After Hobby Lobby: What Is Caesar's, What Is God's?
Address at the pre-conference session
'After Hobby Lobby: What Is Caesar's, What Is God's?'
2015 Petrie-Flom Center Annual Conference
Religion, and Health in America,"
Harvard Law School, 7 May, 2015
Reproduced with permission.
Thank you for the invitation to join you today.
As we ponder, "What Is Caesar's, What Is God's?", I am reminded of a profound quote from one of Virginia's native sons.
Founding Father James Madison once opined, "Conscience is the most sacred of all property." And as it relates to our discussion today, I maintain that conscience is most assuredly God's.
In that vein, I'd like to begin with a personal story which serves as a window into my own conscience.
On the opening day of a new Congress, the vote for Speaker is the first vote held, and it is always by voice vote. Each Member's name is called out, and he or she shouts out the name of their party leader.
On January 7, 1997 - the opening day of the 105th Congress - we were voting on the reelection of Newt Gingrich as Speaker of the House.
Newt was then under investigation by the House Ethics Committee. The House Democratic whip, David Bonior, had filed most of the eighty-four ethics charges against him, which ranged from accusations that Newt had misused tax-exempt funds to criticism over a lucrative advance he was offered by HarperCollins to write two books.
Eighty-three of the eighty-four charges were ultimately dropped.
However at the time of the vote, the Ethics Committee report had not yet been published.
I felt that I could not, in good conscience, vote for Newt as Speaker until I had seen the report. This turned out to be a very controversial decision.
Members are not supposed to vote against the leaders of their party in no small part because it gives the other party ammunition to use against your party.
My friend Dan Coats, now a U.S. Senator, knew what I planned to do, and he came over and stood beside me during the forty-five minute vote. He knew that when you break with your party, especially on a vote of that import, it's not a very comfortable situation, and he wanted to provide moral support.
So we stood at the back rail, waiting for my name to be called.
And when the House clerk said Wolf, instead of shouting, "Gingrich," I answered,
I later issued a statement explaining why:
I voted present and withheld my support today on the election of the Speaker of the House because I believe that the vote for Speaker should have been held after the House received the Ethics Committee's full report on Mr. Gingrich. I felt that the formal process should have been completed first and therefore I could not vote in good conscience any other way.
I am not saying that my colleagues in the House should have reached the conclusion I did. In serving in Congress, this was clearly a vote of conscience, and I respect those who came to a different conclusion.
I am reminded of a scene in Robert Bolt's play A Man for All Seasons, when Sir Thomas More was asked by the Duke of Norfolk to go along with him and others out of fellowship and publicly agree with the king. More says,
"And when we stand before God, and you are sent to Paradise for doing
according to your conscience, and I am damned for not doing according to
mine, will you come with me, for fellowship?"
For a couple of weeks my life was, to put it mildly, very uncomfortable. I was immediately disinvited to a Republican fundraising dinner.
I felt a certain chill in the Cloakroom. A number of people told me,
"Your political career is over, you're finished, your dead." Many of my colleagues were certain that Newt Gingrich, who had been elected Speaker without my vote, would lose no time in punishing me.
But Newt, to his credit, never did. He understood why I did what I did and never once expressed any anger.
As I noted in my public statement after the vote, for me that decision was
a matter of conscience. I knew what I had to do. And had I somehow been forced or coerced into doing otherwise, it would have been in violation of my conscience.
Fortunately that wasn't the case. And despite the warnings of my colleagues, the story ended well.
Increasingly that is not the case as it relates to matters of conscience in both the legal sphere, and in the public square where the space for dissent is daily shrinking.
The domestic conversation and debate surrounding religious liberty is being waged around how we understand conscience.
And for many Americans, myself included, our most deeply held religious values, be they Christian, Jewish, Muslim, Buddhist, Hindu or some other faith tradition, are generally what informs our conscience and our behavior.
We are gathered not far from where that first hearty band of Pilgrims, themselves religious asylum seekers, disembarked from the Mayflower. Their story is part of the fabric of our national narrative
- a narrative which upholds the preeminence of religious freedom as the cornerstone of all other human rights.
There are a multitude of other examples, which are part of the legal infrastructure of how we understand religious freedom and conscience, which predate even the Declaration of Independence and the Constitution.
Among the most profound, is a remarkable resolution adopted by the Continental Congress when the colonists were waging an unlikely fight for independence against the greatest military power of the age.
The resolution read in part: "As there are some people, who from religious principles, cannot bear arms in any case, this Congress intend no violence to their consciences…" The resolution continued urging these pacifists to do whatever they could to aid their fellow colonists consistent with
"their religious principles."
The spirit and the practical effect of the resolution was to properly recognize the role of the state as it relates to conscience. Quite simply, our conscience is not ultimately allegiant to the state, but to something, and for many people, Someone, higher.
