Government and the Limits of Human Law
Earlier this week, a federal judge in Missouri ruled against Frank O’Brien’s claim that the HHS mandate violates his religious liberty by forcing him to act against the moral principles he must hold as a Catholic. Judge Carole Jackson stated instead that “this court rejects the proposition that requiring indirect financial support of a practice, from which the plantiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.”
There are a number of issues raised by this decision that could be addressed profitably. It is also necessary to understand that this case is one of many cases being filed in a variety of federal jurisdictions in the hope that conflicting decisions by various judges will force the Supreme Court to settle the issue; therefore, this case cannot be regarded as definitive.
However, what I wish to examine here is the dilemma posed by the apparent need for government to determine what does and what does not constitute a religion, or a religious teaching, or the exercise of a religious responsibility. For it seems that government must determine such things when it weighs its own aims against its responsibility to protect religious liberty. For Americans, this need stems from the “free exercise” of religion guaranteed by the first amendment to the Constitution of the United States. This is part of the original Bill of Rights, without which the Constitution itself would never have been adopted. There are analogues in other Western nations, all of which have a theoretical commitment to religious liberty.
Dilemma of State, Dilemma of Church
It is not hard to see the dilemma faced by the modern State when it comes to the free exercise of religion. What makes it so very easy to see is the remarkably diverse and splintered character of religious belief in the contemporary world. Things were very different, for example, in the Medieval period, when Western society enjoyed the stability of one overwhelmingly dominant religion under a single ecclesiastical authority. In that culture, there was little confusion about what “religion” meant in terms of the claims that secular governments had to respect. But in our own culture, beginning with the splintering of Christianity and the influx of religious ideas from other regions of the world, and now under the supreme influence of an astonishingly proud and vain individualism, religion has largely become whatever anybody wants to claim that it is. Surely the government cannot be expected to protect every last thing that one group or another may claim it is bound by its “religion” to do.
Should the government be required, for example, to make broad provision for the dietary rules of Judaism or the avoidance of motorized equipment by the Amish? Must it honor Quaker pacifism? Need it condone the use of various drugs in the religious ceremonies of certain cults? What about the polygamy of Mormons? The attitudes toward property of Transcendentalists? The sexual mores of the Playboy philosophy? Where, if anywhere, may a reasonable line be drawn? How does the social order escape the results of a theory of religious liberty which may include, in our crazy times, anything and everything?
But of course as soon as these questions are raised, one also sees the dilemma faced by those who take their religion seriously, by the various churches, and by the Church herself. For the State is manifestly incompetent to judge the truth or falsity of religious belief, to determine whether one set of beliefs constitutes an authentic religion while another does not, to determine which activities may be construed as significantly religious, or to decide whether any particular person is religious or not.
One can hardly restrict the designation “religious” to the official representatives of a religious body, which in any case would not solve the problem, or define freedom of religion as mere freedom to worship, at least without doing violence to the very nature of religion itself. The claim of nearly every religion is that it requires a particular way of life, and all major religious believe this way of life impenetrates everything a person does. And while pagan religions may have been largely devoid of moral content, the major religions of the world, and especially those influenced by the Judeo-Christian tradition, see God as supremely moral. Thus religion is something which guides not only particular rituals but every aspect of moral behavior. How is human government to determine what is and is not religious? How is it to decide which behaviors call for religious protection?
The Deficiencies and Perils of Legal Positivism
By itself, human law cannot effectively address these dilemmas. In fact, modern legal systems—including the American legal and judicial system—cripple themselves on religious issues precisely by their assumption that all they have to work with is human law—that is, whatever constitution-writers choose to write, whatever legislators choose to enact, and whatever judges choose to decide. This self-imposed limitation goes by the name of legal positivism, and it reflects the mistaken modern belief—completely foreign to the larger Western tradition of law—that the rule of law consists exclusively of whatever human laws have been enacted, no more and no less. There is not, on this reading of reality, any external standard of justice by which human law itself may be judged.
