Obama cont'd: Secular and Religious Reasons for Legislation

Steve makes a good point about the difference between citizens' arguments and government actions: the latter are subject to the Establishment Clause and therefore to some kind of limit on reliance on religious reasons as support for legislation.  The interesting question is, what is that limit?  Steve puts it two ways: (1) that those enacting legislation must "provide secular reasons to meet constitutional requirements," and (2) that "[g]overnment may not pass a restriction of any kind with a whereas clause arguing from the authority of God" because "[i]t is not the role of government to tell us what God has to say about any subject."  The second rule is tougher, because it would stop the legislature's expression of a religious rationale for a law even if also expressed lots of secular rationales.

I certainly agree with #1 (descriptively and normatively).  I just think that it's very seldom violated: e.g there are unquestionably secular reasons supporting abortion restrictions (which is why it's funny that Obama raises that example).  There were even secular reasons motivating the restrictions on teaching evolution -- like the fear of Social Darwinism -- as the recent bio of William Jennings Bryan documents.  When people think some behavior violates God's standard, they almost always think it has bad worldly consequences as well.

I have more doubts about Steve's proposition #2 (doubts expressed here).  Wouldn't #2 make the Declaration of Independence a violation of the Establishment Clause because the Declaration grounds human being's rights on (among other things) "[the] endow[ment] by their creator"?  Wouldn't the proposition make Jefferson's Virginia Religious Freedom Statute a violation of the Establishment Clause because that statute grounds religious freedom largely (though not solely) on religious propositions such as "Almighty God hath created the mind free"?  Shouldn't we avoid reading the Establishment Clause as containing principles condemning these foundational documents adopted around the same time?  If a modern-day civil rights law contained a whereas clause referring to the equality of "all God's children" and incorporating the Declaration's claims about equality and rights coming from the divine Creator, should the clause -- or the legislation -- be invalidated?   

I'm glad to be able to talk about the Declaration today, and to wish everyone a happy 4th of July.

Tom