyone else. Under a classic liberal scheme, the burden should fall to the government to use the least restrictive means when it would restrict the freedom of any of those beings we call “moral agents”—those beings with the capacity to reason about their own well-being and the well-being of others. They have a presumptive claim to all dimensions of their freedom, and not merely the freedoms mentioned in the Bill of Rights. Those rights may cover simply the freedom to make a living at an ordinary calling, without licensing requirements that bar entrance into their fields. I don’t think that Prof. Miller offers a more “capacious” understanding of personal freedom than that, and that is the understanding I’ve held to for years.

To say that the government must bear the burden of “justification” is to say that the law must be able to say more than “most of us favor this measure” or that “most of us feel passionately about this.” The burden here is to bring forth a principle to show why this measure has a claim to be regarded as valid and binding for everyone it would bind. As I mentioned in my response there is nothing inscrutable about the matter of judging “justifications.” Ordinary people do it every day—e.g., as they judge why it may be “justified” for the fire department to retard their liberty to move in traffic as the firemen fight the fire. My point over the years has been that, at the very least, the law requires a moral justification in this sense before it may be imposed on the public.

In my construal, that would seem to be a far more demanding test than the standards that Prof. Miller would bring to bear in pronouncing acts to be “immoral” or wrongful. Miller offered as an example that “a wealthy man who gives nothing to the poor acts immorally,” and went on to say that “a law requiring him to give away an appropriate fraction of this wealth would be not only imprudent but immoral.” But there may be many plausible and defensible reasons why a rich man may give nothing to the poor—he may have needy relatives of his own, with staggering medical bills, and he may think he is giving already a vast amount to support the poor through the welfare system. On the other hand, his wealth is quite open to taxation, on the terms applied to everyone else, for purposes that may offer a clear justification (as in defending the country or supporting people truly destitute, who would perish without a public provision).

But as I’ve also explained, as we used to say, “coming in and going out,” not everything we may regard, correctly, as wrongful would be prudent to make illegal. And yet, that judgment of prudence itself must ever be open to reason, to argument, and justification. To recall my example, the American Founders made a prudential accommodation with slavery, but that accommodation was persistently called into question, and there were many places in the crevices of the law, where it was still possible for legislators and judges to act in the premise that there was something wrongful about slavery.

On the question of whether moral judgment must ever be a contentious matter, with many questions left unsettled, Prof. Miller and I may be, as a colleague of mine once put it, in a state of “heated agreement.” I’ve attached to my courses at Amherst the codicil that “everything here could be wrong.” But to put that understanding in place is to confirm that judgments of rightness and wrongness imply standards of judgment, accessible to our reason. And as we argue together over the right or just judgment, the currency will always be—can only be—the exchange of reasons.

With that sense of things, Prof. Miller and I both find value in a political and legislative process in which measures brought forth for enactment should confront the many opposing interests, showing the injuries that could be wrought, the harms unnoticed, the wrongs that could be done if this measure were enacted. To put a proposed law through that wringer of testing is to do something of real moral significance. It is a way, also, of finding a law that could advance a good while doing less harm and eliciting the assent of the governed. Prof. Miller’s sense of things is that RFRA simply gives us another layer in that process. It adds the judgment now of judges. But something else is done, which he brings out in this line:

Under RFRA, the government must prove that a law that substantially burdens a plaintiff’s exercise of religion furthers a compelling governmental interest by the least restrictive means available.

When a bill comes through the grinding legislative process, it must mean, on the very face of things, that a legislature encompassing the wide interests of the community thought that this measure was “compelling” enough, in support of a legitimate interest, that its enactment was “justified.” A court, concentrating on principles of constitutionalism, may say, yes, the end was justified, but the law incorporated schemes of “racial preference” that made it unconstitutional. But if there is nothing unconstitutional in the law passed by that legislature, it is not clear where a court gets the principles of judgment to rank what is higher or lower, more or less compelling in the interests of the people in Michigan or New York: Would there be a more compelling interest in preserving a publicly supported university rather than using that money to provide more medical care to the aged? Or simply to let people keep more of their earned income? As I read the law and the cases, RFRA invites the judges to enter that domain. That was the very point of the law:  It wasn’t enough that laws be “generally applicable” and not fueled by an “animus” to religion. The judges had to test the law in yet another way. But in doing that work enjoined by RFRA, the judges are lured into the terrain that belongs more properly to the political branches. For elected legislators and executives will ever be more responsive in reflecting the sense of what people in the community care most deeply about.

In contrast, the solution to which I and others have been drawn would go even further in meeting Prof. Miller’s concern about scaling down the kinds of judgments we would ask judges to deliver. If we view the cases as some of us have viewed them, the mandates of the government have imposed the burdens of a public obligation on private persons to bear at their own, private expense. That is an ancient problem of “class legislation” and perhaps even a “taking of property.” The judges who put the accent on that critical point simply put themselves in the classic and rightful position of judges in policing the structure of the separation of powers. And what is the outcome?: the judges do not take it upon themselves to say that the government may not diffuse abortifacients and contraceptives to the public. The judges simply return the matter to Congress and invite the legislative branch to do it all properly—to take up what it regards as a public commitment by raising public funds to support it. The legislature then would have to accept the constitutional discipline of justifying to the public the taxes that would need to be raised.

The judges would not be invited then to cast judgments on the beliefs or sincerity of the religious. Nor need they take it upon themselves to judge—quite independent of the legislature—whether the beliefs of the religious should be accorded a separate station, insulated from the laws that bind everyone else, say, on discrimination in employment or any other subject. Prof. Miller and I might both be satisfied then that we would have relieved the judges of certain burdens of judgment that it would be better altogether that they be spared. In holding back the reach of judges in that way, we may find not only prudence, but withal a great mercy.

But it is worth restating this irony that affects people on the other side. They cling to RFRA while they are determined, as Prof. Miller is, to protect religion from the judgment cast by judges on the content of religious beliefs and practice. They would allow beliefs to be judged and restricted at times for the sake of “public order” as in barring human sacrifice. The laws that restrict religion in that way are laws passed by legislatures. And yet the point of RFRA was precisely to protect the religious from many acts of legislatures that override religious freedom on behalf of interests that may be far less momentous—e.g., making decisions to preserve landmark buildings. But then it falls to judges to gauge whether the interests of the community are “compelling” enough to justify these restrictions. And willy-nilly it would fall to decide, say, whether the placement of the altar in the Church would be sufficiently serious as a “religious” interest to force the legislature to carry a heavier burden or use the “least restrictive means” of accomplishing their ends. Under the banner then of protecting religion from the judgments of judges and legislatures, we seem to back into the arrangement of judgments being cast after all on the religious, and from the branch of government least responsive, and perhaps even least sympathetic, to the religious.

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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