A Nation in Religious Denial

In Planned Parenthood v. Casey (1992), the Supreme Court bestowed upon American women the "right to an abortion." According to the Court, the decision was firmly based on a Court precedent, the Roe v. Wade decision of 1973, and backed by the Constitution in Section I of the Fourteenth Amendment. Disregarding, for now, the dubiousness of these claims to legitimacy, there was one other claim made by the Court that demands our immediate attention. While the Constitutional and precedential claims may have provided for the technical, de jure, propriety of the decision, the following served as the philosophical, de facto, justification. In the Justices' words, "at the heart of liberty is the right to define one's concept of existence, of meaning, of the universe, and of the mystery of life."

Taken on its own, out of its judicial context, the Court's statement merely echoes the First Amendment right to absolute, unqualified freedom of religious belief; however, taken in the context of Casey, the statement becomes problematic. For one, the Court's dictum authorized intellectual freedom: the freedom to determine for oneself the answers to the ultimate questions of existence. In Casey, however, the idea of intellectual freedom never came up. Contrast this to the Scopes "monkey trial" of 1925, where the Court dealt specifically with matters of intellectual freedom, i.e., the right to define one's concept of human origins. The pertinent question in Casey was one involving freedom of action. Here, a judicial acknowledgment of unrestricted intellectual freedom was used to guarantee a certain measure of volitional freedom. In short, the Court made two mistakes: It confused the will and the intellect, giving functionally to the former the kind of freedom that it authorized only to the latter. Futhermore, the Court muddled the distinction between the absolute and the qualified, authorizing abstract, absolute freedom, while prescribing a substantial, limited act.

To put it another way, the Court defined religious belief as identical to religious action. Using the Court's logic, since abortion is an action stemming from one's conception of the "mystery of life," i.e., one's religion, it is, therefore, a legitimate action. Extending this line of reasoning, it follows that any act may be considered lawful, for one may always define his religion to fit a proposed course of action. With no common basis for law, the Casey decision amounts to the judicial authorization of anarchy -- but this could not have been the intention of the Court. As long as we are a nation, there will exist a common code of conduct that is judicially approved and legally enforced, regardless of a citizen's "concept of existence." One wonders what the Court did intend by promulgating the so-called "mystery statement."

Another problem with the Court's decision was its facile, elastic interpretation of individual autonomy. By distorting the traditional concept of autonomy, the Court recklessly misappropriated an illegitimate "right." From the perspective of the Court, the freedom to prematurely end the life of one's unborn child is grounded in the Constitutional guarantee of individual autonomy. This is correct insofar as we disregard the possibility of the existential "otherness" of an unborn child, but if the unborn child is a distinct, human entity, then the autonomy argument becomes absurd. In addition, regardless of one's concept of the unborn, Constitutionally-granted, absolute autonomy is itself dubious, for existing laws preventing sodomy, suicide, prostitution, and drug abuse implicitly restrict personal autonomy.

We must ask, in light of the errors adduced above, what could justify or explain the Court's seeming subterfuge and specious reasoning? The answer is that there must be a fundamental misunderstanding at the root of the Court's thinking. It seems that confusion inheres whenever the Court attempts to deliberate questions of religious and moral significance with the presupposition that religion and transcendental morality are irrelevant to such questions. The underlying cause of the Court's confusion, and modern culture's as well, is the ignorance, indifference, or denial of the exclusively religious underpinnings of political systems, of the truth that religion is inextricably bound to, at the heart of, and the foundation for, all societies.

With the denial that axiomatic, faith-based assumptions are the foundation for all nations comes the further denial of the Judeo-Christian religious tradition as the fundamental matrix of the American political and legal system. Perpetrated primarily by members of the knowledge class, (judges, lawyers, professors, journalists, and politicians), the denial is rapidly spreading, as the pernicious penumbra begins to cover the entire American citizenry. Few Americans are in outright denial, renouncing the exclusively religious roots of political orders, but many are in partial denial, accepting the centrality of religion but denying it the responsibility for our political freedom and national greatness. Both have forgotten that the sacred freedoms and rights we claim so instinctively were begotten by the religion they disregard so flippantly. M. Stanton Evans argues brilliantly and convincingly for the religious roots of our freedom:

