Hadley Arkes, founder and director of the James Wilson Institute in Washington, D.C., discussed the efforts and consequences of the Supreme Court to defend religious freedom by accepting moral relativism at a Faith and Law presentation in Washington D.C. on December 6. His particular concern was the adoption of this strategy by conservative justices.
Arkes declared that moral relativism has been a disaster for the country, and that the court’s invalidating of rules that protect public morality has been the principle reason. In a compelling summation, he said of America that “there has been no engine of change more powerful in the coarsening and corrupting of that culture than the Supreme Court of the United States. Within the span of my own lifetime, I’ve seen the court make pornography into a vast lucrative business, leaving a wreckage of families, I’ve seen the transformation of the understanding of who counts as a human person, along with the new license to kill innocent humans in the womb for reasons that need not rise above self-interest. I’ve seen marriage transformed, not because of a shift in the moral sentiments of the public but through the engineering of people who know how to get the issues before the courts before judges drawn from the same circles and the same schools from which they themselves spring. We’ve seen the denial of nature give way to the mass schemes of transgenderism, bringing us to a state I thought I would never see in this country – a legislature actually passing a law to bar parents from seeking counsel for a child who feels that he or she is experiencing a change of sex.”
Arkes called all of these things “the inversions of our culture.” Because the court’s dismantling of moral absolutes in law has resulted in decisions that “feed on one another,” the courts have lost the ability to justify law protecting traditional morality in that morality’s own terms. Any justification of law must be independent of that morality, with a content neutral doctrine of free expression a common way. He noted that in the “classic case of Widmar vs. Vincent in 1982.” Here the right of an Evangelical group to hold a prayer meeting on the property of a state university was justified by a recent earlier decision saying that the state may not impede offensive expression.
The Supreme Court’s effort at moral neutrality, Arkes maintained, derives from emotivism, discussed in an earlier article by this writer. Emotivism became dominant as a result of the early to mid-twentieth century doctrine of logical positivism, which held theology and metaphysics to be meaningless. As a philosophy, logical positivism has long since fallen into disfavor, but emotivism continues to be dominant with the courts. Emotivism holds that “it’s virtually impossible to make any reliable judgments about the content of what is spoken of in moral arguments.” The court protected the free speech of the Evangelical group in 1982 in the same way that it would protect the speech of communists or Nazis. The court recognizes no way to determine one instance of speech is any “better or worse” than any other instance.
Arkes pointed to a statement by Justice Byron White about the court’s establishment clause jurisprudence. Since the Everson vs. Board of Education decision in 1947 the court has said that the state may not support or oppose any religion. This, Arkes said, is unintelligible if the state cannot determine if speech is authentically religious, which it cannot do if it cannot reach judgements about the content of religious speech. But he said that even Justice White did not realize that in time the liberal end of the political and legal spectrum would move from indifference to hostility toward religion. It would side with “the ethic of sexual liberation, peeling away virtually all moral restraints on sexuality.” Arkes doubted that the justices understood the legal regime that they were constructing to deal with religion. “On the one hand, the justices were casting religion as something fearful, to be pushed out of the public square,” while on the other hand they proposed to protect religion by moving to a relativism that would “purge religion of any substantive content.” They would “even more decisively, purge religion of any moral definition.”
This change, Arkes believes, can be seen clearly in changes with respect to conscientious objection to military service. In World War I, the federal government protected men from “any well recognized religious sect or organization” from obligatory military service. This was changed in 1940, when objection resulting from “religious training and belief” was made acceptable, even though one might not be a member of a religious organization with a definite theology. Increasingly, the court endeavored to deal with religion in terms of sincere belief, rather than a body of doctrine which could be justified. A law enacted in 1948 said that conscientious objection must be derived from belief in a supreme being, but this effort at restriction of belief was overridden by the courts. The end result, achieved by 1970, was to say that “any beliefs, passionately held, would take the place of religion.”
Arkes noted Justice Samuel Alito’s opinion in the Matal vs. Tam decision, that justified offensive speech. This was a break from earlier cases (notably Snyder vs. Phelps, concerning Westboro Baptist Church’s picketing of military funerals) when Alito was the sole dissenter from cases that justified offensive speech. In the Masterpiece Cakeshop case (supporting conscientious objection against baking a cake for a homosexual ceremony) the court specified that offensive religious religious beliefs as well as offensive speech are protected by the First Amendment. Arkes believes that this relativism threatens “the meaning of religion and the protection of religion.” Thus, what was undoubted moral truth by past society, and continues to be undoubted moral truth by many Americans, is now found to be an offensive, but protected belief. Offensiveness, Arkes said, is held to be in the eye of the beholder. He observed that Satanism is justified under this principle. But Satanism is “affirmation of radical evil.” Arkes concluded that the effort to “secure religion from the prejudices of the irreligious” has resulted in a legal understanding that religious beliefs as neither legitimate nor illegitimate.
