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Is There a Rawlsian Solution to Conflicts over Religious Liberty?

The title of the new book by Nelson Tebbe, professor of law at Brooklyn Law School and visiting professor of law at Cornell Law School, is a giveaway. The book surveys the challenges that religious freedom, a stubborn relic of another “age,” poses for an “egalitarian” one.

Tebbe offers a method of moral reasoning to mediate the “conflict” between religious liberty and equality norms. He then uses this reasoning to reconceive religious liberty jurisprudence so that it can perform the role of political mediation. At every turn, the analysis suggests that Tebbe does not value religious liberty for its own sake, but rather sees it as a social fact that Progressives must learn to navigate. Readers who agree will likely be impressed with Religious Freedom in an Egalitarian Age, a comprehensive and well-written book that takes an innovative approach to many difficult political and legal questions. Others will likely find that it illustrates the argument its author aims to rebut: that scholars searching for particular outcomes in this field tend to find exactly what they are looking for.

Religious liberty has become a front in the culture wars. In Burwell v. Hobby Lobby (2014), the Supreme Court held that the Religious Freedom Restoration Act protects corporations from being compelled to buy contraceptive insurance for their employees when the owners believe that purchasing the insurance would be morally wrong. This term, the Court will decide whether a bakery has a right to decline to bake a wedding cake for a same-sex couple. These cases make it appear that religious liberty and Progressive norms are locked in a zero-sum game.

Scholars of a variety of political stripes have argued that the law of religious liberty requires courts to import their own value judgments. Legal reasoning, they argue, is a façade for ideological priors. This is in part because the Religion Clauses of the First Amendment suggest a paradox: The Establishment Clause prohibits the government from sponsoring religion, but the Free Exercise Clause sponsors religious exercise. The clauses themselves therefore raise questions about the relationship between religion and society. Is religion good, ambivalent, or a threat? In addition, many doctrines of religious liberty law are cast as standards rather than rules. These standards invite courts to implement their own views of what amounts to a “substantial burden on religious exercise” and what counts as a “compelling governmental interest.”

America has a long tradition of paying lip service to religious liberty while oppressing religious dissenters whose political ideologies challenge the consensus. Think of the Mormons and Catholics in the 19th century (and later), and the Jehovah’s Witnesses in the first half of the 20th century. Many of today’s scholars and judges have proven, like so many before, to be faint-hearted religious liberty devotees.

In the face of recent Progressive federal and state regulations, religious conservatives have invoked laws that accommodate religious dissenters. Accommodation advocates, for their part, can be just as tone-deaf to other values, such as fairness and equality, as their opponents are to religious liberty.

In this context, Tebbe proposes to mediate the conflict between religious liberty and egalitarianism. He begins by sketching a theory of constitutional reasoning that he calls “social coherence.” As John Rawls noted, when someone faces a moral question, she often begins by identifying an earlier case that is analogous to the one she now faces. From the earlier case, she infers general principles to guide her deliberation. She applies these principles to the case before her. She thus arrives at a judgment in the present that coheres with her previous moral commitments.

This process of moral reasoning, says Tebbe, gives people “reason to think that their judgments are justified or warranted. It can even support a stronger conviction that their conclusions are demanded or determined by reasons.” And “social coherence,” he adds, bears a strong resemblance to common-law reasoning, “with its analogies to existing cases and its application of legal principles to new situations.”

Tebbe’s opponents are scholars he describes as religious liberty “skeptics.” They “contend that justified outcomes [in religious liberty cases] are necessarily unavailable.” A person may give reasons for a particular outcome, but the outcome is not thereby justified by those reasons; rather, the judge “announce[s] [the conclusion] in the style of an ipse dixit.” By contrast, social coherence describes “the method that the most persuasive thinkers are already using to drive conclusions to difficult new problems of religious freedom, as well as to reexamine inherited paradigms.”

