Second-class citizenship for those with deeply religious moral systems

[Scarberry, Mark]

With gratitute to Howard for his stimulating posts, let me give my take:
 
In a society governed by a constitutional government, and in particular in ours, becoming a government official involves a commitment to the constitutional rules. Thus the oath required by Art. VI, cl. 3. If I am not willing to abide by the Constitution, as I best understand it, with regard to circumstances likely to arise, then I cannot give the oath, and I cannot be an official. In that sense, there is an order: Constitution first, religious views second. But if my religious views seriously conflict with my best understanding of the Constitution in a way that is likely to create a unresolvable conflict in my duties, then I will not give the oath, and I will not become an official, because in my life the highest obligation is duty to God. If I become an official and a serious conflict arises, I will abstain from participating in the official matter (if that is permitted under the Constitution and does not cause serious harm to the society) or I will resign from office. In that sense, it is, for me personally, religious views first, Constitution second. 
 
If I conclude, due to changes that occur after I take the oath, that the constitutional rules are so unjust that revolution is required--a point that we are very, very far from reaching--then, after resigning, I might participate in such a revolution. In that sense also, it is religious and other views about justice first, Constitution second.
 
Of course I will, as an official, guide my conduct in light of my best understanding of the Constitution (including, to at least some degree, my understanding under the Constitution of who else, such as the Supreme Court, has authority to construe the Constitution in a binding manner). It is clear that the Constitution does not allow me to set up a national church or to impose a religious test oath on other potential officials. It also is clear to me that at least in some official actions I might take, I would be bound not to take actions prohibited by the Supreme Court's decisions interpreting the Constitution. But I am not bound by any particular theory of constitutionalism, including Howard's. It does not seem to me that current Supreme Court doctrine would prohibit me from opposing human sex trafficking on explicitly religious grounds. Of course, if it were to do so, I could translate my arguments into arguments that would circumvent the prohibition (though for me the validity of the arguments would still, ultimately, rest on religious grounds). In fact, in order to be most effective as a public official, I ordinarily would give both the religious reasons and the purportedly secular translation of the reasons. But I object to the notion that there is a fundamental norm that requires me to include the translation, and particularly to any supposed norm that requires me to limit my publicly expressed reasons to the purportedly secular translation.
 
Mark Scarberry
Pepperdine

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Howard Schweber
Sent: Mon 11/27/2006 2:36 PM
To: Sean Wilson; Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: Re: Second-class citizenship for those with deeply religious moral systems



At 12:59 PM 11/27/2006 -0800, Sean Wilson wrote:

>What you are suggesting is that an epistemic qualification be placed upon
>views that survive the democratic ritual.


No, what I am suggesting is a discursive test for the performance of the
duties that go along with the offices that are conferred as the result of
the democratic ritual.  I have heard people argue about the relative rights
and duties of citizenship before -- I have always taken it for granted that
there were duties involved in holding positions as government officials,
and I am arguing that these duties include the acceptance of constraints on
modes of discourse

"It is not that your "wall of separation" could not also be offered as a
policy product -- John Kerry took that view about abortion, and he won an
election while espousing it -- it is that the election is the ultimate
basis of the entitlement, not the view."

I disagree, sort of.  The election is the ultaimate basis of the
entitlement within the limits of constitutionally permissible discourse.  A
candidate who runs on a platform that says "I will abolish the Constitution
and declare myself a king" and wins has not validated the democratic
enterprise, he has been a party to ending it.  When Rome made Caesar
dictator it was acting as a republic; when the same Senate transformed his
office to "dictator for life" the republic was over.  I forget who said "if
Fascism ever comes to America it will be because the people voted it in,"
but the point is that the mere fact that an outcome is the product of a
democratic process does not make it democratic; hence the fact that an
argument prevails does not make it consistent with fundamental norms of
constitutionalism.  As Madison reminded us, parchment barriers are
ineffective unless they are supported by the will to treat them so.


"Such is the nature with the democratic ritual. There is no historical,
constitutional or philosophic rationale that would allow a world view to
survive the ritual but be disqualified because it takes the form of a
religious a priori."

Certain world views could be taken to be subject to disqualification
regardless of their source -- this gets back to whether religion is a
special sub-category of a larger phenomenon.  But sticking with imagine
religious world views, how about a view that God demands a king and the
abolition of the Constitution?  The obvious response is that this example
is not a case in which a view is disqualified because of its religious
origin but because of its content.  "We're not talking about those extreme
cases," goes the argument, "we're talking about cases where the religious a
priori supports and reinforces an independently articulable constitutional
proposition."
         But then it is that consistency that justifies the introduction of
the religious claim, not the other way around -- which is precisely the
order of legitimation that western religions reject.  I argue -- and thus
far am not persuaded to change my argument -- that the order of
legitimation is the crux of the matter.  Religious arguments are acceptable
insofar as they are consistent with democratic norms, not the other way
around.  That order of priority is what is denied by a direct appeal to a
principle of religions morality.

>The question is not whether "god views" can be legitimately espoused in
>Copngress, it is whether the passage of "religious views" by a religious
>political hegemony "respects an establishment" -- which something that the
>democratic ritual is not given power to do (without forming a super
>majority, at least).

We are talking a little bit at cross purposes, here.  I am not making an
argument about the requirements of the Establishment Clause, I am making an
argument about the necessary discursive constraints of constitutional
self-rule as a form of analysis (I think the Establishment Clause reflects
a not-completely-worked-out recognition of that necessity).  Which, I
freely grant, is a little abstract for this medium.

I am sure that Sean and Eugene -- and perhaps others -- will have more to
say, and I am inclined to grant them the last word(s) on the issue simply
on the grounds that I think I have stated my arguments as well as I am able
to do in this setting.  If I may be forgiven for adding a personal note, I
have found this to be an extremely stimulating exchange of ideas -- this is
exactly what I was hoping to find on this list, and this is very far from
the first time I have been grateful for the opportunity to participate in
its discussions.

Howard Schweber
Dept. of Poli. Sci.
UW-Madison  

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