akoppelman at NWU.EDU
Fri Feb 20 16:27:33 PST 1998
I don't mean to be endorsing Kathleen Sullivan's argument, the weaknesses
of which were amply examined by Michael McConnell's companion piece, which
I cited in an earlier posting. Indeed, I relied on McConnell's qualified
endorsement of the secular purpose requirement precisely in order to show
that one could support that requirement without embracing secularism.
When I made my claim about first amendment theory needing a distinction
between the religious and the secular, I had in mind precisely the
consideration just cited by Doug Laycock: "compulsory religious ritual or
clearly at the core of the Establishment Clause. Moral rules have for
centuries been the concern of both governments and religions." Bob Destro
seems (I have probably misunderstood him) to be suggesting that we
shouldn't make any distinction between religion and other normative
perspectives. But if we don't do that, how can we say (as I presume we'd
like to say) that compulsory religious ritual is prohibited? Look again at
the passage from Greenawalt I quoted the other day:
A liberal society . . . has no business dictating matters of religious
belief and worship to its citizens. It cannot forbid or require forms of
belief, it cannot preclude acts of worship that cause no secular harm, it
cannot restrict expression about what constitutes religious truth. One
needs only a modest extension of these uncontroversial principles to
conclude that a liberal society should not rely on religious grounds to
prohibit activities that either cause no secular harm or do not cause
enough secular harm to warrant their prohibition.
Kent Greenawalt, Religious Convictions and Political Choice 90-91 (1988).
The quoted passage has three sentences. I can't tell which of them Bob
disagrees with. I had expected the argument to be about the third, but his
last post seems to call into question the first two. I had thought them to
state norms that were common ground on this list. Are they not?
At 11:50 AM 2/19/98 -0500, Robert Destro wrote:
>Andy Koppelman writes:
> But the first amendment can't treat all normative perspectives the
> same. Some are religious and some aren't. Any coherent first
> amendment theory has to rely on some claim about what's religious, and
> that claim will in turn imply another claim about what's secular. You
> can't deny the coherence of the category of the secular without
> demolishing the whole structure.
>I don't think that Andy's "explanation" of why his views *aren't* religious
>holds much water, either in philosophical or legal terms. I'll leave the
>philsophical questions about the character of "religious" ideas to one
>focus fist on the constitutional point: i.e. the assertion that "the first
>amendment can't treat all normative perspectives the same."
>First, let's define our terms:
> 1) when Andy says: "the *first amendment* can't" (my emphasis) what he
> really means is "the [Court] can't treat all normative
> same". Correct?
> 2) when Andy says: "Any coherent first amendment theory has to rely
> claim about what's religious,...", we need to know several things:
> a) coherent with respect to "what"?
> b) how "first amendment theory" relates to other important
> constitutional theories, like separation of powers, equal
> federalism, and the locus of popular sovereignty
> c) why the Court should pick "some claim[s]" over others without
> explaining both 1) on what basis that claim can (or should) be
> preferred; and 2) what the constitutional implications of the
> will be.
>The problem, of course, is that the Court's first amendment jurisprudence
>is *not* coherent. It shamelessly picks and chooses among
>characterizations and points of view, and gives little, if any, thought to
>the downstream implications of its handiwork.
>Even if we accept the proposition that a position rooted in Biblical
>perspective is, in some manner, "sectarian" (a subset of "religious"), the
>"sectarian" character of the claim from Scripture is irrelevant when we
>turn our attention to the task before us: characterizing Andy's claims.
>Policies involving "same-sex marriages" affect individuals and
>associations. So too do "first amendment" policies prescribing the
>treatment of "religion".
>Andy's statements concerning "same sex marriage" argue, in effect, that
>policies discouraging or prohibiting same-sex "marriage" are (socially)
>immoral [i.e. that they are "bad" public policy]. His argument about
>"coherent first amendment theory" makes precisely the same claims: it is
>(socially and legally) immoral ["bad" public policy] to permit laws
>governing the treatment of intimate association to rest on Biblical
>premises because the interests of other citizens will be adversely
>Liberalism clearly makes moral claims. Characterizing them as "secular"
>doesn't make them any less "moral" -- or "religious." They are not "the
>opposite" views on a disputed question of morality, they are simply
>"different" views of the same topic.
>So, let me put the question directly: Andy, am I correct in assuming that
>you subscribe to Kathleen Sullivan's view that "the affirmative
>implications of the Establishment Clause . . . entail the establishment
>of a civil order -- the culture of liberal democracy"? [Religion and
>Liberal Democracy, 59 U.CHI.L.REV. 195, 199-201 (1992)]
> Bob Destro
> Robert A. Destro Destro at law.edu
> Columbus School of Law 202-319-5202
> The Catholic University of America fax:202-319-4498
> Washington, D.C. 20064-8005 http://www.law.edu
Assistant Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL 60611-3069
akoppelman at nwu.edu
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