The core thesis is modest: Social coherence “provides a defensible way of thinking about how people can and should give reasons for their decisions on questions of religious freedom, and that those reasons can and often do bolster the choices themselves, rather than just providing ex post rationalizations for personal preferences.”

How could this thesis be tested? How could one know whether the reasons one offers for a choice—reasons drawn from the common fare of legal and political argument—actually bolstered the choice, or whether they merely rationalized it?

Is it simply a matter of timing? In other words, is a reason offered after a choice an ex post rationalization whereas one offered before a choice “bolsters” it? Tebbe’s argument, like those he attacks, is non-falsifiable. His argument follows the approved grammar of the philosophical guild, but what he is attempting to describe is in fact an opaque dance of the will, intellect, and conscience.

Receiving and giving reasons for moral judgment calls for openness, hard work, smarts, and, above all, good faith. It entails living within a moral community, or overlapping moral communities, that give life to moral habits and render moral reasoning coherent. Tebbe rightly resists reducing moral reasoning to nothing more than an act of individual will. Unfortunately, as discussed more fully below, the way he applies social coherence to mediate the conflict between religious liberty and equality seems to verify, rather than to challenge, the skeptics’ view that religious liberty jurisprudence is inevitably personal value preferences all the way down.

The book is best understood as an application of one version of Rawlsianism to an array of legal questions arising from a clash between Progressivism and the view that Progressive norms should not always override religious liberty. The reader will encounter a helpful tour through a variety of challenging legal cases and a number of novel proposals for solving vexing doctrinal puzzles.

For instance, I found Tebbe’s account of the principle of “freedom of association” to be creative and engaging. He proposes a distinction among “intimate associations” (like marriage), “community groups” (like a local club or religious congregation), and larger “values organizations” (like the Boy Scouts or an international corporation). He suggests that each association ought to have a measure of freedom to discriminate based on the purpose the association fulfills in society. A values organization, for instance, enjoys freedom of association because it plays a role in the democratic process by shaping public opinion. Therefore, a values organization ought to be able to discriminate only among the leaders who shape its commitments. There is much here to chew on for any reader interested in liberal political theory, religious liberty, and civil rights.

The book’s weakness, however, is its unstated bias for one side of the conflict it purports to mediate. Tebbe acknowledges that his analysis proceeds from a certain viewpoint. At the same time, he promises to supply “mediating” principles that will “serve[] both free exercise and antidiscrimination norms,” with “none” of them “favor[ing] one over the other.” He does not deliver. Every step of his development and application of these principles is bent toward norms of equality that he does little to justify, develop, or motivate.

Begin with his account of religious liberty. Tebbe presumes that religious freedom “is a foundational value.” Unlike with equality and nondiscrimination norms, he never states the purpose of religious liberty, offers a reason to protect it, or attempts to define it. Perhaps the author accepts religious liberty as an American value because history, law, politics, and culture make it impossible to ignore. But he gives little reason for the reader to conclude that religious liberty is good. Rather, his analysis suggests that there is nothing special about religion at all.

To illustrate, consider Tebbe’s principle of “fairness to others.” It is unfair, he claims, to accommodate religious conduct without also accommodating “comparably profound and worthwhile” nonreligious conduct. He thus states a rule, based on a handful of Supreme Court opinions, that “prevents government from granting special privileges on the basis of religion, even where those accommodations are enacted to preserve religious freedom, itself a core commitment.”

How this is supposed to mediate between religious liberty and equality interests is unclear. Perhaps Tebbe would expand religious liberty for those who object to war on grounds of non-religious ethical commitments. But few non-religious objectors seek an accommodation from equality-enforcing laws. Tebbe gives short shrift to the many Supreme Court cases that uphold and enforce laws that provide unique protection for religious exercise.

Another way he applies his supposition that religion is not special is in discussing the mediating principle of “freedom of association.” According to Tebbe, large religious organizations (such as large religious nonprofits or denominations) should have no right to discriminate among employees or members merely because they are religious; rather they should be subject to the same antidiscrimination laws that apply more broadly to non-religious “values organizations.” Here the practical implication of the author’s unstated view that religion is not unique becomes clear: It is a one-way ratchet, reducing religious liberty to the level that a non-religious claimant could plausibly maintain.

