In a rather snarky piece in The Atlantic, author Anthony Murray questions whether or not a Supreme Court justice who believes in “natural law” (quotations marks are Murray’s) can make sound rulings. Murray is especially worried about cases involving the HHS mandate such as Conestoga Wood Specialties Corp. v. Secretary, etc. and Hobby Lobby Stores, Inc., et al. v. Sibelius.

Murray misunderstand natural law. He believes it to be religious, and frantically scrambles through the words of Thomas Jefferson in order to prove his point. Rather, he says, the framers of the Constitution rely on “positive law:”

If natural law were regarded as simply a religious creed, it would not conflict with the positive laws embedded in our Constitution and laws. The threat lies in the use of natural law by courts in judicial decisions. Invoking it in construing the Constitution and statutes raises an obvious question: If natural law exists, what is in it? Is it a blank slate on which anyone may write subjective beliefs? Does it include religious dogmas? If so, of what religions?

Importantly, neither Jefferson nor any of the other Founders claimed that the Declaration’s natural-law concepts were incorporated into the Constitution. Indeed, the Constitution explicitly rules out any such suggestion. The Supremacy Clause of the original 1787 document provides that the Constitution and the laws and treaties made “in pursuance thereof … shall be the supreme law of the land.” It doesn’t say that they shall be supreme unless countermanded by a “higher law.”

Apparently, Murray is able to believe in only what can be seen, what has been written down, and clearly is in no way religious.

F. Russell Hittinger may be able to clear things up for Murray. Natural law is not a religious dogma, Hittinger explains, but rather a “discovered” law – not human construct. Simply because men and women of faith have pondered natural law does not make it religious, any more than a tree or the human brain is religious. What Murray wants the Supreme Court to rely on Hittinger calls “positivism.”

Positivism can mean different things. On the one hand, there is a kind of lawyerly positivism that insists that the descriptive task of saying what the law “is” is analytically separate from what the law “ought to be.” This kind of positivism allows a moral critique of human law. On the other hand, there is what I call a “cosmological positivism,” according to which all norms of conduct are imposed, posited by the human mind. The great myth of Prometheus, told in Plato’s Protagoras, is still the best example of cosmological positivism. On this view, there is no separation of law and morality, for civic morality is entirely a creature of human law.

I propose that although our legal culture sometimes seems to hover between these two kinds of positivism, we still exhibit a deep and persistent expectation that human law satisfy moral norms. Americans believe that mands ought port with moral rights. Every nook and cranny of human law is litigated, as though law must fall in line with natural justice. In ways that are truly astonishing, Americans demand not only that law be just, but also that society be just. At the same time, Americans are reluctant to impose “morality.” From one point of view, this is a contradiction. From another point of view, it indicates how difficult it is to shake ourselves loose of natural law. The most controversial Supreme Court decisions—on religion, sexual conduct, marriage and family, affirmative action—bear the marks of dissatisfaction with legal positivism. Typically, both sides in these disputes appeal to something like natural law and natural rights.

Does this mean our courts should rely on religion when making decisions?

Some Supreme Court decisions have gone so far as to say that “religion” means the conviction that there exists transcendent sources of morality; religion can mean the merely subjective “religious” state-of-mind of the legislator; religion can also mean the religious-historical sources of custom mon law relating to matters of marriage and family, crime, civil associations, and so forth. Thus, “religion” has e an artificial category, sometimes expanded, sometimes cut and trimmed, for the purpose of winning legal, political, and policy arguments. Because ordinary human beings tend to make judgments according to standards that transcend mere human rules, and because relatively few of us have a highly articulated super-structure of philosophy or theology, religion is a rather foggy and elusive target.

Murray is afraid that natural law causes democracy to vanish, quoting Supreme Court Justice Harry Blackmun. Yet, natural law is not religious creed. John Locke, philosopher of classical liberalism, had this to say:

The state of Nature has a law of Nature to govern it, which obliges every one, and reason, which is that law, teaches all mankind who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions. The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of Nature for his rule.

Read “When Judges Believe in ‘Natural Law'” at The Atlantic.