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Is Religious Freedom A "Natural Right"?

by Hadley Arkes
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In that notable letter, so characteristically terse, and yet with it all, magnificent, George Washington remarked to the Hebrew Congregation in Newport that "it is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights." The "natural rights" here were the rights of "the children of the stock of Abraham who dwell in this land" to live their Jewish lives with their rituals of worship. And in a biblical image, "every one shall sit in safety under his own vine and fig tree and there shall be none to make him afraid." Several years earlier James Madison invoked a comparable notion of the freedom of religion as nothing less than a natural right. In his "Memorial and Remonstrance Against Religious Assessments" (1785), Madison insisted that "this right [of religious freedom] is in its nature an unalienable right."

Of course, that "natural right" to be left undisturbed in the religious life did not necessarily entail the fuller set of "civil" rights that attached to citizens, and it certainly did not entail "political rights," for Jews could not yet vote or hold public office in Rhode Island. It also went without saying that the natural right to practice one's religion would be governed and restrained by the laws that were rightly binding on everyone else, because they sprang from the same ground of natural law and moral reasoning that entailed the freedom of religion. And so the laws that barred homicide would bar the burning of wives on the funeral pyres of husbands even if the act were done in accord with a religious code. Not everything that people professed themselves "obliged" to do by their understanding of God's commands, or the commands of their religion, would be honored merely because people professed to believe earnestly in the source of the obligation and their duty to respect it.

But the matter is given a further complication, which seems to come as a surprise, perhaps an unsettling surprise, in our own day. Aquinas observed that the divine law we know through revelation, but the natural law we know through that reason that is accessible to human beings as human beings; the reason, we might say, that is distinctly "natural" to human beings. Washington's letter cannot be misunderstood on this cardinal point: To say that Jews had a natural right to be left undisturbed in the practice of their religion was to say that Jews possessed a right here that had a claim to be respected as a right even by people who did not take seriously for a moment the revelation recorded in the Hebrew bible. Somehow, those who were not Jewish had to be able to grasp through reason alone why they were obliged to respect the freedom of Jews to practice their religion even if they understood and respected nothing in the religion that they were enjoined now to respect.

But when we tender respect to people, we respect the way in which they understand themselves, or the principles that animate their acts. As Kant put it, we summon a certain reverence for that "law" of which they happen to be examples. On what ground then would people "respect" the "natural right" of Christians and Jews to live their religious lives when they do not even remotely understand or credit the truth that is understood by Christians and Jews, the truth that commands them to lead Christian and Jewish lives?

Is it simply that, as far as they can see, Christians and Jews do nothing barred by the laws as "wrong"? Mormons once ran up against the laws that barred polygamy, but once Mormons had purged themselves of polygamy, they were as "legitimate" as any other association or group that was not running afoul of the laws. They would be as legitimate as Standard Oil or Sears Roebuck. But if that is the case, if that is all there is, then we would seem to respect the Catholic church and Jewish synagogues in the same way that we respect Walmart or Goldman Sachs or Disney Productions. If we are uncomfortable in putting them all on the same plane in that way, we would be pressed to say something more to mark off what is different about "religions" or associations animated by religious doctrines (such as Catholic hospitals). The most likely move is to appeal, as defining marks, to "belief" or "faith." But that runs the risk of acquiescing in the libel of religion that John Courtney Murray pointed out years ago: that religion is identified with "belief," or things that are subjective, or not knowable or provable, while on the other hand philosophy and secularism are associated with "reason," with things that can be known as true or false. In contrast, there is the understanding made explicit by John Paul II, that the Church has always moved with two wings, faith and reason. Anyone engaged in the serious study of theology knows how demanding is the discipline of reason that is bound up with the efforts to explore the depths of theology. But beyond that it seems to be one of the best kept secrets in the country—a secret apparently not revealed to many Democratic politicians—that the teaching of the Catholic church on moral questions such as abortion does not depend critically on appeals to faith. The Catholic position on abortion is a weave composed mainly of embryology, the facts of science, and principled reasoning. The Catholic position has been argued in the style of natural law, with reasons that are accessible even to people who are not Catholic. One doesn't have to be Catholic in order to understand the Church's position on abortion, euthanasia, stem cell research, or marriage—and that has been precisely the teaching of the Church: that one doesn't have to be Catholic in order to understand these arguments woven of moral reasoning.

