Defending Religious Liberty Without the Constitution?

For conservatives this term of the Supreme Court has been near traumatic, relieved only by the decision a week ago in support of the religious in Montana (Kendra Espoinoza v. Montana Department of Revenue). The conservative block of judges held together in a rare show of cohesion these days to strike down one of the old “Blaine Laws” in the States to bar financial aid to “sectarian” (read: mainly Catholic) schools. In this case, three mothers sought to make use of a scholarship program, funded by tax credits, to place their children in a private Christian school. The Court has cleared the way, but what should not go unnoticed is that the Court has lifted now, to a standing of high level in our jurisprudence, a principle that finds no mention in the text of the Constitution.

The common sense of the matter, which some of us, may I say, have been pressing for 30 years, was expressed by Chief Justice Roberts in this way: “A State need not subsidize private education. But once it decides to do so, it cannot disqualify some private schools solely because they are religious.” And yet no conservative on the Court was moved to speak those simple lines almost thirty years ago when young James Zobrest in Arizona was denied the provision of an interpreter when he transferred from a public school to a private Catholic school, even though that benefit flowed to him under the laws of Arizona and the United States. Nor did Chief Justice Rehnquist accept the force of that principle in 2004 when Joshua Davey was denied a scholarship in Washington State solely because he was seeking to enter a program for the training of religious ministers. Curiously, it was Justice Scalia who dissented in that case because the decision to withhold this benefit from Davey pivoted solely, decisively on his religious interests. It was a distinct disability attached to the religious. As Scalia pointed out:

[the State of Washington] has created a generally available public benefit, whose receipt is conditioned only on academic performance, income, and attendance at an accredited school. It has then carved out a solitary course of study for exclusion: theology. … No field of study but religion is singled out for disfavor in this fashion.

The Court did not come down on Scalia’s side until just three years ago in the case of Trinity Lutheran Church v. Comer: a religious school was denied funds for the repaving of its playground, funds that would flow to any public school under the laws of Missouri. But what clause of the Constitution was involved? This was not a matter of a “religious test” for office under the United States (Art VI, par. 3). And as the liberals argued in these cases—including the case from Montana—the case did not involve the Free Exercise Clause of the First Amendment: the refusal of the State to fund schooling for Josh Davey or the children in Montana did not impair in any way their freedom to worship and attend church. John Roberts thought that a rather crimped view of free exercise, for the parents in Montana thought a religious school critical to shaping the Christian character of their children. And that is where he had to put the accent in his argument, because Ruth Ginsburg largely knocked out that simple, straightforward principle that he had been lifting to high standing: As Ginsburg pointed out, when the Supreme Court of Montana struck down this program covering religious schools, it struck down the whole program, for public and non-religious schools as well. It was no longer a matter of denying to the religious what was given to all others.

At this moment, something else needed to be said by the conservatives on what was thoroughly legitimate and rightful about the cultivation and support of religion in a republic. Justice Breyer posed the challenge from the liberal side when he invoked the Establishment Clause of the First Amendment and the familiar concern about forcing taxpayers to pay for religious teaching they found objectionable and divisive. But there are many people who would find it even more divisive and objectionable to be forced to pay for other people to have transgender surgeries, supplies of Viagra, or force the Little Sisters of the Poor to supply contraceptives. And as Justice Scalia used to point out, religion is one of the most powerful unifying forces in the country, connecting people across the lines of class and ethnicity.

The notion of “religion” utterly bereft of grounds of moral judgment could hardly be reconciled with the God of the Declaration of Independence; it could not be part of any Original Understanding.

