America, Religious Freedom, and the Natural Law

A recent George Weigel commencement address.

Defending Religious Freedom in Full: A Generation’s Challenge

“[A] special word of thanks, today, to the parents of today’s graduates — and the grandparents, and the other family members — who have helped bring you, the Class of 2012, to this pivotal moment in your lives.

natural lawyerToday is, by its nature — and I think at Benedictine College we can still speak of the “nature” of things! — a day of celebration, a day of remembrance, and a day of thanksgiving.

We share, today, a unique and critical moment in the history of the Catholic Church in the United States. At the time of the American Revolution, Catholics accounted for less than one per cent of the population of the thirteen colonies — a tiny population clustered primarily in my native Maryland and a few Pennsylvania counties. Yet within a few decades of the Founding, the great tides of European immigration that began to wash onto the shores of the new nation – those “huddled masses yearning to breathe free,” as they are memorialized on the Statue of Liberty — brought millions of Catholics to the New World: at first, Irish and Germans; later, Italians, Poles, Czechs, Slovaks, Ruthenians, and the many others who wove their lives, their traditions, and their aspirations into the rich tapestry of American democracy. Those 19th century immigrants felt the sting of anti-Catholic prejudice, even anti-Catholic violence. But notwithstanding that bigotry, Catholics have, I believe, almost always felt at home in these United States.

We have felt at home because we have thrived here; with the exception of immigrant Jews, no religious group has prospered more in America than the Catholic community. Yet Catholic “at-homeness” in the United States has had a deeper philosophical and moral texture. One of the great Catholic students of American democracy, Father John Courtney Murray, described that side of the Catholic experience of America in these terms, in We Hold These Truths: Catholic Reflections on the American Proposition, a book published fifty-two years ago:

In this second decade of the third millennium, there are many grave questions be debated in America: the question of the legal protection of innocent human life from conception until natural death; the question of long-term strategy and morally worthy tactics in the war against Islamist jihadism; the question of how we attend to the sick and how we manage immigration; the question of fitting public policy ends to fiscal means; the question of building an appropriate regulatory structure around the biotech revolution so that the new genetic knowledge leads to genuine human flourishing rather than to a stunted and manufactured humanity; the question of the health of American civil society and of the American national character; the list goes on and on. The very question of what should be on “the public policy agenda,” and what ought to be left to the private and independent sectors, is being as vigorously contested in our country today as at any time since the Great Depression and the New Deal. Yet amidst all this churning, the gravest question for our public culture is whether what Father Murray called the “American consensus” — that ensemble of “ethical and political principles drawn from the tradition of natural law” — still holds.

There are reasons to be concerned.

In October 2009, the nation’s political newspaper of record, the Washington Post, ran an editorial condemning what it termed the “extremist views” of a candidate for attorney general of Virginia who had suggested that the natural moral law was still a useful guide to public policy. The Post, determined to nail down the claim that homosexual orientation is the equivalent of race for purposes of U.S. civil rights law, deplored this as “a retrofit [of] the old language of racism, bias, and intolerance in a new context.” Yet the Post’s own claim was, to adopt its language, “extremist.” For it suggested that the label “bigot” ought to be applied to notable historical personalities who had appealed to the natural moral law in causes the Post would presumably regard as admirable: figures such as Thomas Jefferson, staking America’s claim to independent nationhood on “self-evident” moral truths derived from “the laws of nature”; or Martin Luther King, Jr., arguing in his Letter from Birmingham Jail that “an unjust law is a human law that is not rooted in eternal law and natural law”; or Pope John Paul II, who, at the United Nations in 1995, suggested that the truths of the natural moral law — “the moral logic which is built into human life,” as he put it — could serve as a universal “grammar” enabling cross-cultural dialogue.

Appeals to the natural moral law we can know by reason underwrote the American civil rights revolution. Appeals to that same natural moral law underwrite the pro-life movement, the successor to the civil rights movement. And appeals to the natural moral law have underwritten U.S. international human rights policy for the past thirty years. Until, that is, December 2009, when the Secretary of State of the United States, in a speech at Georgetown University, emptied the concept of religious freedom of everything save the “freedom to worship” while asserting, in a catalogue of what she claimed were fundamental international human rights, that people “must be free…to love in the way they choose” — which “choice” must, presumably, be protected by international human rights covenants and national and local civil rights laws.

This speech, as things turned out, was one harbinger of an assault on religious freedom that continues to this day — an assault that imagines “religious freedom” to be a kind of “privacy right” to certain leisure-time activities, but nothing more than that. This dramatic misconception of religious freedom was evident in the present administration’s attempt to re-write federal employment law by dissolving the “ministerial exemption” that had long protected the integrity of religious institutions. It was evident in the administration’s refusal to continue funding the U.S. bishops’ efforts to help women who had been victims of sex-trafficking (because the Church refused to provide abortion as part of that work). And it has been most dramatically evident in the January HHS mandate that requires all employers (including religious institutions with moral objections and private-sector employers with religiously-informed moral objections) to facilitate the provision of contraceptives, sterilizations, and abortifacient drugs like Plan B and Ella to their employees.

All of this suggests that one of the great challenges of your generation, my fellow-members of the Class of 2012 of Benedictine College, will be to rise to the defense of religious freedom in full. And, indeed, what could be a more apt challenge for the graduates of a college named in honor of the saint whose inspired vision and evangelical vision saved the civilization of the classical world when it was in danger of being lost? What better challenge for the graduates of Benedictine College, named for one of the patrons of Europe, whose life-work saved the West as a civilizational enterprise built from the fruitful interaction of Jerusalem, Athens, and Rome?

For the defense of religious freedom in full which you must mount must be both cultural — in the sense of arguments winsomely and persuasively made — and political, in that you must drive the sharp edge of truth into the sometimes hard soil of public policy.

What is this “religious freedom in full” that you must defend and advance?