In that case, could we not say something else, in the domain of reason, that marks the character of churches and synagogues, something that may explain their claim to rights that are accessible, through reason, to people who do not share their religious convictions? But that has been the curious point of stumbling and holding back: So many writers and lawyers taking on the mission of defending religious freedom have come to the threshold of that question—and balked. They have held back from taking up the challenge, and the silence on that critical point may account for the unpleasant surprises we have encountered in the cases on religion and law. And yet, putting aside the quirky pattern of cases in our law, consider how that confusion has been at work in the what is surely the gravest crisis of this year on religion and the law, the problem of the mandate on contraception under Obamacare.

In his statement for the Catholic bishops, William Lori, the Archbishop designate of Baltimore, cast the argument for religious freedom around the claims of "conscience": Religious freedom was the "first freedom," he said, because if we are not free in our conscience and our practice of religion, all other freedoms are fragile." And at the same time the Archbishop insisted that he was not using "conscience" as it has been used—and virtually unraveled over the years—in the claims of "conscientious objection." Bishop Lori pointed out that the Church was not seeking an exemption from the policies on contraception in the way that "conscientious objectors" sought exemptions from service in the military. The Bishop was appealing to "conscience" in the sense once explained with exquisite care by John Paul II in Veritatis Splendor : conscience as an understanding ordered to a body of objective moral truths. John Paul II remarked on that facile tendency to accord to the "individual conscience the status of a supreme tribunal of moral judgment which hands down categorical and infallible decisions about good and evil":

But in this way the inescapable claims of truth disappear, yielding their place to a criterion of sincerity, authenticity and ‘being at peace with oneself', so much so that some have come to adopt a radically subjectivistic conception of moral judgment.

What is lost then is the recognition that conscience is not directed inward to the self and one's feelings, but outward to the natural law: The "natural law discloses the objective and universal demands of the moral good," and the function of conscience is "the application of the law to a particular case." That seemed to be the understanding at work with Bishop Lori and his colleagues for they were not, as I say, seeking an exemption from the mandate on contraception. They were pronouncing the mandates to constitute an "unjust law, no law at all," and therefore rightly binding on no one.

But then the problem thickens: If the bishops pronounce the law to be "unjust," not merely counter to beliefs earnestly held by Catholics, but unjust according to reasons understandable to others across the religious divide—then the problem is transformed: The bishops are using the language that ordinary citizens will use as they deliberate and argue together in the public forum. And yet, if that is the case, the bishops would stand on no different plane from that of other citizens who have argued in public on serious questions of right and wrong—and lost.

Imagine, in that respect, the owner of a business who has no particular religious reflexes, and through the force of his own moral reasoning he has come to bear reservations about the sexual revolution and the contraceptive ethic. He does not wish to endorse that ethic by paying for the contraceptives used by his employees, especially when they can amply afford them already. If he raises a claim of "conscience" against the new mandates on Obamacare, would he complain that he was being denied his "religious freedom?" It is curious that this late in the seasons of our experience the point has not broken through that the two claims may be at odds: We cannot insist on the one hand that our judgments on law and public policy are formed of moral reasoning and the Natural Law, and yet claim on the other that when the law runs counter to our moral judgments we have suffered a denial of our "religious freedom."

Let us suppose that the laws began casting protections once again over the lives of unborn children and barring most abortions. We know that those laws would elicit the fierce resistance of people who invoke their own "beliefs" that a child in the womb is not really human, that its killing constitutes no wrong. It is hardly conceivable that the bishops would credit any move on the part of these people to invoke claims of "conscience" and insist that they cannot be bound by the laws that bar them from the abortions they think are deeply, morally justified. The bishops would point out, of course, that the differences here would not turn on matters of belief. They could point to a compelling weave of evidence and moral reasoning that would make a right to abortion untenable. But is that how the bishops would cast the matter now—that this dispute over contraception and the mandates of HHS involves a mistake in reasoning rather than claims of religious belief?

There have been intimations about the willingness of priests and Catholic doctors and nurses to go to jail rather than comply with the mandates that Bishop Lori and his colleagues have called an "unjust law, no law." And yet it is unthinkable that the bishops would seek to stir in the land a mass movement of disobedience to laws that people find morally objectionable. They would no doubt be focusing their teaching on what is so unreasonable and unjustified in this set of laws, mandating the support of contraception. But again the bishops insist that their argument finds its ground in the natural law, in moral reasoning, not in the fact that the argument is being offered by Catholics. As Bishop Lori himself has said, the claim to "conscience" here is not a Catholic position, or a Christian, Jewish, Muslim position, but an "American" position. The justification for resisting is not confined to Catholics, and the ground of resistance cannot be confined in that case to the reasons that only Catholics find persuasive.