And this truth is important to protect, because if our conscience belongs to the state, the state can choose to violate it or compromise it at will.
Returning again to Madison, he explained it this way:
It is the duty of every man to render to the
Creator such homage and such only as he believes to be acceptable to
Him. This duty is precedent, both in order of time and in degree of
obligation, to the claims of Civil Society.
Madison understood and appreciated that matters of conscience obligate an individual to something higher than civil law. But today the authority claims of civil society, or of the state as the case may be, are expanding well beyond what Americans have historically accepted.
This is a subtle but insidious trend.
Cardinal Francis George, the former Archbishop of Chicago who passed away last month, wrote nearly two years ago,
"We should be concerned…about the State overreaching its proper
authority, which is limited to the civil order… This tendency for the
government to claim for itself authority over all areas of human
experience flows from the secularization of our culture. If God cannot
be part of public life, then the state itself plays God."
These realities were at the heart of the Hobby Lobby litigation and the Affordable Care mandates.
Writing recently in National Review Online, Yuval Levin, the founding editor of
National Affairs asserted:
The fanaticism that has characterized much of the Left's response to Indiana's
law over the past week has highlighted an element of the threat to
religious liberty today that comes closer to the other protection of
religious liberty in the First Amendment - the prohibition against
religious establishment, rather than the protection of the free exercise
He goes on to argue, rather convincingly, that we are witnessing the imposition of a new state religion
- one which he calls,
The question of the definition of marriage is, for many people, a fundamentally religious question. It is, of course, also a civil question in our country. But some religiously orthodox wedding vendors are finding themselves effectively compelled by the civil authorities to affirm an answer to that question that violates their understanding of their religious obligations.
They would like to be relieved of that compulsion, but they are being told they can't be because the larger society's
understanding of the proper answer to the question should overrule the
answer prescribed by their religious convictions, and if they want to
participate as business owners in the life of the larger society they
must give ground. They are in this sense more like religious believers
under compulsion in a society with an established church than like
believers denied the freedom to exercise their religion.
My friend, Robby George, Princeton University's McCormick Professor of Jurisprudence, has said,
"Protection for religious liberty doesn't stop where commerce begins."
I would agree. But increasingly that's not what many in the business community would have us believe. Major American corporations, including Apple, were among the most vocal critics of the Indiana
Religious Freedom Restoration Act.
Some issued statements of concern, others threatened boycotts, and still others used the various bully pulpits at their disposal to shape the public narrative in a devastating and frankly misleading way, appealing to the abiding sense of fairness which animates many Americans.
Apple CEO, Tim Cook penned an op-ed in the Washington Post which opened with the following ominous description of RFRA laws,
"There is something very dangerous happening in states across the
He concluded, "This isn't a political issue. It isn't a religious issue. This is about how we treat each other as human beings…With the lives and dignity of so many people at stake, it's
time for all of us to be courageous."
Mr. Cook's outspoken criticism was noteworthy in part because of its inconsistency. While touting fairness and human dignity, Apple operates in countries like China and Saudi Arabia
- hardly models of human rights protections.
For I would argue that there is something dangerous happening in Saudi Arabia and China. Saudi Arabia where there is state-sponsored anti-Semitic and anti-woman material propagated throughout the Kingdom's textbooks; Where homosexuality is punishable with a prison sentence.
And China where the 2010 Nobel Prize winner, Liu Xiaobo, is in prison and where the government has one of the worst overall human right records, which includes the plundering of Tibet
- as evidenced by the desperate measures taken by more than 130 Buddhists who have poured kerosene on their bodies and set themselves aflame in desperation at the abuses of the Chinese government.
But Mr. Cook's argument falls short on the domestic front as well.
Consider that in 2009 Apple removed the
Manhattan Declaration from its App store. The
Manhattan Declaration, penned by three respected Christian leaders from the Protestant and Catholic traditions, was hailed as a
"Call of Christian Conscience."
It was intended to be an interactive document, a line in the sand so to speak, where people with a similar concerns, and a shared worldview, could sign the declaration not merely as a matter of agreement, but as a statement of principle. I am a signatory.
Not long after its release, the organizers revealed a
Manhattan Declaration App.
One month later, Apple, then under the leadership of Steve Jobs, removed the App.
The Heritage Foundation's Ryan Anderson, writes, "So they [Apple] 'discriminated'
against the Manhattan Declaration… No one suggested that this should be
made illegal. Even if we thought it a misguided decision, we thought
Apple should be free to decide its own values and live according to
Freedom of conscience is good for all. If Apple and other companies want to protect their own rights, they ought also to protect those of others. If they wish to run their companies according to their conviction, they ought not deny other companies the same right.
But acceptance of beliefs different than your own is increasingly unpalatable to those enforcers of the
"new orthodoxy," as Robby George has coined the phrase.
When tolerance is demanded, when orthodox Christianity is deemed intolerant and when government and even society fails to extend tolerance to people of faith, we are headed down a perilous path.
