Second-class citizenship for those with deeply religious moral systems

MARK STEIN markstein at
Mon Nov 27 16:28:10 PST 2006

I think it's a little more complicated.  A law banning the teaching of evolution is vulnerable to Establishment-Clause challenge because it is religiously motivated.  But if the State could convince the court that it had only a scientific  secular motivation in banning the teaching of evolution, or wanted to protect the "Kantian dignity of man," I assume the law would not be unconstitutional.  Since, as you say, the Constitution bars the establishment of religion but not the establishment of bad science or Kantianism, in this case it is true that "legislators may not rest their arguments on their religious belief systems, but may rest their arguments on their secular belief systems."


"Volokh, Eugene" <VOLOKH at> wrote:  I'm a bit puzzled by the argument that the "First Amendment
maintain[s]" that "religion is a special case" for these purposes.  I
agree that the First Amendment says that religion is special in some way
-- it does bar establishment of religion and prohibition of its free
exercise, without doing the same for other things.

 But how does it follow from this that "religion is a special
case" in the sense that legislators may not rest their arguments on
their religious belief systems, but may rest their arguments on their
secular belief systems?  Nothing in the text of the First Amendment says
so.  Nothing to my knowledge in the history of the concept of
"establishment" says so.  The Virginia Statute for Religious Freedom
suggests that even Thomas Jefferson didn't think that relying on
expressly religious arguments was impermissible; and my sense is that
expressly religious arguments for and against legislation have been
common in American political life from the time of the Framing and on.

 Now obviously some can argue that, as a normative matter, we
ought to have a constitutional regime that forecloses expressly
religious arguments for laws but allows secular moral arguments for
those laws -- that the deeply religious should be treated as
second-class citizens in this sense, because their arguments are seen as
peculiarly nonrational or dangerous.  That strikes me as a deeply wrong
proposal, which would exclude a vast number of Americans from meaningful
political participation (i.e., political participation using arguments
that make moral sense to them), but it can surely be made.

 What I don't get is how we can assert that the "First Amendment
maintain[s]" that this should be the rule, in the face of a longstanding
tradition -- dating back to the Framing era, and to the Framers
themselves -- of treating religious arguments as eminently permissible
in public and legislative debate.

 A religious mandate to burn witches, incidentally, is of course
awful -- but no more so than a secular mandate to burn those who use
black magic, enacted by those who don't believe in God but are



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