But once we pull these strands together, what has happened to the claims of a distinctly "religious freedom"? How is there anything, in the mandates on contraception, that is aptly countered by a claim of "religious freedom" standing against the law? Bishop Lori and his brother bishops, accomplished men that they are, were not able to break out of this box. The heart of the problem, again, is that they have not been able to explain whether the freedom they are asserting is really grounded in reason, in an understanding of natural right, or whether they are claiming to be aggrieved distinctly as Catholics and theists by an assault on matters of "faith" that are not shared with everyone else in the population. What is missing is precisely the account offered by John Paul II on Catholicism constituted both by faith and reason: There was the revelation to the Jews, enlarged by the revelation of Christ and his mission, but fortified as John Paul II said, by the tradition of Greek philosophy. He remarked in Fides et Ratio that it fell to the "fathers of philosophy to bring to light the link between reason and religion." In that way, they helped to rescue the religious understanding from both superstition and tribalism:

As they broadened their view to include universal principles, they no longer rested content with the ancient myths, but wanted to provide a rational foundation for their belief in the divinity. This opened a path which took its rise from ancient traditions but allowed a development satisfying the demands of universal reason.


It is precisely the omission of that understanding that confounds, I think, a long series of cases in our law on religious freedom, including some recent cases that have served up surprises, good and bad. But even when the outcomes have stirred celebration, that missing ingredient—the ground of reason undergirding faith—marks the omission that may see the whole structure dissolve. We can take, as a notable case, the most recent bit of good news from the last term of the Supreme Court, the decision in Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission. A unanimous Court sustained the claim to a "ministerial exception" by a Lutheran school. Cheryl Perich, who taught at the school, was stricken with narcolepsy, a condition of falling into deep sleep, from which she was not easily stirred. She was put on disability leave, but the school felt the need to hire someone in her place at full time. The school offered to pay a portion of her health insurance if she would resign, but she would not resign. She would contest her firing under the Americans with Disabilities Act. Ms. Perich had taught fourth grade, with a wide range of courses, but she had also taken courses in theology, which allowed her to be in a "called" position as a "minister." The problem, though, was that ministers bore an obligation not to go to law in disputes within the church. The school took this threat of litigation by a "called" teacher as a move that broke the cords of the religious community. The school then fired her as a "called" teacher, in effect removing her as a minister. The decision of the Court to uphold the firing of Cheryl Perich was a decision to respect the understanding of the Lutherans of the conditions that defined the ministry in their own church.

But past the rejoicing, there was little notice that the decision in Hosanna-Tabor might well be a lovely castle built on sand. For the same trends that had altered the meaning of "conscience" over the years had also unraveled the meaning of "religion"—and therefore of "ministers." The problem could be tracked in the line of cases on "conscientious objection." The Draft Act of 1917 removed the obligation to military service for objectors who belonged to "any well-recognized religious sect or organization." But that gave the advantage to churches long established with highly developed bodies of theology. Who is to say, though, that late revelations may not be as true as earlier revelations? By 1940 the test of "conscientious objection" was scaled down to objections flowing from "religious training and belief." But after a series of cases launched by people with only the vaguest religious provenance the Court became willing to credit convictions bound up with passionate beliefs that might well take the place of religion for many people. Or take the place, that is, if one were free from any demanding sense of what constitutes a "religion."

We have had, in this country, all kinds of groups, inspired by more audacity than learning, calling themselves "religions." A group of prostitutes in California once claimed they could constitute a religious sect, bringing back temple prostitution. A group of residents in upstate New York resented the tax exemptions given to churches with large estates used for religious retreats, and so they constituted the Universal Life Church, with each house a "parsonage." They avowed, they said, "no specific beliefs"; they were committed simply to gaining the same exemptions from taxes that were accorded to other "religious" groups. But with each house a parish, each owner was a "minister." If it is really true then that a respect for the "autonomy" of churches means, as the Court insisted in the Hosanna case, "the freedom to choose who is qualified to serve as a voice for their faith"; and if this claim holds, as Chief Justice Roberts said, "regardless of [their] beliefs," then each householder could be a "minister." Why then should an "all-men's" club, or certain businesses with a special elan or ethic, not insist that they bear a "religious" character? Why should they not regard their members or employees as "ministers"? And why they should not be free from those vexing laws that now encumber private businesses, private colleges, private clubs in all stages of their decisions on hiring and firing?

