What About the No Test Oath Clause

[Bob Sheridan]

I'd like to express my admiring appreciation for Howard's thoughtful 
analysis and note that the problem of advocating as to a public policy 
on the basis of religious belief is exacerbated when the appeal is to 
doctrine backed by any particular religious group (not just an 
individual speaker), as it usually is, which is not shared by others 
outside that group, the fear of the JFK opponents being an example.  
Nonbelievers thus object on the basis that abortion bans, for example, 
are not part of their religion and shouldn't be imposed on them.  An 
issue that may well exist independent of religion thus becomes mixed 
with, or tainted by, religion.

Historically, our non-establishment, free exercise, and test oath 
guarantees arise from the English Civil War experience as informed by 
religious wars on the Continent and the Old and New Testaments, as I 
understand it.  The common practice then was for religious groups or 
sects to seek ascendancy in order to impose their religious will 
politically, hence our Pilgrim flight and their own impositions.   The 
question is whether this dragon risks revival when a current group, the 
religious right, for example, organizes politically around religious 
views, or is simply taken advantage of by political parties seeing 
opportunity for support.

Let me ask this.  Recently there was a report, out of Denmark, I 
believe, that the burqa, the head-to-toe garment imposed on women by 
some Muslim societies (or men), would be outlawed.  Is this a religious 
based law (or an anti-religious law), or non-religious?  Are there 
compelling non-religious based reasons for requiring all women, 
including Muslim, to go in public non-burqaed?  What about a head-scarf 
ban in public schools in France?  Or in the American workplace.

