Religious Arguments by Citizens to Influence Public Policy: the Lessons of the Establishment Clause

• Jurisdiction: United States,Federal
• Publication year: 2015
• Citation: Vol. 66 No. 2

Religious Arguments by Citizens to Influence Public Policy: The Lessons of the Establishment Clause

Gary J. Simson

Mercer University School of Law

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Religious Arguments by Citizens to Influence Public Policy: The Lessons of the Establishment Clause

by Gary J. Simson^*

I am delighted to be a part of this richly deserved celebration of Jack Sammons's scholarship. As a scholar, Jack is truly in a class of his own. He offers a rare combination of qualities. For now, I will mention three of the qualities that together make him so special, but they by no means exhaust the list.

First of all, over a career as a legal scholar going back to his appointment to the Mercer law faculty in the late 1970s and continuing unabated today more than a year into his retirement from teaching, Jack has been wonderfully productive. He publishes often and on a remarkably wide array of subjects. Jack is very much not one of those scholars who manage to be productive by plowing the same field time and again. He has almost boundless intellectual curiosity, and he genuinely loves to engage in the scholarly give-and-take that comes with sharing his ideas with others at conferences and in print.

Second, Jack demonstrates in his scholarship a conversance with philosophy that is all the more impressive because it is largely self-taught. It is not at all uncommon to be reading one of Jack's articles and come across a thoughtful discussion in the text or footnotes of Wittgenstein or Heidegger or some other philosophical heavyweight whose

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writings are sufficiently inaccessible to nonphilosophers to send the great majority of legal scholars running for cover. To borrow one of Jack's favorite words, the "mystery"¹ of Wittgenstein or Heidegger is for him not the least bit off-putting, but rather part of the attraction.

Third and lastly, although Jack writes in prose, his work has a freedom, imagination, and suggestiveness to it that make it something more akin to poetry. Jack can dissect a court opinion or explain legal doctrine with the best of them. Ultimately, however-and this may well be the one quality that most sets him apart from other legal scholars-he is a poet at heart.²

Last spring, as I began to think about possible topics for my contribution to this Symposium, I decided to broach the subject with Jack. His and my scholarly interests coincide most closely in the area of law and religion, and he suggested that I take a look at his article, A Rhetorician's View of Religious Speech in Civic Argument.³ In the article Jack examines the proper role of religious convictions in "civic argument" in a democracy. By "civic argument," he means "political argument broadly construed."⁴ Underlining that "a democracy is a rhetorical community," he reasons from the premise that "all voices in a democracy should be heard, each equal to the other, in all matters of social importance to the practical extent that they can be, given our need to make decisions and to make them timely."⁵ In arguing for a broad role for religious convictions in civic argument, he takes issue with philosophers in the

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"liberal political tradition," who customarily place restraints on religious speech that, in his view, "cannot be justified in a democracy."⁶

As my contribution to the Symposium, I too would like to examine the extent to which citizens in a democracy may properly rely on religious arguments in seeking to influence the formulation of public policy. I will do so, however, from a perspective that seems to be rather distinctive among commentators on the subject-a perspective that attaches special significance to the limitations that the Establishment Clause places on our national commitment to democratic government.⁷ In my view, the

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proper scope of citizens' reliance on religious arguments in this sphere is intimately related to the importance that lawmakers, in a system of government limited by the Establishment Clause, may properly assign to religious convictions in drafting and voting on laws.

Writing in 1971 for an 8-1 majority of the U.S. Supreme Court, Chief Justice Warren Burger in Lemon v. Kurtzman characterized government "sponsorship" of religion as one of the "three main evils against which the Establishment Clause was intended to afford protection."⁸ In addition, he underlined that, in interpreting the Clause, it is essential to "draw lines with reference to" those evils.⁹ Although the now-famous three-prong "Lemon test" that the Chief Justice proceeded to unveil did not explicitly "draw lines with reference to" sponsorship or the other two evils that he named,¹⁰ the Court plainly applied the test in Lemon and later cases with special attention to those evils.¹¹

