The James Wilson Foundation on Natural Rights and the American Founding

“Defending Religious Liberty Without the Constitution?”: Prof. Arkes in Law & Liberty

Last week the Supreme Court took a decisive step in striking down the so-called Blaine Laws, which barred the use of public funds in supporting religious activities, especially private religious schools.  Professor Arkes argues that the Court, for a change over the last few weeks, managed to get something right. But in the ways of the Court these days, it managed to come down on the side of religious freedom, even after it has been removing the substance of religion and denying the moral ground for the defense of religion. Recent court opinions have presented the notion that a religious claim may only be tolerated and respected when it is reduced to the level of a personal belief, regardless of its foundation in logic and reason. This jurisprudence of relativism implies that any belief must be accepted regardless of its lack of moral substance. Prof. Arkes, citing James Madison, argues that we can and should reason and discern which claims are truly religious and worthy of that protection of law. 

Some quotations from the essay:

“…we’ve seen benedictions given now by “ministers” of the Church of the Flying Spaghetti Monster. And yet even more: that decision, in Town of Greece v. Galloway, has set off a virtual growth industry for Satanists in giving invocations and benedictions. But no plausible understanding of religion in this country can possibly be reconciled with Satanism or the affirmation of radical evil.”

“Madison understood religion as “the Duty we owe to the Creator and the manner of discharging it.” That God was the Author of the Laws of Nature, including the moral laws. There is no understanding of God and religion more bound up with the American laws from the beginning.”

“The Court managed this week to get something right on religion and the law, but in running true to form these days, it has given us a wondrous construction without quite explaining to us what it all rests upon.”

The full essay can be found 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