Almost all Western law schools are now rooted in legal positivism, and yet it is already obvious from the first section of this essay that legal positivism is powerless to address at least one of the great questions of civil polity, namely the freedom and scope to be given to the religious exercise of citizens. And, in fact, a moment’s reflection reveals that legal positivism is powerless to address adequately any of the foundational issues of justice and liberty upon which thriving social orders necessarily depend.
For when we succumb to legal positivism, we lose any standard of justice and any basis for liberty which extends beyond the will of those who have the power to enact and enforce the law. Legal positivism is inherently despotic, which means it cannot fail to become tyrannical. For a time, through accidents of tradition or religious belief or rational insight, those in power may make sound laws and sound judgments, but in a system of legal positivism, there is no standard by which this soundness may be judged. Therefore, as various “coincidental” principles are abandoned in favor of error or desire or self-interest, the law must deteriorate.
Again, under legal positivism no larger principle is admitted by which the law can be judged. In a jurisprudential parody of Alexander Pope, whatever is is right. We can readily grant that the powerful will often have a disproportionate influence on the rules in every society, but under a system of legal positivism, the powerful are always and inevitably justified in making the rules, for the rules alone represent justice. Thus the law is judge, jury and executioner, and the law is nothing more than what those currently in power have made it to be here and now.
The Only Solution is the Natural Law
The fundamental problem in all this may be fairly represented by the following two statements: On the one hand, the law must be more than the mere will of the powerful; on the other hand, the law must not be determined by the conflicting claims of various religions, which (whatever the merits of these claims) human government has no competence to assess. The only solution to this problem is the one developed in the Western legal tradition from ancient Greece until quite recently, namely the recognition of the moral sovereignty of a law that is built into nature and accessible to all. I am referring to that natural perception of justice which enlightens our consciences and demands our obedience even in the absence of religious belief, education, and the positive law itself—a higher and deeper law, therefore, against which the positive law may be judged. This law that is written in the heart of every man and woman is called the natural law.
This innate human perception of natural justice was taken for granted by the founders and framers of every legal system in the West. Indeed, until recently, it was an axiom of Western law that any human enactment contrary to the natural law was by that fact null and void. While the reasons for the decline of this understanding are legion, it is the pernicious theory of legal positivism which has swept the natural law out of our legislative, judicial and executive systems, leaving us only with the will to power.
This does not, of course, mean that the mere recognition of the existence of the natural law will end all disputes. For while all persons instinctively perceive the natural law, and indeed argue about good and evil almost exclusively in light of it, one part of the natural law is often erroneously used to argue against another, and the weaknesses of individuals and even whole cultures not infrequently cause certain aspects of the natural law—different aspects in each time and place—to be deeply obscured even as other aspects are more clearly perceived. Nonetheless, the very recognition of the natural law introduces an independent and rational standard of justice according to which all human enactments can be evaluated, even if they will not always be perfectly evaluated.
Though the natural law is a palpable reality recognizable by all, it is beyond the scope of this essay to lay out the many arguments which confirm this fundamental reality, this inherently human conception of justice which forms the moral core of life itself. Fortunately, I have pointed out these arguments elsewhere (see Natural Law). Suffice it to say here that in addition to providing a conceptual framework which overcomes the tyrannical deficiencies of legal positivism, the natural law also holds the solution to the dilemma I have outlined regarding the free exercise of religion within the confines of the common good, which it is the burden and the joy of human government to serve.
Confirmed by Catholic Teaching
This is why you will find that Catholic teachings on religious liberty, and on the duties of the State toward both religion in general and the true religion in particular, are always hedged about with restrictions which insist that these governmental responsibilities must be exercised within due limits. For her part, the Magisterium of the Church has never called upon the State to replicate the whole Catholic system in law. Nor has she asked the State to guarantee unrestricted liberty for the exercise of every religious belief. The Catholic Church recognizes a limiting factor in the duties of government with respect to religion.
The teaching on religious liberty at the Second Vatican Council is a case in point. As the most recent and most comprehensive statement on the subject, it may be taken here to represent fairly the Church’s whole doctrine of “free exercise”:
This Vatican Council declares that the human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.
