Law School Discussion

Debate: Religious Reasons for Policy Unconstitutional?


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Debate: Religious Reasons for Policy Unconstitutional?
« on: July 25, 2006, 12:15:46 PM »
YES:  Geoffrey R. Stone

May law or government policy be based on faith? Given our nation's secular tradition, we would rightly protest a law prohibiting any person to eat pork merely because pork consumption is forbidden by some interpretations of the Bible. Any law based solely on sectarian religious belief should be rejected out-of-hand in a democratic society.

The objection is not that this law abridges the free exercise of religion. To the best of my knowledge, not eating pork does not violate anyone's religion. Rather, it must be rejected because it serves no legitimate public purpose and simply imposes one group's religious faith on the nation as a whole. Whether or not such a law violates the First Amendment's Establishment Clause ("Congress shall make no law respecting an establishment of religion"), it certainly undermines a fundamental precept of American democracy -- one person's freedom should not be infringed merely to satisfy another's religious faith.

Sometimes, this is a difficult principle to apply because there may be both a secular and a faith-based reason for the law. Consider, for example, a law forbidding stores to be open on Sunday. On the one hand, this can readily be seen as the illegitimate enshrinement in law of one group's religious faith. On the other hand, there may be a legitimate public purpose in having all or most stores closed on the same day, and why not pick the day most people would rather not work? An even more obvious example is the law prohibiting murder. Unmistakably, this enshrines in law the commandment, "Thou shalt not kill." But it is also a perfectly sensible law without regard to anyone's religious faith. A society that failed to prohibit murder would hardly be safe or stable. That the law has a religious as well as a secular purpose does not make it illegitimate.

The principle may also be difficult to apply when there is both a faith-based and a moral-based reason for the law. Murder, again, is a good example. But the line between morality and faith can sometimes be elusive. Eating pork is easy; adultery is less so. Often, people of faith confuse their faith with morality. Therein lies the problem.

George Bush appears to have no idea whatever of the difference between faith and morality. He acts arrogantly on the premise that stem-cell research, gay marriage and abortion are immoral, when in fact his views are based entirely on his own sectarian religious beliefs. His opposition to stem-cell research is no different, and no more legitimate, than a Muslim's opposition to Bush eating pork. Such a policy is merely faith masquerading as morality. As such, it is profoundly, blindly, and disturbingly incompatible with a basic premise of a well-functioning democratic society.

What Bush fails to comprehend is the fundamental distinction between acting in accord with one's faith and imposing one's faith on others. Bush has a right not to marry a man, not to have an abortion, and not to do stem-cell research. But he has no legitimate authority to prevent others from acting differently if they do not share his religious convictions.

Of course, there are real line-drawing problems here, and I don't mean to elide them. Morality and faith overlap. But a thoughtful person, respectful of religious diversity and individual freedom, would pay careful attention to the difference. Bush appears not even to know the difference exists. And in this, he is dangerous, indeed.

NO:  Eugene Volokh

Geof Stone makes a forceful argument, but it seems to me that there are two quite different strands to it strands that need to be separated.

At times, Geof is asking whether a "law [is] based on faith," whether a "law [is] based solely on sectarian religious belief," whether it "serves no legitimate public purpose." This category, he suggests, does not include laws that are "perfectly sensible law without regard to anyone's religious faith" or that have "a religious as well as a secular purpose," which would include a "moral-based reason" as well a "faith-based reason." Note that so far we're talking about the law. [EV: I should add here that the ban on stem-cell research funding can have obvious "moral-based" justifications, albeit ones I disagree with, just as a ban on experimentation on animals or a ban on killing endangered species would have "moral-based" justifications, even if some may disagree with them.]

At other times, though, he asks whether a person (including a political leader) backs a law "based entirely on his own sectarian religious beliefs," whether a person is "imposing [his] faith on others." That is a very different inquiry, an inquiry into the subjective motivations of a law's backers rather than whether the law in fact serves some public or moral purpose. For instance, I take it that all of us would agree that abolition of slavery, prohibition of alcohol, opposition to war, or support for civil rights are laws that have "moral-based reasons" as well as potentially "faith-based reasons." But all these laws were backed by some people perhaps many people for reasons that flowed from their own sectarian religious beliefs. (I chose these movements precisely because so many of their backers were deeply religious.)

In fact, I suspect that for many deeply religious people, all their moral beliefs are faith-based, because they believe morality only comes from God. I'd wager that many religious pacifists, abolitionists, and others would take precisely this view. Yet I think that we surely shouldn't condemn either their cause or them for this.

Your moral views may come from your understanding of human dignity; another's view may come from utilitarianism; another's may come from libertarianism; another's may come from fundamentalist Christianity. None of these bases are somehow provable; none is constitutionally superior to the others. (In fact, many of the arguments for religious freedom itself came from the "sectarian religious beliefs" of deeply religious people; I suspect that they supported religious freedom for religious reasons since religious reasons were the only moral reasons that counted to them.)

Any other approach is itself deeply discriminatory it suggests that atheists, agnostics, utilitarians, and the like are entitled to enact their moral views into law (because they don't rest on religion) while devout Catholics, Protestants, Jews, Muslims, and others are forbidden from enacting their moral views into law (because they do rest on religion). That's not mandated by the Constitution, it's not in my view compatible with our national traditions, and it's not right.

Hence my claim: It is certainly quite proper to ask whether a law is morally or constitutionally sound. A law banning the eating of pork may be quite unsound. Likewise, laws banning or allowing abortion, infanticide, the destruction of embryos or chimpanzees for medical purposes, or the killing of members of endangered species might be sound or unsound.

But it shouldn't matter whether someone supports them because of his belief that laws should turn on the greatest good for the greatest number, his belief that we are all sons and daughters of Gaea and must thus protect our environment, or his belief in the Bible. For most, quite possibly all, of us, our moral beliefs ultimately rest on unproven and unprovable moral axioms. The Constitution doesn't consign those whose moral beliefs rest on unproven and unprovable religious axioms to a lesser citizenship, under which they may not enact their views into law, while others with the same views that rest on unproven and unprovable secular axioms are free to do so.


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Re: Debate: Religious Reasons for Policy Unconstitutional?
« Reply #1 on: July 25, 2006, 12:27:29 PM »
I think Stone has the right idea but his argument isn't as precise as it could be.  Volokh is a little too glib.