Hadley Arkes is the Ney professor of jurisprudence at Amherst College. He has written an article in the journal, “First Things” entitled, “Recasting Religious Freedom”.
Arkes has made some important legal observations about the current arguments involving the religious who have certain scruples about “Obamacare” and the court system.
Arkes cites a few cases that have shaped the arguments about religion in the public sector. He wrote: “It was not until 1925 that the provision on free speech in the fist amendment would be applied by the Supreme Court to the states”. He continued, “And it wasn’t until 1940 in Cantwell v. Connecticut, that the court would apply to the states the provision on the ‘free exercise’ of religion”.
Importantly, Akkes reminded us that in the Everson case, Justice Hugo Black took the 1st amendment as his lever for inverting the establishment clause, which instead of barring the federal government from interfering with religion in the states, would work to drive religion effectively from the public square.
The trend has been, in Arkes’ words, “one of reducing ‘religion’ to a ‘body of beliefs’.”
The upshot has ben that people claiming to be on the side of religious freedom are appealing for a release from the provisions of the Affordable Care Act on the strength of what they claim to sincerely to believe. They have backed into what Arkes cites as John Courtney Murray’s “take” on identifying religion with opinions rather than “truths”. They are claiming their beliefs as that which gives them exemptions from the law.
Whatever your opinion of the Affordable Care act AKA “Obamacare”, the nature of the argument of religious people is troubling. Instead of defining religion on the basis of perceived truth, they have allowed the secular world to define them and they have used secular arguments to set the terms of the argument.
If the religious are to have any relevance in the public sector, the public square, we cannot allow the public sector to define us or our doctrine or we truly run the risk of being second rate ethical and moral teachers rather than stewards of the mysteries of G_d.
But, what do you think?