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Thursday, May 17, 2012

Arizona Legislature Comes Out in Support of Ronald Dworkin

Perhaps that's not what it meant to do, but that's how I see it. I'm referring to a post by Eugene Volokh at the VC. (The man must employ half the legal librarians in Southern California. Either that, or he knows a lot about computers.) It discusses a recently enacted Arizona law. I quote Eugene quoting the law:

B. Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person’s exercise of religion.

C. This section is not a defense to and does not authorize any person to engage in sexual misconduct or any criminal conduct.

And “exercise of religion” is defined (in § 41-1493.01) very broadly:

“Exercise of religion” means the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.

Eugene disagrees with the law, rightly in my view. He writes: "[T]his law imposes a total bar on the consideration of religiously motivated behavior (or at least non-criminal religiously motivated behavior) by applicants for office. And it does so for the relatively high-level offices for which consideration of conduct and even speech and political belief seems most legitimate. Either the law will be enforced as written, in which case the appointing officials will be unable to exclude prospective candidates whose past conduct suggests they really should be excluded. Or the officials will find a way to indeed exclude such candidates, even when the past conduct is religiously motivated — but only by flouting the law."

What I find striking about this law is that law and religion scholars have written for years now about the difficulty or impossibility of distinguishing between religiously motivated views and policy or political positions, for purposes of rendering the former illegitimate in politics. Against this position, some scholars, including Dworkin, have argued that some laws can be viewed as unconstitutional because they represent legislators' religious views on policy questions and cannot be independently justified on "neutral," "secular," or "rational" grounds. (I see that argument much less these days in the literature, but Edward Rubin has made this argument in some recent work, as does a recent paper by Gary Simson.) Without saying more here, I think the mainline law and religion scholars have the better of the argument here.

In any event, the Arizona law seems to me to adopt a position that is remarkably similar to that of Dworkin and others who have argued for the applicability of the Establishment Clause to legislators' religiously motivated policy positions; it just happens to place the shoe on the other foot.


Posted by Paul Horwitz on May 17, 2012 at 11:48 AM in Paul Horwitz | Permalink


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