The council further declares that the right to religious freedom has its foundation in the very dignity of the human person as this dignity is known through the revealed word of God and by reason itself. This right of the human person to religious freedom is to be recognized in the constitutional law whereby society is governed and thus it is to become a civil right. (Declaration on Religious Liberty (Dignitatis Humanae), #2)
Here we see two important points of the Church’s teaching: First, the protection of religious liberty by all human powers (including government) is to be provided “within due limits”; and second, the grounds of this right of religious freedom is known not only through Revelation but “by reason itself”.
Both of these points refer to the natural law. The “due limits” within which the State is to protect and foster religious liberty are the limits of the natural law, with respect to both moral right and wrong and the need for civil order (in the sense of governmental protection of public safety). Thus the modern dilemma, in which we can so easily see (and are constantly reminded by secularists) that government can hardly be expected to protect every idea and activity of every madcap religionist, is really not a dilemma at all in a society which recognizes the natural law. For any religious mandate which insists that its adherents violate the natural law is, no matter how lofty its Divine claims, subject to legitimate restriction by the State.
Moreover, the dilemma of the churches that the government is incompetent to judge in matters of religion is also swept away under the tutelage of the natural law. For since the same God reveals Himself through both specific Revelation and the natural law, as being the Author of both, it is impossible that the demands of authentic religion should violate anything the natural law establishes for the guidance of all men at all times. It is no surprise, therefore, that Catholic moral teaching, insofar as it imposes broad moral requirements for all of our actions as Catholics, actually imposes nothing more than the dictates of the natural law, of which the Ten Commandments are perhaps the most succinct and obvious summary.
The Catholic Church has the authority to clarify and confirm not only the Revelation which has been entrusted to her but the natural law that has been entrusted to all—the twin disclosures of Almighty God. But while the Church is essential to the transmission and proper understanding of Revelation, she is not essential to the transmission and understanding of the natural law. With respect to the natural law, Revelation and grace can improve our ability to see it whole and entire, but it remains written in the hearts of all, to be everywhere and at all times cherished and explored as the moral foundation of a genuinely good life.
The Concerns of Public Order are Moral
It is precisely on the basis of natural law morality that activities and ways of life undertaken in the name of religion intersect with the clear interests of the State. Government need not adjudicate religious questions (and has no competence to do so) except insofar as citizens claim religious inspiration for their moral actions. A just government will both welcome the salutary impact of authentic religion on the lives of citizens and at the same time find itself fully qualified to restrict the exercise of (necessarily inauthentic) religion should that exercise involve any violation of the natural law. For the natural law, also deriving from the ordinances of God, must in any case serve as the framework of justice within which government is obliged to secure, protect and enhance the common good.
Because government is necessarily concerned with the moral actions of its citizens, and has no competence to judge matters of religious faith and commitment, the chief failures of religious liberty occur not when government permits some evil in society to go unpunished but when government forces those under its rule to act in ways that support some evil. Thus it does not restrict our religious liberty, or even our more general liberty of conscience, to be surrounded by the evil others do, and indeed there are many evils which are beyond either the scope or the ability of government to correct, or to correct without doing more harm than good. But when government insists by its laws, regulations, judgments and enforcements that we participate in or support some particular action which our religion teaches us to be immoral, or that we refrain from some particular action toward our neighbors which our religion morally requires, then the question of religious liberty arises.
For this and many other excellent reasons, government must think long and carefully about forcing people to do anything, but when push comes to shove (so to speak) government must determine whether an action it wishes to enforce is or is not a violation of the natural law. If it is, on no account may a just government require it. If it is doubtful, the government should try very hard not to put itself in the position of requiring it. If it is certainly not a violation of the natural law, then government may, after prudent consideration, require it in accordance with the demands of the common good. A similar analysis is required for an action the government may wish to prohibit. If the action is contrary to the natural law, it may be prohibited justly to protect the common good, subject to prudence; if the matter is doubtful, government should strive to avoid direct prohibition; if the action is within the moral bounds of the natural law, government ought to permit it within the limits of public safety.
