Monday, February 23, 2009
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.
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?
Sunday, February 22, 2009
SSM opponent David Blankenhorn and SSM supporter Jonathan Rauch have co-authored a New York Times op-ed laying out a culture war "compromise." They propose::
Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.
So the federal government would support, not supplant, states' decisions on marriage and civil unions. For someone (like me) who believes that the legal treatment of same-sex relationships should remain a state-level responsibility, who believes that the law will (and should) do more to support long-term, committed relationships among gays and lesbians, and who is concerned that the rhetoric of "marriage equality" has shown a tendency to minimize the importance of religious liberty (especially institutional religious liberty), what's not to like about this proposal?
Friday, February 20, 2009
UPDATE: I've corrected the link. (Thanks to Chris Green, Ole Miss.)
I am in substantial agreement with Steve Shiffrin's position on this issue. I present and defend my position here.
Kent Greenawalt defends essentially the same position in his recent book on the establishment clause.
If anyone thinks that my argument misfires, I'd love to hear where and why it misfires.
In a recent post, I said, that a law founded on a religious purpose was unconstitutional and that a law passed with fully adequate secular justifications but prompted by religious beliefs should be constitutional. Rick asks “How, though, do we distinguish between "religious" purposes, and "purposes that many people who are religious hold"? I think the search for legislative purpose can be quite difficult. But the difficulty of determining purpose is not germane to the general principle. The general principle is that subject to narrow exceptions (InGod We Trust) government is barred from acting as a theologian. Suppose that a legislature passed a statute outlawing fornication with a whereas clause stating that it was being outlawed because God commanded it and that the government is bound to follow the mandates of God. I believe that formal theological statements of this kind by government are unconstitutional and that such purposes are barred by the Establishment Clause. 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.
What is the alternative? Could a city adopt a law on the authority of the U.S. Conference of Bishops? On its interpretation of Mark’s gospel?
The satiric journal THE ONION is not everyone's cup of tea, mainly because of its utter lack of reverence. But as an opponent both of abortion and of the death penalty, I for one found this piece quite funny: Lethal Injection Ban Leads To Rise In Back-Alley Lethal Injections
I begin by thanking Steve Shiffrin, Rick Garnett, and Richard Stith for their thoughtful comments on the place of religion in matters Constitutional. I had written Steve privately to thank him for his fine reporting and insights. I would tend to think that it is difficult when all is said and done to prove that a law is based on religious beliefs rather than beliefs which religious persons and groups share with others whose perspectives are not based on religious belief. In short, I think that Dean Stone would have great difficulty in proving his contention. And, if the religious perspective that he critiques is shared with others whose views are not based on religion, Dean Stone would not be able to convince me that he is correct in his assertions.
I am inclined to think that most critics of religious influence in the law will not be bothered if the religious perspective concurs with his or her view (e.g., civil rights and environmental issues); however, if there is conflict (e.g., in the pressing issues of the day regarding human reproduction or marriage), then it is easy for the critic to claim that the opposing view is religiously based and, therefore, unconstitutional.
I have been pointing this out for some time. I recall back in the early 1990s in a commentary I offered on Justice Stevens’s separate opinion in Webster v. Reproductive Health Services that Justice Stevens was critical of the Catholic position on abortion. He contended that if the Catholic view were reflected in a law addressing abortion, this law would be unconstitutional. As he said, “I have no doubt that this Court would promptly conclude that such an endorsement of a particular religious tenet is violative of the Establishment Clause.” Interestingly, he then went on to assert in his footnote 16 that there were other religious perspectives differing with the Catholic view and coincidentally agreeing with the position he took in the case. I am at a loss to understand why he would not find those religious views that coincided with his perspective equally problematic. Perhaps I am doing both Justice Stevens and Dean Stone a service by pointing out the problem in their similar contentions.
Indeed, to exclude religious purposes may inevitably be to exclude far more than religious purposes, because some folks (like Geoff Stone, also at the Villanova conference) tend to see anything metaphysical, or just anything weird, or just anything they don't understand, as religious. See my critique of Stone published last year by Boston College and now found in the margin of Mirror of Justice below my name: "Excluding Religion Excludes More Than Religion".
It was great to see Steve Shiffrin (and many other MOJers) at Villanova. I appreciate Steve's report from the Scarpa conference, and will soon be posting some reactions of my own. For now, just a quick question: Steve says that it is "clearly right" to say that a law "founded on a religious purpose" is unconstitutional. How, though, do we distinguish between "religious" purposes, and "purposes that many people who are religious hold"?