A Creeping Theocracy?

[Eric W. Treene]

At the end of the Emancipation Proclamation, Lincoln stated:

"And upon this this act, sincerely believed to be an act of justice,
warranted by the Constitution upon military necessity, I invoke the
considerate judgment of mankind and the gracious favor of Almighty God."

Since Lincoln was taking the side of the Congregational abolitionists of the
north, rejecting the counter religious arguments of many in the south who
saw a Biblical warrant for slavery generally and among others still who saw
a warrant for the enslavement of blacks in particular, and invoking God on
the face of the act itself, could it not be said that by the logic of Colb's
piece that the Emancipation Proclamation violated the Establishment Clause?
To me this seems specious.

I agree with Prof. Newsome that the Establishment Clause is not entirely
irrelevant here, though.  If a government actor's only justification for an
action is "my Bishop told me to" or "the Bible mandates me to enact this
policy" I think it opens an Establishment Clause dialogue.  While it might
not lead to a court invalidating the policy under the Constitution, one
might nonetheless say that the actor has not fulfilled his or her oath to
uphold the Constitution when she does not offer non-religious reasons for
action (indeed, if the Lemon test is still good law, then lack of a secular
purpose would lead to the action's invalidation).

Eric Treene


-----Original Message-----
From: Eugene Volokh
To: RELIGIONLAW at listserv.ucla.edu
Sent: 11/27/01 1:38 PM
Subject: Re: A Creeping Theocracy?

        Different religions reach different conclusions on a variety of
questions -- race discrimination, sexual orientation discrimination,
marijuana use, carrying deadly weapons, stem cell research, I suspect
the
preservation of endangered species, and so on.  It doesn't follow, I
think,
that adopting the view that one religion has on any of these topics
violates
the Establishment Clause.  So I don't think it does matter that
different
religions reach different conclusions on stem cell research.

        Eugene

> -----Original Message-----
> From: Law & Religion issues for Law Academics
> [mailto:RELIGIONLAW at listserv.ucla.edu]On Behalf Of Michael deHaven
> Newsom
> Sent: Tuesday, November 27, 2001 1:10 PM
> To: RELIGIONLAW at listserv.ucla.edu
> Subject: Re: A Creeping Theocracy?
>
>
> Does it matter that different religions might reach different
conclusions
> on the question of stem cell research?  I think that it does, and that
is
> the problem.  The question is not necessarily one of religion versus
> secularism, but may be one of religion A versus religion B.  Surely
the
> Religion Clauses are relevant here.  For the government to favor
religion
> A may, in this instance, run afoul of the Establishment Clause.  To
> determine whether there is an actual violation requires a careful
> analysis of the facts and the context in which the preference
manifests
> itself.  But whatever the answer, one cannot easily dismiss the
question.
>
> David Guinn wrote:
>
> > I am amazed that anyone can seriously argue a position
> > like that taken by Colb in the Findlaw Writ column
> > cited below.  I find the court's arguments on
> > secularism appallingly ignorant.  But I had hopes that
> > the Court was moving beyond that position.
> >
> > Secularism is not neutral with respect to religion (as
> > argued by Michael McConnell et. al.)and to demand a
> > secular rationale at best merely invites deception and
> > subterfuge.  Indeed, any moral argument must, in the
> > end, rest upon a "religious" belief - as Peter Berger
> > frames it, religion provides the basic world-view by
> > which we organize our understanding of the world - and
> > moral beliefs are fundamentally statements about how
> > the world "should" be.  Hence, any moral belief is a
> > religious statement.  Where 60-85% of American's base
> > their moral beliefs upon theistic faith, that is
> > inevitably going to be framed as religious beliefs.
> >
> > The only "flaw" that I can see in Bush or Ashcroft's
> > positions is that they have included some of their own
> > beliefs within their public statements that often
> > contain "secular" reasons as well.  Indeed, I would
> > argue that that is what is needed: an expression of
> > the moral position that cites a broad base of
> > rationales - including religious rationales.
> >
> > David
> >
> > SHERRY COLB | A Creeping Theocracy: How The U.S.
> > Government Uses Its
> > Power To Enforce Religious Principles
> >
> > Rutgers law professor Sherry F. Colb takes issue with
> > Bush
> > Administration policy in the area of stem cell
> > research, protecting
> > abortion clinics, and physician-assisted suicide. Colb
> > contends that in
> > each of these areas, the President or Attorney General
> > Ashcroft is
> > violating the Constitution by acting with clearly
> > religious motivations.
> > (Nov. 21, 2001)
> >
> >  http://writ.news.findlaw.com/colb/20011121.html
> >
> > David
> >
> > =====
> > David E. Guinn, JD, PhD
> > 5032 N. Glenwood Ave.  #3
> > Chicago, IL 60640
> > (773) 334-7223
> > email: davideguinn at yahoo.com
> >
> > __________________________________________________
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