The James Wilson Foundation on Natural Rights and the American Founding

“Conservatives After Fulton: Time for a New Path”: Hadley Arkes in Anchoring Truths

by James Wilson Institute on June 28, 2021

In an exclusive essay for JWI’s newest publication, Anchoring Truths, JWI Founder and Director Hadley Arkes offered some reflections on the recent Supreme Court ruling in Fulton v. Philadelphia. He describes the conservative frustration with the ruling Employment Division v. Smith (1990) but suggests that their ire with the holding is misplaced. Given that the Court has no official definition of what constitutes a religion, Prof. Arkes writes, simply overturning Smith does not get to the root of the issue, and it will not protect religious liberty. A full-throated defense of religious liberty will begin only when conservative lawyers make the arguments that are central to the cases; dodging the substance of the issue will not suffice.

Some excerpts from the piece:

For Alito, the cycle could be broken only if the Court summoned the nerve to abandon Justice Scalia’s famous opinion in Employment Division v. Smith (1990), an opinion that has been curiously, and to my mind, unjustly reviled, even by some of his best friends.  Alito makes, as ever, a powerful case. And yet the judges may be distracted by illusions if they think the problem will be solved by overthrowing the Smith case. The judges will find, if they strike at Smith, that they will be going around in circles once again, but different circles. They will be moving along another path, but it may be ever clearer to them that they are still dancing around the central issue, or stumbling block, that continues to govern these cases.”

“The matter may be instantly tested in this way:  The fundamentalist circle found in Bob Jones University earnestly claimed to find in scripture a doctrine of separating the races. Let us suppose that we had a baker drawn from that persuasion and he refused to make a cake to endorse an interracial marriage. It seems utterly inconceivable that Justices Alito or Gorsuch, or any of their colleagues, would honor that claim. For have they not now, by their own words, foregone any objection even to the most “offensive” doctrines?  But if that claim is not honored for the Bob Jones baker ….we’re back with Scalia in the Smith case. We are back, that is, with the burden of explaining why religion provides a ground of exemption in any particular case where the laws are binding on everyone else.”

“The question is whether the conservative judges are willing to stir themselves, to show their wit and nerve in finally engaging the argument that counts. But still it must be said:  It would far easier for them to do that if those arguments were put before them by the lawyers who were making the case. And so the challenge shifts: Can the gifted lawyers who are arguing the cases begin with our heartfelt defense of the religious, and then make the bridge to the substantive moral argument that would finally prove decisive?”

The full essay by Prof. Arkes can be viewed at Anchoring Truths, the newest publication from JWI.

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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