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Hadley Arkes: Religion in Public Life Is so Much More Than a Legal Exemption

WASHINGTON — At a speech sponsored by the Institute on Religion and Democracy (IRD), Amherst College professor Hadley Arkes delivered a powerful defense of the impact of religion in public life, and warned that a defensive strategy focused on an exemption from unjust laws via religious freedom cedes important moral ground in political debate.

"Religion does not come into public life as a reason to be exempted from a law justly applied to others," Arkes, the founder and director of the James Wilson Institute on Natural Rights & the American Founding, declared on Tuesday evening. He argued that the Judeo-Christian tradition at the very foundation of America's legal system should apply to all law, and that Christians in particular must advocate for just laws, not just separate protections from laws they consider unjust.

Referring to the key religious freedom case Burwell v. Hobby Lobby Stores involving Hobby Lobby founder David Green, the professor argued that American law should "protect Mr. Green's dignity, not just his religious freedom. We're not pleading for a tolerance of Mr. Green's beliefs, but against an unjust law that does not rightly apply to anyone."

On issues surrounding abortion or the legal mandating of abortion-inducing drugs, Arkes argued that "death cannot stand as a rival good to that of life."

This also applies to free speech cases like NIFLA v. Becerra, where pro-life pregnancy centers were required to advertise for abortion clinics. Arkes called for what many abortion activists would decry as a double standard, saying, "abortionists must be treated differently than pro-life pregnancy centers because one pushes death and another pushes life."

Controversially, the professor actually attacked conservative Supreme Court justices Samuel Alito and Neil Gorsuch for defending religious freedom based on the test of "sincerely held belief." (He noted that both justices are his friends, and the criticism is strictly limited to religious freedom issues.)

Arkes accused Alito and Gorsuch of supporting "relativism" in key cases like Masterpiece Cakeshop v. Colorado Civil Rights Commission. "Alito and Gorsuch expanded relativism by saying we must protect religious beliefs that we find offensive. Does this extend to Satanism and the worship of doing evil? It cannot, morally, but that's what this test becomes," Arkes claimed.

The professor noted that the 9/11 hijackers were sincere in their beliefs, but that did not justify their terrorism. He even claimed this view of religion is at odds with the founders. "The notion of religion unmoored from morality has no connection to the God of the Declaration of Independence," Arkes argued.

During his speech, Arkes argued that the justices of the Supreme Court need to quote Ryan T. Anderson, a senior research fellow at the Heritage Foundation, specifically for his arguments on marriage. Anderson vehemently disagreed with Arkes' views on religious freedom, however.

"Hadley is, sadly, misguided on this. He made similar misguided arguments after Hobby Lobby," Anderson told PJ Media.

The Heritage scholar referred to an article he wrote in The Public Discourse in 2014, responding to similar arguments from Arkes, published in the magazine First Things. At the time, the professor had attacked the Hobby Lobby decision for upholding the "sincerely-held belief" standard on religious freedom.

Arkes had cited Thomas Aquinas and Abraham Lincoln, who explained that it is incoherent to suggest anyone has the "right to do a wrong." He suggested that the Supreme Court should not just have allowed Hobby Lobby to opt out of providing abortion-inducing drugs, but rather struck down the entire law on the grounds that it was unjust.

Anderson did not disagree with the basic premise. "Arkes and I agree that there is no natural right to do moral wrong," he wrote. "But having the wrong (i.e., mistaken) religious beliefs need not entail doing any moral wrong at all. Thus, religious liberty, understood as the right to act according to even false religion, need not involve a right to do a moral wrong."

Crucially, laws like the Religious Freedom Restoration Act (RFRA) allow for limits on religious freedom. If the government has a "compelling interest," it can override religious practices, preventing evils such as human sacrifice.

Furthermore, natural law defends religious liberty "based on the moral truth that sincere religious activity, freely undertaken, is valuable in itself and deserves the space to flourish," Anderson argued. Religious freedom rests in important passages written by the founders, not least the First Amendment.

Arkes' suggestion that conservatives should drop religious freedom defenses in court proceedings seemed extreme, but his critique of religious freedom as a defensive strategy may prove important for political arguments.

He warned that the Left has "no compunctions about putting Catholic charities out of business if they won’t place children with same-sex couples." Meanwhile, the Republican Party seems "content to leave the most vexing decisions to the judges." This is wrong. Republicans need to make moral arguments on culture war issues, just like Democrats do. They can bolster these arguments with the long tradition of natural law.

The professor noted that even LGBT activists engage in discrimination against some sexual orientations, such as pedophilia and bestiality. "If even they do this, how can we defend a law against discrimination on the basis of sexual orientation?" Arkes asked.

This kind of challenge to "the very coherence of anti-discrimination law" would enable conservatives to prevail on the moral case without needing to resort to religious freedom defenses when they find their beliefs effectively outlawed, the professor explained.

While Arkes may be mistaken that conservatives should fundamentally alter their religious freedom defenses in the courts, he was correct in suggesting that conservatives need to make arguments like these when it comes to political policy.

Conservative Christians may see the rise of LGBT pride, the legalization of same-sex marriage, and the mainstreaming of transgender identity and decide they will withdraw into their own separate enclaves, fighting for the religious freedom to hold their beliefs and not bothering to engage with the cultural battle. This would be a mistake, and Arkes is right to suggest that Christians need to press forward with natural law arguments in the public square.

Religious freedom is an important American principle that must be defended. It also forms an important legal defense for conservative Christians often branded "hateful" by LGBT activists and some corners of American culture, who are in need of an exemption. But conservative Christians need to listen to Hadley Arkes on the need to make political arguments in favor of just laws — an offensive strategy to bolster the defense.

In many cases, the policies that oppose conservative Christian beliefs actually victimize people. Many transgender people have later rejected their identities, detransitioning and finding themselves permanently sterile or scarred in other ways. If conservative Christians present the truths against transgenderism, they can protect vulnerable people who are too often encouraged to think there is only one solution to gender confusion.

Christians should make natural law arguments to support just policies, while understanding that America is not a Christian country. Christians should not hesitate to engage in moral arguments when discussing public policy, just as Hadley Arkes suggested.

Follow the author of this article on Twitter at @Tyler2ONeil.