All of the premises are in place; all that is lacking is the chutzpah to follow through and make the claims. In the condition of our civic lives today this chutzpah has hardly been wanting. And so we have had more recently the emergence of the Church of the Flying Spaghetti Monster, pressing claims to be represented along with crèches and menorahs when those religious symbols are put up in public places. It is of course no rival "church"; it is a mockery that turns its mockery into a serious challenge: the definition of "religion" has so eroded in our constitutional law that the Church of the Flying Spaghetti Monster may now challenge the authorities to explain the ground on which it could be ruled out as church with its own "ministers," if it cares to have them.

Chief Justice Roberts was not so relaxed in gauging the presence of a real minister at the Hosanna-Tabor School and Church. To be eligible to become a commissioned minister, Cheryl Perich had to:

—complete eight college-level courses in subjects including biblical interpretation, church doctrine, and the ministry of the Lutheran teacher;

—obtain the endorsement of her local Synod district by submitting a petition that contained her academic transcripts, letters of recommendation, personal statement, and written answers to various ministry­ related questions;

—pass an oral examination by a faculty committee at a Lutheran college

—and take six years to fulfill these requirements.

The Chief Justice engaged what may be called the principles of "common sense" or the canons of reason, in explaining quite sensibly why we may take seriously the way the Lutherans train and select the persons they judge fit to be ministers. But the criteria here are distinctly non-religious. Nothing in them is drawn from faith or revelation. Nothing in them offers a bar then to the people who earnestly claim that they "don't do things this way"—that they are guided by spirit and intuition in the laying on of hands and the selection of ministers fit to carry the message. And if we profess no grounds on which to reject those claims out of hand, the lines put forth by the Chief Justice simply cannot be definitive in settling this question. For they cannot define what is authentically "religious" as the necessary prelude to defining what counts as a religious ministry.

But the Chief Justice may have backed into a truth that has not broken through yet to the lawyers: The canons of reason do indeed come into play in gauging just who is a plausible "minister," just as they come into play in barring certain claims drawn from revelation, whether it is the claim to burn widows on funeral pyres, or withhold blood transfusions from children. The canons of reason will indeed be woven into the law on religion because, as Michael Novak has pointed out so powerfully, they have been bound up, from the beginning of the American law, with the Creator who endowed us with rights. That was the Creator mentioned in the Declaration of Independence, the Author of the "Laws of Nature," including the moral laws. The Declaration, with its understanding of the Creator, preceded the Constitution and it stands first in the organic laws of the United States.

But just before the drafting of the Constitution, in the "Memorial and Remonstrance Against Religious Assessments," James Madison had drawn from the Virginia Declaration of Rights as he set forth with a crisp clarity what he and many of the Founders understood by religion: "the duty which we owe to our Creator and the manner of discharging it." Years later, that understanding would be restated by the redoubtable Justice Stephen J. Field in Davis v. Beason (1890), one of the cases dealing with the Mormons. That is probably still the understanding held by most people in this country about the meaning of religion. It is the religion marked by the presence of the God of the Declaration, the God of the logos, of reason, who was understood to have brought forth, as the peak of His creation, those creatures with the capacity to give and understand reasons over matters of right and wrong. There is no understanding of religion more bound up with the deep principles of the American regime and the very ground of the laws. That is not to say that we would be retreating to some notion of "the god of the place," the God associated with this tribe of Americans. The God of the Declaration was not a local god. Serious Protestants, Catholics and Jews understood the God of the Creation as a God with a universal jurisdiction, the Author of moral commands universal in their reach.

In fact, without that God there would be no laws, for the presence of that God marks the Moral Universe in which natural rights come into sight: That universe contains the gradations that separate the human from the subhuman and the superhuman. As the old understanding ran, no man is by nature the ruler of other men in the way that God is by nature the ruler of men, and men are by nature the ruler of dogs and horses. It is curious that, in our own day, George W. Bush and other conservatives have been willing to affirm, as a point of anchoring conviction, that we were endowed with rights by our Creator. If we had given those rights to ourselves, they say, we could also take them away.

