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President Bush's Stem Cell Veto and Separation of Chruch and State:

Chicago lawprof Geof Stone criticizes the veto on church-state grounds, saying that it shows "a reckless disregard for the fundamental American aspiration to keep church and state separate." Paul Horwitz (PrawfsBlawg) responds. Larry Solum (Legal Theory) passes along his own view.

My view is very close to Paul Horwitz's, for the reasons I expressed in my 2005 debate with Geof Stone on the subject of religious reasons for government decisionmaking:

Geof Stone makes a forceful argument, but it seems to me that there are two quite different strands to it — strands that need to be separated.

At times, Geof is asking whether a "law [is] based on faith," whether a "law [is] based solely on sectarian religious belief," whether it "serves no legitimate public purpose." This category, he suggests, does not include laws that are "perfectly sensible law without regard to anyone's religious faith" or that have "a religious as well as a secular purpose," which would include a "moral-based reason" as well a "faith-based reason." Note that so far we're talking about the law. [EV: I should add here that the ban on stem-cell research funding can have obvious "moral-based" justifications, albeit ones I disagree with, just as a ban on experimentation on animals or a ban on killing endangered species would have "moral-based" justifications, even if some may disagree with them.]

At other times, though, he asks whether a person (including a political leader) backs a law "based entirely on his own sectarian religious beliefs," whether a person is "imposing [his] faith on others." That is a very different inquiry, an inquiry into the subjective motivations of a law's backers rather than whether the law in fact serves some public or moral purpose. For instance, I take it that all of us would agree that abolition of slavery, prohibition of alcohol, opposition to war, or support for civil rights are laws that have "moral-based reason[s]" as well as potentially "faith-based reason[s]." But all these laws were backed by some people — perhaps many people — for reasons that flowed from their own sectarian religious beliefs. (I chose these movements precisely because so many of their backers were deeply religious.)

In fact, I suspect that for many deeply religious people, all their moral beliefs are faith-based, because they believe morality only comes from God. I'd wager that many religious pacifists, abolitionists, and others would take precisely this view. Yet I think that we surely shouldn't condemn either their cause or them for this.

Your moral views may come from your understanding of human dignity; another's view may come from utilitarianism; another's may come from libertarianism; another's may come from fundamentalist Christianity. None of these bases are somehow provable; none is constitutionally superior to the others. (In fact, many of the arguments for religious freedom itself came from the "sectarian religious beliefs" of deeply religious people; I suspect that they supported religious freedom for religious reasons since religious reasons were the only moral reasons that counted to them.)

Any other approach is itself deeply discriminatory — it suggests that atheists, agnostics, utilitarians, and the like are entitled to enact their moral views into law (because they don't rest on religion) while devout Catholics, Protestants, Jews, Muslims, and others are forbidden from enacting their moral views into law (because they do rest on religion). That's not mandated by the Constitution, it's not in my view compatible with our national traditions, and it's not right.

Hence my claim: It is certainly quite proper to ask whether a law is morally or constitutionally sound. A law banning the eating of pork may be quite unsound. Likewise, laws banning — or allowing — abortion, infanticide, the destruction of embryos or chimpanzees for medical purposes, or the killing of members of endangered species might be sound or unsound.

But it shouldn't matter whether someone supports them because of his belief that laws should turn on the greatest good for the greatest number, his belief that we are all sons and daughters of Gaea and must thus protect our environment, or his belief in the Bible. For most, quite possibly all, of us, our moral beliefs ultimately rest on unproven and unprovable moral axioms. The Constitution doesn't consign those whose moral beliefs rest on unproven and unprovable religious axioms to a lesser citizenship, under which they may not enact their views into law, while others with the same views that rest on unproven and unprovable secular axioms are free to do so.

