A Creeping Theocracy?

[Eric Cernyar]

I would like to know what role would democracy have to play were Prof.
Newsom's far-reaching interpretation of the establishment clause the law.
Could life-appointed judges then abrogate any legislation or policy that
they deemed to be at least partially informed by religiously-based
presuppositions?  Would this not threaten to entirely disenfranchise people
of faith (or at least of supposedly "majority" religions)?  Must a citizen
or legislator be thinking secularly at the time he/she votes or else his/her
vote won't count?  How do we find out what the legislator or voter is
thinking?  Exclusively by what he/she says?  What if he/she is lying about
his/her true motivations?  Should judges second-guess his/her motives?

At an even deeper philosophical level, are there truly any exclusively
secular universal moral precepts or imperatives by which humanity might
govern itself?  If so, what are they and how are we to unambiguously discern
them?  Does what we perceive to exist -- the universe, our earth, humanity,
our very lives -- provide any normative basis for how we should live or
conduct ourselves?  I am confident that it does not.  We must assume
something, e.g., that pleasure is good and so it should be maximized and
that suffering is bad and should be minimized (hedonistic calculus); that
human life has intrinsic individual value (Christianity); or, by contrast,
that humanity has intrinsic value only corporately, but not individually
(some forms of Marxism, "1984"); or that meekness is weakness and the will
to power is noble (Neitszcheism; Nazism).  No matter what norms a society
adopts, they are inevitably grounded on unprovable assumptions -- leaps of
faith, if you will.

Eric Cernyar

-----Original Message-----
From: Law & Religion issues for Law Academics
[mailto:RELIGIONLAW at listserv.ucla.edu]On Behalf Of Michael deHaven
Newsom
Sent: Wednesday, November 28, 2001 10:23 AM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Re: A Creeping Theocracy?


>  Context is irrelevant;

I disagree.

>
>
> these
> policy issues -- like stem-cell research -- do not implicate the
> Establishment Clause.

But they do.  The fact is you agree with the results, I don't.  That might
influence our "take" on the reach of the Establishment Clause



> Agree or disagree with the decision; work to change
> it if you disagree; but the First Amendment is silent on the subject

This is totally irrelevant.  Constitutional law would be meaningless if we
followed your "silence" standard.  The First Amendment is silent on the
matter
of separationsim versus accommodationism.  But so what?  I don't get it.

> .
>
> Brad
> _______________________________
>
> Professor Bradley P. Jacob
> Regent University School of Law
> 1000 Regent University Drive
> Virginia Beach, VA 23464-9800
> Voice 757-226-4523
> Fax 757-226-4329
> Email bradjac at regent.edu
> _______________________________
>
> -----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.