The politicians may offer these sentiments as rhetorical flourishes. But the judges actually find themselves in a position in which the question is put them in a direct, operational way, of whether they take that proposition seriously. If the Declaration stands first in the organic laws of the United States; if the Declaration provides the moral underpinnings of the Constitution; if the Author of the Laws of Nature is necessary to the coherence of that document; if the God of that Declaration is bound up with the matrix of the laws and of "rights-bearing persons"; then why would that understanding of God not offer a guide to the grounds on which the law now judges the parade of groups coming forward to claim the name of religion, whether plausibly or implausibly?

Of course, that is not a mandate that the judges, in our own day, would be especially eager to grasp. Past the rhetorical flourishes, we are likely to find lawyers and judges quite reluctant to affirm, as a serious matter, the God of the Declaration as an axiom in our law. It is not that judges are reluctant to appeal, as John Marshall persistently did, to axioms of the law not contained in the Constitution. For judges in our own day persist in doing the same thing, with this difference: they seem less aware that they are doing it. And if they really insist that they draw nothing from the principles of the Declaration, they may find themselves in the same odd position as our friend Robert Bork when he wondered aloud just where the Supreme Court ever found that notion of "one man one vote."

Still, we suspect that the temptation for judges will be powerful to take that familiar, low door under the wall: They may retreat to the argument that the Creator who endowed us with natural rights is a truth that we merely proclaimed in the Declaration that "We hold." But of course that begs the question. Is that God really there, or is He only a fiction we are willing to sustain or to "hold" for the salutary effects of holding it? If we seek to ease out of the problem in that way, we are merely taking a stylish path into relativism—a conservative version of relativism, but relativism nonetheless.

We back here into the problem that Harry Jaffa spotted in that speech many years ago by the then Justice Rehnquist. Rehnquist had remarked that when a society "adopts a constitution and incorporates in that constitution safeguards for individual liberty, these safeguards do indeed take on a generalized moral rightness or goodness." But it was not, he said, because of "any intrinsic worth" but "because they have been incorporated in a constitution by a people." To that, Jaffa responded with these searing lines:

To say that safeguards for individual liberty do not have any intrinsic worth is to say that individual liberty does not have any intrinsic worth. To say that individual liberty does not have any intrinsic worth is to say that the individual human person does not have any intrinsic worth. This is to deny that we are endowed with rights by our Creator. To deny that is in effect to deny that there is a Creator. This is atheism and nihilism no less than moral relativism.

Professor Jaffa, as ever, is a model of understatement and delicacy. But this is no literary flourish. We should not doubt for a moment that he is entirely serious: He was not prodding the late Justice to speak the words that come into harmony with his own, while Rehnquist went on doing the practical business of the Court with the axioms of relativism as his operational premises. I take it then that Jaffa would enjoin the judges to face the question seriously and decide whether they would reject the premises of relativism and atheism and affirm instead, as nothing less than serious, the same premises that the Declaration marked as the very ground of our laws and the political order they brought forth.

That question, suddenly made practical for the judges, would have to affect most of them as staggering. And yet, we find ourselves backing into that counter-question that the estimable Joseph Weiller posed to Giscard d'Estaing on the Constitution proposed for the European Union: Why "must atheism be the default position?" Whether they wish to face it or not, the judges will be giving answers to the question, for one way or another they may simply be confirming the assumption, as a virtual axiom, that the Constitution requires atheism as our default position.

 …

We would no doubt invite the questions that test the argument here at its seams, with the Buddhists, Hindus and others, who do not find the center of their religion in that Creator who endowed us with rights. For them we get quite far by doing what we ordinarily do—simply insisting that they accord themselves with the laws of general application, the laws that apply to everyone else. And so, yes, the laws may still forbid the burning of widows. But before getting immersed in borderline cases, it would be wise to note the marks of the outer boundary: I take it that we would never think of treating as a legitimate religion, with a "ministerial exception," a Satanic cult. Even in the current state of our culture, we can summon enough conviction to reject evil. And would it not be clear that if we reject the worshipers of Satan it is not on the grounds simply of "belief"? In a choice between claims of belief, the standards of judgment could not themselves be "belief." The judgment would have to hinge on those canons of reason that supply the ground of any of our other judgments on things right and wrong.

