Obama-rama (Religion and Legislation) cont'd.

In response to Rick and Steve ...  I think that the requirement of "secular purpose" does serve a role in keeping government to its proper sphere of this-worldly matters -- an orientation that is important to both religious freedom (assigning religious matters largely to an autonomous religious sphere) and political freedom (reinforcing limited government).  But if the requirement is too severe, it turns the useful concept of this-wordly-oriented government into the bad concept of a secularized government that must turn a blind eye to the religious insights that are relevant to this-worldly matters (and that, as Rick reminds us, the democratic majority believes are relevant).  Such a government consigns religion to the private sphere alone, especially as the government grows in size and occupies more of public life.  That's my worry about Steve's nearly absolute rule against government expression of religious propositions.

To me, the main distinction that's relevant here concerns not the rationale(s) for government action, but the nature of the action.  If the government is acting within its ordinary sphere of authority -- making rules of justice and policy concerning this-worldly matters like economics, criminal law, health and social welfare, foreign affairs, etc. -- then it should be able to rely on religious rationales pretty much like other rationales.  Even here, I think it helpful to demand that government articulate some secular rationale for its action; this helps keep government oriented toward the sphere of this-worldly matters.  (And in response to Rick, I think that we can make a distinction between rationales that explicitly rest on ultimate or religious claims and those that stop short of doing so -- even if the latter might logically have to rest ultimately on premises about ultimate matters.  Pretty much any distinction between the civil and religious spheres, from Augustine to Canossa to the First Amendment, rests on our ability to make some such distinction however imperfect.)  But for the reasons I gave before, this is not and should not be much of a barrier; there is virtually always a secular rationale accompanying the religious ones.  I think, for example, that the Court was off base in Epperson v. Arkansas when it claimed there was no rationale for opposition to evolution other than Biblical literalism.

By contrast, if the government is acting within the explicitly religious sphere -- prayers, religious ceremonies,  religious displays -- then normatively I think it is stepping beyond, or to the edges of, its proper sphere and I would like to see it more constrained.  Thus I have a lot more normative sympathy for the civil rights law that contains a "whereas" clause referring to God creating humans equal than I do for the official prayer or creche display.

Tom