frankcross (mail):
I don't understand this argument. There's little doubt that Lincoln's ending slavery was centrally motivated by his religious belief. Various priests vigorously opposed the Vietnam War, for religious reasons. Ending the war in response to their concerns would not have been illegitimate. You can't reasonably demean a person's governmental pursuit of moral views by saying their foundation is religious -- doing so would be radically anti-religious, saying that only the secular have valid moral views.
7.25.2006 3:39pm
John (mail):
I agree that Stone has gone a bit off the reservation here. But I wonder why you phrased it, "the ban on stem-cell research," when the ban is just on federal funding of certain stem cell research, and does not affect the legality of any research. Or am I misunderstanding the law at issue here? [EV responds: D'oh! Thanks, fixed it.]
7.25.2006 3:39pm
David Maquera (mail) (www):
FRANKCROSS: Despite his use of biblical phrases and references to God, historians now generally believe that Lincoln was an atheist.

[EV writes: A citation might be helpful here.]
7.25.2006 3:51pm
David Walser:
Add progressive income tax and other redistributive measures to EV's list of laws that were supported, in part, based on religious faith. Don't the supporters of such measures often claim that they are the right thing to do? And, historically, weren't such claims frequently based on a religious demands to help the poor? The answer is that, as with any law passed with appeal to what is morally right, the support for these measures frequently were based on religious grounds. As EV points out, correctly in my opinion, such motivation does not, in and of itself, violate the Constitution.
7.25.2006 3:58pm
williamandmaryalum (mail):
Well said EV. Stone's argument seems to fly in the face of hundreds of years of political debate in the US. If Bush is wrong, then many progressive heroes were also wrong, including MLK Jr. and FDR. For many believers, one cannot separate the public sphere from the religious sphere. And for Stone to suggest otherwise shows a blatant misunderstanding of religious belief all-to-common among the secular left.
7.25.2006 4:08pm
marghlar:
The problem with this sort of reasoning is that it confuses motive (why we do something) with intent (what we hope our actions will achieve).

Thus, a regligiously motivated action can have a secular object. I think Prof. V. is absolutely right that any restrictions on government action based on religious motivation, as opposed to religious intent, raise profound religious discrimination issues of their own.
7.25.2006 4:10pm
DJR:
Chruch?
7.25.2006 4:14pm
Ron Hardin (mail) (www):
Emmanuel Levinas (``A Religion for Adults'' in _Difficult Freedom_) has it that religion is a poeticization of ethics, in which case the question disappears, except perhaps with respect to respecting rituals, that is to say, the particular vehicle.
7.25.2006 4:17pm
frankcross (mail):
EV, Lincoln as atheist is not what scholars now generally believe. It was a view propagated by the Confederacy way back then. To my knowledge, it has only recently been pressed by the people at the Institute for Historical Review.
7.25.2006 4:26pm
Catholic guy:
I find it especially funny that Stone makes this argument not in the context of a ban on abortion, or on stem-cell research, etc., but in the context of a FUNDING issue. So I'm allegedly trying to impose my religious-and-thus-banned-from-consideration thoughts on HIM, when he's the one trying to raid MY wallet?

When will someone explain to me how people who are so "smart" in certain ways can simultaneously be so stupid? Sorry to be flip, but I'd be greatly disappointed, were I a prof or teacher, if my students still made arguments this lame after, say, seventh grade. But from a "genius" law prof . . .

It's stuff like this that gives legitimacy to anti-intellectualism and anti-academia, and gives legitimacy to some Christians' concerns that the academics are out to ban the Bible. I try to tell them that the academics are not that bad, but then things like this happen . . .
7.25.2006 4:29pm
Jon Rowe (mail) (www):
From what I've researched on Lincoln, he was a "theist" in the tradition of our key-Whig Founding Fathers, that is he believed in an active intervening Providence (which makes him more than just a "Deist") but otherwise disbelieved in most if not all of the dogma (doctrines and creeds) of orthodox Christianity.
7.25.2006 4:32pm
Perseus (mail):
Lincoln did not belong to any church and did not profess any belief in Christianity in his speeches or letters, so on what basis can one claim that his opposition to slavery was "centrally motivated by his religious belief"? (In my view, Lincoln's use of religious imagery in his speeches directed at a religious people is not sufficient to prove the claim.)
7.25.2006 5:21pm
DCP:
I find it strange that Stone and others so easily assume that moral opposition to stem cell research could only be the product of religion or faith-based morality.

