Exemptions to the HHS Mandate? Exchanging “beliefs” for reality is too high a price

By Dr. Jeff Mirus ( bio - articles - email ) | Jun 02, 2014

In the current (June/July) issue of First Things, Professor Hadley Arkes points out the absurdity of the effort to create exemptions from civil law based on religious beliefs (see Recasting Religious Freedom). Arkes, who teaches jurisprudence at Amherst College and is a noted pro-life strategist, argues that it puts both government and citizens in absurd positions to be arguing about whether a particular religious belief is held with sufficient centrality and sincerity to merit exemption from some law. Unfortunately, this question of exemption is the key to current American legal fights over the HHS Mandate for abortion, contraception and sterilization.

The difficulty arises from a sterile Constitutionalism, that is, from the effort to apply the American Constitution outside the fundamentally natural legal context which the Constitution presupposed. The Constitution chose to specify freedom of religion because it was a natural principle frequently abused in the recent past. But they did not foresee a time when it would be fashionable for politicians and lawyers to reject the idea of God and natural law altogether, and yet still try to govern.

Unfortunately, if we remove the context of the natural law from jurisprudence, then in the United States the main thing which stands in the way of the wholesale reinvention of morality by government is the clause which protects the free exercise of religion. And since modern sensibilities can make no sense of the idea of religion as a source of knowledge of reality which might limit the legitimacy of human law, the tendency today seems to be to secure religious freedom primarily through exemptions to otherwise uncontested laws.

The Principle

Like Arkes, I have argued against this unfortunate legal tendency, most notably in October of 2012 (see Government and the Limits of Human Law). But our concern is hardly new. It derives from the principle that a positive law is rendered null when it violates the natural law. This principle is deeply rooted in both Christian and Roman law. Indeed, the subordination of the positive law to the law of nature and nature’s God is essential to the maintenance of the common good against government itself.

It ought to be evident from reason as applied to nature that any human law which contradicts the morality rooted in human nature is by that fact null and void. This is not an essentially Christian concept. In fact, the Catholic Church insists that the morality communicated in Divine Revelation is already readable by all in the nature which God has created. Certainly it was philosophically expounded in the ancient world, and has been at least partially perceived and applied in all human cultures. One way or another, it is the basis of nearly all moral arguments.

For this reason, quite apart from Revelation, government’s proper role is to make laws consistent with the natural law. Conversely, it is definitely not government’s role to make laws which violate the natural law and then decide who cares enough to be worthy of an exemption. Nor is it government’s role to decide that Person Y’s commitment to Religion X merits an exemption, but Person Z’s “non-religious” objection does not.

Whether or not our own Constitution presupposes the proper context for law is, of course, somewhat beside the point. If it were not presupposed, it would still have to be supplied. And that is why we must agree with Hadley Arkes: A cohesive argument against immoral laws ought to be rooted in a natural understanding of morality, and not in the peculiar proclivities of those who wish to be exempted from such laws. To be sure, it is often tempting and sometimes necessary to resort to whatever stupidities a judge will countenance in order to win cases. But a high price is paid if we are thus taught to frame our fundamental arguments in ways which concede the legitimacy of immoral laws so long as the government exempts us from their application.

The Process at Work

In his article, Professor Arkes provides a telling case in point. When the Federal appellate court in Colorado upheld the legitimacy of the Green family’s suit against the HHS mandate as it affected the operation of its Hobby Lobby craft stores and its Mardel chain of Christian bookstores, Judge Timothy Tymkovich reasoned for the majority that the case could proceed because an exemption might be won based on the Greens’ “sincere beliefs”, including the “belief that human life begins when sperm fertilizes an egg.”

Belief? Unfortunately, no statement could be more calculated to win a battle while losing a war. In this case, the Greens are being asked to take advantage of arguments which demote obvious natural realities (i.e., facts) to the status of peculiar religious beliefs. Their defense is not one of truth but of religious sincerity. This is a slippery slope. In such a contest we have, on the one side, all those who accept that reality is defined (rather than recognized and followed) by positive law. On the other, we have the necessarily (to the government) small number of rather odd people who are sincerely disturbed based on their religious beliefs.

Is it fair to suppose that this is what Constitutional protection of freedom of religion means in the United States today? Practically speaking, perhaps, the government can grant some very limited exemptions as long as a plantiff does not challenge the fundamental rational morality of the law. On the other side, isolated religious individuals and groups may base their arguments on their own fundamentally irrational quirkiness in order to escape prosecution and punitive damages.

The Privatization of Truth

Through a long and complex process of secularization, with an ever-growing emphasis on material reality, Western culture has found itself crippled by a deep rejection of ultimate meaning. Into this vacuum has stepped the immense pragmatic power of the modern State to define reality through its own laws. This legal positivism has now reached the point of marginalizing the claims of both reason and Revelation to provide us with an understanding of the fundamental natures and ends of things, including the moral norms which govern all persons.

In such a worldview, politics becomes the primary means of both deciding and shaping reality. Alternative religious or even philosophical windows on reality must be slammed shut through a denial of either their political relevance or their rationality, or both. Under this pressure, signtificant alternative views are marginalized. There are many ways this is done culturally. In the academy, for example, encouraging a proliferation of non-threatening voices regardless of rational merit effectively teaches the unreliability of all differences. And the legal mechanism by which this process is apparently to be completed in the United States is by adjudicating religious challenges not as claims about reality but as archaic and irrational personal attachments.

The situation is now this: The State is not predisposed to be second-guessed in its claim to represent reality through its laws. But there is still a little bit of politics to be played. Therefore, if the State thinks a challenge harmless enough, it may assume a role of generosity, exempting a few from the punitive consequences of rejecting the State’s vision.

Unfortunately, the exemption game plays into the hands of all those who wish to make both reason and religion irrelevant to the common good. It is hard to know what to do about each particular legal case. I cannot dictate to someone facing hundreds of thousands of dollars in fines for non-compliance with the law. But the price currently being asked—the price of exemption—is way too high.