Religion in Politics: Constitutional and Moral Perspectives.

• Author: Metz, Kevin

Religion in Politics: Constitutional and Moral Perspectives. By Michael J. Perry.(*) New York and Oxford: Oxford University Press, 1997. Pp. 168. $29.95.

Over the past decade, constitutional scholar Michael J. Perry has struggled with the question of what role religion can and should play in the public policy of a liberal democracy such as the United States.(1) While some on the left want "God talk" hermetically sealed off from all political debates,(2) many on the right would build the city of God on the foundation of the U.S. Capitol.(3) Perry consistently has provided a reasoned and illuminating voice in the middle, respecting both the importance of religion to the believer and the need for a government of and for all the people, religious and nonreligious alike.

In Religion in Politics, Perry advocates a greater role for religious ideas in policymaking, arguing that the Free Exercise and Establishment Clauses require the judiciary to accept a very deferential stance toward laws justified by religious arguments. To be sure, Perry continues to have a healthy regard for nonestablishment as a principle; yet his permissive attitude toward the role of religion in legislation and judicial review fundamentally underprotects the democratic value of nonestablishment, transforming the shield of free exercise into a sword for privileging the majority's religious views.

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Perry's argument starts with the uncontroversial suggestion that the Free Exercise Clause prevents government from penalizing the expression of religious belief in public debate (p. 32). The truly difficult questions begin when religious beliefs form part--or all--of the basis for the political choice. Perry views free exercise as an antidiscrimination command, prohibiting government action that disfavors one religion or religion generally because of its religious nature (p. 13).(4) Perry goes further, interpreting free exercise as also requiring the "accommodation" of religious practice. Under this position, generally applicable laws that do not serve a compelling public purpose would require an exemption for religious practice (p. 30). The nonestablishment principle is also a governmental antidiscrimination command, but instead of prohibiting the disfavoring of religion as free exercise does, nonestablishment prohibits favoring religion because of its religious nature (pp. 15-16).

Perry ultimately synthesizes his characterizations of the religion clauses into a general rule that government may not make judgments about the "value or disvalue--the moral value, the truth value, the social value" of religion or religious practices as such (p. 14). Actions disfavoring religious practices (violating the free exercise norm) and favoring religious practices (establishment violations) send the message, endorsed and effectuated by the government, that one religious idea, faith, or practice is better or worse than another.(5) But what happens if a public policy choice is motivated by both a secular and religious justification?(6) Perry argues that a government policy choice violates the nonestablishment norm only when no plausible secular purpose supports the choice (p. 34). If a secular purpose is plausible, the decision does not violate the Establishment Clause, regardless of whether the actual purpose--the cause in fact--was religious in nature (p. 34).(7) Only where a religious purpose alone could have motivated a decision does that decision send an impermissible message favoring religion.

Perry views this balance--allowing religious justifications if there is also a plausible secular justification--as preferable for two reasons. First, courts would not need to substitute their own definitions of what constitutes a sufficient secular reason for those of the legislature. Second, this balance would rescue decisions motivated in fact by secular justifications that coincide with religious purposes where those religious motivations were unnecessary to the decision (p. 35). Perry readily admits that his position represents an...