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Wednesday, November 30, 2005

Suicide and the Establishment Clause

One of the great things about being in the Bay Area is the ability to go to whatever Berkeley-based talk one wants.  Yesterday, I attended the Law & Society Bag Lunch Series and heard Ed Rubin talk about why he thinks any law coercively preventing someone from committing suicide violates the Establishment Clause.  You read that right.

In short, his argument is that any law that targets suicide and coerces people against taking their own lives must be derived from a Christian morality.  And since, he claims, there is no plausible secular justification for laws against physician-assisted suicide, such laws must be violative of the Establishment clause under any doctrinal formulation of that clause's requirements.  Though he didn't argue it yesterday, apparently he also thinks laws against abortion and gay marriage similarly run afoul of the Establishment Clause. 

I like the idea, of course, because I would prefer to live in a society where all laws against suicide, gay-marriage, and abortion run afoul of the Constitution.  But it seems he's asking the Establishment Clause to bear too much weight.  There is a lot one can say about why this argument must fail.  Still, what I find most problematic is the idea that there is no plausible secular justification for these kinds of bans.  Admittedly, many (if not  most) interested in these bans very likely have religious reasons that undergird their understandings of these social choices.  Yet it seems a bit hard to think that there is no reasonable secular justification that could save these bans under the Lemon test.  It is really hard, I think, to dismiss all "sanctity of life" arguments and arguments from "traditional morality" as simply Christian.  I am not moved by these arguments, of course -- but neither do I find them necessarily religious (and sectarian, at that).

Still, a provocative argument, worth a scan.

Posted by Ethan Leib on November 30, 2005 at 02:16 PM in Article Spotlight | Permalink


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Thanks, Ethan. I see the same problem (and also don't see the point in criminalizing suicide).

Posted by: Rick Garnett | Dec 2, 2005 10:53:22 AM

You added the "assisting" part. I'm not sure, truthfully. Suicide itself (unassisted) shouldn't be criminalized (though I'm not sure the Constitution actually prevents it from being criminalized). But I admit seeing a huge problem with allowing "accomplices" a consent defense without some more basic regulation from the state to ensure that the suicidal individual actually does consent.

Posted by: Ethan Leib | Dec 1, 2005 12:49:02 PM


Would you really "prefer to live in a society where all laws against [assisting a] suicide . . . run afoul of the Constitution"? Putting aside (for now) questions about authorizing, via relatively narrow statutes, physician-assisted suicide for terminally ill patients, would you really feel at home in a society that *entirely* decriminalized *everyone* from assisting *anyone* in killing themselves? (I don't mean to be tendentious . . . but I'm curious.)


Posted by: Rick Garnett | Dec 1, 2005 12:39:43 PM

Re: your point 3, Will, I don't think it's plain silly, but I agree it's not obvious or even persuasive on its face that a religiously justified statute would violate the Establishment Clause. I'm not on top of the two recent ten-commandments opinions, but my impression is they do suggest that religious motivation is a taint or negative that one properly weighs against the opposing secular goods in deciding whether a measure violates the Constitution.

Nobody likes my argument from the right to life liberty and the pursuit of happiness? Will nobody cede me a penumbra? All I want is a penumbra. I don't need an emanation.

Posted by: MT | Nov 30, 2005 8:01:23 PM


We do indeed have rational basis tests, although they are typically applied without bite rather than with. Three thoughts, though.

1, Is it obvious that every law must satisfy a rational basis test (and is it a due process r.b. test or an equal protection r.b. test?)?

2, The typical deferential test (like the one enunciated in FCC v. Beach Communications) is empirically blind, that is, any story that would be plausible under any conceivable set of empirical facts counts as a rational basis. Now exactly what "plausible" and "conceivable" mean is up for grabs here, so I think I am willing to move slightly closer to your camp.

3, On another note, am I the only one who thinks it is actually quite silly to have a secular-justification requirement at all? Even if a law's justification was entirely based on religious convictions, I confess that I do not see why that necessarily makes it an establishment of religion.

Posted by: Will Baude | Nov 30, 2005 7:35:58 PM

Just me:

Please don't miss the point. Even prohibitions on murder are religiously derived in some sense. We're talking about laws that otherwise have no secular justification. So far, no one here actually agrees with Rubin that there is no secular justification for gay marriage bans, abortion bans, and euthanasia bans. Your rhetoric doesn't advance the discussion.

Posted by: Ethan Leib | Nov 30, 2005 7:15:16 PM

For what it's worth, I became a pro-lifer when I was an atheist.

And as for laws that were, in fact, largely driven by religious motivation --

The civil rights laws are at the top of the list, as that darn "Reverend" King and the Southern "Christian" Leadership Conference kept pushing them. Oh, and a century earlier, all that "abolition" junk has to go, too.

Let's just make it easy, and say that Christians, Jews, Muslims, Hindus, and everyone religious should not be allowed to vote. Only atheists should be allowed to be voters or officeholders. Is that the endpoint here?

Posted by: just me | Nov 30, 2005 7:10:20 PM

We do have "rational basis" tests. And they can even be applied "with bite." So I suppose I continue to dissent from Will's "that's that" attitude: some reasons aren't even rational -- and one could plausibly claim non-rational reasons do not get to save an otherwise offending law.

Finally, in this regard, it is worth noting that we DON'T criminalize suicide.

Posted by: Ethan Leib | Nov 30, 2005 7:08:18 PM

MT: So far as secular arguments for criminalizing suicide, what about Kant's argument that one simply owes a non-religious moral duty to oneself not to kill oneself? I don't happen to find it compelling, but you and I agree that that does not matter. If other people find it compelling, that's that.