Still, against the lingering aversion to religion in liberal sentiment the conservatives needed to say something to explain what was “good” about the support of religion. Justice Alito didn’t take that route because he wished to point out that the “Blaine Amendments” found their origin in a fierce anti-Catholic bigotry in the 19th century. Just a bit earlier in the term he had sought to defend the provision for non-unanimous juries in Louisiana, when his colleagues insisted that the policy was tainted by its racist origins. Alito thought that the policy was still defensible on its own terms as the racist origins had faded away. “But I lost,” he said, and “if the original motivation for the laws mattered there [in the Ramos case], it certainly matters here.” He would not then turn to making the case for the good of religion and the legitimacy of supporting it. And the melancholy truth was that, by this point, the Court had made its way to a teaching of relativism on religion. As Alito and Gorsuch had written, in the famous case of the Masterpiece baker:

Just as it is the “proudest boast of our free speech jurisprudence” that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive.

In other words, there can be nothing said or taught under the banner of “religion” that can be judged as so wrongful or illegitimate that it is beyond the protection of the law. With that sense of things, it offers no surprise any longer that when the Court, in 2014, cleared the way for prayers or benedictions in legislative assemblies, we’ve seen benedictions given now by “ministers” of the Church of the Flying Spaghetti Monster. And yet even more: that decision, in Town of Greece v. Galloway, has set off a virtual growth industry for Satanists in giving invocations and benedictions. But no plausible understanding of religion in this country can possibly be reconciled with Satanism or the affirmation of radical evil.

If we recall again the words of James Madison in his famous Remonstrance Against Religious Assessments in Virginia (1785), Madison understood religion as “the Duty we owe to the Creator and the manner of discharging it.” That God was the Author of the Laws of Nature, including the moral laws. There is no understanding of God and religion more bound up with the American laws from the beginning. The notion of “religion” utterly bereft of grounds of moral judgment could hardly be reconciled with the God of the Declaration of Independence; it could not be part of any Original Understanding.

The holdings of the Court have given us an understanding of religion quite detached now from the G-word (the God of Jews and Christians), that Creator who endowed with “rights”—and duties, as Madison said. A sense, in other words, of rights and wrongs—and the capacity to know the difference. But with these moves, the Court has detached itself also from any moral test for the legitimacy of its own teaching. The lawyer Gunnar Gundersen added the finishing point: On the ground of this moral relativism, there is no longer a ground on which to make the case for the “goodness” of religion—or to justify the exertions of the law to defend religion as a “good” to be protected and promoted in our public life.

The Court managed this week to get something right on religion and the law, but in running true to form these days, it has given us a wondrous construction without quite explaining to us what it all rests upon.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on July 08, 2020 at 09:17:25 am

Professor Arkes probably knows enough to answer the dilemma: “The . . . has given us a wondrous construction without quite explaining to us what it all rests upon.”

I think the U.S. is straining against being held hostage to Anglo-American, Chapter XI Machivellianism; see http://constitution.org/mac/prince11.htm. Canterbury partners with Parliament and pick the people’s pockets so as to live high on the hog. Commoners neither rebel nor expatriate, their families hoping their personal God will relieve the misery and loss.

Fortunately, the U.S. Preamble proposes relief from the church-state-partnership by listing 5 public disciplines in order to encourage responsible human independence. In my view for 2020 “ourselves and our Posterity” the disciplines are: integrity, justice, peace, strength, and prosperity under the 1787 precious essences Union, Justice, Tranquility, defence, and Welfare, respectively. Religion is not included in the 5 disciplines.

I don’t think religion is omitted by either neglect or opposition, but by the Committee of Style and the 55 signers’ acceptance of humility toward whatever-God-is. Further, the preamble’s proposers tacitly accept: Whatever controls the unfolding of the universe assigned to humankind the independence to provide the 5 disciplines. If whatever-God-is is chaos, chaos assigned to persons the un-consignable accountability for responsible human independence.

The First Congress, adolescent as 16-year old parents, restored Anglo-American precedent as much as they could, and some judges and lawyers thrive on that error beyond today. The court finds my concerns “niggling.” And the current panel voted 6:3 to impose 12:0 jury verdicts, an obsolete Anglo-American error imposed on French-influenced Louisiana. Interpreting “impartiality” in Amendment VI (1791) as requiring unanimity is pure English precedent now overturning French-American, 1880 wisdom. The courts folly is that England adopted 10:2 jury verdicts in 1967 to lessen organized crime’s influence in criminal trials.

