Source Link: http://www.thepublicdiscourse.com/2014/08/13732/
Robert T. Miller, an eminent Aristotelian-Thomist law scholar, bring a well-reasoned postliberal public theology to the table of Hobby Lobby.
the argument goes as this:
1. Some people have complained that the judges in the Hobby Lobby case have ‘put the main and decisive accent on the « theology » of the litigants or the « sincerity » of their « beliefs », instead of using a discipline of reason for legal guidance on the deliberation of moral matters.
2. The loophole created, as these people would argue, is that « when someone believe something with sincerity, it is better that thing is not forbidden by law. »
(Nicholas Wolterstorff and some Neuhausians would see there is some intrinsic good in such a « dense libertarian » liberal-democratic civil society, though, vis-a-vis Rawlsians.)
3. But Miller has helped us in the discussion by rightly distinguishing the « Abstract Reason » and « the Reasoning of Particular Individuals. » He argues that
conferring on public officials a general power to inquire into moral or religious truths is dangerous because such people are no better than anyone else at sorting out true beliefs from false ones and they are just as likely as everyone else to think that ideas different from their own are unreasonable or perverse.
This does not mean that sound reason does not exist or that truth is unattainable. But truth will not side with a certain group of deliberative people all the time, and for this reason we have to do something to prevent a certain group of people from always having the final say on matters of truth.
An analogy will help. The natural sciences are the work of reason, and over the last few centuries human beings have made astonishing advances in understanding the natural world. On the basis of this success, no one doubts that human reason can discover scientific truths. But a person would have to be daft to support, on this basis, setting up a committee of eminent scientists with the power to decide, in a way binding on other people, which scientific propositions are true and which are false. The reasons are obvious: even professional scientists, when dealing with purely scientific questions, are subject to common human failings, including pride, envy, and all manner of prejudices, which can readily lead them into error. The history of science is replete with such examples, such as the early twentieth-century physicists who resisted the big bang theory because of its perceived theistic implications.
If this is true of natural science, how much truer is it of morality and religion, where the inquirer’s biases and self-interest will have much greater influence on his reasoning? We all know people (often ourselves) who have adjusted their moral beliefs when they have become inconvenient. We all know people (often ourselves) who hold certain moral views for no better reason than that we learned them from our parents. For such reasons, and because of the inherent difficulty of many moral and religious questions, there is scant basis to think that any particular person is likely to reach correct results on a given question, even when there is a unique, rationally determinable answer to the question. This is why there is so much disagreement on normative questions, even among intelligent and informed people of good will.
4. In devicing governmental institutions, therefore, it’s critically important
- to make it difficult to enact laws without very broad support (broad support reduces the chance of error),
- to allow errors to be corrected relatively easily
- to have a system of checks and balances that requires approval by different officials answerable to people in different ways before effecting laws
5. The Religious Freedom Restoration Act (RFRA), under which Hobby Lobby was decided, is part of such a system in that it provides additional protection for religious freedom.
Under our [U.S.] Constitution, enacting a federal law requires the assent of both houses of Congress and the concurrence of the president (subject to Congress’s overruling a presidential veto by a two-thirds vote of both houses). This system by itself affords real protection to minorities whose religious practices may be restricted by legislation: they have the opportunity to participate in the political process at various points to affect the legislation. Beyond that, however, RFRA provides that, if a federal law substantially burdens a person’s exercise of his religion, the government must convince a court that applying the burden to the plaintiff furthers a compelling governmental interest by the least restrictive means available. This is a protection of religious freedom over and above the protections available to minorities in the ordinary legislative process.
The keywords are: « convince », « compelling governmental interest », and « least restrictive means available. »
In the procedure, people adversely affected by the law will be allowed at least two chances of hearing. The first one is at the legislative stage before the proposed law has been finally signed by the president. This is what is usually called ‘lobbying.’ The second one is at the juridical stage- thanks to RFRA, when the judges will review if such a a federal law that burdens a person’s exercise of his religion could be proven to furthers a substantive governmental interest by the least restrictive means available.
6. Miller’s sophisticated argument lies right between his statements that
- judges are not good at determining moral and religious truths
- it is good that judges are entitled [by RAFA] to determine whether a law furthers a compelling governmental interest by the least restrictive means on individual religious freedom
For to have judges to determine what « substantive interest » and « least restrictive means available » are is not the same to empower them to determine « moral and religious truths », namely, whether a law is « justified or unjustified » , good or bad, right or wrong, wise or foolish.
This does not mean that when evaluating « interest » and « means of restriction » the judges will never touch moral issues and make moral judgments, but with these guidelines, the institutional utterance of forceful words will tend to be much more regulated and accountable. The goal is exactly to cabin the judges’ discretion in ways that will tend to produce the best reasonable results on average.
7. « There are some immoral actions that it would be immoral to make illegal. » This is Miller’s central contention, and it is also one of the central contention of postliberal public theology. As the Aristotelian-Thomist postliberal McIntyre’s virtue ethics would tell us, « To Become Virtuous, One Must Choose Good Actions Freely. »
Part of becoming virtuous, part of becoming a good human being, is identifying and choosing good actions for oneself. If one’s neighbors, or the state, or even God himself were always at hand to point the way and then coerce a man into doing good and avoiding evil, virtue would become impossible: a man might always choose good actions, but he would not become a virtuous man.
Surely there are gravely immoral conduct causing grievous harm to others that on morally grounds should be legally restricted (such as murdering), but we do not for morally permissible reasons force the rich people to give a fraction of their wealth to the poor, or to restrict the right to marriage to couples who demonstratively to have mature quality of love.
« The classic tradition has made room for ‘prudence’—for not applying the principles of right in their stringency to every case” because sometimes “it’s necessary for statesmen to make an accommodation with evil for the sake of compressing it, as the American founders did with slavery. »
This ‘prudence’, or φρόνησις in the original Greek language, is what we should soundly bite and reflect upon.