That is the title of an article of mine just published in the Santa Clara Law Review 49.2 (2009). It is the article that I wrote about earlier this year on What's Wrong With the World and in which I offer, in the footnotes, a clarification of my views on intelligent design that attracted the attention and ire of Bill Dembski on Uncommon Descent. Here's how the article begins (footnotes omitted):
The American Founders understood that the government they put in place presupposed a cluster of rights that citizens have by nature and that the government is obligated to recognize. This is clearly spelled out in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Or, in the words of Alexander Hamilton, “[t]he Sacred Rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the Hand of the Divinity itself, and can never be erased or obscured by mortal power.”
But these rights imply a deeper understanding about the nature of human beings and the goods that are required for their flourishing. For example, if a human being possesses by nature a right to life, this means that other members of the community are morally obligated to not violate that right to life. But this seems to imply something about human beings and their nature that is moral in quality, a sacredness that requires that we treat each other with a certain dignity and respect that creatures of this sort ought to be treated. Thus, natural rights seem to imply a natural moral law.
There are, of course, many complicated and important issues concerning the relationship between natural rights and natural law, such as the differences between Hobbsean natural rights, Lockean natural rights, and Thomistic natural law, as well as the disputes between the new and traditional natural law theorists. In fact, some natural lawyers have suggested that we ought to chuck the idea of natural rights altogether because of their Enlightenment patrimony. Although these and other issues are certainly worthy of serious assessment, in this article I will set them aside and focus on the more modest question of whether it is reasonable to believe that the natural moral law requires the existence of God, as the American Founders believed.
What I mean by “reasonable” is not that reason requires that one must believe it. Rather, what I am suggesting is something less ambitious, namely, that a citizen who believes that natural rights and natural law require the existence of God embraces a philosophically defensible position that he or she may legitimately claim is an item of knowledge. Nonbelieving citizens who disagree, therefore, are not ipso facto irrational. In order to make my case, this paper covers three overlapping topics. In Part I (“Faith, Reason, and the Courts”), I critically discuss how some federal court opinions imply or affirm that religious claims are by their nature irrational, and thus cannot ever in principle be the grounds of any public policy, which would apparently include natural rights and their theistic paternity that the Founders embraced and many citizens believe is the ground on which all policy must rest. As part of my discussion, I critically assess some comments by the well-known atheist and legal theorist, Stephen Gey, who has claimed that religious beliefs are by their nature irrational and thus cannot be items of knowledge. I then show how the courts seem to assume in their opinions that theological claims can never rise to the level of knowledge that may serve as defeaters to the deliverances of so-called “secular” reasons. I argue that this view is deeply flawed. My reason for doing this is to show that if theological claims, including the claim that natural rights and natural law have their grounding in God, can be items of knowledge, then there is no a priori reason to exclude theologically informed public policy proposals from the public square on the grounds that they can never be items of knowledge.
In Part II (“Natural Moral Law and Contemporary Atheism”), I show how some contemporary atheists, seem to presuppose a natural moral law and thus natural rights. I conclude in Part III (“Why the Natural Moral Law Suggests God”) by offering an argument as to why I believe that natural moral law seems to require the existence of God. Part of my case includes a critical assessment of a Darwinian account of the natural moral law offered by several contemporary legal and political theorists.
You can get the entire article here.