Friday, February 20, 2009
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?