It surely includes freedom of worship, but it must include more than that; the Kingdom of Saudi Arabia is content with freedom of worship, so long as the Christian worship in question takes place behind closed doors in the American embassy compound in Riyadh. Religious conviction is community-forming, and communities formed by religious conviction must be free, as communities and not simply as individuals, to make arguments and bring influence to bear in public life. If religiously informed moral argument is banned from the American public square, then the public square has become, not only naked, but undemocratic and intolerant. If, on the other hand, religiously informed moral argument is welcome in public life, then we have the possibility of rebuilding, not a sacred public square (a goal the Catholic Church rejected at the Second Vatican Council), but a civil public square, in which tolerance is rightly understood as differences engaged within a bond of civility formed by a mutual commitment to reason.

It is a matter of both political common sense and democratic etiquette that Catholics in public life should make our arguments in ways that our fellow-citizens, who may not share our theological premises, can engage and understand — which is to say, in our particular case, that Catholics should bring to bear in public life the moral truths we hold through arguments framed by the grammar and vocabulary of the natural moral law. That is what John Paul II did at the United Nations in 1979 and 1995. That is what Benedict XVI did at the in 2008 and in the German Bundestag in 2011. That is what the bishops of the United States, and lay Catholics in their millions, have done over the past four decades in defense of life. And if there are some who consider such appeals to the natural moral law a form of tarted-up bigotry, well, we shall simply have to inform them, politely but firmly, that they are mistaken, and then demonstrate why.

Religious freedom in full also means that communities of religious conviction and conscience must be free to conduct the works of charity in ways that reflect their conscientious convictions. This is neither the time nor the place to discuss the problems that have been posed by tying so much of Catholic social service work and Catholic health care to government funding — save, perhaps, to note that these problems did not exist before the Supreme Court erected a spurious “right to abortion” as the right-that-trumps-all-other-rights, and before courts and legislatures decided that it was within the state’s competence to redefine marriage and to compel others to accept that redefinition through the use of coercive state power. What can be said in this context, and what must be said, is that the rights of Catholic physicians, nurses, and other health care professionals are not second-class rights that can be trumped by other rights-claims; and any state that fails to acknowledge those rights of conscience has done grave damage to religious freedom rightly understood. The same can and must be said about any state that drives the Catholic Church out of certain forms of social service because the Church refuses to concede that the state has the competence to declare as “marriage” relationships that are manifestly not marriages.

My fellow-graduates, your defense of religious freedom is going to require the skills of reasoning and argument that you acquired here at Benedictine College. It is going to require that some of you accept the risk and challenge of public service in elective office. And it going to require all of you to support those who take, as their vocation, the defense and promotion of religious freedom in full.

This will be the work of a lifetime. But it must begin sooner rather than later, for the threats to religious freedom among us are great, and many of them are deeply embedded in postmodern American culture. This work will not be without cost. Some of you may suffer various forms of martyrdom in taking up this cause: the martyrdom of ridicule, of being labeled “intolerant” and “bigoted”; the martyrdom of career paths blocked and promotions denied because of your adherence to the moral truth of things; the martyrdom of political defeat, or a judicial case well-argued but lost. Fidelity to the truth can have its costs. Yet as Blessed John Paul II taught young people all over the world, those costs are worth paying because the truth sets us free in the deepest sense of human liberation. Thomas More, patron saint of Catholics in public life, was never more a free man than when he bent his neck to the executioner’s axe in free adherence to the truth.

Let us pray that it does not come to that for any of you, or indeed for any of us. But let us also be clear on the stakes for which your generation is playing, which are nothing less than the long-term integrity of American democracy. So: be the culture-forming heirs of St. Benedict that your education here has prepared you to be. Be the champions of religious freedom in full. In doing that, you will give America a new birth of freedom — freedom tethered to truth and ordered to goodness, freedom that sets us free in the noblest sense of human liberation.

Godspeed on your journey.

Delivered May 12, 2012 at Benedictine College, Atchison, Kansas.

Tom Van Dyke

Tom Van Dyke, businessman, musician, bon vivant and game-show champ (The Joker's Wild, and Win Ben Stein's Money), knows lots of stuff, although not quite everything yet. A past contributor to The American Spectator Online, the late great Reform Club blog, and currently on religion and the American Founding at American Creation, TVD continues to write on matters of both great and small importance from his ranch type style tract house high on a hill above Los Angeles.


  1. “Martin Luther King, Jr., arguing in his Letter from Birmingham Jail that ‘an unjust law is a human law that is not rooted in eternal law and natural law'”
    And here we have the ultimate circularity and futility of “natural law” argument. For I can say that to deny the right to same sex marriage is unjust, and therefore it cannot be rooted in natural law. Which brings us back to the basic argument of one person claiming that justice demands gay marriage, and the other denying it.

    And thus, ultimately, a claim that natural law opposes same sex marriage is to claim that providing unequal treatment for homosexuals is just. Which is why I think it can be fair (if perhaps harsh) to call opposition to same-sex marriage bigotry, even if grounded in a claim of “natural law”.

    • Weigel isn’t speaking of gay marriage per se, but the constitutional right to oppose it. And yes, that folks like yourself will call them bigots for thinking and doing so, but he urges them not to be bullied into silence and inaction.

      As for “natural law” establishing gay marriage out of “fairness,” I think you’re speaking of political and “positive law,” or at least Weigel would make that distinction.

      • I wouldn’t characterize opposition to SSM as NECESSARILY being grounded in bigotry. I’m perfectly willing to stipulate that many oppose SSM from sincerely held religious belief. And they have every right to articulate their arguments in the public square and attempt to persuade others to their point of view. That’s clearly beyond reasonable dispute.

        What they don’t have is a particular right to get their way on that basis and to feel particularly pissed upon if they don’t prevail. There’s nothing special about religious ideas that give them primacy in public debate, particularly when other faith groups hold different views.

        I think the contraception kerfuffle was an edge case due to the nature of the institutions in question, but I’m not particularly interested in litigating that here.

