Religion and Law-Making

[Prof. Steven D. Jamar, Dir. LRW Program]

It's my recollection we plowed this field last year.  But since spring will soon
be upon us, it is probably time to think about plowing again.  :)

I don't think the problem is that someone is religiously motivated per se.  I
think we need to look at  the purpose of the law and the motivation behind it and
at the conduct it regulates.

If there is no religious motivation visible, then a law which has an incidental
effect or maybe even a substantial favorable effect on religion may still be ok.

If the purpose of the law is to do good, e.g., provide health care to indigents,
then the fact that the motive to do good was religious ("Jesus tells me to") seems
irrelevent where the effect is clearly something allowable.

But, if the purupose of the law is to advance religion, and the effect is likely
to advance religion, and the conduct being sought is religious, then motive of the
enactors (which is separable, is it not from the ostensible purpose of the law)
may be highly relevant and even determininative.

Thus the moment of silence and other prayer subterfuge efforts are improper not
because they are in themselves improper but because the motive and the purpose,
and the likely effect, given a particular history or context, could well be
advancing religion and thus proscribable.

If a teacher started each class with a moment of silence to think about a great
person, and if the school district and the teacher did not have a history of
starting school with a prayer, then this would be ok.  Right?

Motives and other subjective matters of mentality are unpolicable except at the
extremes.  I think the courts can and should look behind the four corners of a law
or the video-camera perception of an event to make these sorts of judgments.  If a
law is too tainted and too much anti-some group in favor of some other group on
religious bases, then it ought to be carefully examined.

Of course this argument can lead into murky and even dangerous waters, but so does
one in which motive is deemed irrelevant.  Judges ought not and cannot stick their
heads in the sand; they must attend to what is happening in the society around
them.

But, at the end of the day, I mostly agree with George Dent's post.  I just think
that there is a distinction to be made between the position he seems to be tilting
against of "any religious motive taints" and "under some limited circumstances
religious motives matter."

Cheers,
Steve
--
Steven D. Jamar
Professor of Law
Director, Legal Research & Writing Program
Howard University School of Law
2900 Van Ness Street N.W.
Washington, D.C.  20008

President, Legal Writing Institute

vox:  202-806-8017  fax:  202-806-8428
email:  sjamar at law.howard.edu