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

More on religion and lawmaking

Just to continue the conversation (see recent posts by Steve S., Michael P., Rick G., Fr. Araujo, and Richard S.):  I take it that everyone agrees that a just government should not -- and that, in particular, our Constitution would not permit our government to -- pass a law requiring everyone to either go to Confession during Lent or pay a fine.  I take it, also, that everyone agrees that just governments should -- and that our Constitution permits our government to -- prohibit and punish intentional homicides.  The question I meant to ask, in my earlier post responding to Steve S., is whether these two common-sense points of agreement (and others like them) are really explainable with reference to an underlying "principle" like "the government may not enact laws for religious reasons", "the government may only pass laws that have a secular purpose", etc.

Now, Steve proposes, as a general principle that "subject to narrow exceptions . . . government is barred from acting as a theologian."  Well, that sounds right, but (and I'm not, I promise, trying to be obstructionist or stubborn), what does that mean?  Andy Koppelman has said that the government may not "declare religious truth", which also sounds right, but what *counts* as "religious" truth (as opposed to just "truth.") 

Sometimes, in this debate, it seems to me that what is really being asserted (this is not what I take Steve S. to be asserting) is that "the reasons that motivate religious people are fine, as long as they motivate them to support a policy that I (the "objective" or "reasonable" or "secular" speaker) also support."   It is not clear to me, though, why we should be moved by such an assertion.

Steve writes:

 At the same time, I believe that laws based on secular purposes are constitutional even if they are derived from a religious framework. The key, however, is that government may not employ the religious framework even though citizens may in proposing legislation. To pass Establishment Clause muster their religious views must be translated by government into secular terms.

I suspect strongly that, in almost every case, Steve and I would agree about how this proposal of his would "cash out".  But, I really do wonder what "secular terms" are, as opposed to a "religious framework."  As I see it, the "framework" that makes human-rights talk meaningful is (whether or not the person engaging in the talk is a religious believer) a "religious" framework.  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?


Garnett, Rick | Permalink

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