Religion & American politics, Religion in the public sphere:

Is religion a constitutionally legitimate basis of lawmaking?

posted by Michael Perry

Readers of The Immanent Frame will have noticed that two of the several categories into which the various posts have been organized are “Religion & American politics” and “Religion in the public sphere.” However, no post in either category addresses a fundamental issue that has arisen in the United States – an issue concerning the implications of the establishment clause of the U.S. Constitution.

The contested question of whether in a liberal democracy religion – religious rationales – may serve as a basis of coercive lawmaking must be disaggregated into two distinct questions: First, is religion a morally legitimate basis of (coercive) lawmaking in a liberal democracy? Second, is religion a constitutionally legitimate basis of lawmaking in the United States? I have addressed the first question elsewhere. (Indeed, I have addressed it more than once, and have changed my mind over the years.) Many others, too, have addressed the first question, including, in book-length works, Robert Audi, Kent Greenawalt, Paul Weithman, and Nicholas Wolterstorff. In my judgment, the correct answer to the first question is yes; and, again in my judgment, the most powerful defense of that answer is philosopher Christopher Eberle’s important book Religious Conviction in Liberal Politics (2002). But what is the correct answer to the second question, which is not about moral legitimacy but constitutional legitimacy?

Like other liberal democracies, the United States is committed to the right to freedom of religious practice. Unlike most other liberal democracies, however, the United States is also committed to the nonestablishment of religion. According to the constitutional law of the United States, government – that is, lawmakers and other government officials – may neither prohibit the “free exercise” of religion nor “establish” religion. Does the establishment clause (as it is conventionally called) ban religion as a basis of lawmaking? More precisely, should the establishment clause be understood to ban laws (and policies) for which the only discernible rationale – or, at least, the only discernible rationale other than an implausible secular rationale – is religious? (R is the only discernible rationale for a law if but for R – if in the absence of R – the law would not have been enacted.)

So far as I can tell, there is a virtual consensus among citizens of the United States, including those of us who are religious believers, that, all things considered, it is good both for religions and for social harmony that our lawmakers are constitutionally forbidden to establish religion. The serious question among us, therefore, is not whether the constitutional law of the United States should include the establishment clause but what the establishment clause should be understood to mean – to forbid – in one or another context. In a recent essay I asked what the establishment clause should be understood to forbid in the context of lawmaking. I concluded that the answer to the question whether the establishment clause should be understood to ban laws for which the only discernible rationale is religious, depends: yes with respect to some religious rationales, no with respect to others. I also concluded, however, that insofar as the establishment clause is concerned, lawmakers are free to support laws – to vote to enact laws – on the basis of any religious rationale whatsoever. Those two conclusions may seem to pull in opposite directions; I explained in the essay why they do not.

My answer to the question is controversial, but any answer to the question will be controversial. Those who take the time to read my essay should ask whether in their judgment my position is too restrictive of religious reasons as a basis of lawmaking – or whether it is not restrictive enough. I would be delighted to respond, in the thread that follows this post, to any comments readers might have.

Tags: ,

Printer-Friendly Version


Leave a Reply

Please note: All comments will be approved by an administrator before they appear on this page.