Friday, February 20, 2009
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.