Sometimes people argue that the Framers couldn’t possibly have meant what they said when they guaranteed the free exercise of religion with no exceptions.  The argument runs like this:

1.  The “exercise” of a religion means not just believing what it teaches, but also acting as it teaches.  2.  But some religions teach behavior that interferes with compelling state interests.  3.  Therefore, when the Framers wrote that the free exercise of religion must not be prohibited, they must have meant that it must not be prohibited unless it interferes with such interests.

The argument is tempting.  Surely there is something wrong with demanding the liberty to go on a shooting spree in the name of religion, or with saying “My religion teaches survival of the fittest, so I don’t have to obey traffic laws.”  The state has a compelling interest in keeping public order.

But if we do accept the argument, then what is to stop the state from requiring evil acts?  The state will always claim to have a compelling interest.  Our rulers think “compelling interest” means “anything we want very much.”

It seems that we are at an impasse.

We aren’t.

The problem is that we are treating the Framers as though they used the word “religion” to mean “anything people say they believe.”  But that is not how they used the term.

In fact it is not how the Western tradition of jurisprudence uses any general term.  For example, our traditions have taken the maxim that the will of the rulers has the force of law to mean that the reasonable will of the rulers has the force of law (Thomas Aquinas).

Similarly, the principle that law should be obeyed has been accepted with the proviso that an unust law is not truly a law, but an act of violence (Augustine of Hippo), and the dictum that custom interprets law has been interpreted according to the understanding that an unjust custom should be viewed not as a custom, but as a usurpation of custom (Edward Coke).

In the same way, when the Framers wrote that the exercise of religion must not be prohibited, they expected us to grasp that a religion which demands behavior contrary to the natural law -- or to the common good understood in the light of the natural law -- should be understood not as a religion, but as a perversion of religion.

That is not the same thing as a religion which happens to annoy the state.

This understanding of the clause would work pretty well – if only our rulers still believed in the natural law.

Tomorrow:  Is There Collective Responsibility?

The twentieth century taught some of us that totalitarianism is evil.  What it taught some totalitarians is that their methods had to change.  Do people resist the compulsory destruction of their cherished institutions?  Very well, then compulsion must be made to look like liberty.

What our local totalitarians call “nondiscrimination,” “choice,” and “neutrality” are devices by which the coerced substitution of one moral judgment for another is disguised as the suspension of moral judgment.

The state pretends that it is not making judgments about sexuality, just prohibiting discrimination.  But discrimination includes merely disapproving of sexual deviance.  So the government schools teach children that anything goes, and then the campaign begins to prohibit private schools, religious schools, and the Church from teaching any other view of sexuality.

Or the state pretends that it is not promoting abortion, euthanasia, and assisted suicide, just allowing people choice.  But once these acts are legal, the state says they are a right, so that nurses must be coerced to assist in them, pharmacists must be coerced to dispense drugs that cause them, insurance carriers must be coerced to reimburse for them, and taxpayers must be coerced to pay for them.

Or (this is coming) the state pretends that it is not against monogamy, just neutral among monogamy and other arrangements.  But to revise the marriage laws so that these other arrangements are legal forces those who believe in monogamy into a polygamous legal framework, so that if a man takes a second wife, the first wife has no recourse but divorce.

The smoothest camouflage for evil judgment is pretending not to judge.  Our local totalitarians learned this a long time ago.  The rest of us have been slow to catch on.

Tomorrow:  The Constitutional Meaning of Faith

Mondays are reserved for letters from students.  This one is matriculating at Santa Clara University.

Question:

I was wondering if I could inquire more into the two types of natural law you talk about.  I understand the concepts of natural law, but there's this other approach you mention  -- the "basic goods" approach or NNL.  How does that differ from a traditional approach to natural law as you see it?  If you could let me know of any key differences, or point me in the direction of some reading material, I'd appreciate that a lot.

Reply:

There is only one kind of natural law (just as there is only one kind of gravity), but there is more than one theory of natural law (just as there is more than one theory of gravity).  What I defend is the classical natural law tradition.  The basic goods approach, which agrees with the conclusions of the classical tradition most but not all of the time, is also called the Grisez/Finnis theory, after Germain Grisez and John Finnis, and the new natural law theory, or NNL.  Calling it “the new” theory is a little misleading, because the classical tradition, still alive and vigorously resurgent, is generating a lot of new work.  But that’s how people speak.

Since questions like yours come up so often, I included an appendix on the differences among the various theories of natural law in my books, The Line Through the Heart: Natural Law as Fact, Theory, and Sign of Contradiction.  However, that appendix merely touches on the basic goods approach, so let me say a bit more.  The main differences between the NNL and the classical tradition are as follows.

