Tuesday, September 13, 2011

Conscience, Truth, and Law

“Conscience” in a Culture without Truths?
by Professor Hadley Arkes
September 13, 2011
Professor Robert George [has] raised the critical issue of protection for claims of “conscience.” That question has cut most deeply, of course, on the matter of abortion. The Hyde-Weldon Amendment was brought forward under federal law to protect doctors and nurses who did not wish to become accomplices in abortion. But with Obamacare, the administration has issued regulations that notably weaken those protections, both for the provision of abortion and contraception.

And now, with the movement toward same-sex marriage, another front has opened: Once same-sex marriage was established in Massachusetts as part of the fundamental law, agencies of adoption were compelled to place children with couples of the same-sex or leave the field. Catholic agencies, faced with the challenge, chose to leave the field rather than comply.

But as Walter Olson has pointed out, these developments have moved apace even when the states have not established same-sex marriage. It has been quite sufficient to have laws barring discrimination based on “sexual orientation.” Those laws are enough to impose sanctions on photographers who express their unwillingness to take photos at a same-sex wedding. . . .

The law had a firmer clarity when it could simply take its bearings from James Madison’s understanding of religion: “the duty which we owe to our Creator and the manner of discharging it.” That Creator was of course the God of Israel, and the duties were bound up with the Laws that sprang from that Lawgiver.

With that understanding the law was anchored, not merely in beliefs, but in truths held with conviction about the Author of the Laws of nature and the moral force of those laws. The problem before us now is just what claims of “conscience” mean when they are detached from that body of truths.

We are flying an important banner when we unfurl the cause of “conscience,” but we are flying that banner in a culture that no longer understands us as we understand ourselves. Most people around us think we are simply invoking intense, personal beliefs when we invoke claims of conscience on abortion. . . .

No religious group has claimed an exemption from the laws of homicide on the strength of “beliefs” that the victims are not really human. That radical claim to “belief” has been made mainly by the religion of secularism in this country.

And what the other side cannot understand then is this: When we invoke rights of conscience in relation to abortion, we are not asking our “beliefs” to be honored. We are planting in the law the premise that the right to abortion has been founded in the most grievous errors of reason.

Read the entire column at The Catholic Thing.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. © 2011 The Catholic Thing. All rights reserved.

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