Second-class citizenship for those with deeply religious moral systems

Volokh, Eugene VOLOKH at
Mon Nov 27 10:39:10 PST 2006

	I'm not at all sure about the factual assumptions behind the
argument below -- among other things, religious moral principles have
been highly debatable and debated, and in fact have proven quite
shiftable over time.  There are of course doctrinaire religionists just
as there are doctrinaire Marxists, feminists, libertarians, and others
who would be unwilling to consider challenges to their foundational
beliefs, or even challenges to how their foundational beliefs ought to
apply in some situations.  But there are also people from all belief
systems, religious and otherwise, who are willing to consider such

	But beyond this, what the argument below suggests is indeed an
overt relegation of those with deeply religious moral systems to
second-class status.  Prof. Schweber argues that "All citizens are
required to leave elements of their private selves at home when they
become public officials," and points to (for instance) the duty to
uphold the Constitution, and to follow existing laws.  Yet legislators
with fundamentally secular belief systems would, under his view, be
entirely free to vote for laws, constitutional amendments, and Supreme
Court nominees based on their belief systems; they wouldn't need to
leave their fundamental belief systems "at home" as merely "private"
matters.  They could be the most doctrinaire of objectivists,
socialists, environmentalists, feminists, or whatever else.  Yet
legislators with fundamentally religious belief systems would not be so

	I would indeed find something problematic with a legislator who
says "Allah tells us that pork is unclean, so no one may be allowed to
eat pork in our state."  But I also find something problematic with
legislators who say "It's disgusting and offensive to eat horses, so no
one may be allowed to eat horse in our state" (which is what California
voters enacted by initiative about a decade ago, and what could equally
well have been done by legislators).  The problem is not the religious
source of their beliefs, but that I think the results they call for are
wrong.  Conversely, I would find nothing problematic with a legislator
arguing, on behalf of a Statute for Religious Freedom, that "Almighty
God hath created the mind free [and] all attempts to influence it by
temporal punishments or burthens, or by civil incapacitations . . . and
are a departure from the plan of the Holy author of our religion, who
being Lord both of body and mind, yet chose not to propagate it by
coercions on either, as it was in his Almighty power to do."

	I would find it far more problematic -- in fact, morally
intolerable -- to say that the pork legislator must leave his religious
belief (as an "element of [his] private sel[f] at home when [he]
become[s a] public official[]"), but the horse legislator is under no
such obligation.


Howard Schweber writes:

	        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
	        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

More information about the Conlawprof mailing list