We see this being played out on college and university campuses across the country as national Christian ministries like Intervarsity are being forced to choose between remaining faithful to basic biblical teachings and maintaining their presence at these secular schools.
This is first and foremost a matter of conscience.
A February 2015 article in First Things titled "A More Inclusive Pluralism," said:
…schools have denied campus privileges to student groups such as Intervarsity Christian Fellowship on the grounds that their requirement that their leaders affirm a faith statement is discriminatory… We're
seeing religious groups that do not adopt a uniform public standard of
non-discrimination discriminated against.
These legal realities and emerging policy norms, coupled with fears of compromised livelihoods and tarnished reputations risks driving people of faith out of the public square.
In a recent conversation with Beeson Divinity School dean, Dr. Timothy George he cautioned that in the face of this onslaught many Christians will likely tend toward isolation.
A temporary victory perhaps for those secular forces who are gleeful at the prospect of a
"naked public square" as described by the late Richard John Neuhaus. But with devastating ripple effects.
It bears mentioning that it has been men and women of faith confronted with the plight of the prisoner and burdened by the struggles of the poor, who still today seek the dignity of every man, woman and child.
Christians have started respected universities, to include Harvard, and hospitals around the world, Christians run major feeding programs for the poor; the Salvation Army, which responds to every major humanitarian crisis in the world, does so in the name of Jesus. Mother Theresa who helped the poorest of the poor in India did it because of a deep and abiding faith in Jesus. Chuck Colson who led the way on prison reform did it because of his faith in Jesus.
Dr. Brantly with Samaritan's Purse fought Ebola in Africa even before our government acknowledged it as a problem. Brantly got the disease himself, almost losing his life, as all true disciples are called to do, because of his faith in Jesus.
New York Times columnist Nicholas Kristof recently wrote of this reality as he had experienced it in his travels abroad, especially to some of the most grim, forgotten places on earth.
In liberal circles, evangelicals constitute one of the few groups that it's safe to mock openly. Yet the liberal caricature of evangelicals is incomplete and unfair. I have little in common, politically or theologically, with evangelicals or, while I'm at it, conservative Roman Catholics.
But I've been truly awed by those I've seen in so many remote places, combating illiteracy and warlords, famine and disease, humbly struggling to do the Lord's work as they see it, and it is offensive to see good people derided.
But I must say that a disproportionate share of the aid workers I've
met in the wildest places over the years, long after anyone sensible had
evacuated, have been evangelicals, nuns or priests.
Rather than retreat from the public square, I am hopeful that Christians and other people of faith will boldly stay, regardless of the cost.
I am reminded of the rich Christian tradition of civil disobedience in the face of unjust laws.
The Reverend Martin Luther King's letter from a Birmingham jail, is an exemplary defense of this approach. It was intended to convict his fellow religious leaders for being more
"cautious than courageous" in the face of segregation.
From behind bars Dr. King wrote:
You express a great deal of anxiety over our willingness to break laws… one has a moral responsibility to disobey unjust laws. I would agree with Saint Augustine that
'An unjust law is no law at all. A just law is a man-made code that
squares with moral law or the law of God. An unjust law is a code that
is out of harmony with the moral law.
King draws on the annals of history to make his point.
We can never forget that everything Hitler did in Germany was
'legal' and everything the Hungarian freedom fighters did in Hungary was
'illegal.' It was 'illegal' to aid and comfort a Jew in Hitler's
Germany. But I am sure that, if I had lived in Germany during that time,
I would have aided and comforted my Jewish brothers even though it was
In his latest book Owen Strachan points out how common it is in the Bible for those who follow God to end up in jail. Joseph resisted the advances of another man's wife and was jailed; Daniel and his friends refused to stop worshipping their God and were jailed; John the Baptist publicly decried the sin of the leaders of his land and was jailed and ultimately beheaded. And the Apostle Paul wrote many of his letters from a Roman jail cell.
And today, as we see growing anti-Semitism around the world, even on American college campuses, we remember Dietrich Bonhoeffer who was imprisoned in a concentration camp for defying the Nazis and was hung for being faithful to his conscience.
Is prison the fate of people today who dare to stand up for what their conscience, informed by their faith, dictates?
American pastor and theologian Jonathan Edwards was driven by an overarching and passionate concern about a right, relationship to God. He believed that one should be willing to give up anything if it threatens one's eternal state.
For many, myself included, maintaining a right relationship with my Creator, with God, is directly related to my abiding by the dictates of my conscience, which is, in turn, informed by the teachings of my Creator.
And so, I end where I began… with a Madisonian understanding of conscience as the most sacred of all property.
And, conclude with the closing sentence of the
Manhattan Declaration as a reflection of my current conviction,
"I will fully and ungrudgingly render to Caesar what is Caesar's. But under no circumstances will I render to Caesar what is God's."