For starters, what exactly is the religious doctrine that this position is supposedly based on? I didn't pay much attention in Sunday school, so maybe I missed the Bible verses that dealt with destruction of embryonic cells created through in vitro fertilization or the sermon Jesus delivered regarding the manifestation of pre-natal rights.

And notice how they never presume that stautes that prohibit murder, theft and rape - and political support thereof - must somehow be faith based eventhough there is ample evidence of deep and longstanding religious opposition to these activities. Yet we presume those are secular moral precepts.

Is it not possible that opposition to harm or destruction of human life before birth could be based on something other than religious dogma?

To me, a much better example would be Blue Laws which prohibit the sale of alcohol on Sundays. I think the intent behind such laws is much more clearly based in religion (the Sabbath), they establish a preference for one religion (the Christian, non-7th day adventist Sabbath) and they contain few, if any, secular justifications.

Plus they forced me to drive 500 damn miles to get a keg of beer during a poorly planned Super Bowl party.
7.25.2006 5:22pm
John Marshall Robinson:
Well said, DCP. Your first paragraph was the point I had in mind.
7.25.2006 5:29pm
Master Shake:

I find it especially funny that Stone makes this argument not in the context of a ban on abortion, or on stem-cell research, etc., but in the context of a FUNDING issue. So I'm allegedly trying to impose my religious-and-thus-banned-from-consideration thoughts on HIM, when he's the one trying to raid MY wallet?

When will someone explain to me how people who are so "smart" in certain ways can simultaneously be so stupid?
Catholic guy - There may be plenty of things wrong with Stone's argument (I believe there are), but that ain't one of them. Withholding funding for purely religious reasons (if proven) would be precisely as problematic as funding a program for purely religious reasons, or banning an otherwise legitimate practice for purely religious reasons. Consider Stone's example of vetoing subsidies to pork producers because eating pork offends your religious sensibilities.

If you actually believe that "stuff like this . . . gives legitimacy to some Christians' concerns that the academics are out to ban the Bible", then your "stupidity" accusation at Stone is particularly ironic.
7.25.2006 5:34pm
Ex-atheist, still pro-lifer:
For what it's worth, I was once an atheist pro-lifer. At the time, it seemed to me that the arbitrary line at birth didn't make sense, as the kids born premature at 8 months are no different from the kids still baking for another month. The earlier break points -- brain waves, feeling pain, etc. -- each had various weaknesses. Unique DNA made sense to me.

At the time, I was annoyed that others would quickly presume me to be Christian, etc.

Later, I became Christian, raising two issues. First, although I am glad I did so, for faith-based reasons, I somewhat regretted the effect on pro-life arguments. Too many folks were quick to ask "are you one of THEM??" and then they'd discount everything I said. Second, I admit that it's possible that my atheism had not been as thorough as I'd thought, and that my pro-life views were connected to some not-yet-fully-developed (embryonic? :-) ) theistic impulse. But I'm not yet ready to concede that. It still seems to be that if you've got qualms about infanticide, it's not hard to support a ban on late-term abortions. And from there, anything's possible on arguing the science.

And of course, if you go for the from-the-start view, then the embryonic-stem-cell concern follows as a matter of course.

Seems to me that IF the pro-life view has NO secular rationale to justify it, then Prof. Stone and his allies could simply argue it on those terms and show the weakness of their opponents' views, rather than brand them as tainted and refuse to engage them on the substance of the arguments. Were I still on the fence, I'd be LESS likely to support Stone's view, based on his reliance on flimsy argumentation.
7.25.2006 5:36pm
Thorley Winston (mail) (www):
I find it especially funny that Stone makes this argument not in the context of a ban on abortion, or on stem-cell research, etc., but in the context of a FUNDING issue. So I'm allegedly trying to impose my religious-and-thus-banned-from-consideration thoughts on HIM, when he's the one trying to raid MY wallet?


