Religious practices, religious law, and the establishment clause.

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.

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* 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.

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6 Responses to “Religious practices, religious law, and the establishment clause.”

  1. Steve M. Says:

    I’ll have to give this more serious thought. Question, though: What about cases in which you’re regulating what we might call the public aspects of religious institutions — e.g., writing the tax code in a way that recognizes that the institutions it regulates are in fact religious? Does the requirement that laws touching on religious subjects be entirely categorical, and (therefore?) not religiously-motivated, require a kind of religion-blindness from the state? The obvious concerns here are avoiding excessive entanglement (think of wealthy people using churches to store and transmit wealth the way they use charitable foundations) and overzealous prosecutors and bureaucrats applying facially neutral regulations to innocuous religious conduct (I’m looking at you, Employment Division v. Smith). One worry I have is that it might not be possible to write a rule that allows the government to recognize religion for entirely sensible reasons without opening the door to religious discrimination, especially if the discrimination comes in the form of failing to extend some benefit available to others. Historically, the Blaine Amendments come to mind, as do the facts of Locke v. Davey.

    Or are you willing to run with the ball and argue that the Establishment Clause constitutionalizes a kind of comprehensive liberalism? I think that might be the implication of your post, in which case legislators had best catch up on their Joseph Raz. Also, what about cases in which local authorities prosecute supplicants of minority faiths for, e.g., failing to build their houses of worship to code or sacrificing animals in technical violation butchery laws? Do you want to make room for those cases? Or are your views there parasitic on your views on building codes and animal sacrifice (or, if you want to argue that the First Amendment constitutionalizes some sort of comprehensive liberalism, are they even separate issues)?

  2. Paul Gowder Says:

    Hmm… I don’t know that I’d say that laws that touch on religious subjects have to be entirely categorical — in principle, it seems like it’s possible to acknowledge the role of religion in the abstract in people’s lives and legislate accordingly without doing so on the basis of religious reasons that constitute an establishment. Things like building code exemptions seem to fall into that category: we might reasonably decide that people ought to have the liberty to violate minor laws in the interest of satisfying their strong taste for complying with their religious duties, in virtue of our general liberal interest in permitting people to pursue their ends.

  3. Steve M. Says:

    Does everyone get an exemption from compliance with minor laws that interfere with her significant life projects? Or does the Establishment Clause make religion special? If so, doesn’t making religion special treat athiests unjustly and run afoul of the commitment to equal protection? One thing that troubles me about this area is thinking of a way to require the state to give religious people some elbow room that doesn’t treat the non-religious unfairly, or make the law a shapeless guide. Admittedly, this is all somewhat removed form the question whether and to what extent the state’s laws can be religiously-motivated, but as you say, prohibitions on religious motivation require the state (and, by extension, voters) to make judgments about the content and normative qualities of religions.

  4. Steve M. Says:

    Also, and I don’t mean this to be a cross-examination, because I don’t have any really convincing answers, but how do you decide which laws are the minor ones? I’m inclined to say that we should grant exemptions to minor laws for significant life projects, appropriately defined. The idea behind the “place of God” test the conscientious objector area is something at least roughly like that, and it’s something I’ve always found appealing, at least in its outlines (not in its specifics — I haven’t given it great thought, but at first reflection I think I’d write a very different conscientious objector rule). But the majority, or rather the dominant political coalition, is going to have its own ideas about which laws are the important ones. And people have genuine religious objections to all sorts of important laws.

  5. Paul Gowder Says:

    Funny you should ask these questions. At some point last year, I wrote a seminar paper asking much the same questions, in the context of Rawls’s remarks on liberty of conscience. I wasn’t terribly satisfied with the paper at the time, but maybe there’s more to the idea than I thought after it was done. The key notion being that liberty to pursue one’s deeply-held conception of the good + the recognition that we can’t fairly limit that to religious and comprehensive philosophical conceptions can eat up basically everything else (including, e.g., distributive justice to the extent one’s conception of the good is that of an investment banker/big firm associate).

    So I don’t know that I have any answer to this question. There may not be one. This is the sort of thing that liberals have to wrestle with. I’m working on a paper right now exploring the possibility of ruling certain kinds of desires (at least money-grubbing ones) out of order as the sorts of conceptions of the good that liberal states must coddle, basically on psychological grounds, but that only helps the worst of the problems…

  6. JL Says:

    The second try, well, I think you’re correct. People would try to enforce whatever religion-based laws they saw fit, at least in some places. I’ve seen people (non-lawyers, admittedly) say that it should ok under the 1st Amendment to force people to recite or perform religious credos because it’s not like people are forced to believe what they would be required to say.

    There might be some limit to laws that would get passed though. The ultra-Orthodox Jews in Israel might assume that everyone they see is Jewish and is thus failing to abide by their own religious laws, or they may believe that Israel is supposed to be a Jewish state, complete with enforcement of Mosaic Laws. Enough people in this country believe the state is supposed to be non-sectarian that passing some religious laws would be difficult. But then, what’s the point of having an Establishment Clause or judicial review?

    I’ll have to think more about the first one. I’m not sure I have a problem with courts ruling in ways that implicate religious beliefs. I think they do now, but they just don’t admit it (consider the contradiction between evangelical Christian belief that there is no source of morality independent from god with the implication in criminal law that breaking a law is immoral). I think courts probably aren’t the appropriate place to interpret religious doctrine, but once that doctrine is enacted text, the courts are probably capable of interpreting the text, legislative history, etc. without reference to particular sectarian beliefs. And if they can’t interpret a law (say, “No worshipping graven idols”) without referencing normative beliefs of certain groups, then the law probably shouldn’t exist.

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