Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, February 23, 2009

Government as Theologian

Rick says, “Is the rule simply that "the government may never say, 'we are doing this because a particular religious authority has commanded it'?"  If so, fine.  Whatever the Establishment Clause means, really, I'm happy to go along with the proposal that it should mean this.  But, I assume that instances of such proclamations are going to be few and far between. What about "we are not going to fund embryo-destructive research because such research is inconsistent with the dignity of the human person, properly understood"?  Such a statement says nothing about "religious authority".  What would Steve S. say to, say, Geof Stone, who believes (if I remember correctly) that such a statement can only be based on religion, and so the policy for which it is offered is unconstitutional?
The short answer is I do not agree with Geof Stone. Bans on embryo-destructive research or gay marriage do not violate the Establishment Clause (the latter was the main issue in his talk) though a ban of the latter raises questions under other clauses. (I assume that much of the Utah penal code and the Civil Rights Act of 1964 proceeded from religious premises of the citizenry, but this does not make such legislation unconstitutional). On the other hand, when government decides to display the Ten Commandments, the very selection of which version to display is itself a theological act which should be no part of the govrnment’s business. I agree with Rick though that government forays into the theological are by no means typical.


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