I think that this is one of the most puzzling parts of Stone's argument. How does vetoing a bill that would have allowed government to take money from its citizens in order to fund research that some of them object to constitute "imposing your religious beliefs on others." It seems to me -- the merits of the research notwithstanding -- that the only "imposition" would be by the government had the legislation become law.
7.25.2006 5:47pm
Thorley Winston (mail) (www):
For what it's worth, I was once an atheist pro-lifer. At the time, it seemed to me that the arbitrary line at birth didn't make sense, as the kids born premature at 8 months are no different from the kids still baking for another month. The earlier break points -- brain waves, feeling pain, etc. -- each had various weaknesses. Unique DNA made sense to me.


Curious I'm an agnostic (formerly atheist) pro-lifer and I draw the line at brainwaves. What did you see as the weakness with drawing the line there?

[Sorry for the thread jack]
7.25.2006 5:50pm
Marcus1 (mail) (www):
The question is whether we want a secular government. Do we?

I want a secular government. That means, if we're going to pass a LAW about something, I want people to have a better argument than "That's what God wants."

Now, that doesn't mean Bush's reason for everything is religious. Maybe it's not. Maybe he has good reasons for opposing stem cell research. Really, that's for him to decide himself. If the best thing he can come up with, though, is that the Bible tells him so, then I think people darn well ought to criticize him.

It raises the question, is there such a thing as a bad reason to support a law? Let's say I oppose stem cell research because I think it would help my brother and I don't like him. Or because I think it's going to cause the earth to crash into the sun. Is that all fine? Should people not criticize me for voting on those bases?

It's not like people only criticize reasoning that's based in religious faith. We criticze reasons that are based in every other kind of faith or ideology too. The question, really, is whether we should make an exception and hold our tongues when people say they base in idea in religion. Should we? I don't think so.

Again, the point isn't: "That's a Christian idea; therefore you should keep it to yourself." The point is: "That's exclusively a Christian idea; the only reason you think that is because of your personal faith; please don't force that view on me unless you can honestly say you have a valid secular reason."

I also don't think this gives atheists more power, except to the extent that atheists don't definitionally have irrational agendas. This kind of comparison really results from sloppy thinking. A person isn't solely a "Christian" or an "atheist." If I'm an atheist, but I believe in astrology, I don't think I should use that as a basis for how I vote. If I have some other non-secular vision, I don't think I should use that either. Sure, you can say, if somebody is a "secularist," then, oh no, that gives them all this power, because they can push for all of their various agendas. But is ideology really that kind of a zero-sum game? Of course not. If you're a Christian, you could have an infinite number of agendas that are secular, and thus appropriate for putting into law. To the extent you also have religious ideas, though, I don't think you should force those on others. Does that give atheists more power? I really don't think so.
7.25.2006 6:11pm
frankcross (mail):
Perseus, I can say it because Lincoln in his inaugural address said that the Civil War and end of slavery was willed by God, among other statements.

In fairness to Stone, I have been told that his argument was that if the only possible justification for a position was a religious one, that was what made it unconstitutional, not merely having a religious motivation. This seems theoretically plausible to me but unhelpful. Could one not imagine any secular argument for the Bush policy on stem cells? Even a bad one?
7.25.2006 6:13pm
Aultimer:

whether a person (including a political leader) backs a law


There's an important distinction there that EV misses - in an electoral democracy, elected officials should respect the separation REGARDLESS of whether most, or even all, of their constituents do.

The elected should be judged differently than the electors. If the job of representing is so simple as ignoring the constiuents and the system, and merely vote one's own conscience, it would surely have lead to the tyranny of the majority by now.
7.25.2006 6:26pm
Marcus1 (mail) (www):
Frankcross,

To me, it's an internal question that evey person should ask themselves. It's not a question about whether Bush's action is Constitutional. Prof. Stone says that in the end.

The question is: "Why am I doing this? Why do I think stem cell research should be illegal? Why do I think we need a constitutional amendment banning gay marriage in every state?"

In my view, if your reason is purely faith-based -- that is, you can't explain why you think somebody shouldn't be doing something, but you simply think they shouldn't -- then that's not a good reason for passing a law (or vetoing a law, as the President's legislative authority is exercised).