We the People of the United States has self-interest in holding Congress accountable and requiring amendment of Amendment 1 so as to protect the development of integrity under the U.S. Preamble rather than defend religion, which often defies whatever-God-is. Choosing pride rather than humility begs woe.

read full comment
Image of Phillip Beaver
Phillip Beaver
on July 08, 2020 at 09:19:34 am

To use a cement finishing analogy, few are capable as Prof. Arkes, at exposing the aggregate laying just beneath the surface of what at first glance appears to be a smoothly set conclusion. With a single pass, Arkes easily reveals just how much traction moral relativism has gained in American jurisprudence even among so-called "conservative" thinkers.

read full comment
Image of Paul C Binotto
Paul C Binotto
on July 08, 2020 at 09:35:24 am

Excellent post!

“Justice Breyer posed the challenge from the liberal side when he invoked the Establishment Clause of the First Amendment and the familiar concern about forcing taxpayers to pay for religious teaching they found objectionable and divisive.”

The greater the denial of Nature’s God, The Author Of Love, Of Life, And Of Marriage, and thus The Author Of The Law’s Of Nature, the greater the degree to which public education will serve to discriminate against Natural Law through objectionable and divisive teaching that denies the inherent Dignity of the human person as a beloved son or daughter. Those who affirm Nature’s God as The Author Of The Law’s Of Nature, are part of the public too, and but for Religious discrimination, are being deprived of an education that affirms Natural Law, through objectionable and divisive teaching, that denies the inherent personal and relational Dignity of being, in essence, a beloved son or daughter, brother or sister, husband or wife, father or mother.

The purpose of education is to help develop one’s intelligence and one’s moral character in order to form good and productive citizens. There is nothing in our Catholic Faith that prevents us from being good and productive citizens thus discriminating against funding for Catholic Education, which affirms Natural Law, is unconstitutional.

read full comment
Image of Nancy
on July 08, 2020 at 10:39:16 am

It would have been better had the Court squarely faced the issue of sectarian education and the singular advantage of Roman Catholicism in the privilege of appropriation for its propagation, a consideration beyond the orchestrated stigma of 'anti-Catholic bigotry'. But then, that comports with the scholarly (?) attention given to a similar stigma respecting Catholicism in England, particularly as fostered by Roman interests in Ireland. Fair and balanced without resort to anachronism, and all in context, ensures a peaceful, settled working polity that extols no Christian denomination over any other, nay any religion over any other that comports with our fundamental law, its source anchored in Christian civility and there to its unique 'love' of enemies, yet properly downplaying and discouraging Establishment of any form, even in the promotion, while respecting the States in their particular protections. It serves no advantage to overlook past abuse, particularly where there exists past and ongoing political pressure pursuing the ends of Counter Reformation seeking the abolition of 1st Amendment prohibition. Atheists are not the only ones concerned. And that religious sensitivity has not been addressed.

read full comment
Image of gdp
on July 08, 2020 at 11:55:00 am

Certainly using facts that illuminate the benefit a Catholic Education, or other educational curriculum that affirms Natural Law, and thus serves to develop one’s intelligence and one’s moral character in order to form good and productive citizens, would be beneficial:


read full comment
Image of Nancy
on July 08, 2020 at 11:06:38 am

The Supreme Court has wrenched the constitution from its moral and federalist foundation and logic, nowhere is this more apparent than in Cantwell, Everson, Engel, Griswold, Roe, Casey, Lawrence, Obergefell and Bostock, decisions through which the Court has badly transgressed its bounds, usurped authority and done incalculable damage to the country. Indeed, for reason of its constitutional trespass and usurpation, it is reasonable to lay great blame on the Court for the state of political decay and moral anarchy in which we now find the nation.