Tebbe’s other mediating principles are no more neutral. Indeed, “avoiding harm to others” seems to be little more than a bald assertion of equality’s priority. The “harm to others” that he has in mind is the harm imposed on a third party when the law requires an accommodation for a religious objector. For instance, he believes the Hobby Lobby decision violates this principle. In that case, the Obama administration enacted a regulation to implement the Affordable Care Act that required many—but not nearly all—employers to pay for their employees’ contraceptive insurance. The administration decided which sorts of employers to exempt from the requirement. It chose not to exempt closely held, for-profit corporations with religious objections. The Supreme Court held that the Religious Freedom Restoration Act required the government to accommodate them. After the decision, “it took the Obama administration roughly a year to implement a fix that covered them.”

For Tebbe, this is principally a story of “serious, irreparable harm [that] was shifted to Hobby Lobby’s employees because of the religion accommodation imposed by the Court.” Nevertheless, he argues (somewhat paradoxically) that scholars and jurists should read the decision “to reaffirm the rule against harm to third parties.” The Court, he says, should have made “relief to Hobby Lobby contingent on the company’s employees retaining contraception coverage.” (Emphasis in the original.)

It is not a convincing narrative. The Obama administration had the means to provide contraceptive insurance for employees from the start; indeed, it did so for the employees of other organizations. It simply chose not to do so for the employees of the Hobby Lobby stores and other closely held, for-profit corporations with religious objections. To the extent that Hobby Lobby implicated the rights of third parties to social welfare benefits, it may reasonably be read to stand for the proposition that the government may not force a religious objector to provide them. This reading, however, requires believing that religious liberty is as valuable as the equality-enforcing welfare benefits at stake. It should be unsurprising that Tebbe reads the case differently. Despite his presumption that religious liberty is a “fundamental value,” his analysis throughout the book suggests that he sees religious liberty as little more than an obstacle to his view of social and political progress.

In sum, Religious Freedom in an Egalitarian Age is an interesting, carefully wrought, thorough analysis of religious liberty from a viewpoint that privileges Progressive egalitarianism. It is a significant contribution to the scholarship that applies Rawlsian political theory to specific legal questions about religious liberty. As a brief against the “skeptics,” however, the book is less successful. It seems rather to illustrate their view that reasoning about religious liberty boils down to ideological priors.

Reader Discussion

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on October 16, 2017 at 12:43:48 pm

Thanks to Chapman for this essay. I don’t mean to sound ungrateful when I say that I’d have a better sense of his objections if he had articulated a contrary thesis for comparison. (Admittedly, that’s not a small request; after all, Tebbe required an entire book to articulate his thesis….)

I suspect I’d share Chapman’s objection that –

Tebbe … never states the purpose of religious liberty, offers a reason to protect it, or attempts to define it. Perhaps the author accepts religious liberty as an American value because history, law, politics, and culture make it impossible to ignore. But he gives little reason for the reader to conclude that religious liberty is good. Rather, his analysis suggests that there is nothing special about religion at all.

An articulation of the purpose of religious liberty would provide a necessary context for applying the concept, especially when it appears to conflicts with equality. Yet, having stated this objection, Chapman might have seized this opportunity to articulate the purpose of religious liberty he embraces. Unfortunately, he demurs.

One concept of religious liberty involves freedom of conscience. Under this theory, even if members of your tribe have articulated a religious liberty interest in using controlled substances in their religious rituals, if you have gone on Facebook to acknowledge that you don’t believe in all that crap and just participate to get high, then the feds might convict you even if they couldn’t convict your fellow tribe members.

