Religious Views vs. Secular Views vs. Legal Views

[Rick Duncan]

Of course Mark is right that a human being could be a person in fact but not a legal "person" under the 14th Amendment (just as a corporation is not a person in fact, but is a "person" under the 14th).
 
But one could easily set aside one's religious views about abortion and human life, and still decide that the Court should understand "person" in the 14th inclusively to include not only corporations but also all human beings whether born or unborn. The secular reasoning here would be inclusiveness and giving the benefit of the doubt concerning constitutional personhood to what is clearly a living human being facing violent death by abortion. Blackmun's reading of "person" in Roe was incredibly narrow and superficial, especially for one who so often marvelled at the Constitution's majestic generalities.
 
I have always believed that science more clearly teaches me to value human life in the womb than does Scripture. Once you learn that a human fetus is actually a living human being, religious and secular norms against homicide do the rest of the work. Both my religious views and my secular views are pro-life, but my secular views are dominant on this issue. I would quit my church in a blink of the eye if my elders came out in favor of abortion.
 
Rick Duncan


Mark Graber <MGRABER at gvpt.umd.edu> wrote:
Note how law may complicate matters.

Consider the argument is Roe that the unborn have not been considered
persons for purposes of the 14th Amendment. Ignore for the time being
whether that conclusion does the work Blackmun wants it too (note here,
Ely's observation that a state could ban cruelty to animals, even though
animals are not persons for 14th Amendment purposes). I think it is
clearly possible to conclude a) that the best interpretation of American
legal practice is that the unborn are not persons for 14th Amendment
purposes, but that they might well be persons under the best moral
understanding of persons.

Mark A. Graber

>>> Rick Duncan 10/7/2005 9:49:31 AM >>>
I agree completely with Mark Scarberry.

Here is the context of McConnell's statements: Mark Tushnet had raised
a hypothetical concerning a religious person who said he was persuaded
by the secular arguments against issue X, but had decided to support
issue X because X is in accordance with God's teachings and will. Mike
then responded that he could not imagine a serious person acting like
this, because there are not religious truths and secular truths, but
only truths.

I probably should have provided the full context earlier. I think it
relates to the question of the Miers' nomination, because I can not
imagine her thinking that the secular arguments for, say, abortion as a
fundamental liberty are convincing, while at the same time believing as
a conservative Christian that abortion is the sinful taking of a human
being.

You can not at the same time believe that a fetus is not a human person
as a matter of secular reasoning and is a human person as a matter of
religious reasoning. A serious person who believes the latter will never
believe the former. Thus, such a person could truthfully testify that
she would not bring her religious beliefs into the courtroom, even if
she were already convinced that the abortion liberty is not a
constitutional right, because, even from her secular perspective, there
is no right to take innocent human life. The same would be true of every
other issue that is likely to come before the Court. Her secular views
can do the heavy lifting without any assistance from her religious
views.

This is one reason why committed church membership is a reasonable (but
not perfect)predictor of secular ideology. Unitarians are very likely to
favor gay rights and abortion rights, and theologically conservative
Christians are very likely to oppose gay rights and support the right to
life. In both cases, their religious views and their secular views are
in balance.

Which is the chicken and which is the egg?

Rick Duncan




Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner

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Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered."  --The Prisoner
		
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