abortion referral regs

[Rosenthal, Lawrence]

In Wallace v. Jafree and Edwards v. Aguillard, the Court invalidated laws that did not on their face grant preferences to religious groups or viewpoints, that could have been supported by nonbelievers, and that were vigorously defended as having secular justifications.  The Court concluded that the secular justifications advanced in defense of these laws were not credible, and that the true motive for the laws was to please a religious constitutency seeking to influence public policy for religious reasons.  One can object to making legislative motivation the test for constitutionality, but it is plainly the route the Court has taken.  The pretty clear implication is that sometimes lobbying by religious groups pursuing public policy objectives for religious reasons will produce an Establishment Clause violation -- especially where there is no credible evidence of secular support for the same policy.
 
Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 12/4/2008 9:25 AM
To: conlawprof at lists.ucla.edu
Subject: RE: abortion referral regs




        The argument that was being made earlier isn't just that
religious institutions can't get special benefits for them -- it's that
laws that don't discriminate based on religion are made unconstitutional
by the fact that religious people are their dominant backers.  That sort
of theory of second-class citizenship for religious voters strikes me as
entirely wrong, neither supported by history (since of course American
history is chock full of movements in which religious organizations
tried to implement their religious views, on slavery, temperance, civil
rights, wars, and more, into law) nor by morality.

        Eugene
       
Larry Rosenthal writes:

> On at least some accounts, the original understanding of the
> Establishment Clause was that it would prevent religious
> factions from using their political power to shape public
> policy to religious ends.  On this account -- which I readily
> acknowledge is far from uncontested -- it would follow that
> if the impetus to permit some health care providers to
> deviate form professional norms has a religious and not a
> secular basis, reflected in part by evidence that there is
> little if any assent to a deviation from professional norms
> among secular health care providers, then a genuine
> Establishment Clause problem could be present.
> 
> At least in some particulars, I thought it was
> uncontroversial that the Establishment Clause disables
> religious factions from exercising influence in the political
> arena.  Isn't that the basis for the rule forbidding direct
> government financial aid to religion, even though secular
> institutions (e.g. GM) are quite free to seek such financial
> aid through the political process?
> 
> Larry Rosenthal
> Chapman University School of Law
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