There is more to this, however, than simply the denial of the centrality of religion. What inevitably accompanies the denial of one set of religious assumptions is the affirmation of another. Evans puts it this way: "When a given religious outlook is rejected, the effect is not to adopt a worldview devoid of axiomatic concepts, but to replace one set of axioms with another. Functionally considered, these axioms are religious."⁵

While the Judeo-Christian tradition, with its theistic worldview and transcendent morality, has been discarded as the basis for legal and political deliberation, there remain, institutionally entrenched in the Declaration of Independence and the Constitution, the governing system and set of political principles derived from it. The rich tradition of political philosophers, customs, and rubrics that we inherited from Christian Europe have not been entirely expunged, and these contribute to the now precarious continuance of the American political instincts for freedom, right, and autonomy. Although these instincts are still operating in the public square and the culture, in the hearts of the citizenry, and in the courtrooms, they are only the residue, the leftover capital of a religion that is presently all but inoperative. And without the religious foundation, the political structure residing upon it is beginning to collapse. This is most clearly evinced in the Supreme Court, with the errors and contradictions of the Casey decision as the first signs of founder. Let us briefly examine the traditional, Judeo-Christian concept of right and individual autonomy to see where the Court is going wrong.

Rights have traditionally been understood as part and parcel of individual freedom and autonomy. With them, a citizen defines a certain radius of freedom, a sphere of sanctity, an area immune from governmental coercion. A citizen possess autonomy insofar as he is not coerced unlawfully by the government. This is the political understanding of autonomy, and it stems from the Judeo-Christian teaching of the sanctity and sacredness of the individual. Deprived of this foundation, there is no firm, theoretical basis to ground the concept of inalienable rights, and, consequently, no safeguard against government encroachment.

The political understanding of autonomy, though deriving from the religious understanding, differs from it in what it demands. The former is inherently a negative, proscriptive definition, as it only tells what one cannot do, namely, restrict another's autonomy. It does not prescribe, specifically, what one can or should do, and this is why the religious understanding of autonomy is more demanding. Religious autonomy is bound up with the freedom to choose to do what is right, or with Lord Acton, "the right of being able to do what we ought." Political autonomy allows for the possibility of religious autonomy, for it provides the space in which one may act voluntarily, and allows for the free exercise of one's conscience.

America was the first nation in history to bring together, by codifying into law, the political and religious understandings of autonomy. In this way, the distinction between immoral and illegal is not so starkly defined: It is not only actions considered impolitic that are considered illegal but also actions considered immoral. Some actions arising out of one's political autonomy may be immoral, but now they might also be illegal, with the understanding that a right to a certain action, if an immoral action, is not a right. This echoes Saint Augustine's dictum, "that which is not just seems to be no law at all." It is a fallacy that the "as-long-as-it-does-not-hurt-another" understanding of law, espoused by John Stuart Mill, has ever been the traditional understanding of law in America, but with the multitude of Supreme Court precedents justifying immoral rights, the tradition has drastically changed.⁶

With the decline of Christian virtue and the expulsion of religious values from the sphere of governance, what has emerged is a concept of right without a Christian moral component. Many acts, that were once considered illegal simply because they were immoral, are now considered legal solely because they are not impolitic: Sodomy, abortion, and infanticide (partial-birth abortion) are examples of acts that do not constitute an infringement upon the law of political autonomy but were considered illegal because they infringed so egregiously upon the moral law of God. At present there are but limited legal restrictions upon these acts.

It has been stated that the denial of one religion produces, or leads to, the affirmation of another. Let us equate for the moment one's moral system and one's religion. Ironically, we can best see the denial of the replacement of Judeo-Christian morality with another moral system in examining the vehement exigency of those who deprecate the significance of morality. Abortion supporters clamor about "choice," homosexuals harangue heterosexuals about "tolerance," euthanasia enthusiasts call for "compassion," affirmative action affirmers, along with feminists, decry "discrimination" and espouse "equality," religion separatists fight for "freedom of thought," and nambla proponents propound "freedom of expression"; all these enlist the morally charged words of our Judeo-Christian heritage and liberal political tradition to support their causes, while deprecating the heritage and tradition and denying the "intolerant," "absolutist" morality inherent in their claims.