        I really despise appeals to “natural moral law”. When you strip the BS away it really just boils down to a thinly veiled appeal to authority. It’s a way of saying in effect, “Hey. It’s not ME that’s saying this. It’s not even my church or scriptures saying it. It’s the NATURAL LAW.” Libertarians pull this crap a lot too and it’s really disingenuous.

        • Wait, so you don’t think there is a moral law? Or do you merely think that the moral law does not consist entirely of natural facts: i.e. there are some non-natural facts that make up the moral law?

          • I believe the boundaries of “natural law” would first have to be established in order to proceed.

          • Natural law seeks an accounting of the whole of what man is. Boundaries could only be set artificially, and that would frustrate the approach and the purpose. Natural law isn’t just legalism, in fact it’s anything but.

      • “Weigel isn’t speaking of gay marriage per se, but the constitutional right to oppose it.”
        Really? Weigel was talking about a Washington Post editorial that was talking about a candidate for Attorney General, but somehow I doubt the Post was criticizing that candidate for invoking natural law to defend the free speech rights of gay marriage opponents, independent of his approval or disapproval of their message.

        You could use natural law as basis for speech, and indeed people did, historically. But most people who use “natural law” rhetoric these days are talking about something else.

        “As for “natural law” establishing gay marriage out of “fairness,” I think you’re speaking of political and “positive law,” or at least Weigel would make that distinction.”
        A clever sleight of hand. But I wasn’t claiming that natural law establishes gay marriage. I don’t think natural law establishes (civil) marriage at all, and I think a close examination reveals that most aspects of civil marriage are positive law, regardless of the participants. Rather, it’s enough to say that natural law doesn’t prohibit gay marriage.

        • Those are good arguments, but the state does exercise a hegemony over society. On some level, a parochial school, for instance, will be obliged to recognize a gay couple as “married.” The entity called “society” is a tertium quid between state and church, and indeed, it was “ecclesiatical” courts that once governed marriage and family. [A different topic I have half-written somewhere. Perhaps soon.]

          So I think your observation that marriage laws are mostly positive law and that natural law doesn’t prohibit gay marriage almost holds, but the reply is that natural law holds that gay marriage simply isn’t “marriage” atall, since it lacks a teleology, hence his complaint that the state is arrogating the definition of marriage away from society is a valid one.

          As for Rod’s rejection of natural law theory in the first place, of course we are free to do so. The modern project is all about the rejection of natural law in favor of man’s laws. The problem comes when man’s laws do not suit our druthers. This is why MLK appealed to the authority of natural law, a higher law. We tend to do that when we want to give cosmic muscle and validation to our rational arguments.

          Good and wise men, in all ages, have embraced a very dissimilar theory. They have supposed, that the deity, from the relations, we stand in, to himself and to each other, has constituted an eternal and immutable law, which is, indispensibly, obligatory upon all mankind, prior to any human institution whatever.

          This is what is called the law of nature, “which, being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity, if contrary to this; and such of them as are valid, derive all their authority, mediately, or immediately, from this original.” Blackstone.

          Upon this law, depend the natural rights of mankind, the supreme being gave existence to man, together with the means of preserving and beatifying that existence. He endowed him with rational faculties, by the help of which, to discern and pursue such things, as were consistent with his duty and interest, and invested him with an inviolable right to personal liberty, and personal safety.

          —Alexander Hamilton, The Farmer Refuted

          • “So I think your observation that marriage laws are mostly positive law and that natural law doesn’t prohibit gay marriage almost holds, but the reply is that natural law holds that gay marriage simply isn’t “marriage” atall, since it lacks a teleology, hence his complaint that the state is arrogating the definition of marriage away from society is a valid one.”
            You can add as many layers of careful philosophizing as you like, but in the end, it comes down to antipathy to gay people. To place the responsibility with society instead of the state changes nothing; a society that denies gay marriage is a society that is hostile to homosexuality.

            The standard argument is that the teleology of marriage is solely to create and raise children, and thus same-sex couples are excluded. But that’s simply not the case, certainly not now and arguably not ever. Most obviously, couples who are childless, who do not intend to have children, and indeed are incapable of having children, qualify for marriage. If same sex marriages are not marriages, then what of marriages involving post-menopausal women? If children are the only purpose, why does the marriage not dissolve as a matter of course once the children leave the household?

          • This is a good discussion, but I don’t think this necessarily holds:
            …but in the end, it comes down to antipathy to gay people.
            Unless we can say that the primary activity of marriage is sexual, then there is no evidence to support the concept that unmarried gays will be less homosexual.

          • This is the part where they overturn the chessboard.

          • You should force them to take the burden of proof! Then, when they take it, explain that you’re not the judge of the issue.

            That’s a *FANTASTIC* tactic.

          • > You should force them to take the burden of proof!
            > Then, when they take it, explain that you’re not the
            > judge of the issue.
            > That’s a *FANTASTIC* tactic.


          • Yet the chessboard is overturned.

            Not awesome atall, gentlemen. Somebody poo-pooed in the punch.

            And the tactics are usually from the pro- side, JB, to shift the burden of proof. When accepting the burden of proof, the pro- side’s arguments can only be assertions:

            sexuality ~ race
            the genders are fungible

            which are not self-evident truth.

            Therefore, the burden is shifted to the opponents: what are your arguments against???

            Regardless of the quality, thoughtfulness or sincerity of the reply, the retort is always the same:

            You can add as many layers of careful philosophizing as you like, but in the end, it comes down to antipathy to gay people.

            And that’s the name of this tune, brother JB. A big plopper right in punchbowl, party’s over, thank you and good night.

            Look at the very first comment in this thread, PatC. That was the tactic from the first.

            Not *FANTASTIC* atall, JB. Comfortably numb.

          • When I accepted the burden of proof, I couldn’t get so much as an agreement on the definition of terms.

            That made me suspect that the chessboard was tipped before I even sat down to play and I wasn’t supposed to notice.

          • JB, are you unaware “redefinition of marriage” is the opposition’s line in the sand? You therefore cannot play the definition game, which has its roots in sophism, to exploit the multiple meanings of words.