The Court has so mangled the moral and federalist meanings of the Fourteenth and First Amendments that they would be beyond the recognition of their authors and the states which ratified them. Even when the Court (rarely) gets it right, it gets it half wrong, as in Espinoza by maintaining the fake distinction between belief and practice, and too- often when it's right it's right for the wrong reason, and the Court almost never cleans up its books and removes the stain of deplorable, wrong decisions.

The "Least Dangerous Branch" indeed!

Professor Arkes is a national treasure, perhaps the last man standing with the calling and the prophet's vision to restore our lost constitution by reaffirming its moral ground.

read full comment
Image of paladin
on July 08, 2020 at 11:52:37 am

I'm not steeped in conservative approaches to Constitutional law, but it seems to me wrong-minded to treat any reified conception of the Judeo-Christian tradition as the foundation of the establishment clause concerning "religion." Religion can be defined as centrally concerned with distinguishing the sacred from the profane within a community. Differentiating "good" from "bad" religion is a fool's errand, and a dangerous one. Certainly it is not the role of the courts or the State. This was certainly already true in the latter 18th c., and it is equally true in our more culturally complex society today.

read full comment
Image of John California
John California
on July 08, 2020 at 15:47:21 pm

The Catholic Church continues to affirm that Nature’s God, with the capital G, Endowed us with our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, the purpose of which can only be, what God intended. God certainly does not Desire to undermine The Laws Of Nature, As The Author Of Love, Of Life, And Of Marriage because Love cannot serve in opposition to God’s Essence, Perfect Life-affirming and Life-sustaining Salvational Love.

read full comment
Image of Nancy
on July 08, 2020 at 17:27:01 pm

Today the Court continued its constitutional lollygag, getting one case right, Our Lady of Guadalupe vs. Morrisey-Beru, by reversing the Ninth Circuit's rigid 4-part test to qualify for the ministerial exemption, and getting one case only partly right, Little Sister of the Poor vs. Pennsylvania, by upholding Trump's substantial broadening of Obama's regulations governing the religious exemption from Obamacare's employer mandate for birth control as part of government-approved health care plans.

The Court screwed up Little Sisters bigly, however, by failing to make clear that the Trump rewrite complies with the Administrative Procedure Act and by all but inviting the Third Circuit to rehear that argument, after which it will almost certainly rule again against the Little Sisters and declare either that the Trump birth control exemption regulation is arbitrary and capricious and/or that it is so overbroad as to lack a rational basis. That decision will send the Little Sisters back, yet again, to the Supreme Court.

The Little Sisters myriad birth control-mandate litigations are becoming the Jarndyce vs. Jarndyce of modern American jurisprudence, and that is an abuse of process due to CJ Roberts failure to lead his majority and dispose of cases with efficiency rather than allowing them needlessly, expensively and unfairly to drag on for years. Dickens could make such abuse of process a matter of Victorian fiction. Roberts makes judicial mismanagement a real matter of social and legal injustice.

One might ask, as well, how it is that NEITHER the initial decision of Obama's HHS to include birth control as mandatory ObamaCare health coverage nor the Obama HHS's narrowly drawn exemption provision for birth control coverage were ever subjected to the APA, yet Trump's rewrite and broadening of the birth control exemption regulation was in Little Sisters subjected to APA review, once by the District Court, once by the Third Circuit and today by the Supreme Court, all to be followed by yet further APA review in the third Circuit and, likely, the Supreme Court again in 2021.
Hmm! I recall just last week that CJ Roberts ruled that Trump's repeal of Obama's illegal DACA Executive Order (which did not follow the APA) could be done (if at all) only by following the APA.

