destro at LAW.EDU
Sat Feb 21 15:37:38 PST 1998
Andy Koppelman wrote:
I don't mean to be endorsing Kathleen Sullivan's argument, ....
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 observance is 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:
I'm glad to hear that Andy doesn't subscribe to Kathleen Sullivan's
assertion about the "positive" implications of the Establishment Clause,
but an an "objective observer" might draw that conclusion.
Now it's time for me to be clear. I certainly subscribe to Greenawalt's
views with respect to point a) that "A liberal society . . . has no
business dictating matters of religious belief and worship to its
citizens.; and point b) "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." I do,
however, strongly disagree on point c) that
"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).
It requires far more than "a modest extension of these uncontroversial
principles" to draw Greenawalt's conclusion. There are two reasons why:
1) the character and composition of a liberal democratic society; and 2)
the characterization problem.
Liberal democratic societies are comprised of myriad indivdiual citizens
and factions. Each citizen or faction evaluates policy options as either
"good" or "bad" based on *some* normative outlook.
There is little, if any, disagreement that government may not a) mandate or
restrict religious ritual or modes of worship that do not involve criminal
behavior; or b) madate or restrict affirmations or expressions of belief.
But let's look at the unexceptionable religious freedom policies for a moment:
1) On what are they based?
"Secular" or "religious" morality? I think it quite clear from history
that a very good argument can be made that the most compelling
arguments *for* religious freedom were those that were made from within
religious traditions. There were (and are), to be sure, utilitarian
arguments favoring religious freedom, but they do not carry the same
Why is their persuasive force important? Because in a liberal
democracy, one needs to convince individuals and contending factions
that they should choose one policy over another because it is "better"
in some significant way than some other policy option.
2) Does (should) the basis of the policy in secular or religious morality
affect its legitimacy as an act of the sovereign will of the people?
It shouldn't. The only criterion should be whether or not the subject
matter -- in this case the liberty of individuals to worship and
express their religious beliefs without state interference -- is a
valid subject for public policy making. If it is, then the law has a
"secular" (public) purpose.
3) How, if at all, can one distinguish between religious and non-religious
This is where Andy and I disagree.
I think it is (fairly) easy to distinguish policies compelling or
prohibiting modes of worship, ritual, or expression. While there are
certainly close cases involving things that look like they might be
rituals (e.g., TM, or various "New Age" practices), most cases
involving ritual or worship are relatively easy to spot. The same is
true with respect to affirmations of belief or expression. There are
some close cases, but these involve situations when it can be argued
that the "expression" is actually made by another. (e.g., Wooley,
Abood). Cases involving direct expression (e.g., Barnette,
Rosenberger, Pinette) are pretty clear.
It is far more difficult to distinguish between and among normative
points of view. Some are "clearly" religious because the individuals
holding them admit that they are based in a "sectarian" worldview.
Others are just as "clearly" religious, even though the holder of the
view doesn't recognize the philosophical or theological roots of his
or her normative perspective.
My point is that in a liberal democracy -- especially one that has the
First Amendment as part of its organic law, the courts should not even
attempt to differentiate between "religious" and "other" forms of
*social morality.* While individuals are certainly free to argue that
we should not "impose our religious views" on our dissenting fellow
citizens, the fact remains that *all* law has that effect: someone
always dissents from the "morality" embodied in this or that law.
And this is precisely as it should be in a representative, liberal
democracy. The First Amendment itself (peaceable assembly and
petition) guarantees the right of individual citizens and factions to
complain to their government about "grievances". The reasons why
individuals and factions are aggrieved is part of democratic
If, as Andy seems to suggest, the Establishment Clause prohibits one set of
grievants (those motivated by "religious" morality) from winning the
factional fight over a disputed issue (like the status of same-sex
relationships), the right of petition is meaningless, and the Establishment
Clause is converted into a weapon available only to those factions that can
convince a complicit (or ignorant) judge that their brand of morality is
"secular" in its character.
Without very detailed elabortion of what he means by "religious grounds"
and "secular harms", Greenawalt's proposition is no "modest extension" of
"uncontroversial principles." It is a direct challenge to the right of
religiously motivated citizens to participate fully in the political
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
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