(1) The NNL rejects natural teleology.  For example, it refuses to reason about sexuality on the basis of the natural purposes and inbuilt meanings of the sexual powers -- on the basis of what they are for.  This is such a huge departure from the classical tradition that many natural law thinkers would say the basic goods theory is no longer a “natural” law theory at all – there is no “nature” in it.  I think that way of putting the matter is a bit overstated, since the NNL does rest on claims about one aspect of our nature, the deep structure of the practical intellect.

(2) The NNL maintains what is called the incommensurability thesis – the proposition that none of the basic goods, the goods worth pursuing for their own sake, can be compared according to value.  Here is one of the standard examples:  Suppose you are playing golf, a child is drowning in the water hazard at the ninth hole, and you give up the game in order to rescue the child, press the water out of his lungs, and call an ambulance.  Afterward, someone asks, “Why did you do that?”  You reply, “Because life is more important than play.”  The basic goods theorist would agree that you did the right thing, but say “That isn’t a valid reason.”

(3) Instead of speaking of God as our greatest good, the NNL speaks of the “basic good of religion,” which means roughly having a connection with some source of meaning greater than oneself.  Classical natural law theorists like me worry that this might mean anything.  We also hold that there is no need to protect natural law theory from natural theology – from truths about God which are demonstrable by reason.

(4) Finally, the NNL relies on a different analysis of the “object of intention,” of how to identify what an act is aiming at.  For example, several years ago, a nun who was a member of the ethics board of a Catholic hospital in Phoenix was excommunicated for approving an abortion.  At the time, her view was that the act was permissible because its object was not to kill the child but to save the woman’s life.  However, the classical analysis holds that such an act is wrong, because its real object is to kill the child as a means of saving the woman’s life.  In effect, the physicians were treating the child as the illness, not the illness, as the illness.  Though NNL thinkers are generally pro-life, in this case they sided with the excommunicated nun (who subsequently conceded her error and reconciled with the Church).

These are pretty big differences.  Even so, most of the time classical natural lawyers and NNL thinkers are able to work on the same side of the fence, and consider themselves colleagues with disagreements.  The situation does give rise to certain ironies.  For instance, I have mentioned in previous posts that unlike some of my colleagues on the classical side of the table, I think Professor Finnis offers helpful insights about “one flesh unity” in the context of sexuality, and I have borrowed several of them, with modifications, in my own work.  Even so, I am not altogether sure that he would be pleased by my doing so.  The reason is that he makes these points in order to avoid natural teleology, whereas I find them helpful only in the light of natural teleology.

Tomorrow:  What the Twentieth Century Taught Totalitarians

“God has created me to do Him some definite service; He has committed some work to me which He has not committed to another.  I have my mission -- I never may know it in this life, but I shall be told it in the next.  Somehow I am necessary for His purposes, as necessary in my place as an Archangel in his -- if indeed, I fail, He can raise another, as He could make the stones children of Abraham.  Yet I have a part in this great work: I am a link in a chain, a bond of connection between persons.  He has not created me for naught.  I shall do good, I shall do His work; I shall be an angel of peace, a preacher of truth in my own place, while not intending it, if I do but keep His commandments and serve Him in my calling.

“Therefore I will trust Him.  Whatever, wherever I am, I can never be thrown away.  If I am in sickness, my sickness may serve Him; if I am in perplexity, my perplexity may serve Him; if I am in sorrow, my sorrow may serve Him.  My sickness, or perplexity, or sorrow may be necessary causes of some great end, which is quite beyond us.  He does nothing in vain; He may prolong my life, He may shorten it; He knows what He is about.  He may take my friends, He may throw me among strangers, He may make me feel desolate, make my spirits sink, hide the future from me -- still He knows what He is about.”

-- John Henry Cardinal Newman, Meditations and Devotions

Tomorrow:  What Is This NNL Whereof You Speak?

The two First Amendment religion clauses are often described as though they were in conflict, so that they have to be “balanced” against each other.

This is a manufactured problem.  If you think that the purpose of the Free Exercise Clause is to encourage the practice of religion in every possible sense, but that the purpose of the Establishment Clause is to keep religion from being vigorous enough to influence politics, then of course you will think they are in conflict.  But what do the two clauses actually say?

The Free Exercise Clause does not say that the government should encourage the exercise of religion in every possible sense.  What it says is that Congress must not prohibit it.  That’s all.

The Establishment clause does not say that the government should keep religion from influencing politics.  What it says is that Congress must not make laws concerning official churches, like the Church of England.  That’s all.

There is no conflict whatsoever between saying that the national legislature must not prohibit the practice of faith, and saying that it must not make laws concerning official churches.  Conflict arises only when you try to make the clauses mean more than they do.

By the way:  The chief reasons which were advanced for these clauses were themselves religious.  The Framers didn’t want the practice of faith prohibited, because they thought we have duties to God.  But they didn’t want Congress to get into the official church business, because they thought religious truth is best promoted by religious competition.  The states, and the people thereof, were left to do as they thought best.