If, OTOH, you truly think something is harmful to society, for reasons you can well explain, and that don't simply come down to, "Well, that's my religion," then I think that's fine.

EV raises an interesting point: Yeah, he says, but we're all incapable of explaining our moral beliefs at some point. I guess he could go even further and say we're all irrational at some point. But is that really a good basis for throwing rational government out the window entirely?

Maybe there are cases when it's impossible to separate out religious thinking from secular thinking. I'm pretty sure you can't get rid of the influence of religion on government entirely. But I think Stone has a point: If you believe something, but you can't really explain why in universal terms, maybe you should show some humility, and not be so quick to force that view on others. Atheists, of course, should show the same kind of humility. If they can't explain why they believe something in universal terms, they probably shouldn't be pushing that view on others either. The thing is, though, that "religion," at least by one definition, is comprised quite significantly by these types of beliefs. And pretty much by definition, one person's religion is not necessarily another person's. That's where this argument comes from.

Of course, it's hard to tell if you're doing something simply for faith reasons or for secular reasons that are legitimately forced on others. Sometimes, it'll be a mix. If people want to be fair, though, and I think they should, then I think they need to ask themselves that question.
7.25.2006 6:39pm
Jeff R.:
The idea that Rawlsian Public Reason Theory must necessarily be applied to the veto power is just about as utterly bizarre as a position can get. We elect individuals to the presidency so that that person's individual personality and methods of reason should govern the presidential powers, including the veto. If we wanted to go to the lowest common denominator, we'd go Athenian. (And if we wanted to get Rawlsian results, we'd go Athenian and disfranchize the religous...)
7.25.2006 6:40pm
Thorley Winston (mail) (www):
There's an important distinction there that EV misses - in an electoral democracy, elected officials should respect the separation REGARDLESS of whether most, or even all, of their constituents do.


Says who?

Not the people as polls have consistently shown that they prefer that their elected leaders have some sort of religious faith and draw upon it while making decisions of an ethical nature.

Not the Constitution as it says nothing whatsoever about whether elected officials can act based on their religious values -- only that they cannot actually establish a church or create a religious test for office.
7.25.2006 6:42pm
Toby:

I want a secular government. That means that if we're going to pass a LAW about something, I want people to have a better argument than "That's what God wants."

Many might say, that this is a profoundly libertarian impulse. Whenever the government picks *my* pocket for something that *I* find repugnant, it had sure have a very good reason.

As PJ O'Rourke has stated - no funding for anything you would not shoot your grandmother for. Because if Grandma does not pay taxes, they will come after her. And if she flees and holes up somewhere, they will send a SWAT team after her. And what chance does Grandma have against a SWAT team...

There is a fundamental difference between "You may not buy drinks on Sunday because of My Religion" (the blue law cited above) and "I refuse to have you required to pay for research you find offensive" Anyone who does not see that difference is slipping pretty close to the default that "All money really belongs to society - so be glad we let you keep any of it" school of politics.
7.25.2006 6:56pm
Jon Rowe (mail) (www):
"only that they cannot actually establish a church"

The Constitution says nothing about "establish[ing] a church," but rather "make no law respecting an establishment of religion."
7.25.2006 6:58pm
ray_g:

As others have said, it appears that Stone's argument assumes that any objection to the funding of stem cell research can only be faith based. I am an atheist, and I can easily come up with secular reasons against funding this type of research. I have no problem with not using public funding for something that many find ethically dicey, for whatever reason. Remember, this only denies public funding, it does not ban stem cell research. That I would oppose.