Utility of the Natural Law
Please note once again that I do not insist that an admission of the claims of the natural law will solve all problems, making all things simple. Sadly, there are many reasons—human passion, upbringing, prejudice, self-interest, cultural-conditioning, ignorance and even personal disorders of various kinds—which can make it difficult for citizens and even whole cultures to grasp the natural law with complete accuracy. Nonetheless, the fact of the existence of the natural law, and its natural accessibility to all persons, is sufficient for its precepts to be required in justice.
As the expression goes, ignorance of the law is no excuse. We cannot, for example, claim to be unrestricted in our desire to steal or murder simply because we do not recognize (owing to some personal or cultural deficiency) that stealing and murder are contrary to the natural law. This is, to take but one example, exactly what is at stake with abortion today. Rather, the moment we protest that, given our ignorance or rejection of the natural law, some restriction or punishment is necessarily unfair, well, then the game is up. For the appeal to fairness is precisely an appeal to the natural law, an appeal which proves its universal force and apprehension by all. Indeed, apart from the moral order built into nature and inscribed in our hearts, how should we think that anything ought to be fair, and how should we even understand the concept of fairness?
Therefore, yet again, I do not claim that the recognition of the natural law will make all things simple. I claim something prior to and more important than that. I claim that the natural law is the only set of universal principles we have for solving many problems in human affairs, including the problem of what makes laws just, and including the dilemmas of both church and state with which I began this essay. The natural law is in fact the very solution God has built into nature to enable us to solve these problems, in order to pursue the Good.
Let me conclude by emphasizing that if we are to read and apply the natural law rightly, we must begin by describing things accurately. The right use of language, and in particular a refusal to fudge meanings or utilize ambivalent terms, is of paramount importance here. By now everyone should be familiar with the euphemisms that have been used, to take my previous example, for the purpose of obscuring that abortion is the taking of an innocent human life. Thus the child in the womb is referred to as “tissue” or “part of the woman’s body”, advocacy of abortion is called being “pro-choice”, abortion is described as “reproductive medicine”, and if specificity is required, we might hear the term “pregnancy termination”. None of this is new; those who wish to justify moral evil must always obfuscate the issue by using terms which appeal to the natural law itself. “Rights” terminology is another classic way of shifting the ground so that what is contrary to the natural law may be perceived as demanded by it.
The same thing is occurring with the term “marriage”. In this case, “marriage” is being summarily redefined so that this same term, so redolent of nature and the natural law by its hallowed use across thousands of years, may still be used to elicit a favorable response to “couplings” that are not marriage at all.
Therefore it is no surprise that we saw the same obfuscation creeping into Judge Carole Jackson’s opinion when she denied Frank O’Brien’s claim that his religious liberty was violated by the HHS mandate. Recall how she argued that “indirect financial support of a practice, from which the plantiff himself abstains according to his religious principles,” cannot constitute “a substantial burden on plaintiff’s religious exercise.” But this is already a species of semantical gamesmanship. The requirements of the HHS mandate for support of contraception, sterilization and abortion are not simply “practices” that O’Brien chooses to avoid in accordance with the peculiarities of his religious observance. We might, for example, choose to avoid television if we wished to live a more ascetical life, or because we find the programming to be a temptation, without in the least objecting, on religious grounds, to the provision of television service in subsidized residences for the sick and elderly.
But this is very different. Contraception, sterilization and abortion are moral wrongs which O’Brien’s religion forbids him both to engage in personally and to support or facilitate in others. He can, according to the principles of his religion, accept the fact that government does not punish these evils. He cannot, according to the principles of his religion, accept the fact that government requires him to support them. Unfortunately, the very need to frame the case solely in terms of religious liberty arises from the absence of the natural law in American jurisprudence, and this has the grave tendency of throwing the question into that vast dilemma which I outlined in the beginning—as if the government must decide how far it will go toward accommodating various peculiarities under the traditional rubric of religious belief.
But this whole approach is both flawed and dangerous. It has been the burden of this essay to explain why.
April 21, 2016
April 21, 2016