michael.mcconnell at LAW.UTAH.EDU
Tue Mar 3 11:50:08 PST 1998
Andy Koppelman's post about "secular purpose" contains
much to ponder, but it seems to elide a distinction that,
to me, is extremely important (albeit difficult to define).
The difference is between (1) acts that are forbidden
(within a religious tradition) to all people because they
are wrong, unjust, evil, or the like -- examples would be
the second table of the Ten Commandments; and (2) acts that
are forbidden to members of the religious tradition in
their capacity as members of the faith, but which are not
wrong, unjust, or evil in themselves--examples
would be not working on the sabbath or not eating during
My intuition tells me that it is appropriate for a citizen
in a pluralistic republic to push for laws outlawing acts
in the former category but not in the latter category.
Andy's post does not seem to distinguish between them.
I can think of no actual real-world examples
of a law that has no plausible purpose other than the
second type. Sunday Closing laws come close, but they have
plausible secular justifications too. Certainly laws
against abortion and homosexual sodomy are of the first
type, and they are the examples that most people seem to
have in mind when they say that laws without a secular
purpose are unconstitutional.
-- Michael McConnell (U of Utah)
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