- Posted by Paul Gowder on November 16th, 2009 filed in law, religion, sometimes produces political theory
- 6 Comments »
The always interesting Paul Horwitz has a post up on Prawfs about religious arguments and the First Amendment. The post objects to the suggestion that it violates the Establishment Clause to ban stem cell research if there is no non-religious argument for such a ban. According to Paul, this is just a misunderstanding of the First Amendment. He says “[t]he fact that the government had or has not acted on stem-cell research does not violate the Religion Clauses, even if the reasons that individual government officials have for not acting are purely non-secular.”
I don’t think the question is quite so clear as Paul makes it out to be. Let’s leave aside the higher-level normative theory questions of whether religious arguments ought to be permissible in public justification. (I’m not a big fan of the Rawlsian idea of public reason, though my resistance to that weakens on a daily basis.) Let’s also leave aside doctrinal details and actual First Amendment jurisprudence — let’s think about the question, in other words, from the position of Supreme Court Justice ex nihilo, and try to interpret the idea of the Establishment Clause.
I take it that it is entirely undisputed that the Establishment Clause prohibits the legislative enforcement of specific religious beliefs, or specific sets of religious beliefs. The state cannot command you to hold the beliefs of a Catholic, or to hold monotheistic beliefs.
It’s also undisputed that the Establishment Clause prohibits the legislative enforcement of specific religious practice. The state cannot command you to attend Catholic services, or attend the services of some monotheistic church.
(Slightly less undisputed, but still not controversial among people with (I daresay) even a whit of sense at all is the notion that the Establishment clause prohibits the state from requiring religious beliefs in general or religious practices in general.)
Where things get interesting is whether or not the state can legislate based on religious law. To fix some terms, I’ll say that “law” is a command stated in the form of a non-hypothetical imperative (an imperative that isn’t conditional on the ends one happens to have), but which may or may not apply to everyone (i.e., may only apply to members of a particular state or religion). A religious law is a law that gets its reason-giving force in virtue of one’s religious beliefs. A secular law is a law that gets its reason-giving force in virtue of the fact that it has been enacted by the state (a.k.a. “positive law”). A moral law is a law that gets its reason-giving force in virtue of one’s moral beliefs.
Let’s distinguish several kinds of religious law.
1) There’s religious law, the observance of which constitutes the essential practice of a religion. Catholics must go to mass and take communion. Doing so is, in a fairly strong sense, part of what makes them Catholic.
2) There’s religious law, the observance of which serves primarily to mark out and constitute the members of the religious community. Jews are forbidden from eating pork. That’s a law you observe as part of being a Jew. However, unlike type-1 laws, I take it that you can be a Jew and still eat pork (though you’re doing something objectionable from the standpoint of the Jewish faith). There are some Catholics who would say, by contrast, that you cannot be a Catholic and never go to Mass.
3) There’s religious law, the observance of which serves to express a moral law. Muslims are required to give Zakat (charity to the poor). I take it that a Muslim would not understand that requirement to be constitutive of Islamic practice or identity in the same way as in the other two cases, but rather to be a moral requirement either established or identified (depending on one’s feelings about the Euthyphro problem and such) by divine command.
If we accept that the state cannot mandate religious practice, then it follows directly that the state cannot mandate the observance of type-1 religious laws (enact them into secular law). I think (hope) that Paul will agree with me that it’s pretty obvious that the state also cannot mandate the observance of type-2 religious laws. (If a Jewish party managed to get a majority in the legislature, how could it possibly not be a violation of the Establishment clause to pass a law forbidding the consumption of pork for the express reason that it’s prohibited by Jewish law?) After all, that would amount to requiring people to declare membership in a religious community.
The real question, then, is type-3 religious laws. If we want to say that the state can mandate observance of those laws, but not the other two, then we ought to be able to find a principled way to distinguish between them. I can think of two ways to do so, but I’m skeptical about the stability of either distinction.
