The James Wilson Foundation on Natural Rights and the American Founding

“Judging Beliefs and Shaping Laws: A Reply to Robert Miller”– Prof. Hadley Arkes in the Public Discourse

Writing in the Public Discourse, Prof. Hadley Arkes responds to Prof. Robert Miller’s critique of Arkes’s post-Hobby Lobby account of the grounds and scope of religious liberty.

Some excerpts:

If we understand the moral ground of the law, we understand that the government bears the burden of showing a “justification”—a proposition about the rightness or justice—of restricting personal freedom in the laws. Without a justification in the most demanding sense, there should be no law. But at the same time, the classic tradition has made room for “prudence”—for not applying the principles of right in their full stringency to every case. At times, it’s necessary for statesmen to make an accommodation with an evil for the sake of compressing it, as the American founders did with slavery. But nothing in that prudential accommodation could be taken to offset the wrongness of slavery. Nor could it possibly support the argument made by Miller that “sometimes even though an action is immoral, prohibiting it or punishing it by law is immoral too.”

Miller makes an earnest claim to carve out a special protection for the religious: “There are good moral reasons,” he says, “for affording specifically religious beliefs and practices extra protection in the law because of the especially great danger that majorities will persecute religious minorities.” But he doesn’t give us those moral reasons—he doesn’t give us the justification for exempting the religious from the laws he is willing to see imposed on everyone else. And he withholds the key to the whole ensemble: For he does not explain here how we identify the class of people who claim this protection. Who are the “religious”? At the beginning of this regime we understood what was meant by religion: “the duty which we owe to our Creator and the manner of discharging it.” But that is not the definition that prevails today, and I gather that Miller would not confine the meaning of religion in that way. The problem for us is that the courts will now accept as “religion” virtually anything that a person professes to regard as his religion.

As (Prof. Frank) Beckwith points out, that case for the special standing of “beliefs” must be a philosophic case, and as a philosophic argument it must be open to the test of what make that argument, not merely readily accepted, but true, commanding the reasoned assent of the rest of us. As Beckwith demonstrates, the courts have persistently had to judge whether certain religious beliefs could be judged reasonable or unreasonable. This is the work of judges, because this is the work of the law. But Miller argues that he would remove the judges—and presumably, any other part of the government—from this task. According to Miller, the law rightly “limits the courts’ power to inquire into the truth or reasonableness of religious views.” And this is not, he says, because religious beliefs lack a rational foundation. Rather, it is because “judges are no better than anyone else at sorting out true religious (or moral) beliefs from false ones, and they are just as liable as everyone else to regard beliefs different from their own as false and unreasonable.”

(S)ome of them deny, as Miller does, that the judges have available to them the principles or reasons for making these judgments. To say that he doesn’t trust the judges to do it may be the same as saying that he has little confidence that people in authority can make judgments on the laws that are “justified” or “unjustified.” Could it be that this is because he has lost confidence that there is indeed a discipline of reason that may guide and restrain judges, as it guides and restrains everyone else?

Read the whole piece here.

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