Another concept of religious liberty is simply making a virtue of necessity: Religious groups are organized and committed, and as a practical matter the cost of enforcing the law equally is not worth the benefit. Thus, it’s reasonable to jail Thoreau for refusing to pay taxes on the basis of principle—after all, he’s weak and easily dealt with. But by the same token, it’s reasonable to not ask churches to pay property taxes to finance roads and police and fire services—even if churches have no religious objections to such services—because their congregants are organized and demand such accommodations.

Doubtless there are other concepts of religious liberty as well.

Clearly, how you might choose to reconcile the demands for religious liberty and the demands for equal before law will vary, depending on which concept of religious liberty you embrace.

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nobody.really
on October 16, 2017 at 13:49:34 pm

On Hobby Lobby:

1. The ACA recognized that various health care costs (e.g., emergency room costs) are socialized in a manner that leads to wildly inefficient use of resources, and thus high social costs. The ACA sought to rationalize the health care market—if not relative to a free market, at least relative to the market that existed before the ACA.

The Supreme Court upheld the individual mandate as a legitimate exercise of Congress’s taxing power. That is, Congress could have raised everyone’s taxes to pay for single-payer health care. Instead, it adopted the individual mandate to achieve the same end. The mandate is simply another form of tax.

Congress also provided a tax exemption for firms that provided their own insurance that met certain minimum criteria designed to achieve the compelling governmental interest of protecting people’s health. This is no different than firms providing a tax exemption for making a donation of the Church of Scientology. Firms that decline to provide the insurance, just like firms that decline to donate to the Scientologists, don’t get the benefit of the deduction.

Hobby Lobby stated religious objections to providing the relevant insurance, but sought the deduction anyway. This is akin to my stating a religious objection to donating to the Scientologists, but demanding that I get the tax deduction that I would have gotten if I HAD made the donation. That is, I don’t begrudge Hoppy Lobby the choice to refuse to provide the coverage—but then Hobby Lobby should pay the sums prescribed by law, just as I must pay the sums prescribed by law when I don’t qualify for tax deduction.

(A separate issue is whether the “sums prescribed by law” are excessive relative to the government’s compelling purpose to promote public health, wrongfully infringing on Free Exercise. If so, then the remedy would have been to prescribe a more appropriate sum; see below.)

2. “Reasonable accommodations” should simply take a burden that had been placed on dissenters and shift that burden to others. Thus, when drafting the Second Amendment, Congress considered granting religious dissenters the opportunity to refuse military conscription—on the condition that the dissenters find someone to take their place, or pay for hiring a replacement. There was no assumption that dissenters should simply shift their share of social burdens onto others.

The purpose of the contraceptive mandate is to reduce the share of medical costs that WE ALL PAY arising from unwanted pregnancies. So when I provide contraceptives for my employees, everyone—including Hobby Lobby—derives the benefit of lower health care costs. But when Hobby Lobby refuses to provide the coverage, and when its employees have a disproportionate share of unwanted pregnancies, WE ALL BEAR THE BURDEN of Hobby Lobby’s religion. That is not reasonable accommodation.

Rather, we need an estimate of the likely social cost of the additional unwanted pregnancies that are likely to arise from Hobby Lobby’s religious practices, and have Hobby Lobby pay those costs (e.g., by contributing funds to the insurance subsidies). THIS is arguably the appropriate measure of the “sums prescribed by law” I referred to above. Charging more than this amount would serve no social purpose other than to discourage Free Exercise. But that’s a whole ‘nuther topic….

3. What meaning should we draw from the Hobby Lobby case? If you embrace the Realist school of legal analysis, you analyze cases for the propose of predicting the outcome of future cases.

And in this case, the Hobby Lobby majority prevailed only because of the vote of Kennedy, who articulated his views in a concurring opinion. In his opinion, he stated that the dissent would have persuaded him except for the existence of some rather extraordinary circumstances: The ability of the employees to gain access to contraceptive coverage from Hobby Lobby’s insurer at no incremental cost. This is possible because of the peculiar nature of insurance markets, wherein the insurer may willingly incur certain costs (e.g., cost of contraceptives) because the insurer anticipate avoiding other costs that it would otherwise have borne (e.g., cost of unwanted pregnancies).