In Part I of this Article, I take as a starting point the Court's characterization of sponsorship as a prime historic Establishment Clause evil, and I sketch the implications of that characterization for citizens' reliance on religious arguments when they seek to influence lawmaking. To avoid possible misunderstanding, I underline at the outset that my focus is citizens seeking to influence lawmaking, not citizens engaged in lawmaking as occurs, for example, when the citizenry are authorized to decide a matter by referendum. When citizens decide a matter by

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referendum, they count, for constitutional purposes, as lawmakers no less than if they were members of the state legislature. That has long been the Supreme Court's understanding, and rightly so.¹² The Establishment Clause governs, and constrains, citizens' behavior when they exercise lawmaking authority by referendum or otherwise no differently than it governs, and constrains, the behavior of the citizenry's elected representatives when those representatives engage in lawmaking.

For purposes of Part I, I make two important assumptions. First, I assume the validity of the Court's characterization of government sponsorship of religion as one of the principal evils at which the Establishment Clause was aimed. Second, I assume that, in keeping with the invalidity under the Clause of a purpose of promoting the evil of government sponsorship of religion, lawmakers should not take religious reasons into account when deciding whether or not to adopt particular legislation. Because both assumptions are open to debate, I devote Part II to defending the first assumption and Part III to defending the second. I conclude with some final words on the sub-ject-our honoree-on which I began.

I. From Constitutional to Civic Constraints

I begin with a proposition that, as noted above, is not uncontroversial and will be defended at length in Parts II and III: A lawmaker may not, consistently with the Establishment Clause, give positive weight to a purpose of sponsoring religion in deciding what laws to draft and how to vote on proposed laws. I use "lawmaker" and "laws" broadly. By "lawmaker," I mean any governmental actor-federal, state, or local-vested with authority to make decisions on the government's behalf that, directly or indirectly, affect one or more members of the public. By "laws," I mean decisions of the sort just described.¹³ In keeping with the Supreme Court's use of "sponsorship" or "endorsement"-terms that it appears to use interchangeably-I use "a purpose of sponsoring religion"

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to mean a purpose of communicating to a reasonable observer a preference on the part of the government either that he or she adhere to a particular religion or religious belief or that he or she adhere to some religion (as opposed to adhering to no religion at all).¹⁴

Ultimately, if lawmakers are indeed constrained by the Establishment Clause in the way that I posit above, the Clause's command to them is, in essence, quite simple: Don't let religious convictions-whether yours or your constituents-enter into your decisions. I submit that if it is wrong for lawmakers to rely on religious reasons in lawmaking, that has important implications for citizens seeking to persuade lawmakers how to exercise their lawmaking authority. In particular, it follows that it must also be wrong for citizens to seek to persuade lawmakers by religious reasons-the very type of reasons that lawmakers are constitutionally prohibited from taking into account. And if that is so, then it also follows that citizens act wrongly whether they address religious arguments directly to lawmakers or whether they address religious arguments to other constituents in the hope that the others will be persuaded by those arguments and bring pressure to bear on the lawmakers to honor those arguments by voting in accordance with them.

It may be objected that this line of reasoning conflates two very different kinds of obligations. On the one hand, as governmental actors, lawmakers have constitutional obligations to abide by the commands of the Establishment Clause. On the other hand, as nongovernmental actors, private citizens are outside the scope of the Clause; whatever they do or don't do has no bearing on their fulfillment of constitutional obligations, because they have none.

The fact, however, that private citizens do not formally have constitutional obligations is no justification for defining their civic obligations

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without regard to the obligations that the Constitution places on those exercising authority in our system of government. Rather, one would suppose that foremost among citizens' civic obligations are obligations to act in ways that harmonize with the obligations that the Constitution places on governmental actors. By all indications, the framers of the Constitution structured the federal system as they did, including placing certain constraints on the exercise of federal and state power, in an effort to serve the greater good. Part of citizens' obligation to help serve the greater good is to make the system work well by facilitating governmental actors' efforts to abide by constitutional constraints. For citizens to...