            I stipulated that legally, marriage is whatever the state sez it is. Fer crissakes, JB, “life” itself is whatever the state sez it is. In the womb, brain death, eventually “quality of life?”

            This natural law thing is about the whole magillah of the human person, man. Definitions are just words, laws are only laws. Neither are truth, only approximations of truth.

          • I stipulated that legally, marriage is whatever the state sez it is.

            If you want to start there, I’m more than happy to point out the state saying that African-Americans and Whites couldn’t marry, and then we had a Supreme Court ruling and now we look at the people who opposed that particular flavor of “marriage is whatever the state sez it is” a very particular way and snicker as we refer to them… and then, from there, talk about how the state is currently looking into the Same Sex thing and how it looks like there’s going to be a Supreme Court ruling about that as well.

            Would that paragraph have been particularly controversial? Would the sentence that wasn’t at the end of the paragraph have been particularly controversial?

            Would we be in disagreement at all in that particular conversation?

          • JB, you hurt me by not reading me fully.

            race ~ sexuality

            is not a self-evident truth. I cannot accept your opening premise and assertion. If that makes me a bigot, well, it always ends up there anyway. Let’s cut to the chase as our friend Fnord did in Comment #1. There’s an honest man, eh? The only smart one among us.

          • Sure, race isn’t even *CLOSE* to sexuality.

            But I’m using the definition that you gave me. If legal marriage is, and let me quote you here, “whatever the state sez it is”, then we get to talk about times that the state said that it is stuff. And it’s not even like I’m pulling stuff from 1820 and asking you to defend James Monroe level crap. I’m talking about what the state said it was in living memory.

            Now, of course, if you’d like to use a different definition of marriage, that would have the possibility to really stymie my ability to appeal to stuff that the state has done in living memory to keep marriage… something.

            Now, if you want to keep your definition but not talk about recent times that the state has said that marriage is this or that or the other (and, good lord, I’d have to say that you’re abusing the whole “Jaybird has the burden of proof” concept by doing that), I’ll instead visit Canadia.

            Let’s say that you’ve decided to have a lovely week in lovely Detroit, Michigan. It’s a cross between Las Vegas and Branson, I hear. On Thursday you say to the wife “Hey, there’s a nice little steakhouse across the bridge over in Windsor. We can get a steak, visit the art museum… make a day of it!” You guys cross the border (hey, you know why the US isn’t going to be in the Olympics in 2012?) and, here’s the question:

            Are you still legally married?

            I’m sure you saw this next question coming a mile away but let’s ask it anyways. Wade and Wade (married, of course) are in Windsor and they talk about how they’ve heard about how nice Detroit is these days. “It’s really turning around! Hey, let’s go to the Detroit Zoo! Make a day of it!”

            They cross the border and, after getting the crap kicked out of them by the border guards, finally make it into Michigan.

            Are they still legally married?

            (I ask because I know what your answer is to the state of you guys in Windsor… I don’t know your answer to the last question, though.)

          • JB, I find law interesting as an exercise [I’m a headhunter for lawyers and chat law all the time with my clients] but my real interest is political philosophy. I care much more about good governance. If the duly elected representatives of the people of the Great State of New York established gay marriage and the people are OK with it, mazel tov. The republic will survive somehow.

            As for your hypothetical, my eyes sort of glazed over, sorry. Apply it to polygamy or any other marriage variant and it’s Katy bar the door.

          • Apply it to polygamy or any other marriage variant

            Ooooh! I can think of a marriage variant from living memory where an officer of the law said “that’s no good here!” to a person who held up a marriage certificate!

            Fun question: how “married” were these people in question?

          • Thx for the discussion, Jaybird. Law prof Hadley Arkes’ Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law has been sitting around for a year, and you have sent me to it.

            Not sure if I’m on board, but like all good stuff, it’s got good stuff.

            As for your direct question, I believe it’s been asked and answered numerous times in our colloquies. It’s a legal “marriage” wherever it’s recognized, no?

          • So it’s legally recognized in the Canadas and not legally recognized in the US. Or, at least, Michigan.

            I imagine that the marriage would be legally recognized in Iowa, Massachusetts, and the other states that have legalized Civil Unions or been forced to recognize SSM.

            Given the definition of legal marriage that we’re using (one that will remain true no matter what Supreme Courts do, no matter what legislatures do, no matter what people do), I can only imagine that this marriage debate will follow the template that the last major marriage debate held.

            Does that seem an unreasonable conclusion?

          • You mean where somebody gets called a bigot? Hell, we cut to that chase with the first comment!

          • While that may have been the question you wanted to answer, that was not the question that I asked.

          • If you’re going to play the ominous and oracular thing, you get what you get. I’m doing my best to read the auspices, but mostly they look like chicken guts.


  2. Makes me glad I didn’t go to Benedictine.

    There’s a time and a place for that sort of speech, and it’s not at a graduation ceremony. I’m happy that my graduation speech was something vaguely inspiring and mostly forgettable.

    • I’ve never learned an appreciation for the forgettable and boring.

      For those who have the ears to hear, Weigel’s address is much more than “vaguely” inspiring. [Your mileage clearly varies, but thx for reading.]

  3. Hmm. I’m not usually impressed by George Weigel–among other things, his understanding of my precious postmodernism is little more than a caricature–but I must say that, given his audience, this speech did exactly what it should have. He stated a threat, gave it historical context, and then suggested key offensive and defensive strategies: explain and champion “natural law reasoning” and a protect a broader policy of religious freedom. Were I the typical graduating student at Benedictine, I’d have been inspired.

  4. First a nitpick – that blockquote can’t possibly be from a book written a half century ago, though that’s the way the lead-in reads.

    Mr. Weigel is kinda defining martyrdom down here, isn’t he? Moreover he’s moving the goalposts. He starts with “If religiously informed moral argument is banned from the American public square, ” but then ends with “the martyrdom of political defeat, or a judicial case well-argued but lost. ” He and his ilk are *not* banned from the public square. They may be heard, and they may – they will probably – lose. Tough tiddlywinks.