Now this statement,

"...a reckless disregard for the fundamental American aspiration to keep church and state separate."

is just shameless hyperbole. It is that kind of statement that makes this atheist agree that there is a large anti-Christian bias in our leftist/liberal elites.
7.25.2006 7:09pm
Broncos:
Re: Lincoln. (This is a tangent, and an extremely long quote, so I apologize in advance.) When I read about Lincoln, which is infrequently, I almost always find allusions to his Christianity. For example, an article from the Atlantic a while back on Lincoln's depression, and its fruits, contained the following passage:


Elizabeth Keckley, Mary Lincoln's dressmaker, once told of watching the president drag himself into the room where she was fitting the First Lady. "His step was slow and heavy, and his face sad," Keckley recalled. "Like a tired child he threw himself upon a sofa, and shaded his eyes with his hands. He was a complete picture of dejection." He had just returned from the War Department, he said, where the news was "dark, dark everywhere." Lincoln then took a small Bible from a stand near the sofa and began to read. "A quarter of an hour passed," Keckley remembered, "and on glancing at the sofa the face of the president seemed more cheerful. The dejected look was gone; in fact, the countenance was lighted up with new resolution and hope." Wanting to see what he was reading, Keckley pretended she had dropped something and went behind where Lincoln was sitting so that she could look over his shoulder. It was the Book of Job.

Throughout history a glance to the divine has often been the first and last impulse of suffering people. "Man is born broken," the playwright Eugene O'Neill wrote. "He lives by mending. The grace of God is glue!" Today the connection between spiritual and psychological well-being is often passed over by psychologists and psychiatrists, who consider their work a branch of secular medicine and science. But for most of Lincoln's lifetime scientists assumed there was some relationship between mental and spiritual life.

Lincoln, too, connected his mental well-being to divine forces. As a young man he saw how religion could ameliorate life's blows, even as he found the consolation of faith elusive. An infidel—a dissenter from orthodox Christianity—he resisted popular dogma. But many of history's greatest believers have also been its fiercest doubters. Lincoln charted his own theological course to a living vision of how frail, imperfect mortals could turn their suffering selves to the service of something greater and find solace—not in any personal satisfaction or glory but in dutiful mission.

An original theological thinker, Lincoln discounted the idea, common among evangelicals, that sin could be wiped out through confession or repentance. Rather, he believed, as William Herndon explained, "that God could not forgive; that punishment has to follow the sin." This view fitted with both the stern, unforgiving God of Calvinism, with which Lincoln had been raised, and the mechanistic notion of a universe governed by fixed laws. But unlike the Calvinists, who disclaimed any possibility of grace for human beings not chosen for that fate, Lincoln did see a chance of improvement. And unlike some fatalists, who renounced any claim to a moral order, Lincoln saw how man's reason could discern purpose even in the movement of a vast machine that grinds and cuts and mashes all who interfere with it. Just as a child learns to pull his hand from a fire, people can learn when they are doing something that is not in accord with the wider, unseen order. To Lincoln, Herndon explained, "suffering was medicinal &educational." In other words, it could be an agent of growth.

In The Varieties of Religious Experience, William James writes of "sick souls" who turn from a sense of wrongness to a power greater than they. Lincoln showed the simple wisdom of this, as the burden of his work as president brought home a visceral and fundamental connection with something greater than he. He repeatedly called himself an "instrument" of a larger power—which he sometimes identified as the people of the United States, and other times as God—and said that he had been charged with "so vast, and so sacred a trust" that "he felt that he had no moral right to shrink; nor even to count the chances of his own life, in what might follow." When friends said they feared his assassination, he said, "God's will be done. I am in His hands."
7.25.2006 7:18pm
anohymous (mail):
"(In fact, many of the arguments for religious freedom itself came from the "sectarian religious beliefs" of deeply religious people; I suspect that they supported religious freedom for religious reasons since religious reasons were the only moral reasons that counted to them.)"

Political, economic, and social reasons were arguably as important as religious reasons (think social control, although not on as grand a scale as in, say, Aztec Mexico). Religious freedom was more important as against the feds than the states, at least until incorporation.
7.25.2006 7:59pm
Perseus (mail):
A politician's speech directed at a religious people during a period of national crisis is convincing evidence of his inner religious belief? That's a pretty low standard of evidence in my book.
7.25.2006 9:56pm
hey (mail):
I don't go to church, nor do I BELIEVE. Still, I am deeply troubled by these attacks on people's faith. I also note the ignorance and racism exemplified by these critics, who complain about "xians" social attitudes without knowing how jews, hindus, muslims, sikhs, buddhists etc react to certain things and how they believe.

