As secularism advances, law itself is in the dock

New York Governor Andrew Cuomo (CNS photo/Jeenah Moon, Reuters)

The near-constant secular challenge to religious liberty threatens the very notion of justice

On November 8, Governor Andrew Cuomo of New York signed into law sweeping new legislation that not only expands access to abortion, and abortifacient drugs, but effectively demands that every crisis pregnancy clinic, hospital, school, faith-based business and church conform to the new secular dogma that abortion is healthcare. Or else.

The so-called “Boss Bill” (SB660) prohibits employers from “discriminating against employees based on the employees’ or dependent’s reproductive health decisions, and to provide remedies for such violations”. The “remedies” the law provides are severe. If a Catholic pro-life pregnancy centre refuses to hire a person who advocates and promotes abortion, or who fires an employee because they do, the new law allows for heavy punitive damages against the charity. It isn’t just bakers anymore.

CompassCare, which runs pro-life crisis pregnancy clinics in the state of New York, has already filed a lawsuit against the state alleging that the law is unconstitutional. The law targets not only conformity to the secular dogma on abortion, but also on contraception, vasectomies, in vitro fertilisation and adoption for LGBT couples. Christianity is in the dock. Alliance Defending Freedom attorney Denise Harle rightly notes what the law means for many Christians: “You are effectively being compelled to undermine your own reason for being.”

The New York legislators could have written exemptions to avoid challenge, but they chose not to. Why? Presumably because they feel that cultural power remains on their side, and that often translates into courtroom wins even when a political win is impossible. The secular dogma lives loudly among those who have reason to believe that they are only ever one Justice Kennedy away from what they want.

Law itself is increasingly in the dock. Pope Benedict XVI once wrote that law becomes suspect the moment it is no longer seen as “the expression of a justice that is at the service of all, but rather the product of arbitrariness and legislative arrogance on the part of those who have the power for it”. Whenever law becomes the plaything of those who hold power rather than the expression of the common good, it raises an important question of whether the positive law itself knows justice.

The political scientist Hadley Arkes has worried about creeping moral relativism in the court. This is not a new problem. The 16th-century jurist Francisco de Vitoria developed the idea of a law of right relations across all times, all legal systems, for all people. He called it a “law of nations”, or the principles of natural law which can be applied to all nations. We constantly appeal to this idea whenever we speak about human rights which are not invented but concern human nature as such — and we constantly challenge this idea whenever we invent “rights” which privilege those who enjoy cultural power rather than share in a common nature. This plagues our republic today, and it also undergirds the powerful desire across the spectrum to find solid ground together.

We find ourselves in a licentiously dogmatic age which, as Benedict XVI says, “comes up against its limitations when it attempts to demonstrate itself”. Those who find themselves enthralled by secular religion cannot provide a rationality or a law which isn’t an invention of power and which doesn’t undermine liberty every time it claims to define it. Like the New York bill that Andrew Cuomo signed into law, the secular religion is hopelessly parochial and weak even as it exercises the plenitude of its power.

The near-constant secular challenge to religious liberty today challenges the very notion of justice. The secular religion aims to overtake the very idea of God by overtaking the law. Our political battles increasingly centre around the courts because the moment the secular dogmatists seize the positive law, they feel they have seized law itself.

These skirmishes are instructive. They reveal that the battle for the republic is between those who hold that positive law must be conformed to their own will, and those who see it as an expression of natural law, an ordinance of reason, which conforms to a transcendent standard, which we can call God.