Why political reliance on religiously grounded morality does not violate the Establishment Clause.

AuthorPerry, Michael J.

I say, sir, that the purity of the Christian church, the purity of our holy religion, and the preservation of our free institutions, require that Church and State shall be separated; that the preacher on the Sabbath day shall find his text in the Bible; shall preach "Jesus Christ and him crucified;" shall preach from the Holy Scriptures, and not attempt to control the political organizations and political parties of the day.

--Senator Stephen A. Douglas(1)

Imagine a legislator who must decide whether to vote to outlaw, or otherwise disfavor, particular conduct--abortion, for example, or same-sex unions. She wonders what weight, if any, she should put on her religiously grounded belief that the conduct is immoral; in particular, she worries that it might not be appropriate for her to disfavor the conduct on the basis of her religiously grounded moral belief.(2) In another essay in the series of which this Essay is a part,(3) I argue that the morality of liberal democracy does not counsel her against disfavoring the conduct on the basis of religiously grounded moral belief.(4) In this Essay, I pursue a different but, for us citizens of the United States, complementary inquiry: Does the United States's constitutional morality of religious freedom--in particular, the requirement that government not "establish" religion--forbid government to disfavor conduct on the basis of a religiously grounded belief that the conduct is immoral? That the morality of liberal democracy does not counsel a legislator or other policymaker against disfavoring conduct on the basis of religiously grounded moral belief does not entail that the nonestablishment norm (as I prefer to call it) permits government to disfavor conduct on the basis of religiously grounded moral belief. As I have explained elsewhere, the nonestablishment norm that is part of American constitutional law is, in some respects, more restrictive than the morality of liberal democracy; in some respects, the limitations placed on government by the nonestablishment norm are greater than, they go beyond, the limitations placed on government by the morality of liberal democracy.(5)

The First Amendment to the Constitution of the United States famously insists that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Yet, according to the authoritative case law--law that is constitutional bedrock in the United States(6)--it is not just "Congress" but all three branches of the national government that may not prohibit the free exercise of religion, abridge the freedom of speech, etc. Moreover, it is not just the (whole) national government but the government of every state that may not do what the First Amendment forbids. I have suggested elsewhere that there is a path from the text of the First Amendment, which speaks just of Congress, to the authoritative case law.(7) But even if there were no such path, it would nonetheless be constitutional bedrock in the United States that neither the national government nor state government may either prohibit the free exercise of religion or establish religion (or abridge "the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances").(8) For Americans at the beginning of the twenty-first century, the serious practical question is no longer whether the "free exercise" and "nonestablishment" norms apply to the whole of American government, including state government. They do so apply. And there is no going back. The sovereignty of the free exercise and nonestablishment norms over every branch and level of American government--in particular, their sovereignty over state government as well as the national government--is now, as I said, constitutional bedrock in the United States. For Americans today, the serious practical inquiry is what it means to say that government (state as well as national) may neither prohibit the free exercise of religion nor establish religion. I have addressed elsewhere, at length, what it means to say that government may not prohibit the free exercise of religion.(9) It is not the free exercise norm that bears on the problem we are now addressing, however, but the other constituent of the American constitutional law of religious freedom: the nonestablishment norm. In the United States, what does it mean to say that government may not establish religion? What does the nonestablishment norm forbid government to do?

The idea of an "established" church is a familiar one. For Americans, the best known example is the Church of England, which, from before the time of the American founding to the present, has been the established church in England.(10) (Though, of course, the Church of England was much more established in the past than it is today.(11)) In the United States, unlike in England, there may be no established religion: The nonestablishment norm forbids government to enact any law or pursue any policy that treats one or more churches as the official church or churches of the political community; government may not bestow legal favor or privilege on one or more churches--that is, one or more churches as such--in relation to one or more other churches or to no church at all. More precisely: Government may not take any action that favors one or more churches in relation to one or more other churches, or to no church at all, on the basis off,he view that the favored church(es) is, as a church--as a community of faith--better along one or another dimension of value (truer, for example, or more efficacious spiritually, or more authentically American). The nonestablishment norm deprives government of jurisdiction to make judgments about which churche(es), if any, is, as such, better than another church. The norm requires government to be agnostic about which church--which community of faith--is better; government must act without regard to whether any church is in fact better than another. In particular, government may not privilege, in law or policy, membership in one or more churches--in the Fifth Avenue Baptist Church, for example, or in the Roman Catholic Church, or in the Christian church generally;(12) nor may it privilege a worship practice--a prayer, liturgical rite, or religious observance--of one or more churches.(13)

From 1947, when the Supreme Court first applied the nonestablishment norm to the states,(14) to the present, the justices of the Court have been divided about what it means to say that government may not establish religion.(15) The division among the present justices is as great as it has ever been.(16) This state of affairs partly explains why I am not interested in ferreting out the Supreme Court's answer to the question what the nonestablishment norm forbids government to do: There is no such animal. But even if there were such an animal, my principal concern here would not be the Court's answer. The preceding paragraph is meant to state, not the Court's answer, but the best answer.

Similarly, the paragraphs that follow are meant to present the best answer to the question of whether political reliance on religiously grounded morality violates the nonestablishment norm, not to predict the answer the Court would give. But, as it happens, there is no reason to doubt that the present Supreme Court--a majority of it, at least--would give what I defend in this Essay as the best answer, though, for reasons I give below, it is difficult to imagine a case that would present the serious version of the question: May government ban or otherwise conduct on the basis of a religiously grounded belief that the conduct is immoral when the belief lacks plausible, independent secular grounding? I explain below why this is the serious version of the question.

I have discussed elsewhere various problems--various conflicts--that have arisen under the nonestablishment norm, including prayer in public schools and government financial aid to religiously affiliated schools and other institutions.(17) Here I want to address this nonestablishment problem: Does the nonestablishment norm forbid legislators or other policymakers, in voting to ban or otherwise disfavor conduct, like abortion or same-sex marriage, to act on the basis of their religiously grounded belief that the conduct is immoral?(18) It does not. As I said, the nonestablishment norm forbids government to privilege one or more churches. It does not forbid legislators (or other policymakers), even when they happen to constitute a legislative majority, to make a political choice disfavoring conduct on the basis of a religiously grounded belief that the conduct is immoral; that is, it does not forbid them to base the political choice on a moral belief just in virtue of the fact that, for them, that belief is religiously grounded.

Now, one may want to insist that the nonestablishment norm forbids government not just to privilege, in law or policy, one or more churches, but also to take action based on religiously grounded belief, including any religiously grounded moral belief. But does it? As I said earlier, it is constitutional bedrock for us Americans that government may not establish religion (or prohibit the free exercise thereof). Although the nonestablishment norm that is constitutional bedrock for us Americans forbids government to privilege one or more churches, it does not go so far as to forbid government to take action based on religiously grounded moral belief. No such rule is--no such rule has ever become--part of our constitutional bedrock.(19) Nor does authoritative case law contain any such rule, as Justice Scalia has emphasized:

Our cases in no way imply that the Establishment Clause forbids legislators merely to act...

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