If they did not have double standards, Democrats and Chief Justice Roberts would have no standards at all, so some might argue.

read full comment
Image of paladin
on July 08, 2020 at 18:45:53 pm

I think that much of the controversy here is derived from the differences in connotation and denotation of the word "religion." I would submit that when the Founders mentioned the word at all they did so because of the common-sense observation that nearly all of the peoples of the earth, and certainly all of the great civilizations that were within the canon of history, were religious to some extent or other. They understood that any society, and any form of government would reflect this fact, willingly or not. When they used the word "religion" they used it to denote this human characteristic, without explicit qualification. However, it seems reasonable that the connotation of "religion" was Judeo-Christian, particularly as it applied to American ethos and mores in 18th century America. Thus, it is possible that both John California and Paladin are correct in their observations: it is a fools errand to prove that the word "religion" denotes something that has a necessarily good or bad nature, while the original connotation of the term has been debased by judicial folly, with undesirable results. Professor Arkes has been consistent in his view that the term "religion" has both a positive connotation and denotation, and he says so more-or-less explicitly: "But no plausible understanding of religion in this country can possibly be reconciled with Satanism or the affirmation of radical evil." To this, Justice Breyer might well respond "hold my beer."

The essence of the matter is that "good" in a society is a living thing, and in order for it to survive, it must be nourished and exercised and tended. It will, if not die, then certainly wither from neglect. This is true whether that good is thought of as a religious concept, or ethical perspective, or philosophical notion. The idea that religion implies good is not self-executing. Christopher Hitchens was nearly fanatical in his insistence that "religion" denoted something silly and connoted something evil, the idea of evil apparently inherent in...something.
The litany of jurists who grappled with the idea of religion and civic life were afforded a menu of sophistic evasions: religion denoted something neutral so it includes satanism; it connotes something neutral so it deserves no special consideration; it denotes something good but connotes something bad, or vice versa, so we'll just punt on the damn thing; it is part of a historical tapestry placed there by superstitious men and should be treated with condescending accommodation; etc. Religion, and the good that Professor Arkes regards as intrinsic to it, are too important to be left to the pronouncement of judicial functionaries. The Court, as a practical matter, does not have the final word. They may score a goal for the malevolent side now and then then, but they do not determine the outcome of the game.

I can sympathize with Professor Arkes: he is a strong voice for the notion that we should know good when we see it. This is consistent with his position on free speech, with which I largely disagree. But I will note this. When a decision like this comes down on some contentious issue or other, the vanguard of progressive thought is not content to analyze and criticize and bemoan; their first instinct is to ask "how can we use this to our advantage?" And that is why conservatives are consistently disappointed, even when it seems they have won.

read full comment
Image of z9z99
on July 09, 2020 at 13:48:26 pm

"[R]eligion...it connotes something neutral so it deserves no special consideration" - on this premise, can't it be easily argued that if it is "neutral" and deserving of "no special consideration", neither is it deserving of any special discrimination? Something that is neutral poses no threat on the consciences of those who do not adhere to a specific characteristic. If religion is neutral, it would carry no more weight than advocating for the color blue over yellow. To deny to a benefit to an organization than promotes blue the same benefit granted to an organization than promotes yellow has no reasonable policy or legal justification and of course, is discriminatory.

"Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." - John Adams

Can this statement ever be construed to denote or connote anything other than a good?

read full comment
Image of Paul C. Binotto
Paul C. Binotto
on July 09, 2020 at 15:54:37 pm

May not be the place for it but...What specifically do you disagree with Arkes on Free Speech? Is it that under his formulation, Hate speech codes are (inevitably) permissibl?
Or do you take issue with his contention that "prior restraint" of speech, albeit written speech is permissible. I agree with the latter but have reservations concerning the former.