(Indeed, in Zubic v. Burwell, even the dissenting Little Sisters of the Poor "clarified that their religious exercise is not infringed where they ‘need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,’ even if their employees receive cost-free contraceptive coverage from the same insurance company.”)

Because those circumstances are unlikely to arise in pretty much any other case, it is far from clear that the Hobby Lobby case should be understood as a religious liberty case rather than a “narrowly tailored/least burdensome means” case. Indeed, if you take Kennedy’s concurrence seriously (as the Little Sister of the Poor had to), Hobby Lobby articulates the limits of religious liberty.

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nobody.really
on October 16, 2017 at 13:54:46 pm

Oops. To clarify:

2. “Reasonable accommodations” should NOT simply take a burden that had been placed on dissenters and shift that burden to others.

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nobody.really
on October 16, 2017 at 13:56:14 pm

Finally, I wonder if Chapman mischaracterizes Tebbe’s proposals for equality. Perhaps they aren’t dismissive of religious liberty; perhaps they merely ask that society recognize and bear the cost of religious liberty equally.

Thus, there is no conflict between permitting religious organizations discriminate in employment matters and equal application of the law. We should just grant the same policy to all organizations. And if we’re not willing to do so, then we should evaluate why not—and why those policies do not also apply to religious organizations.

Instead, I often encounter people arguing for preserving a discriminatory status quo for no reason other than that it is the status quo. Discriminating on the basis of sexual orientation? Acceptable accommodation of religious liberty. Discriminating on the basis of race? Unacceptable, even to accommodate religious liberty. Right to refuse to provide contraceptive coverage? Acceptable accommodation of religious liberty. Right to refuse blood transfusions, or any medical interventions at all—or, indeed, right to refuse to pay taxes? Unacceptable, even to accommodate religious liberty. Why? It’s hard to avoid the phrase “ideological priors” here.

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nobody.really
on October 16, 2017 at 15:16:06 pm

"WE ALL BEAR THE BURDEN of Hobby Lobby’s religion. That is not reasonable accommodation."

Then again WE ALL BEAR the cost of mandatory insurance coverage for sex-change operations, don;t we?
So, are we to bear the "conscience" costs of todays *secular* religionists?

I'm juz sayin'

"Another concept of religious liberty is simply making a virtue of necessity: Religious groups are organized and committed, and as a practical matter the cost of enforcing the law equally is not worth the benefit"

I would say that this is a rather ODD description / conception of religious "liberty" - it reads more like an apologia for some rather pedestrian yet practical politicking!

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gabe
on October 16, 2017 at 16:21:00 pm

An articulation of the purpose of religious liberty would provide a necessary context for applying the concept, especially when it appears to conflicts with equality. Yet, having stated this objection, Chapman might have seized this opportunity to articulate the purpose of religious liberty he embraces. Unfortunately, he demurs.
* * *
Another concept of religious liberty is simply making a virtue of necessity: Religious groups are organized and committed, and as a practical matter the cost of enforcing the law equally is not worth the benefit….

I would say that this is a rather ODD description / conception of religious “liberty” – it reads more like an apologia for some rather pedestrian yet practical politicking!

Again, an articulation of the purpose of religious liberty would provide a necessary context for applying the concept. Having raised your objection, you might have seized this opportunity to articulate the purpose of religious liberty that you embrace. Care to offer one?

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nobody.really
on October 16, 2017 at 16:35:12 pm

WE ALL BEAR THE BURDEN of Hobby Lobby’s religion. That is not reasonable accommodation.

Then again WE ALL BEAR the cost of mandatory insurance coverage for sex-change operations, don’t we?

1. Is there mandatory insurance coverage for sex-change operations? Healthcare.gov states,

Plans with transgender exclusions

Many health plans are still using exclusions such as “services related to sex change” or “sex reassignment surgery” to deny coverage to transgender people for certain health care services.