The first try relies on the proposition that type-3 laws, unlike type-1 and type-2 laws, are simultaneously moral laws, albeit moral laws that are rooted in religious beliefs.* We might think it’s ok to enforce religious morality separate from religious practice. The main (though not the only) problem with this is that I think its actual implementation as a principle of constitutional law would require far too intrusive and subjective inquiries into the details of religious belief. Do we really want to be asking whether Zakat or the Christian prohibition of homosexuality are held by their believers as moral demands rather than as affirmations of identity, unreflective prejudices, etc.? Or — vastly worse — do we want to be characterizing those practices from the outside, without reference to what their believers think? This is a very important problem — many think the whole point of the Establishment Clause is to protect religion from interference by the state (rather than the other way around), and that point would rather be defeated if the state got to officially rule on the normative nature of religious demands. (If you don’t find this objection gripping, just think back to when you read my characterization of the three types of laws by example. If you’re a member of any of those faiths, did you find those examples objectionable or at least not-quite right? Probably. Would you want the state making this kind of distinction in law? Nope.)
The second try relies on the notion that type-3 laws, unlike type-1 and type-2 laws, express generally applicable demands. Jews don’t ordinarily think non-Jews are criticizable for eating pork, and Catholics don’t ordinarily think non-Catholics are criticizable for not taking communion.
I think there are (at least) two problems with this. First, what do we do about those religions that think that there is a generally applicable demand to join them? Evangelical Christians ordinarily think that everyone is criticizable for not joining their religions. I take it that they would also think that everyone is criticizable for not engaging in the religious practices required of their members.** Does it follow from the proposition that type-3 religious laws can be enforced by the state that the state can enforce attending fundamentalist prayer meetings?
Second, this ultimately amounts to the claim that it’s permissible to enforce whatever religious law people happen to want to enforce. For the very fact that religious citizens demand that some religious law be written into secular law can (and ought) to be taken as evidence that their religious beliefs take that religious law as a demand on everyone, rather than just on believers. Consider: some extreme ultra-Orthodox Jews in Israel have been known to do things like throw garbage on people seen driving cars on the Sabbath. They can’t know, as they throw the garbage, that those who are driving are actually Jews. We’re compelled to think that they think that everyone ought not to drive on the Sabbath. So is that a type-3 law? If so, type-3 laws eat up the whole field.
From this, I think we ought to conclude that a coherent and non-intrusive Establishment Clause would have to prohibit the legislative enforcement of type-3 religious laws too. And that includes things like bans on stem cell research and abortion that are only justified by reference to the fact that they violate what someone thinks is a religious law.
This leaves one question still open: is it possible to pass a secular law based on religious arguments without making reference to a religious law? Consider the following kind of argument. “My religion holds that human life is sacred. Stem cell research disrespects human life for the following (religious) reasons. Therefore, the state should ban stem cell research.” This doesn’t look, on the surface, like an argument from type-3 religious law. But appearances are deceiving. I submit that any such argument has a suppressed premise of the following form: “sacred things must not be subjected to disrespect.”
“Sacred things must not be subjected to disrespect” is a law in the (broadly Kantian) sense I’ve been using above, but is it a religious law? We might interpret it as stating a moral law that simply makes reference to religious beliefs to fill out the content of what is “sacred.” But this seems implausible: what reason would an atheist have to respect sacred things? (An atheist might have reason to respect things that other people think are sacred, but that would be out of respect for the beliefs and autonomy of others, not out of respect for the sacredness of those things.) I have trouble even imagining how the sacredness of a thing could be reason-giving without taking the religion that picks that thing out as sacred as reason-giving in general. It seems quite likely that all wholly religious arguments for secular laws are based on religious laws. And it follows from all of this that secular laws justified only by religious arguments are prohibited by the Establishment Clause.
* I’m conceiving of the distinction as something like this: type-1 and type-2 beliefs have the structure “X is commanded by religion, therefore X should be brought about.” Type-3 beliefs have the structure “X is commanded by religion, therefore X is morally required, therefore X should be brought about” or the structure “X is commanded by religion, this permits us to learn that X is morally required, therefore X should be brought about.” (Depending, again, on one’s stance on Euthyphro and so forth.)
** I assume that religious demands are transitive in this sense — if everyone is subject to criticism for not doing A (i.e., joining the church), and those who do A are subject to criticism for not doing B (i.e., showing up at meetings), then everyone is ultimately subject to criticism for not doing B.