And is that not the cast in which the problem of Islam right now would present itself to us? That has surely become the most vexing issue, not only in our own politics but in the politics of Europe, the Middle East and even parts of Asia. It is the proverbial Elephant in the Room. Islam is counted, after all, as one of the Abrahamic religions. It claims to trace itself back to the God of Abraham, the Creator, and the source of the moral law. But what is drawn in the moral teaching from that source is a matter of enduring controversy among those who have studied the matter far longer and deeper than I have. The refinements in recounting that teaching I will have to leave to them. But the problem posed here requires no framework different from that posed in the past by the problems of Mormons and polygamy, and Hindus and suttee. I recall our late friend, Avery Cardinal Dulles, remarking on a terrorist severing the head of a victim and proclaiming, "Allah is great." No Christian would find the vindication of his principles in slaughtering in that way a human being whose sole offense was that he was not persuaded of the murderous doctrines of the assailant. To the extent that we find such mandates for the killing of the innocent connected to any sect of Muslims, or any other religion, those sects and their teaching would be as illegitimate under our laws as the sects that held to polygamy and suttee. And by the reign of the same reasoning, those religious groups would be restored to the plane of legitimate religions, along with everyone else, when they have been purged of the practices and teaching that came into conflict with the moral understanding that sustains our laws.

Theology has of course gone hand in hand with the discipline of reason. But it seems to be part of the popular understanding, and especially the understanding preserved in the media, to identify religion with faith and belief while leaving out, quite starkly, the dimension of reason in religious life, or the reasoned grounds for belief. We are quite unlikely to hear, in the media, or in our public discourse, of those strands of reason that ever come into play in the serious understanding of religion: the case for God as a first principle, the non-contingent cause of a world of contingent happenings; the arguments from design as opposed to randomness; the arguments in the vein of "other minds"—that we may know of the presence of the Creator in the way we know of the presence of "other minds" in persons we have never met; and even the kinds of arguments made by Richard Swinburne at Oxford on the case for God as a matter of "probability." None of this, of course, gives us the God who was negotiating with Abraham over Sodom and Gomorrah, or the God who died on the cross. But it does point to the explanation of why we are not dealing with a "random universe," devoid of purpose. The plain truth so massively and strangely overlooked is that faith is undergirded at many points by convictions borne of logic quite compelling and of evidence, of things actually seen and touched.

It may be jarring in some quarters to say it, but it is eminently reasonable to be a theist, and quite as reasonable to understand that not everything done in the name of religion and theism is reasonable and defensible. What else explains the refusal of the law to allow a religious exemption from laws on homicide or theft or evading the laws on child labor or paying social security taxes? But the deeper truth reveals itself when we recognize that the Catholic church has been making natural law arguments in the public arena even as the bishops invoke religious freedom. The bishops invoke the claims of religion, but the uncomfortable truth is that the Church and its allies among Protestants and Jews have become the main sanctuaries for preserving the tradition of moral truths in a society in which the currents of relativism have eroded the academy, the media, and the professions. The Church and the religious stand contra mundum today, and appear so much at odds with the world, not because they, more than others, exalt "beliefs," but because they have become the last redoubt for the insistent claims of reason. Among our major institutions they have become the main force in declaring publicly the understanding of those moral truths and natural rights that underlay this constitutional order from the beginning.

Without that underlying moral understanding and the doctrines of natural law, it would be impossible to explain a regime in which a system of law is built upon a body of first principles forming a fundamental law (or a "constitution"). Without that accompanying faith it would be hard to explain why we seem to think that human beings, wherever we find them, will have an equal claim to our sympathy and respect; that they are made in the image of something higher; that they are creatures of reason who deserve to be ruled with the rendering reasons for the laws imposed on them. Without all of that, it becomes harder to explain why we can accord to them the standing of "bearers of rights" flowing to them by nature. In short, then, without the moral understanding sustained now mainly by the religious, it would be hard to take seriously the notion that there are natural rights that command our respect because they are grounded in truths about "the human person." That is the case for religion as a natural right, and the measure of our desperation is that, in the current state of our public life, the bishops find the gravest test of their preparation and learning as they try to explain the matter to their own public in a post-literate age.

Hadley Arkes is the Senior Fellow of the Claremont Institute's Center for Constitutional Jurisprudence