2. Consider: What inducement would you need to undergo a sex change operation? That thought experiment should persuade you that a) these procedures are rare, and b) people do not undergo them on a whim. Rather, people get such operations only when they experience such intense discomfort in their current bodies as to overcome the obvious aversion to the operation.

In contrast, unwanted pregnancies are a) unwanted by definition, and b) common. Indeed, most US pregnancies are unintended, which is not true in Europe—where birth control is generally considered a standard part of health care.

Thus, I see pretty clear distinctions between these two policies.

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nobody.really
on October 17, 2017 at 13:37:11 pm

*Many* may still be using the exclusion BUT WHY THEN ARE THE TAXPAYERS FORCED TO PAY FOR PRISON INMATE SEX=CHANGES (Oops, pardon the caps, I can't type w/o looking at the keyboard)?
Also, some States have mandated that such operations are required coverage.

2) What inducement? _ Perhaps, we should discuss what "nudges" may compel a person to do so.
Think educators now providing introductions to transexualism to grade school children who OUGHT not to be *informed* of these options UNTIL WELL AFTER PUBERTY - when it is presumed that their normal hormonal changes / maturation will have taken place.

As for contraceptives, who gives a rip!

"Smoke 'em, if ya got 'em, as my old Drill Sergeant used to say!

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gabe
on October 17, 2017 at 13:48:44 pm

And OH BTW:

Nice of you to *select* one line in the Healthcare.gov treatment of tran - issues.
READ ON and you will see that transsexual procedures MUST be covered under certain circumstances AND ALSO that Healthcare.gov certainly suggests that the denial of transsexual operations may be ILLEGAL. The statement goes on to inform us that their are legal remedies to be pursued. It is clear what the intent and thrust was, and was intended by, Healthcare.gov.

Another case of linguistic legerdemain?

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gabe
on October 17, 2017 at 13:49:39 pm

Oops, forgot to paste the words from the site you selectively edited:

Plans with transgender exclusions

Many health plans are still using exclusions such as “services related to sex change” or “sex reassignment surgery” to deny coverage to transgender people for certain health care services. Coverage varies by state.

Before you enroll in a plan, you should always look at the complete terms of coverage that are included in the “Evidence of Coverage,” “Certificate of Coverage,” or contract of insurance. This contains the full explanation of which procedures and services are covered or excluded under each plan. Plans might use different language to describe these kinds of exclusions. Look for language like “All procedures related to being transgender are not covered.” Other terms to look for include “gender change,” “transsexualism,” “gender identity disorder,” and “gender identity dysphoria.”

You can access the full terms of coverage through a plan’s Summary of Benefits and Coverage. If you’re still not sure about how services would be covered or excluded, you should contact the plan’s issuer directly by phone.

These transgender health insurance exclusions may be unlawful sex discrimination. The health care law prohibits discrimination on the basis of sex, among other bases, in certain health programs and activities.

If you believe a plan unlawfully discriminates, you can file complaints of discrimination with your state’s Department of Insurance, or report the issue to the Centers for Medicare & Medicaid Services by email to [email protected]

Once you’re enrolled in a plan, if your health insurance company refuses to pay a claim or ends your coverage, you also have the right to appeal the decision and have it reviewed by an independent third party.

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gabe
on October 18, 2017 at 10:07:34 am

No, there is not a Rawlsian Solution to conflicts over Religious Liberty.

From the moment of conception, every human person has been created in The Image and Likeness of God, equal in Dignity, while being complementary as a beloved son or daughter, Willed by God, worthy of Redemption..

To deny the complementary nature of man, is to deny the complementary nature of Love.

Reordering and identifying human persons according to sexual desire/inclination/ orientation, which sexually objectifies the human person, and denies the inherent Dignity of our beloved sons and daughters, in direct violation of God's Commandment regarding lust and the sin of adultery, is a complete renunciation of Christ and His One, Holy, Catholic, and Apostolic Church.