    And what people said above about question begging. If a religious precept was to treat black people badly, would that make it justified? (and not even talking about Mormons here, talking about, for instance, what certain (but certainly not all) Christian sects thought about slavery in the antebellum South)

    And that said, abortion is a categorically different moral issue than gay marriage.

    • The natural lawyer rejects the analogy between race and sexuality, for all the familiar reasons.

      • Fair enough. Of course, marriage is decidedly unnatural, so we can pre-empt the whole argument from the get go.

        • Many or most of the responses are to attempt to pre-empt it. No go. Marriage of one sort or another—pairing off rather than “it takes an orgy to make a child”—is a constant in human history.

          It’s not so much a question of matrimony as patrimony. It matters who your father is. Matrimony is for the sake of the child, and secondarily, for the woman responsible for the child.

          As we know, men are dogs.

          The ecclesiastical courts were how “society” protected the child and mother. As we dispensed with religion’s community role—and it had quite a powerful influence—we have only the civil courts. As we can see in this 21st century, their effect is not very powerful: fatherless children are at an all-time high for our culture, and one need not be a moralist to say this is bad. One need only look at the stats.

          • But isn’t “marriage of one sort or another” sort of admitting the fact that this institution has never really been the monolithic entity that anti-SSM folks label it. Pairing off does not require marriage. And paternity does not require marriage. And making people responsible for their children does not require marriage. It may make it much easier for the state to bind a father to a child (still debatable), but not required. Why not make marriage required for two people who produce a child?

            This whole concern over the responsibility for offspring is one thing. I’m for that. Why that has to necessarily preclude two same-sex people from entering into a civil contract that has the same benefits and guarantees as a civil contract between two opposite sex people simply by virtue of the fact that they can, but might not necessarily, pro-create seems like it tries to shoehorn the idea of marriage into a shoe that also includes pro-creation simply to exclude same-sex people, even though it is obvious that, whereas that Venn diagram has a degree of sizable overlap, pro-creation and marriage are not dependent on one another for their existence. Nor is marriage and responsibility for offspring dependent. What, after all, is child support for?

          • What Mr. boggs said. In any case, we’re looking for more marriage here, not less. Also, it still seems a mistake to ‘blame’ or otherwise connect gay marriage with illegitimate children. It’s like banning Oreos because some people are diabetics.

          • Mr. Boggs, societal pressure could compel parents to marry not all that long ago, thereby binding father to child, which is society’s only real compelling interest in the whole marriage business. Now “society” is pretty toothless, and the number of fatherless grows exponentially.

            But this is farther afield than the Weigel speech and my reason for posting it: it’s not whether the Catholic/traditional/natural law position is right or wrong, it’s that the argument is valid, as valid as any other.

            The Roman church has been outvoted by the government and people of the United States many times before, and particularly in Griswold v. Connecticut [1965], which made access to contraception a constitutional right.

            Some days you’re the bug, some days you’re the windshield. No doubt the Church would prefer contraceptives be illegal, for she teaches that contraception harms mankind, as a whole and on the level of the individual person.

            [The Theology of the Body, ” Pope John Paul II’s integrated vision of the human person—body, soul, and spirit.” Quite Thomistic, BTW, Aquinas teaching not that body and soul are at war, but in our “hylemorphic dualism,” man is an integrated being, both physical and metaphysical.

            We can only hint at the depth of Thomas’ and JPII’s position here, but the point would be that the Church’s position on sexuality is far more than just because the Bible or the Pope said so, and wanting to ruin everybody’s fun.]

            Now the Roman Church in America fights only that the US government not compel her to co-operate in the distribution of contraceptives, and be compelled to co-operate in doing harm to the human person, whose body, soul and spirit are inextricibly intertwined, by nature.

          • Well I stated during the whole contraception debate that I didn’t think it was right to say that a Catholic hospital be forced to include contraception in their insurance coverage. But I also think that you start to run into a slippery slope argument whereby the institution could start to claim that the wages paid for time worked not be spent on anything the institution might deem to be immoral since it is the institution’s money being spent, if even in a roundabout sort of way.

            And we’ve sort of tread this ground before. My issue is one of liberty. Many of your concerns about the liberty of same sex marriage are the long term consequences it might have on society. To which I usually answer, “big deal.” The liberty enshrined in the 2nd amendment has had some very messy consequences attached to it, but in the same way that “guns don’t kill people, people kill people” I’d argue that gay people can’t ruin marriage, but irresponsible and stupid people will ruin marriage. And it has been that way in perpituity.


          • Mark Boggs, thx for the principled reply. Difficult question, whether the foundation of matrimony should be changed from patrimony to sexual gratification. I think that’s the foundational question, and I don’t think I disagree with a word once SSM is reduced to a matter of policy. It might be good for society, it might be bad. We make our best guess. The Constitution does not demand or prohibit the instituting of gay marriage.

            If SSM were a matter of rights, then like the similar argument and interpretation of the 2nd Amendment, even if the Right to Bear Arms has a net negative effect, well, American constitutionalism sez grin and bear it. Rights trump utility. [Hope you know the snark is off here. Rights do trump utility.]

            Weigel’s argument is actually far more modest and limited than some might think—it’s tempered and constrained by the American political and constitutional reality. He’s really only arguing for the right to argue and persuade, which is all he really can do.

          • Difficult question, whether the foundation of matrimony should be changed from patrimony to sexual gratification.

            That’s an easy one. No. Here’s a harder one:

            Whether the foundation of matrimony should be changed from procreation solely to the creation of various sorts of loving, mutually supportive families.

            I say yes, of course.

          • You know, it’s kind of funny that you point out how widespread “marriage of one sort or another” is, and then jump straight into a Europe/Christian-centric discussion of ecclesiastical courts.