Also, while "the Court does not have the final word", they, nonetheless, shape the ensuing dialogue and generate newly constrictive (or as appropriate) expansive Overton windows. Opinion, Public Opinion as Madison understood and professed is the "ultimate sovereignty" enabling or hobbling the reach and practice of the Legislative (and Executive but apparently not the Judicial). This opinion was to be *refined* by deliberative Leaders, both Executive and Legislative. Regrettably, we have not experienced the benefit of these Madisonian "virtuous / responsible" Leaders who neither refine nor confront opinion. Rather, they regurgitate the voice of the mob, and a crazed one at that. when even the Judicial partakes of this "un-refined" acceptance of opinion, the Madisonian scheme that embraced REFINED public opinion is destined to fail. The claim that Roberts is aware of public opinion is, perhaps, the understatement of this new century.
He is not only fully aware of it, is unduly hesitant to confront or "refine it" but he accedes all too readily to it in the foolish belief that this will burnish his personal legacy and the legacy of the Roberts Court.
And as you point out, the Looney-Toon fringe will seek immediate advantage to it.

read full comment
Image of gabe
on July 09, 2020 at 18:07:02 pm

Paul and Gabe,

Excellent! A good faith and civil discussion, the bedrock of enduring civilization.

As to Paul's question,

...can't it be easily argued that if it is "neutral" and deserving of "no special consideration", neither is it deserving of any special discrimination?

the short answer is that it can be argued but the arguments are unconvincing. There is an ambiguity, that may be artificial, but is there nonetheless, in the word "neutral." The word can be taken to mean "neither good not bad" or "both good and bad." The latter meaning is assumed by people who see no real issue with discriminating against religion, and in fact appears to have been the view of proponents of Blaine Amendments, the subject of the Court's ruling in Espinoza. The view is apparently quite common, and would seem to explain a great deal of sectarian conflict.

The point of the denote-connote issue is that it produces at least nine different combinations each of which may be advantageous to particular arguments. This itself makes it unreasonable to expect resolution of matters of religion by first trying to come to a consensus of what the word means. Understanding what the word means is not the same as understanding the reality and power of religion in human life. It is of little practical importance, but does perhaps provide some insight, that the word "religion" shares a root with "ligature, i.e. the Latin word ligare, meaning "to bind." This provenance likely traces back not to the nature of religion as good, bad, or neutral, but from observation of the practical effects of religious beliefs. There is a practical rationale behind the concept of a state religion.

As to John Adams quote, it does not provide much weight to a particular view of religion. In the most direct case, it can be taken simply as an opinion, which may or may not be correct. It tells us what John Adams thought, which is nice, but not particularly persuasive. Even if, out of respect for the good faith of the assertion, we were to consider it further, we may conclude that Adams was referring to a particular idea of religion, and thus the assertion is what is to be proven. One may reasonably argue that State Shinto, which regarded the Japanese Emperor as divine is "moral and religious," and the moment an opponent begins to try to draw distinctions, the point is lost One is then left where the discussion began: that Adams had a particular morality and a particular idea of religion in mind. That Professor Arkes is dismayed by convolutions of the word "religion" to include satanism and the Church of the Flying Spaghetti Monster is evidence that the cultural warfare that includes religious thought cannot be fought by relying on assumptions that the other side is not obligated to accept.

The posts regarding the Bostock decision is an example of the same principle. It used to be that the word "terrific" meant "inducing terror." It now means pretty much the opposite. The original meaning of the word "villain" had no pejorative content. The meaning of words drift over time because of a number of factors, and these are not always predictable. The connotations in particular are susceptible of such change, and even inversion, meaning that the defenders of civilization cannot take for granted that historical usage immunizes virtues from cultural attack. Look what has happened to the words "privilege," and "equal," and "merit."


Yes, I disagree with Professor Arkes because I think his view of free speech assumes principled discourse. I think this assumption is faulty, and is belied by a great deal of popular discourse. I understand the Burkean view regarding manners and the the role of character in societal improvement. In practice, I believe that this will, as you note, legitimize speech codes, and suppression of vital ideas by categorizing them in undesirable ways. The good to be obtained by the form of discourse is far outdone by the harm to be caused by impairing the consideration of substance. I will not countenance suppression of thought that is strategically and dishonestly deemed to be hate speech, nor accept this as regrettable collateral damage in a naive war against incivility. I admire good manners, I appreciate civility. I can see benefits to both, but I am not willing to disarm in an existential struggle simply to spare subjective feelings. It is best to fight destructive ideas with better ideas, and not decline to fight as a matter of misguided etiquette.

read full comment
Image of z9z99
on July 09, 2020 at 22:33:26 pm

Z, Gabe; thanks for the interesting exchange of ideas and rebuttal.

