When Judges Believe in 'Natural Law'

At least two Supreme Court justices think there's a divine legal code underlying the Constitution. How will this influence the outcomes of Hobby Lobby and other cases where the plaintiffs claim a moral high ground?
At the annual Red Mass in 2012, a clergyman chats with Justice Clarence Thomas after calling on the Holy Spirit to guide judges, attorneys, and other legal professionals. Thomas's belief in natural law came to light during his 1991 Senate confirmation hearings. (Reuters)

This year the U.S. Supreme Court will rule on at least two cases that weigh constitutional and statutory law against religious or moral beliefs. Both involve challenges to the Obamacare provision that requires for-profit companies to offer health insurance policies that cover contraception. In Conestoga Wood Specialties Corp. v. Secretary, etc., a national wood-supply company and its owners assert that they are entitled to an exemption based on their Mennonite owners’ view that contraception “is intrinsic evil and a sin against God to which they are held accountable.” In Hobby Lobby Stores, Inc., et al. v. Sibelius, Hobby Lobby and its owners argue that they operate under Christian principles and that it would be “immoral” for them to provide contraception coverage.

The court is also likely to hear a third case: In Gilardi v. U.S. Dept. of Health and Human Services, a court of appeals case decided in November, the court held that the contraception mandate violated the constitutional and statutory rights of the plaintiffs, two Roman Catholic brothers who own a food-processing company. The judge who wrote the opinion, Janice Rogers Brown, has frequently been mentioned as a potential Republican candidate for the U.S. Supreme Court.

According to a 2006 New York Times article by David D. Kirkpatrick, Brown “has often argued that judges should look to higher authority than precedent or man made laws in making decisions.” Her opinion in the Gilardi case relies explicitly on “moral” law in interpreting the Constitution and statutes. Forcing the Gilardi brothers to comply with the contraception mandate, she wrote, would be a “compelled affirmation of a repugnant belief.” She said the Affordable Care Act forces the plaintiffs to make a “Hobson’s choice”: Either they refuse to provide contraception coverage and pay a large monetary penalty, “or they become complicit in a grave moral wrong.”

If Judge Brown believes that constitutional and statutory law must yield to a “higher authority,” she isn’t alone. In 1991, shortly before Supreme Court Justice Clarence Thomas’s Senate confirmation hearings, Harvard Law School professor Laurence H. Tribe wrote in The New York Times that Thomas was “the first Supreme Court nominee in 50 years to maintain that natural law should be readily consulted in constitutional interpretation.” Thomas was repeatedly grilled on this point during the hearings that followed. Though he acknowledged that the Constitution is “[t]he positive law,” he added, “We look at natural law beliefs of the Founders as a background to our Constitution.”

Many natural-law believers cite Thomas Jefferson’s Declaration of Independence to support their beliefs. In the familiar opening lines, Jefferson wrote:

When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

And then:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.

In this powerful language, Jefferson cited every possible source of the rights the new country was claiming. They came from “powers of the earth,” from “laws of nature and of nature’s God”; they were “self evident,” and “endowed by [a] Creator.” By investing the rights with a divine origin, the Declaration elevated them. These were not mere political rights. They were higher, transcendent rights that were “unalienable.” If the rights were God-given, they could neither be denied nor withdrawn by the target of the Declaration, Britain’s King George III.

The Declaration’s natural-law position embraced an ancient tradition of religious thought. Over 500 years earlier, Thomas Aquinas, the 13th-century Dominican priest and theologian, had made natural law a cornerstone of Roman Catholic philosophy. In the centuries that followed, natural-law advocates grounded their theories on religion-based theology, or simply found them “self evident,” the phrase Jefferson used. None of these believers attempted to provide an empirical basis for natural rights.

Presented by

Anthony Murray practices civil and criminal law at Loeb & Loeb LLP in Los Angeles. He is a former president of the State Bar of California and a former part owner of the Long Beach Barracuda, a Double-A baseball team. 

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