Writing in the Catholic Thing, Professor Hadley Arkes, in “Obama and the Culture War Endgame,” explains how the Obama Administration aims to rid the public sphere of the influence of religious organizations whose moral teachings are at odds with the liberal agenda. Professor Arkes argues that, in adhering to a deeper principle, the Court can preserve religious liberty by invoking a rationale that goes beyond the Constitution. Some excerpts:
“The report came last week from my friend and colleague Austin Ruse: the White House was putting the steps in place for a policy that would ‘require charitable humanitarian groups to accept LGBT applicants in order to qualify for government funding, even those religious groups that might have religious objections.’ This move would add yet another step to an executive order issued last July, prohibiting federal contractors from discriminating on the basis of ‘sexual orientation’ and ‘gender identity.’”
“Once again we see the curious, but predictable inversion. The people who began by denying radically any grounds for casting moral judgments on others now turn about and thunder the unyielding logic of a Categorical Imperative. But that Imperative is linked now to their own, indefensible moral predicates.”
“And so, they demand that the moral truth here be commanded and respected ‘though the heavens may fall’ – regardless of the consequences that may fall upon us. Would they really have Catholic Charities cease their valuable work in arranging adoptions if they would not place children with same-sex couplings? Would they really forego the lives saved in the work done by religious charities as they deal with floods and famines and earthquakes abroad? Yes, for this valuable work would come at a cost in principle, for them, too grave to be borne.”
“But as Justice Scalia remarked in a similar case in 2004, when the government bars benefits ‘to some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.’ Those words were not exactly in the text of the Constitution. But Justice Scalia draws the conclusion with the surety that they were entailed by the very logic of ‘religious freedom.’ Some friends complain that, when judges move outside the text of the Constitution, there is nothing to confine their judgments. But Justice Scalia shows us again how one can move outside the text and find, in the deeper principles, both guidance and constraint.”
Read the whole piece here.