  5. “and before courts and legislatures decided that it was within the state’s competence to redefine marriage”

    Reads a bit different if we say, “and before courts and legislatures decided that it was within the state’s competence to redefine civil contracts.” Tends to lose a bit of sting there. Kind of like Jaybird’s distinction between MEG and MES.

  6. Why didn’t Weigel mention the taxcab drivers?

    You know, the ones whose Islamic morals forbid them from providing service to dogs, women and Jews.
    Our ruthless secular progressive government forces them- forces, I tell you! to give service to these people, even though it offends their conscience.

    I bet this gives Weigel many a sleepless night.

    • Because taxi drivers can take other jobs. A church has no option except to a) cease operations in the public square, like charity or b) leave the country.

      America actually makes many accommodations for religious belief–we are not France.ïcité

      • So you’re saying a Catholic doctor who works for a medical group like, Intermountain Healthcare, should not be able to exercise a religious objection to providing certain services as he can find a job elsewhere? I’m asking in all seriousness.

        • Sort of, Mr. Boggs. He certainly can’t get a gig at a Planned Parenthood clinic then refuse to do abortions, crying religious freedom.

          The real question is some of the pharmacist litigation out there now [doctors are more powerful and don’t get pushed around so much].

          Now a pharmacist can’t demand to work at a chain that wants him to dispense abortifacients but he refuses on religious grounds. But can the state pull his ticket from working anywhere, under the rubric that each and every and all pharmacists must dispense abortifacients if asked by any patient off the street?

          Is every pharmacist an agent of the state?

          There’s some nuance to be nuanced here. And thx for the seriousness.

          • Is every pharmacist an agent of the state?

            If a license is demanded by the state in order to perform the job, and authorization to obtain the products of such comes via a similarly demanded license, then technically yes.

            You can have the privilege of the limit to your profession being state-recognized, or you can act as your own person and reject or approve whatever. To ask both is bullshrimp. I would prefer a free market approach, but as long as we do not have one & you have a privilege over me…well, STFU & fill my prescription.

          • What I’d prefer would be the amount of government involvement on this issue either direction being Zero. Within the status quo of that not being the case, how would it be fair to let pharmacists turn people away and have barriers to competition?

            Amelioration of the negative conditions caused by political interference is what liberals have settled on. If people on the right are going to scream about the amelioration while completely ignoring the initial interference, what exactly do you expect me to do?

          • My $0.02:

            Not every pharmacist is an agent of the state.

            But the state (as it stands) has a vested interest in the distribution of pharmacists, across the land.

            Whether that’s the way it ought to be or not, that’s the way it currently is.

          • I’ll repeat myself because I repeat myself:

            So, let’s see. We’ve got a situation where the government has handed out a license to sell Product X.

            If I try to sell Product X without a license, I will be arrested and go to jail.
            If I try to buy Product X from someone who doesn’t have a license to sell it, I will be arrested and go to jail.
            If I try to sell Product X with a license to someone who does not have a prescription for Product X from his doctor, I will be arrested and go to jail.
            If I try to buy Product X without a prescription from my doctor, I will be arrested and go to jail.
            The licenses to sell Product X at all are kept artificially scarce by the government who is colluding with both the manufacturers and distributors of Product X.

            And the complaint is “but what about Liberty?” when it comes to the conscience of the people who actually have a license to distribute Product X to people?

            Welcome to the struggle for human freedom, Comrade. I hope you did not strain anything in your hurry to get to the front line.

          • “The licenses to sell Product X at all are kept artificially scarce by the government who is colluding with both the manufacturers and distributors of Product X.”

            Is this true?!?! How does one get a license?

          • Whenever I come close to agreeing with liberals on this, I replace the word “pharmacist” with “doctor” and “birth control pills” with “abortion” and I am off the train. I know: nobody of any importance is talking about forcing doctors to perform abortions. But the “licensed by the state, agent of the state” logic is almost identical. As someone supportive of birth control, I prefer approaching it from the perspective of “What can we do to give access to people who do not have a local pharmacist willing to fill out the prescription?” That’s easier for birth control than for the more time-sensitive Plan-B.

          • I’m sure that there’s more to it than you renting a storefront and putting up a shingle that says “Kazzy’s Tinctures, Unguents, and Suppositories”… which isn’t the case if you wanted to put up a shingle that said “Kazzy’s Comic Books and Sports Memorabilia”.

            For the record, Will, my solution to this particular dilemma is *COMPLETELY* different from the solution proposed by Liberals.

            It has nothing to do with forcing anybody to do anything at all.

          • JB-
            I assumed as much. But is getting a pharmacist’s license like getting a liquor license, where there is a cap set and an application process and a lot of subjective review? Or is it like getting a teacher’s license where you take a test and if you pass and meet the other objective criteria, you get it, no questions asked?

            If it is the latter, I don’t really have a problem with it. I think it makes sense to have some regulation of “controlled substances” (question begging and all). I don’t think it makes sense to abuse regulation if that is indeed happening. If 100 people in a square block meet the criteria to be pharmacists, I say let them! That also, to me, is an easy solution to the problem Will posited. I realize there do exist areas that likely can’t support multiple pharmacists and where it might be difficult for a startup offering all services to overtake an established vendor who doesn’t. That is a trickier situation indeed and I won’t pretend to have an ideal solution.

          • Thanks. BTW, I was using a liquor license as an example of BAD regulation/licensure. If pharmacist’s licenses are worse… egads.

            Again, if you demonstrate the skill set required for a license, you should get it, plain and simple. If you have the means to put that license to good use, you should be able to, plain and simple.

      • But doesn’t the Muslim owner of a taxicab company have only the options of a) ceasing operations or )b leaving the country?

        • The taxicab thing is complicated by them operating at the airport. There’s more nuance to this than can be discussed at the grenade-toss level.

          Should there be a fleet of green taxis out there with crescent moons on the side, ones that everybody knows ban carrying beer and pepperoni pizzas? I don’t see why not. We are not France. And neither is everyone who is licensed by the state necessarily an agent of the state. That would be our point here about America’s history of “accommodation” vs. laicite.