As to the stem cell issue: there is a substantial thread of the secular libertarian community that is very pro-life. They view that a human life begins at conception, with the start of a unique life. Any intrusion is an attack against an individual, which is disallowed. That the collectivist left is unaware of the many secular arguments for pro-life positions highlights why many Chrisitians truthfully feel under attack.

Too many people throw around "Theocracy". That people with religious motivations want to be involved in politics is not an issue. When those people want everyone to obey the tenets of their faith to the detriment of personal liberty, then you have a theocratic implulse. Prohibition was a theocratic impulse (created by the left). Religious mandates on clothing and retail hours are theocratic (blue laws are frequently defended by the left despite their theocratic origins). Defending life as one sees it isn't a theocratic impulse. It may be misguided, but when one says that the Constitution prevents you from attempting to defend life as you see it seriously needs to read the Declaration of Independence.
7.25.2006 10:24pm
AdrianG (mail) (www):
You argue, I think, that it would be improper to exclude those people whose only moral foundation is religious from making laws. Frankly, I don't see it that way. I think all people should have an equal right to try to participate in lawmaking under the limitation that they should not try to base legislation on their religious beliefs. Those people whose only moral foundation is religious have made a decision to have no other source of moral insight, but surely this is their own decision, and not some special condition we have imposed only on them.

I think it's also important to consider where we draw the line between legislation which does tend to establish religion and legislation which does not. Suppose Afghanistan had our first amendment in their constitution but continued to pass laws forbidding the education of women, mandating that men grow beard of sufficent length, and countless other restrictions with clear Islamic origins. Can you imagine how outraged a group of Afghan Christians would be to see their government subverted this way?

Where can we draw this line? How much religiously motivated lawmaking is too much? If we don't draw such a line, and if we only require our lawmakers to say, "I voted for that law against selling alcohol on Sundays for non-religious, moral grounds," does anyone really doubt a religious majority could use that latitude to establish their religion, in effect, even if they denied they were doing so.

If we don't draw the line by saying any religiously motivated legislation is too much, I don't see an effective way to give the establishment clause real meaning.

If anyone can argue that position, I suspect you can, Dr. Volokh. But the arguments of your that I've read, so far, don't seem to tell us how to give the establishment clause real meaning. The arguments of yours that I've read seem to focus on the hazards of trying to measure motivation, and while that point is important, it does not seem dispositive, to me.

Adrian
7.25.2006 11:39pm
Marc :
Three words:

Martin
Luther
King

OK, more than three words....
I don't think it is a valid argument to say there are different standards for elected officials--does that mean that elected officials could not take MLK's arguments to heart or say they had been influenced by his powerful religious oratory?
7.26.2006 3:37am
Aultimer:

Thorley Winston wrote:
Says who?

Some guy named Publius. Do you realize that you're arguing that the majority favors tyranny of the majority?
7.26.2006 10:54am
Rich Rostrom (mail):
"Prohibition" was a "theocratic" project? What a bizarre assertion. In the first place, there is no Scriptural basis for prohibition of alcohol. In the second place, there were obvious secular reasons for Prohibition - to eliminate from society the immense negative impacts of drinking. The enactment of Prohibition had more to do with the social-reform impulse of the Progressive movement than with any religious sentiment.

As for Professor Stone, the secular argument against embryo-killing research is almost trivial to make. I believe it is that argument that President Bush cited in support of his veto, not any scripture. Namely: that a new-born child is a human being, protected from murder. A not-quite born child is physically the same, therefore also protected. The development of the unborn child from conception to birth is a continuous process; there is no point after conception at which one can say "this is now a human being; previously it was not". Therefore, the protection covers all human fetuses and embryos.

I don't say this argument is unanswerable, but it's dishonest to ignore it; and it is far removed from demanding a sodomy law because of Leviticus 18:22.
7.26.2006 11:37am