The explanation for the moral component inherent in all these cases is that they, like all human beings, necessarily deliberate all important questions using moral categories:

These moral categories derive ultimately from a religious foundation of faith-based, axiomatic assumptions, but the problem with the Court and its coterie is that their expressions of moral fervor are based upon distorted moral systems derived from false assumptions. This is apparent in that the focus of their moral energy is to secure only selfish and licentious freedoms and rights; "all are attempts to harvest and use the worldly aspects of our religion, divorced from the theology that gave them life and meaning."⁸ This is often overlooked because there is just enough Judeo-Christian capital left over from the moral bankruptcy of American governance that the poor and immoral decisions, being construed in the courts and materializing ubiquitously in the culture, triumph as noble edicts in the name of freedom.

Those who covet the freedom to abort children or to practice homosexuality deny their own use of religiously charged arguments, while they seek help from a system of justice that is predicated on religious notions of freedom of expression and individual rights. To best see this denial, let us hear it from the Court justices themselves. Justice Kennedy said that the affirmation of "an ethic and morality that transcend human intervention" is a religious affirmation, and so is forbidden as a criteria for public policy. But if stating a fundamental metaphysical principle is religious, then so is the statement made in the Casey decision. Justice Reinhardt, writing the decision for Compassion in Dying v. Washington said that people "with strong moral or religious convictions ... are not free to force their views, their religious convictions, or their philosophies on all the other members of a democratic society." One must ask then what the decision to allow abortion in Casey was, if not the imposition by the judge of his personal view, religious conviction, and philosophy!

The Court would have us believe that they are not arguing from a religious or moral viewpoint but are strictly interpreting the Constitution as it should be interpreted. But "should be" is a moral statement dependent on something external to the Constitution. Laws against abortion, sodomy, and pornography are derived from the moral law, and the repeal of these signifies nothing but a refusal to abide by this law. Instead of admitting this, the Court denies the use of moral criteria and forgets the inexorability of moral assertions in the context of any and every judgment.

The moral sense must be informed by religious truths. If not, it lacks an objective foundation, and decays into subjective error. It is evident that in making a judgment about abortion the Supreme Court did not consult the Constitution -- it consulted religion. The Court, and many of those in the knowledge class, think and act from a religion, or from many different religions. Perhaps to decide Casey, the Court was using an amalgam of Secular Humanism and Christianity: The former provided the framework, institutional legitimacy, and moral fervor, while the latter filled in the framework and informed the fervor with a false moral absolute.

The American Founders knew that without the forthright, perpetual belief in and espousal of the Christian religion (not just cavalier reliance upon the political framework arising from it), our nation would fall to ruins. They also knew that it was not the presence or absence of religious, faith-based assumptions that determine the unique essence of each society, but the truth or falsity of those assumptions. They knew that the determining factor for a just, free, and prosperous society is that the assumptions be based upon accurate religious axioms -- based on Truth.

To prevent eventual slippage into something entirely different, as America's Founders repeatedly stated, a legal system must have an element of fixity; reference points that are anterior to, and controlling upon, the development of pure tradition. These reference points are ultimately religious and axiomatic in nature, and it is in the teachings of religion that we shall find the sources of our freedom.⁹

With the recent legislation of infanticide with partial-birth abortion, and the exponential rise in illegitimacy, crime, drug abuse, and divorce, it is apparent that modern American society has slipped from its Judeo-Christian religious moorings. But it is not the abandonment of "religion" that has occasioned such societal decay; it is the replacement of a revealed and sacred religion with a created and debased one. With regard to nations, there is no such thing as a "religious vacuum," and the modern democratic public square can never be "naked" or "neutral." Religion is inextricably interwoven into the soul of man, as he is a transcendent being, and hence interwoven into society. Saint Augustine said, "Thus even those who go from You and stand up against You are still perversely imitating You. But by the mere fact of their imitation, they declare that You are the creator of all that is, and that there is nowhere for them to go where you are not."¹⁰ Psychologists use the term "denial" to denote a willful self-deception, used to escape an inevitable and terrifying reality. Truth is terrifying only when we attempt to escape it, for the "Hound of Heaven" is relentless in His pursuit.

Thaddeus J. Kosens currently attends Saint John's College, where he is working through a Great Books program. He has also done some advanced study in Eastern Orthodox theology at an Orthodox monastery, and his undergraduate degree was completed at Villanova University. He would like to teach philosophy upon graduation.