          • You touch on the point exactly.

            Muslims are free to decline to offer rides in their cars to anyone, for any reason.

            However, when you operate a business, and employ people, and engage in public entities like airports and hospitals and things that come with public funding, the taxpayers rightfully put conditions on the way you operate your business.

            Yes, you are correct to say that it is patently unfair to engage deeply in the public sphere and reap the benefit of taxpayer funding and benefits, then claim the same freedom to behave as if you were completely withdrawn into your own private realm.

            Could we make an accomodation for pharmacists to refuse to dispense abortifacients? Sure, that seems fair; as long as that doesn’t unreasonably restrict the public’s access to them.

          • Thx, Lib60. Looks like we’re both accommodationists, which I think is the American way.

            Did you know that during the Jefferson presidency, as Washington DC was being constructed, the halls of Congress and of the Supreme Court were lent out on Sundays for church services? Jefferson, Mr. “Wall of Separation” himself, attended.

            There’s your tax dollars at accommodationist work. Laicite was never the American way.

          • I think there is a vast difference between cab drivers refusing rides to Jews/women/whomever and pharmacists refusing to dispense abortifacients, and it has nothing to do with the respective faiths.

            So long as the pharmacist’s policy was universal, meaning he denied it to everyone, I don’t really see a problem. There is no discrimination of any kind there. Demanding/insisting that he offer a particular service to everyone wouldn’t be much different from me demanding that the Chinese place on the corner also sell pizza.

            The cab driver’s policy is by definition discriminatory. No dice, as far as I’m concerned.

            There is an interesting question that arises if the pharmacist has the only game in town and thus his policy serves a de facto denial of access. Of course, that leaves an opportunity for a competing pharmacist who is willing to offer such services to move in and clean up. It might (*MIGHT*) even be a place where it’d be prudent for the government might even grease the wheels a bit.

  7. Thomas More, patron saint of Catholics in public life, was never more a free man than when he bent his neck to the executioner’s axe in free adherence to the truth.

    Let’s look into this a bit. The “truth” was that the marriage of Henry and Anne Boleyn was bigamous, because Henry VIII was still married to Catherine of Aragon, the pope having refused to grant an annulment. Not on religious or spiritual grounds: annulments to allow royalty to remarry were standard practice, but because Catherine’s nephew, the Emperor Charles V, did not wish it, and in addition to ruling both the Spanish and Holy Roman empires, Charles held that very same pope prisoner. Henry, in addition to being infatuated with Anne, had a practical and sensible reason for wishing to remarry: the Tudor claim to the throne was fairly weak (being both illegitimate and through the female line), and the likely result of his death with no sons was a return to civil war. We all know the outcome: the English Church split from Rome, not over doctrine, but in order to grant the annulment, Henry and Anne were married, Good Queen Bess was born, etc.

    At any rate, if I were looking for a martyr to the truth of natural law, I’d try to find someone who didn’t strain at this bit of royal politics while swallowing the righteousness of burning heretics.

    • Seriously, what’s with the Thomas More love? He had some interesting ideas for his day, but he still committed acts that any reasonable person should consider unconscionable.

  8. Hmmm…. Am I missing something? The argument here seems to be, “We want to eliminate abortion/mainstreaming gays, others disagree; that disagreement is a violation of our first amendment rights.” Yes?

    There are many issues facing this nation, but is people not being able to profess faith in public really an issue? If so, everyone I know of faith, and just about every person running for public office, and 99% of rightwing pundits & 70% of leftwing pundits seem not to have been made aware of it.

    • Ed Feser:

      “In this essay I present a sketch of a classical natural law approach to natural rights and private property. The approach is “classical” insofar as it is grounded in metaphysical assumptions of the sort defended by ancient and medieval philosophers like Plato, Aristotle, and Aquinas — assumptions very different from the paradigmatically modern, post-Cartesian metaphysical assumptions that underlie other so-called natural law theories, such as those of early modern thinkers like John Locke or the contemporary “new natural law theory” associated with John Finnis and Robert P. George.

      How exactly do the classical metaphysical assumptions in question differ from modern ones? To paint with an admittedly broad brush, classical philosophy tends toward essentialism, while modern philosophy tends toward nominalism and related views; that is to say, classical philosophers tended to take the view that things have essences or natures as a matter of objective fact, while modern philosophers have tended to hold either that things have no essences or that their essences are conventional, made by man rather than found in nature. Classical philosophy also tends toward a teleological view of nature, while modern philosophy tends toward a mechanistic one; or in other words, classical philosophers generally held that things are naturally oriented toward the realization of certain ends or goals (“final causes,” as followers of Aristotle famously call them), while modern philosophers generally deny this.

      It is often claimed that the classical metaphysical theses in question were refuted by modern science. That is not the case. In fact early modern philosophers like Descartes, Hobbes, and Locke rejected the assumptions in question for a combination of political and philosophical reasons, and then simply redefined science in such a way that no explanation that made reference to essences (as classical thinkers understood that concept) or final causes would be allowed to count as scientific. And in fact the actual results of modern science are perfectly compatible with these classical metaphysical theses when rightly understood (as they rarely are by contemporary writers who lack expertise in the history of ancient or medieval philosophy).”

      IOW, the modern project rejects classical philosophy, attempting to subsume it with a mechanical view of man and of existence itself. But the Constitution does not demand we abolish essentialism, teleology, metaphysics—natural law. Indeed as I post Alexander Hamilton’s The Farmer Refuted elsewhere, America was founded on such things. They will not be surrendered without a fight.

      • Fair enough.

        But I have to say, aside from abortion – which seems about as honest an argument for protecting others as you can get, even if you don’t agree with it – the argument that other people not having to subscribe to the dogma of your faith is an infringement of your religious freedom seems specious.

