North Carolina’s HB2 (also known as the “bathroom bill”) may not explicitly be about religious freedom, but nearly all of its vocal supporters are conservative Christians who seem to have a hard time deciding whether the legislation protects “common sense” or their particular religious views. Much like certain conceptions of natural law, this type of “common sense” is asserted as simultaneously deriving from and separate from a divine creator. This slippery logic makes it particularly pernicious.
It’s not hard to find examples: At an April gathering in Raleigh, reality TV stars and identical twin brothers David and Jason Benham took to the mic to express their support for HB2. David Benham first assured the crowd, “This is not forced belief, this is common sense.” But about fifteen seconds later, Jason Benham added: “Common sense is not so common when that thread of ‘Under God,’ that binding thread of being ‘Under God,’ has been removed.”
This week, Jason said in a Facebook video about HB2 that “religious liberties are hanging on by a thread right now” even though the bill doesn’t mention religious liberty even once.
Moments later, he added, “What could be more objective than the sex of a person being determined by what’s on their birth certificate, which is determined by your plumbing. That’s objective. The minute you base law on subjectivity, it’s like saying, you know what, I think a green light means stop and a red light means go.”
Similar logical twists took place earlier this month when participants in a South Carolina county’s school board meeting erupted in a spontaneous chorus of “Jesus Loves Me” in a response to one woman’s attempt to defend trans students’ rights to choose where they pee. Before the song, as the woman tried to ask what might happen to a child “born with both sexes,” another participant cut her off by asking “Do you believe in the word of God?” He then went on to say that if a child is born “with both body parts” … “we all know that God did not create that child that way.”
“According to nature, just nature, we’ll leave God out of this for one second,” he continued. “Nature tells you that a female dog has a female body part, a male dog has a male body part. If we see a dog with two body parts, we all know there is something wrong with the order of nature and the order of God when it comes to that dog.”
I asked John Lawrence Hill, a law and philosophy professor at Indiana University, about that dog comparison. He called it a “crude verisimilitude of one narrow form of natural law.”
Under natural law philosophy, certain rights and values are inherent to human society because they come from nature and can be universally recognized through reason. “There is an objective order that is not simply ‘in the mind’ and this order is reflected in nature,” Hill explained. But that objective order has never been agreed on. Even among natural law theorists, there is a “good deal of debate about what the natural law really entails,” he said.
In the above examples, the “natural order” of things reflects a religiously-based view that men are men and women are women and transgender individuals are just confused. At its core, this view does not acknowledge the trans experience as real.
Religiously-based beliefs can be hard to pin down when they’re not directly linked to religious laws or dogma. But they’re especially difficult to identify when equated with natural law, which on its surface purports to be something we should all be able to agree on. Because we don’t. The “common sense” of HB2 isn’t common to us all.
