Arkes on "religious freedom in search of its argument"

At The Catholic Thing, Prof. Hadley Arkes returns to a theme he's been developing in some recent columns and -- using Tom Farr's recent testimony before a House committee as an occasion -- notes what he calls "a critical need to recast our arguments over 'religious freedom' as they are offered not only in the courts but in the political arena."   Here's is what strikes me as the crucial section of his piece:

The God of the American Founders was the God of the Declaration of Independence – the Author of the Laws of Nature, including the moral laws. He was that Creator who endowed us with rights. And he was not a local god, of this tribe of Americans. He was the God of the logos, of reason, the Creator of that human person who was marked, in his highest nature, by that gift of reason.

As I’ve argued in these columns, our case for religious freedom should start there, not with the invocation merely of beliefs, but with the things that our religious tradition teaches us about the canons of reason as the ground of our judgments – and the grounds of the law.

And yet that touches the truth that seems reluctant to speak its name these days even among people who have devoted themselves to the defense of religious freedom: that we risk coherence when we treat, as equally plausible and legitimate, any group that flies under the title of “religion.”

If the people at the State Department seem at sea or wanting in conviction, we have to ask, “Have our own friends, working on religious freedom, helped make these distinctions clear and given guidance to them?”

With all due respect to Prof. Arkes -- and agreeing entirely with him that some claims invoking "religion" or "religious liberty" are less plausible than others, and that some claims invoking "religion" or "religious liberty" should lose while others should win, and that the reasons matter why religious freedom is our "first freedom" --  I am not sure I see a need, at this moment, in the courts or in the public square, to push our religious-liberty arguments back to foundations and first principles, especially if this involves debating the question whether the "God of the American Founders" is, in fact, the God of the "radical jihadists" or of other "groups that fill our landscape . . . and carry the banner of 'the religious.'" 

In one of his earlier columns, commenting on the Hobby Lobby case, Prof. Arkes said that "[o]ur friends litigating freedom feel pressed to argue within the grooves of 'sincere beliefs,' because they are the terms that the courts have confirmed and the judges recognize. The Greens are a generous, loving family, who deserve to prevail. But there needs to be another way of making the argument in the courts, and that is our task to come."  He is right, I'm sure, that religious faith and religious freedom are really about more than just "beliefs" and their "sincerity."  It seems to me, though, that the arguments to be made in courts and to judges are indeed the ones that -- for better or worse, and whatever their theoretical inadequacies or gaps -- "the courts have confirmed and the judges recognize."