        • Tod, there are 2 arguments here, one of reason and one of faith. If I may:

          I don’t know at what level you approach the discussion of natural law, whether it’s with a sledgehammer or an informed scalpel. A careful reading of Weigel [and me, and Feser, and Hamilton] is necessary. Natural law is precisely an attempt at a lingua franca that doesn’t invoke the authority of scripture or pope, but of moral reason.


          “It is a matter of both political common sense and democratic etiquette that Catholics in public life should make our arguments in ways that our fellow-citizens, who may not share our theological premises, can engage and understand — which is to say, in our particular case, that Catholics should bring to bear in public life the moral truths we hold through arguments framed by the grammar and vocabulary of the natural moral law.”

          I did an excerpt from libertarian godfather Murray Rothbard awhile back that I hope you’ll find helpful if you’re not here just to negate.

          There is also the other wing of America’s two wings, those of reason and faith, as I wrote elsewhere, that

          I think people have a right to vote their private conscience, however they form and inform it, whether it be by the Bible, a Richard Dawkins book, or discussion @ LoOG. There has been some noise from Judge Walker [Prop 8] and several other jurists that a religiously-informed vote is somehow an invalid one. I think this is a complete inversion of the First Amendment.

          In the practical sense, this could mean that that we ban cruelty to animals based on the Torah, Quran, natural law, and/or some very convincing Daryl Hannah ads for PETA, all meeting in the middle regardless of how we each came to our positions.

          The accusation of enforcing “dogma” would be unfair, and “natural lawyers” have learned not to argue x “because the Bible says so.” [Even less so, the Pope! Talk about a non-starter…]

          But there is nothing in the Constitution banning voting one’s conscience because x is what the Bible says [or one’s interpretation of what the Bible—or Quran—says. Our constitutional freedom of religious conscience explicitly includes that, and this is the other wing of Weigel’s argument:

          “What is this ‘religious freedom in full’ that you must defend and advance?

          It surely includes freedom of worship, but it must include more than that; the Kingdom of Saudi Arabia is content with freedom of worship, so long as the Christian worship in question takes place behind closed doors in the American embassy compound in Riyadh. Religious conviction is community-forming, and communities formed by religious conviction must be free, as communities and not simply as individuals, to make arguments and bring influence to bear in public life. If religiously informed moral argument is banned from the American public square, then the public square has become, not only naked, but undemocratic and intolerant.”

          Now, the natural lawyer might admit that many people will be deaf [or hostile!] to “religiously informed moral argument,” but it’s a legitimate language with which to rally the troops, no less valid using “two become one flesh” than using The Beatitudes to justify policy arguments.

          [I realize this latter argument is unappealing to the secularist, but it’s well-grounded in the Founding conception of government and rights, and again, will not be surrendered without a fight.]

      • classical philosophy tends toward essentialism

        Very true, and it’s in the nature of essentialism that it ignores (or at least minimizes) exceptions. Take the argument that SSM is invalid because marriage is about procreation. You might ask, do we allow impotent men to marry? Barren women? Women too old to conceive? People who have been medically sterilized? Yes, to all of the above. Doesn’t this undercut the argument that marriage is for procreation? No, says the essentialist. It is is the nature of a man and a woman to procreate together, and not in the nature of two men or two women. This essential nature is what matters, not the specifics of the individuals. (You can see Alan Keyes make this precise argument at

        Speaking purely for myself now, I think that. as thinking people, we are obligated to examine what we believe, and measure whether it matches reality. If it doesn’t (and understanding exceptions is an important part of that determination), then we need to rethink the concepts that led to those false conclusions. I’m not prepared to dismiss people that don’t quite fit as experimental error.

        • Very fair & helpful, MikeS. You’re not saying you agree, but you’re stating the position equitably.

          I’d add that on a practical level, there are certain courtesies we extend to the infertile [and this most protects and respects the infertile woman, I’d think]. That these courtesies are given does not make the exception the rule; it’s for this reason I have never found valid the argument that if we let infertile couples marry, we must let all couples marry.

          • OK, I can’t resist. In the clip I link to above, watch Alan Keyes starting at about 3:15, and you’ll also picture the commercial:

            “He doesn’t always drink beer, but when he does, you won’t want to join him. He is… the most annoying man in the world.”

          • Is it really just a courtesy born out of practicality that we allow and recognize marriages of couples over retirement age? That seems obviously wrong to me. We usually celebrate their marriages as good things and worth honoring, even thought its known to all that such a couple cannot reproduce.

            Taking the “practicality stance” raises a further question. If it’s for mere practicality that we recognize infertile heterosexual marriages, what if it were, hypothetically speaking, trivial and practical to recognize only the unions between fertile heterosexuals?

            Seeking shelter behind practical concerns doesnt address the conceptual problems with princples in play here. Those conceptual problems don’t vanish just because, practically speaking, those principles are impossible to perfectly enforce.

          • The question of infertile couples straddles the practicality question, that society/the state’s only interest is in the type of sex that makes babies.

            An impotent man can void a marriage, the consummation thing; that a woman turns out to be infertile, like Catherine of Aragon, does not invalidate. MikeS did a good limn of the Thomistic argument on this thread.

          • @will: Exactly. We say “Here are two people who may have lost or outlived their previous spouses, but now they’ve found each other, and they won’t have to face life alone.” That generalizes just fine.

  9. What would be the teleological view of the marketplace?

    Does it have a purpose, or an end to be served?

    Or does it just exist and function mechanically?

    As you can guess, I see a massive disconnect here within the contemporary American conservative canon.

    • You have a point, Christianity isn’t a good fit for either an economist’s understanding of markets, or the cartoon version that many conservatives seem to beleive. I always though the natural political dichotomy (assuming there is any such thing) would be left wing social conservatives vs. secular pseudo-libertarians. Basically Enlightenment vs. Counter-Enlightenment (though that’s a massive oversimplification).

      Maybe that’s just wishful thinking on my part. It would be nice for once to have the option of voting for a political candidate that was actually a rough match for my views.

      • If markets work, they fit into natural law via “demonstration.” See also [atheist, libertarian] Murray Rothbard on natural law.

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