Religious contributions to the bioethics debate: utilizing legal rights while avoiding scientific temptations.

• Author: Goldberg, Steven

Religious communities and individuals of faith have much to contribute to the debate on legal issues surrounding bioethics. There is no constitutional problem with their participation in that debate; indeed, constitutional principles protect the right to express religious viewpoints in the public square. The real question is what will be said; will religion make a distinctive contribution to the bioethics controversy, or will it merely echo the agenda and the perspective of modern science?

I will begin by outlining the legal right of religious individuals and groups to participate in legislative deliberations such as those relating to bioethics. The interplay of free speech and the religion clauses creates a favorable environment for robust public debate, while the due process clause guarantees that religious values can be passed on in religious schools. I will then turn to a general consideration of what sorts of contributions people of faith might make. Too often, it seems to me, they are seduced by science: eager to talk as if the human genetic code is all that matters, while expressing relatively little interest in vital nonscientific issues, like access to medical care. (1) Whether it is an unconscious adoption of the notion that only science is important, or simply an overwhelming desire to be trendy, religious groups often miss the opportunity to make a distinctive contribution to public debate.

Let us begin by looking at their right to participate in that debate. The free speech clause in the United States Constitution protects religious speech every bit as much as it protects political speech. No branch of the federal or state government can prevent you from talking to your neighbor, writing an editorial, or emailing your Congressman, no matter whether your views are widely shared or yours alone. Moreover, the government cannot prevent you from expressing Christian views any more than it can prevent you from expressing utilitarian views. When the late Justice William J. Brennan, Jr. and the current Justice Antonin Scalia served together on the United States Supreme Court they often disagreed, but on this point they were in complete harmony. As Justice Brennan wrote when the Court unanimously invalidated a law barring clergy from holding political office, we cannot "place religious discussion, association, or political participation in a status less preferred than rights of discussion, association, and political participation generally." (2) Or, as Justice Scalia more recently held, "a free-speech clause without religion would be Hamlet without the prince." (3)

The Constitution also protects the free exercise of religion. By its nature, the practice of a religion cannot be as fully protected as religious speech. When a religious practice, such as the use of the hallucinogen peyote, conflicts with the law, the practice may have to give way. (4) But that is not the matter before us. When religious speech is involved, the free exercise and free speech clauses point in the same direction: against government censorship. Long before Brennan and Scalia were Justices, a unanimous Supreme Court made this clear. In 1940, the Court considered the case of Newton Cantwell, a Jehovah's

Witness, who had been convicted of breach of the peace for expressing religious views that were quite unpopular in the neighborhood where he was preaching. (5) The Court at that time was quite diverse: it included conservatives like Justice James C. McReynolds, centrists like Justice Harlan F. Stone, and liberals like Justice William O. Douglas. But the Court was unanimous in reversing Cantwell's conviction. Relying on free exercise values and traditional free speech doctrine, the Court held that the "state may not unduly suppress free communication of views, religious or other." (6) Since there was no "clear and present danger to a substantial interest of the State," Cantwell's speech, however unpopular, had to be protected. (7)

There is another constitutional protection for religion that is less well known but no less important than free speech and free exercise. In 1925, the Supreme Court held, in Pierce v. Society of the Sisters, that parents have a substantive due process right to send their children to private schools, including parochial schools. (8) The case arose after Oregon enacted a law requiring that all children between the ages of eight and sixteen attend public school. (9) The unanimous Court held that, although states could mandate school attendance, parents had a right to choose private schools if they met state standards. (10) The current Supreme Court has reaffirmed this holding. (11) Pierce has been called "almost certainly" the Supreme Court opinion "most supportive of the survival of religious communities." (12) It permits those parents who so choose to enlist parochial schools in the creation and maintenance of religious values, assuring that the next generation will have a informed basis if they want to bring religious perspectives to bear in public debate and in private choices.

Given the strong protection the free speech, free exercise, and due process clauses give to the creation and expression of religious viewpoints, it is something of a puzzle why so many people, across the political spectrum, are uncertain about the right to present religious views in policy arguments. Most likely the confusion in the public mind about this point stems from a misunderstanding of the non-establishment of religion clause in the Constitution. Some people, including supporters and opponents of traditional religion, apparently believe that if a clergyman or a devout citizen presents arguments based on religion in support of a bill, passage of that bill would be an "establishment of religion." That has never been the law. And thank goodness. Under that standard, theft...