Bob S.
sfls






Howard Schweber wrote:
> At 01:24 PM 11/23/2006 -0800, Volokh, Eugene wrote:
>> Mark Stein is quite right, I think.  All moral arguments for laws 
>> ultimately rest, expressly or implicitly, on some unprovable moral 
>> assumptions.  If they are successful moral arguments, they are often 
>> successful largely because they appeal to shared belief in those 
>> assumptions.  That's true whether the moral assumptions stem from 
>> belief in some religious code, in libertarianism, in utilitarianism, 
>> in egalitarianism, or in whatever else.  (Empirical arguments usually 
>> also rest on implicit moral assumptions about how we should value 
>> various interests.)
>
>
>         Certainly.  To put it another way, theories of good collapse 
> into theories of right and vice verse.  But there are two important 
> distinctions to be drawn here.  First, there is -- or arguably is not 
> -- a distinction between moral principles writ large and a special (or 
> not special) sub-set of those principles that derive from religions.  
> Second, there is a distinction between ordinary actors and public 
> officials.  In what follows, I apologize in advance for a lengthy 
> answer, but I don't know how to give a short one here.
>
>         As to the first distinction, as Francis Fukayama observes in 
> The Last Man, democracy began when the unity between religious and 
> political authority was broken.  One reason that this separation was 
> necessary is that religious moral principles are non-debatable in a 
> way that other moral principles are not.  The difference is that 
> religion (I am using the word loosely and without examination at the 
> moment) is about following the dictates of someone else.  If someone 
> says "I believe abortion to be morally wrong in all cases," I can have 
> an argument with that person to the effect "you ought not to believe 
> that."  But if someone says "God says abortion is morally wrong in all 
> cases" I cannot have an argument with that person at all -- they will 
> simply tell me to take it up with God.  /Within/ religious traditions, 
> to be sure, there is room for argument about whether the 
> interpretation of divine law is correct or not, but in a pluralistic 
> society in which multiple religious and non-religious traditions are 
> represented that is small comfort.  Now, it is by no means clear that 
> democracy can tolerate legislation that is based entirely on 
> majoritarian moral preference in any case; that, I take it, is the 
> heart of the disagreement between Kennedy and Scalia.  But if religion 
> is a special case, then the idea of accepting a justification for 
> legislation based entirely on claims of religious moral preference is 
> even more problematic.
>         So is religion a special case or isn't it?  I am persuaded 
> that the best way to understand Madison's thinking on this point -- 
> which I share (assuming I understand him correctly) -- is that 
> religion is both specially valuable and specially dangerous for a 
> democracy.  It is specially valuable for the individuals whose lives 
> it shapes, and therefore since in a democracy we are required to care 
> equally about the well-being of all individual citizens we ought to be 
> specially careful about justifications that are offered for state 
> interference in religious practices.  And by the same token, although 
> this is not often mentioned, the state should be specially vigilant 
> about private actors interfering with other private actors' 
> observances.  And it is specially dangerous, which is why some degree 
> of separation of religion and politics (the move that made democracy 
> possible historically) is necessary.  What degree of separation is 
> that?  Well, it is the degree of separation required to ensure that no 
> direct connection is drawn between metaphysical authority -- which is 
> different from metaphysical reasons or commitments held by persons -- 
> and political outcomes. 
>         The abortion case makes this separation awfully difficult 
> because of the prominence of the question of defining human 
> personhood, an area in which religion has claimed special authority.  
> But take an easier case.  There is a difference between the politician 
> who says "we must outlaw gambling because it has negative social 
> consequences" and the one who says "we must outlaw gambling because 
> God has told me (through whatever medium) that it is a sin."  And 
> there is a difference between a candidate who says "vote for me 
> because God says so" and a candidate who says "vote for me because I 
> am the more moral person."  I'm not sure I really like the second 
> slogan, but it is distinguishable from the first.  The historical and 
> contemporary evidence of the uniquely divisive effects of combining 
> religious identity with political affiliation is simply too 
> overwhelming to be seriously questioned.  A story in yesterday's 
> Times, interestingly, observes that in Australia there is widespread 
> public debate and broad disagreement about abortion, RU-486 and 
> similar controversial topics, but because there is little or no 
> religious element to the discussion it has been carried out without 
> anything like the kind of bitterness and rancor that characterize 
> American debates on the subject.  The Times' reporter may be wrong 
> about the reason for the lack of rancor in the debate, but it is 
> certainly a plausible hypothesis.  There is massive support in the 
> historical record for the proposition that when direct appeals to 
> religious authority are elements of political discourse, that 
> discourse tends toward what Mark Brandon calls a "failure of 
> constitutional discourse."
>
>         The second distinction is in response to the rhetoric about 
> "second-class citizens."  Nothing of the sort has been suggested.  All 
> citizens are required to leave elements of their private selves at 
> home when they become public officials.  A president who modifies his 
> oath of office to say "I swear to uphold and enforce those laws that I 
> approve of" would not be fit for office, and if he is an incumbent 
> should be subject to impeachment if it could be shown that he had 
> acted accordingly.  A president who modifies his oath to say "I swear 
> to uphold and enforce those laws that the Pope approves of" has taken 
> the matter one step further; this was the accusation that Kennedy was 
> able to laugh off in the 1960s, of course.  But modern Catholic 
> conservatives seem to want to argue as Eugene does that it is 
> appropriate for public officials to govern in accordance with their 
> religious beliefs, and as good Catholics this presumably requires them 
> to accept the Church's authoritative interpretation of the will of 
> God.  Not that the case is much better for the Protestant president 
> who says "I swear to uphold and enforce those laws that accord with my 
> personal understanding of God's will."  The point here is not that 
> religion is involved, the point here is that my hypothetical president 
> is subordinating the duties of his office to an external authority -- 
> substituting "the requirements of furthering the path of neoHegelian 
> World Spirit" for "God's will" doesn't change a thing.
>         Here, we were talking about legislators rather than a 
> president, and the distinction is not insignificant.  A president, 
> after all, serves an office that is defined by serving the will of the 
> legislature (at least in in domestic affairs).  The duties of a 
> legislator are far less easy to define.  Edmund Burke insisted that a 
> representative owed his constituents the work of his independent 
> conscience, not merely an articulation of their majority positions.  
> Burke promptly lost his bid for reelection, which does not really say 
> anything but is a nice irony.  But let's take the easy case.  I think 
> Eugene would actually find it quite easy to accept an argument that a 
> legislator who relies on the authority of the wrong god in lawmaking 
> should not be allowed in office.  That is, I am going to go out on a 
> limb and predict that if Eugene would recognize something problematic 
> in the prospect of a legislator who asserted that "Vishnu has come to 
> me in a dream and told me that we are to ban the sale of all meat in 
> our city; vote with me or suffer the wrath of Vishnu."  Or "Allah 
> tells us that pork is unclean, so no one may be allowed to eat pork in 
> our state."  These kinds of appeals should be just as disturbing when 
> they appeal to a version of god the listener happens to share; 
> democracy cannot function if its citizens do not exercise the minimal 
> amount of imagination and empathy required to recognize that to non 
> co-religionists it all sounds like "the will of Vishnu" (with 
> apologies to worshippers of Vishnu on this list).  Scalia asserts that 
> the moral preferences of the majority are a legitimate basis for 
> lawmaking on the grounds that the traditional police powers included 
> upholding "public morals."  Kennedy argues that the adoption of a 
> constitution, and its subsequent extension to the states, alters the 
> meaning of these police powers.  I side with Kennedy on this question 
> in general in any case, but it seems to me that even those who have 
> doubts about Kennedy's general position should find that his argument 
> carries particular force where the "morals" in question are 
> articulated as authoritative interpretations of divine will.
>         The other problem derives from the fact that we are not merely 
> a democracy, we are a constitutional republic.  Religious claims are 
> based on appeals to an absolute external authority.  A person who 
> takes public office swears to defend and uphold the Constitution.  
> Someone who -- like Scalia, for example -- is able to separate their 
> personal religious commitments from their public role can resolve 
> conflicts by adhering to one set of commitments in one setting and the 
> other set of commitments in the other.  But a legislator who appeals 
> to religious authority to justify legislation has dissolved that 
> distinction, and in that instance the problem is inescapable:  a 
> person who insists that in their role as a public official they are 
> bound to adherence to an authority superior to the constitution is 
> unfit for office in the American political system. 
>         As I said earlier, this is not a problem unique to religion.  
> A person who insists that their moral commitments trump their duty to 
> uphold the constitution is unfit for office in just the same way.  But 
> while the problem is not unique to religion, it is a characterizing 
> trait of the authoritarian nature of Judeo-Christian (especially 
> Christian) religious morality.  There is nothing wrong with a 
> Christian legislator asserting that something is morally wrong, 
> although whether that is a constitutionally adequate justification for 
> state action was the question in /Lawrence/.  But it seems to me 
> self-evident that there is something entirely different about a 
> Christian legislator attempting to justify legislation on the grounds 
> that it is required /by Christianity/.  Then again, I cling to the 
> outmoded notion that religion is a special case.
>
> Howard Schweber
> Dept. of Political Science
> UW-Madison
> ------------------------------------------------------------------------
>
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