God, The Ordered Communion of Perfect Love, The Most Holy And Undivided Blessed Trinity, Is The Author of Love, of Life, and of Marriage.

"4] Who answering, said to them: Have ye not read, that he who made man from the beginning, Made them male and female? And he said: [5] For this cause shall a man leave father and mother, and shall cleave to his wife, and they two shall be in one flesh. [6] Therefore now they are not two, but one flesh. What therefore God hath joined together, let no man put asunder."

We can know through both Faith and reason, that only human persons can marry and be given in marriage, and marriage cannot in essence be existing in relationship as husband and wife, and not existing in relationship as husband and wife, simultaneously.

Love, which is trinitarian, is ordered to the personal and relational inherent Dignity of the persons existing in a relationship of Love, which is why a man does not Love his wife, in the same manner as he Loves his daughter, or his son, or his mother, or his father, or a friend. Every act of Love will serve to complement and thus enhance the fullness of Love.

Our call to Holiness, has always been a call to be chaste in our thoughts, in our words, and in our deeds, including in marriage, for all that is True, Beautiful, Noble, Virtuous, and thus Good, depends upon Perfect Charity.

Freedom, Justice, and the tolerance of human rights depend upon The Common Good; God, not Caesar, John Locke, John Rawls, or King John, declares what is Good, for God Is The Author of Love, of Life, and of Marriage.

Love, which is rightly ordered, requires that we witness to God's Truth about the inherent Dignity of the human person as a beloved son or daughter, and discriminate between acts that respect our inherent Dignity as beloved sons and daughters, and acts that are demeaning and thus do not serve for The Common Good.

"We are now standing in the face of the greatest historical confrontation humanity has ever experienced. I do not think that the wide circle of the American Society, or the whole wide circle of the Christian Community realize this fully. We are now facing the final confrontation between the Church and the anti-church, between the gospel and the anti-gospel, between Christ and the Antichrist. The confrontation lies within the plans of Divine Providence. It is, therefore, in God's Plan, and it must be a trial which the Church must take up, and face courageously." - St. John Paul II

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Nancy D.
on October 20, 2017 at 10:27:44 am

Law is based on axioms so fundamental that they hover over the law, and arguments can ensue over whether the axiom is actually positive law. Take the following:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

These axioms are contrary to the axioms of utilitarianism, which are the current secular tend; "people are not widgets!" one claims while the other claims "Yes they are!" This problem underlies our problems with religious freedom in an egalitarian age. This means that the problem is inherently not solveable because we are coming at it armed with different axioms. This is why the unsettling last sentence is part of the axiom quoted above.

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Ron Johnson
on October 20, 2017 at 12:53:44 pm

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,"

The fact is, "We, The People", are just as capable of denying that God Is The Author of our unalienable Rights as a despot is. And therein lies the crux of the matter.

When in the course of human events, We, The People, no longer hold these truths to be self-evident, then it is only logical to assume that We, The People no longer believe it is our right and our duty, to "provide for our future security" by assenting to The Spirit of Divine Law, and thus the spirit of our Constitution.

Woe to us; "To whom much has been given, much will be expected".

May we continue to desire that God Bless our Nation.

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Nancy D.
on October 25, 2017 at 13:49:26 pm

sorry to be late to this but I've found it very instructive. Just one footnote:

You want to be careful with "Rawlsian" especially in this context. His book appeared in 1971, and the key parts can be read as a manifesto against abortion. That was no longer acceptable after Roe v. Wade, and so he yanked that back in his Tanner lectures (and left to Dworkin to explain that religion is okay so long as you don't actually practice it).

In that sense there's more than one John Rawls. The constant is, "here are 500 pages on Kantian metaphsics that explain why we should be doing what Ted Kennedy wants."

It's very sophisticated. But to recur to it as something like a fixed point or lodestar is probably a mistake.

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Mike Greve

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