Using the controversial HHS mandate as an example, Hardley Arkes argues in an article on that religious freedom is in search of its argument.

“On one side, it has become conventional to ask the judges to respect ‘beliefs’ that are ‘sincerely held.’ But we are invited then to back into the libel of religion — the notion that religious teachings reduce finally to mere ‘beliefs,’ which cannot claim the standing of truths.”

But Arkes continues, “On the other hand, our friends may argue that their clients have ‘moral objections’ to contraception and the supply of abortifacients to their employees. But in that case they put themselves in the awkward position of denying the classic understanding that there is a moral ground to the laws.”

Based on these understandings, Arkes argues that there must be a recasting of the law. “The recasting would begin by insisting again on that necessary moral ground of the law: Before the law would impose these new obligations on the owners of the Hobby Lobby stores, the law should bear the burden of showing that there is something deeply unreasonable about their understanding that human lives are destroyed in abortions. Or that there is something unreasonable about their concern that the “contraceptive culture” brings an entirely different ethic in its understanding of sexuality and the marital relation.”