I will need additional time to better digest the many (good) and well considered points laid down before I can concede to the position; or offer any counterpoints.

However, Espinoza, to my understanding, really seems more about whether or not separation of church and state prohibitions against applying public monies to religious enterprises are forfeited by the government when the state makes the policy decision to enrich private entities with public monies - SCOTUS clearly seems to have ruled that such a forfeiture does indeed occur, and as such, to exclude comparable but religious organizations of these monies is an unconstitutional discriminatory action on behalf of the state. Thereby, the state may remediate the discriminating practice by one of two actions - either make public monies available to all like-type, (i,e, elementary education), private organizations, or to not make them available to any of them.

Espinoza, thereby, leaves in tact separation of church and state in the public realm and a maintains the mandate that religion remain a private endeavor with reasonable permission to operate under private prerogative that may not be reached by the state.

The legal principles which firmly fix religious entities within the private realm and prohibits their entering the public realm, and seeking to exert undue influence over it, in turn, also insulates them from these coercive restrictions and prohibitions when the state enters into the private realm.

read full comment
Image of Paul C Binotto
Paul C Binotto
on July 08, 2020 at 21:09:01 pm

Professor Arkes has made a valid point, that the Court in affirming the principle of the free exercise of religion routinely fails to affirm the moral ground of the principle which is the very reason that the Founders made religious freedom a fundamental constitutional right. Yet in its free speech cases, the (largely ignored and abrogated) Second Amendment cases and in almost all of its myriad, wrongly-decided Fourteenth Amendment transgressions (e.g., abortion and gay marriage) the Court almost routinely affirms the ostensible moral and political importance of the right under review, albeit that moral and political importance may be highly contested and dubious.

Religion is viewed, ignored and mistreated as an undesirable and unspeakable annoyance in a society whose institutions are almost wholly secularized and in which even the jurisprudence over religion is so secularized as to be stripped of its moral ground. The Founders would be appalled.

read full comment
Image of paladin
on July 09, 2020 at 01:56:48 am

"The notion of “religion” utterly bereft of grounds of moral judgment could hardly be reconciled with the God of the Declaration of Independence; it could not be part of any Original Understanding."

Well, yes, but not moral judgment as distinct and separable from vigorous intellectual probative interests, to the contrary. There are certainly dubious forms of religious practice, but there are equally dubious forms of would be rational/intellectual practices. NB, the state of primary, secondary and graduate and post-graduate education, what it purports to be vs what it is. Or compared to what it once was. Ideology, putatively more rational and certainly more secular and more secularizing ideological edifices, have long been observed by astute thinkers to be substitutes for religion, ersatz religions, and in a full-bodied sense. Comte's positivism might be thought of as the apotheosis of the idea that a thoroughly secular cum rational state could be enacted, could be brought to bear upon society as a whole, without remainder. But it always was invested more with ideological interests and presumption than rigorous philosophical probings. It has been placed upon the scales - and found wanting.

And religion has solid intellectual/philosophical supports. I'll leave off by noting the following commentaries:

Justice Thomas addressing a Hillsdale College audience on the compatibility, indeed the mutually enriching compatibility of faith and reason.

JPII's lengthy exposition on the same, his Fides et Ratio encyclical.

W. Vallicella's concise and perspicuous commentary on the aporetics of what we can justifiably claim as knowledge and how that fact proscribes against presumptive, would be rational/secular criticisms of faith.

As a general philosophical claim, reason cannot proceed without some form and mode of faith. It CANNOT do so; it can only be a poseur, a pretender in this vein.

read full comment
Image of Michael Bond
Michael Bond
on July 08, 2020 at 17:10:58 pm

[…] The full essay can be found here. […]

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.