Posted by: Will Baude | Nov 30, 2005 7:01:23 PM

"I'm not sure. I think one could reasonably argue that incoherent or demonstanbly false 'justifications' for a policy preference don't get to save a purportedly secular purpose for the Lemon test."

Really?? A jury can discount the testimony of defendants and witnesses as they please, but will a jury be applying the Lemon test? Is there any context outside of recovered memory and murder trials that the law acknowledges the existence of an unconscious? Implicit is not the same as unconscious. A sincere rationalization implies real reasons that are unconscious, not implicit. Not only that, they're liable to be irrational, if Freud taught us anything.

Posted by: MT | Nov 30, 2005 6:57:37 PM

I meant "unconstitutional."

Posted by: MT | Nov 30, 2005 6:48:11 PM

As far as a good secular reason to ban suicide, I don't think there's any absolute one. Souls don't exist or have rights under the Constitution, and under the E. clause it prohibits states and the federal government from designating anything as sacred. I think you'd have to make a public policy argument, and I don't think you could get an absolute one. Maybe you could argue that physically fit men and women have a duty to their country to live (for the economy or for defense in the case of a draft). Maybe you could argue that people with lots of loved ones have a duty to live, because of the economic and other consequences that would result from all the heartbreak that their suicide would cause. But profoundly introverted sociopathic invalids with no relatives? It's bad for the health of the nursing and prison industries to let such people kill themselves but surely there's enough of an individual liberty interest in suicide to offset an economically meager and petty argument like that. Narrow bans suited to a particular social and historical context are all I can imagine being rationalizable. And maybe all such bans are Constitutional.

Posted by: MT | Nov 30, 2005 6:46:37 PM

"So if it looks like some people who oppose euthanasia do so for genuine but dim-witted secular reasons, that's that. Its secular creds are safe."

I agree. Declaring suicide statutes unconstitutional under the Establishment Clause poses an insurmountable burden of proof, assuming there's no smoking cross in the legislative history.

But what about the "life, liberty and the pursuit of happiness" clause?? As I read that clause, if it bears on anything it's a person's right to follow his or her intuition when it says the best way to minimize the unhappiness of his or her life would be to end it now.

Posted by: MT | Nov 30, 2005 6:21:01 PM

It makes sense, although I don't think I entirely agree. As a matter of logic it seems hard to argue that merely because a justification is "bad" it doesn't count as a justification, unless there's some independent constitutional requirement that a statute have a not-bad justification.

Now, it's true that you need slightly more than one atheist who is against euthanasia, but I would have thought that once you had the anti-euthanasia atheist, you would simply have to ask him "Why do you oppose euthanasia?" And his honest answer would be a secular justification for the law.

Posted by: Will Baude | Nov 30, 2005 5:50:29 PM

I think I agree with you. But notice that the "justification" -- even if empirically falsified (with air tight empirical evidence?) -- bears some relationship to the policy being justified: there is an articulable basis for justification. That is (only slightly) more than is required in your original proposal. All I wanted to highlight by using the "bona fides" terminology was that there must be something connecting reasons to the policy preference, not merely a conjunction between a single person who happens to be against both euthanasia and god. As for whether demonstrably "bad" secular reasons get to count as secular justifications, I'm not sure. I think one could reasonably argue that incoherent or demonstanbly false "justifications" for a policy preference don't get to save a purportedly secular purpose for the Lemon test. Now, I think the secular arguments against euthanasia and gay marriage are not all demonstrably false, so I don't enter this quagmire -- even though I do think most of the arguments are stupid. Does that make sense?

Posted by: Ethan Leib | Nov 30, 2005 5:43:54 PM

But there's a difference between being "plausible" and being "bona fide". Right? Even under the theory that the establishment clause forbids laws enacted solely for religious reasons, there is a difference between religious reasons and simply stupid secular ones. So if it looks like some people who oppose euthanasia do so for genuine but dim-witted secular reasons, that's that. Its secular creds are safe.

For example, take gay marriage. Suppose that the gay marriage opponents are limited to 1, those who oppse it for religious reasons and 2, those who oppose it because they believe that gay people who marry will destroy heterosexual marriages. Now suppose that as an empirical matter it is absolutely and totally clear that gay marriage will in fact not do anything to destroy heterosexual marriage. But suppose that the people in category 2 pig-headedly refuse to heed this empirical evidence. That doesn't mean that gay marriage suddenly becomes an establishment-clause violation, it just means that category-2 people are being dumb. But stupidity and insincerity are pretty much orthogonal.

Posted by: Will Baude | Nov 30, 2005 5:08:14 PM

I think I agree; his arguments were somewhat less than full in this regard. But he tries to refute Kamisar, who is a leading atheist anti-euthanasia, revealing the arguments to be implausible. I was unpersuaded by his effort; but I think you still need more than to find one person who has the dispositions you mention. The secular justification must, after all, be a bona fide justification.

Posted by: Ethan Leib | Nov 30, 2005 4:19:07 PM

Owing to inexplicable typo, the above version should say "Rubin" rather than "Pohn"

Posted by: Will Baude | Nov 30, 2005 3:06:36 PM

I would have thought it trivially easy to refute the strong version of Pohn's claim. Surely somebody can produce somebody who both 1, thinks suicide immoral, and 2, is a through and through atheist. Wouldn't that do it?

Posted by: Will Baude | Nov 30, 2005 3:05:58 PM

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