Arkes maintains that even conservative justices hold on to the idea of sincerity as the sole criterion for the legitimacy of religious belief as a “crutch.” The point of this is to protect religious belief and practice while remaining agnostic about its truth. Yet if sincerity by itself justifies religious ideas, it would justify the actions of the World Trade Center bombers, he said. Further, sincerity is itself a moral judgment, Arkes maintained. What the sincerity alone test does is eliminate the need for the idea of God in religion, and eliminate any judgment about the content of religious doctrine. The court’s strategy is to respect religions by refusing to recognize any truth in what they say.
Arkes believes the turn to moral relativism is “a slide back into paganism.” He quoted John Henry Newman concerning religious relativism. Newman found that modernist theology was rooted in ideas found in liberalism. It holds that there is no truth to be found in the substance of particular religions, only opinion. It is even a matter of “a sentiment and a taste.” Arkes maintained that as a result of this relativism, “we can no longer give a coherent account now of what we mean by religion.”
Relativism is also “at odds with the foundations of the American regime.” He noted that Abraham Lincoln said that the American nation did not begin with the Constitution, but with the Declaration of Independence. This declaration began with an understanding of rights that were not “stipulated under the positive law,” but were given by the Creator. Since this was understood to be “the God of Israel,” there was “no trace or moral relativism” in him. He said that in early America, the “growing variety of denominations” did not imply “an exploding variety of moral laws.” That Satanism might be protected by religious freedom would not have occurred to anyone. The God acknowledged at the American founding inculcated “honesty, truth, temperance, gratitude, and the love of man.” There was held to be “right reason” which was supposed to come from God.
The American Revolution was based on the idea that there could be “an unjust law” (which in all strictness, is what legal realism denies). That there could be any law which has “all the trappings of legality” but deficient in moral principle “presupposes” that “we have access to an antecedent body of moral principles.” Arkes referred to John Locke’s questions and answers about the legitimacy of law. Locke held that the law receives its legitimacy from the legislature, which receives its legitimacy from the constitution, which receives its legitimacy from a source beyond positive law or human control, which is the natural law binding on all peoples everywhere. It is this natural law which gives people a natural right to form governments. The natural law is “part of the creation … The enduring awareness of that Creator firmed up the confidence that those principles would still be there.”
Natural law does not require a high philosophical justification, but is found in “the common sense of ordinary folk, in the things that people just need to take for granted.” He quoted former IRD Board Chair J. Budziszewski who said that these are the things that “we cannot not know.” Just as we see design in nature as testimony to God, so we must see morality as testimony to God and his moral law.
Arkes said that it has “taken a vast accumulation of misplaced genius to bring us to the current understanding of religion and the law.” There is “a caricatured understanding of religion, and its relation to the American founding.” He maintained, however, that the original understanding is in accord with the reasoning of ordinary people, and is thus “well within our reach to recover yet again … and to recover, as a people, the things we once used to know.”
What we once knew was a common acknowledgment of a supreme personal being and the morality of Biblically based religion. This writer can see no easy way back. But key to the way back is to separate constitutional interpretation from guidance by the moral intuition of judges. In particular it must be separated from their opinions of what is a desirable in terms of liberty, equality, and morality in general, as discussed in a previous article. This would permit more morals legislation than is currently allowed.
It is hard to disagree with Justice Alito’s conclusion that offensive expression must be protected. Some expression – such as falsely shouting “fire” or public nudity – are so immediately disruptive they must be prohibited. But where it is clear that the intent is to communicate ideas, there should be constitutional protection, as there was for Westboro Baptist Church. A major current thrust of the Left is to prohibit ideas it doesn’t like, and thus holds offensive. And Biblical religion holds itself to be offensive to unbelievers; we must protect the right to state and live out the truth that offends.
The ideals and rules which govern a society cannot require unanimity. That is the demand of relativism, which rejects authority in favor of flux. But with a court less willing to see avant-garde movements as virtuous, and more willing to defer to what makes for a stable society, we might be able to return to a reasonable understanding (and thus protection) of religion as based on well recognized sacred texts, and a morality which restrains human behavior, rather than the current self-defined morality which is destructive of reason and life.