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Tuesday, May 31, 2005

Religious Laws

E. Volokh is arguing at the VC and at The Huffington Post (here and here, respectively) that people need to have the right to make their political decisions for purely religious reasons and that it is a mistake (constitutionally and otherwise) to criticize citizens or leaders who vote for policy outcomes to enact their religious viewpoints into law.

I appreciate Volokh's point.  It must be the case that people should be free to develop their opinions consistent with their consciences.  It could only be a flaccid politics that would disallow people to make decisions according to the principles they hold most dear.

Still, I wonder if this line of reasoning doesn't make it too easy for the religionists.  It has to be the case that there are demands of public reason in secular liberal societies that prevent policies from being enacted when, at their core, they are nothing more than a religious preference.  So we have to build in a constraint or two.  We couldn't, I take it, allow a majority of leaders or citizens to enact a public policy for religious reasons only because there are potentially secular reasons that may have motivated some of the policy's adherents.  If a majority of an enacting Congress appeals to the Bible to justify a law, that must run afoul of Establishment Clause principles, despite our deep commitment to freedom of conscience.  What if a majority of voters in measures of direct democracy (say, banning same-sex marriage) are motivated almost exclusively by religious reasons?  Would that not also seem to run afoul of the Establishment Clause and impermissibly mix religion and law?  In short, Volokh is right that it is too facile to condemn all whose political beliefs emerge from a religious viewpoint; but we must be careful before we allow religious reasons to justify actual policy enactments.

Posted by Ethan Leib on May 31, 2005 at 11:15 AM in Deliberation and voices | Permalink


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In addition to Kaimi's book recommendation, which I second strongly (we both learned a lot from Prof. G, I think), anyone who's interested in the question should read Political Liberalism. There's also a voluminous literature, much of it communitarian, that responds to Rawls' claims.

Posted by: Brian Galle | Jun 1, 2005 11:58:58 AM


I don't think that your Catholic anti-death penalty law is analogous. As I said, my issue is NOT motivation (though I do maintain that motivation can INFORM our inquiry into the substance).

I don't care if 99% of the people who vote for a law banning the death penalty do so based on religious motivation, so long as there is CLEARLY a rational secular motivation that could support such a law. I think we can come up with a number of them in this case. I'd say the same thing about a ban on murder that is motivated by Noahide law; surely we can come up with a secular rationalization! (I think I'd probably say the same thing about abortion; one need not be religious to believe that a fetus is deservant of some rights. So this isn't about gaming legal theory to achieve desired results.)

That's why I would not banish religious speech from the political debate. Martin Luther King Jr. and Jerry Falwell alike can advocate particular legislation based on religious motivation. My concern is when a law has nothing going for it OTHER than "God said so, and most of us like God." I'd put a ban on contraception in this category. I can't think of a single neutral and rational basis for banning condoms (particularly if one allows tubal ligation).

A law need not require attendance at church to be religious in nature, and thus violative of the Establishment Clause.

I'm not claiming that line-drawing is easy. As I said, this is among the most important (and let me say, difficult) questions in today's constitutional law debates. There will be no theory that can accommodate and account for all possible cases. But we must do the best we can.

Posted by: hillel levin | May 31, 2005 4:06:50 PM

Ethan, Hillel,

I think that the issue gets complicated because most religious pressure right now comes from the right. But I don't think that that is necessarily the default. Do liberals really want to give up their own ability to make laws based on religious, moral convictions, assuming that those laws have some level of secular justification as well?

Let me toss out this fish-out-of-water hypothetical. Suppose a Catholic politician embarks on an anti-death-penalty crusade. She rounds up votes by appealing to Catholic politicians, on the grounds of belief, and by appealing to run-of-the-mill liberal concerns with the death penalty. She succeeds in passing a law striking down the death penalty in her state.

Should her law be held unconstitutional and void, because some of the lawmakers who voted for it did so on the grounds that their Catholic belief required that?

Posted by: Kaimi | May 31, 2005 3:52:36 PM

The problem comes from the difficulty in uncoupling laws from moral, foundational principles, many of which may have a religious origin.

For example, assume that a historian can show that the New York murder statute was explicitly drafted because the Bible says "Thou shalt not kill" and the legislators, as they drafted the statute, made repeated references to its necessity, couched in explicitly religious terms. ("We really need a murder statute. We all know that God hates murder. And remember, it was one of the Ten Commandments.")

Does that origin invalidate the statute? Can I, a murderer, argue that the murder statute is unconstitutional?

Or is there a harmless error standard? Can we say, "Yes, Representative Wenger who drafted the statute talked about God a lot, but we all know that the statute would have been passed anyway"?

