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.
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.
If natural law were regarded as simply a religious creed, it would not conflict with the positive laws embedded in our Constitution and laws. The threat lies in the use of natural law by courts in judicial decisions. Invoking it in construing the Constitution and statutes raises an obvious question: If natural law exists, what is in it? Is it a blank slate on which anyone may write subjective beliefs? Does it include religious dogmas? If so, of what religions?
Importantly, neither Jefferson nor any of the other Founders claimed that the Declaration’s natural-law concepts were incorporated into the Constitution. Indeed, the Constitution explicitly rules out any such suggestion. The Supremacy Clause of the original 1787 document provides that the Constitution and the laws and treaties made “in pursuance thereof … shall be the supreme law of the land.” It doesn’t say that they shall be supreme unless countermanded by a “higher law.”
Supreme Court Justice Oliver Wendell Holmes emphasized the danger of invoking divine morality when he wrote, in a 1917 opinion, “The law is not a brooding omnipresence in the sky.” He elaborated a year later, in a Harvard Law Review article titled “Natural Law.” Holmes noted we all have impulses that convince us, as individuals, of what is and is not true. He called those impulses a system of “Can’t Helps”: We can’t help believing them because, to us, they seem so true. “Men to a great extent believe what they want to,” Holmes wrote, “although I see in that no basis for a philosophy that tells us what we should want to want.”
Addressing the subject of “jurists who believe in natural law,” Holmes wrote that they “seem to me to be in that naïve state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere.” But he argued that this notion—“our truth is cosmic truth”—was entirely unfounded. Among all of our wishes, Holmes pointed out, the desire to live probably ranks the highest. But does that fundamental urge give us a right to life? No, said Holmes: “The right to life is sacrificed without a scruple not only in war, but whenever the interest of society, that is, of the predominant power in the community, is thought to demand it.” At that point, he wrote, “the sanctity disappears.”
Like Thomas Jefferson, who famously called for a “wall of separation between church and state,” Holmes believed that personal beliefs had no place in judicial decisions. Justice Thomas apparently disagrees. In a 2005 case, Cutter v. Wilkinson, Thomas wrote in a concurring opinion that “Congress need not observe strict separation between church and state or steer clear of the subject of religion. It need only refrain from making laws ‘respecting an establishment of religion.’”
Thomas is not the only Supreme Court justice who believes our law has a divine origin. In a 2005 New Yorker article, “Supreme Confidence,” Margaret Talbot quoted Justice Antonin Scalia as saying that “government carries the sword as ‘minister of God’ to execute wrath upon the evildoer” and that the Ten Commandments are a “symbol of the fact that government derives its authority from God.”
But in the courtroom, the only commandments that matter are the Constitution and the laws enacted pursuant to it. A government that tries to invoke divine law ceases to be of, by, and for the people. As Supreme Court Justice Harry Blackmun noted in a concurring opinion in the 1992 case Lee v. Weisman, “Democracy requires the nourishment of dialog and dissent, while religious faith puts its trust in an ultimate divine authority above all human deliberation.” The moment a judge turns to natural law, democracy vanishes.