It's a question that doesn't go away. Kent Greenawalt wrote a book on it, twenty years ago (Greenawalt, Religious Convictions and Political Choices) (recommended), and the issues remain the same as they were back then.

Posted by: Kaimi | May 31, 2005 3:46:32 PM

It seems to me that this question is among the most important on the constitutional law agenda today.

I fail to understand the distiction between direct democracy and acts of elected officials. If a ballot initiative results in a law banning speech, the law is struck down--regardless of the fact that it is "the will of the people." Why is the Establishment Clause any different? If a law passed by elected officials violates the Establishment Clause, then the identical law passed by popular initiative (short of a constitutional amendment, of course), suffers the same fate. The BOR generally protects individual freedoms from government encroachment of any kind, whether the "government" is the executive branch, the legislative branch, or Ethan's suggested "popular branch."

It seems to me, therefore, that the operative question is "Does the law violate the Establishment Clause?" and not "How was the law passed?" or "What was the motivation for its having been passed?" Note though, that I think the third question is often instructive on the first.

Finally, it has always struck me that a more robust interpretation of the Establishment Clause could have done the work that "Privacy" did in Griswold v. Connecticut--without worrying about penumbras and hidden rights.

Posted by: hillel levin | May 31, 2005 3:35:26 PM

"The Voice of the People," when it can directly make law, is a more complicated beast: one could, I think, reasonably argue that direct democracy is a form of state action. When citizens act as legislators, there may be relevant side constraints posed by the BOR.

KIRKSEY v. CITY OF JACKSON, MISSISSIPPI, 506 F. Supp. 491 (S.D. Miss. 1981) actually addresses a similar issue in the race context. It refused to hold a referendum election to be unconstitutionally racially motivated even though polls showed clearly that the vast majority of voters had racially discriminatory motives. The Court of Appeals essentially held that, as in the jury context, we don't look into the motives of voters.

This logic has never impressed me. We usually don't want to go into the jury room to understand why jurors voted the way they did. The old sausages adage: like verdicts, you don't usually want to see how they are made. But if 12 jurors vote to convict a defendant because they hate Jews for being Christ-killers--and there is probative evidence of their motivations--it would be hard to argue that such a verdict should stand undisturbed merely because citizens get free exercise of religion. When citizens stand in certain roles, we expect more of them.

Some read Washington v. Seattle School District No. 1, 458 U.S. 457 (1982) to support the view that if an electorate enacts a facially neutral law with obviously discriminatory motives, courts may strike it down as unconstitutional. It is an admittedly generous reading (to my viewpoint)--but it is undeniably a permissible one and one that finds support in lower courts.

Posted by: Ethan Leib | May 31, 2005 2:29:33 PM

The Establishment Clause, being part of the BOR, is intended as a restraint on government entities, not the voice of the people. That is where the Free Exercise clause comes into play. In your example of direct democracy banning same-sex marriage for purely religious purposes, the Establishment Clause isn't even implicated, but the electorate has a constitutionally guaranteed right to free exercise of religion, with limitations if a compelling st interest arises.

Posted by: Informed Consent | May 31, 2005 1:55:40 PM

Ethan: I suppose that one way of responding to the race example is that we don't think that religious views are inherently reprehensible in the same way as racist views, or at least I hope that we do not. Furthermore, it is not clear to me that racial motivation standing alone ought to make a law illegitimate if has no substantive defect.

Posted by: Nate Oman | May 31, 2005 1:44:01 PM

I'm not confusing them. I understand that they are different things.

But let's not forget that we have motivational, rather than solely substantive, side contraints in the race context too. I'm not sure what "liberal" political theory or the Constitution requires. I'm just thinking out loud...

Posted by: Ethan Leib | May 31, 2005 1:39:56 PM

Ethan: It seems to me that you are confusing two seperate issues, namely the motivation for a law and the content of a law. Suppose that every last member of congress who voted in favor of a murder statute did so because the Bible bans murder. I don't see how this could possibly be an Establishment Clause violation. Nor do I believe that as a matter of liberal theory such a law would be illegitimate. It seems to me that the legtimacy or illegitimacy of religiously motivated laws lies in the content of those laws not in the motivation for them.

I think that your same-sex marriage example is telling here. Is it the religious motivation behind the law that bothers you or is it the substantive content of the law itself.

It seems to me that if we are going to create constitutional or philosophical side constraints on democratic action that they ought to be cast in substantive rather than motivational terms.

Posted by: Nate Oman | May 31, 2005 1:34:05 PM

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