Friday, July 10, 2015
Obergefell and "Religious Reasons for Lawmaking"
The extremely productive group of law-and-religion scholars, my friends Nelson Tebbe, Rich Schragger, and Micah Schwartzman, published a piece a few days ago on the Religion and Politics site called "Obergefell and the End of Religious Reasons for Lawmaking." They say, among other things, that:
The most significant impact of the Obergefell decision for the relationship between religion and government is that it put an end to lawmaking solely on the basis of religious reasons. - See more at: http://religionandpolitics.org/2015/06/29/obergefell-and-the-end-of-religious-reasons-for-lawmaking/#sthash.u8OH2Qn7.dpuf
This does not seem right to me. The "most significant" impact of Obergefell seems clearly to be the constitutionalization of a nationwide right to legal recognition of same-sex marriages. And it has been settled, unremarkable, black-letter law for years that laws cannot be based "solely" on "religious reasons."
But, to pursue the matter a little more deeply: As I see it, our laws pervasively and unsurprisingly reflect and are based on "religious" reasons all the time. It's just that theorists and courts have decided, from time to time, that certain "religious" reasons are sufficiently widely held, or sufficiently non-controversial, to allow them to be labeled (for legal and political-theory purposes) as something other than "religious." (For more, see this essay -- now more than 20 years old but still very helpful -- by Steven Smith.) Indeed, the reasons offered by Justice Kennedy -- sounding in dignity and liberty -- are not "quantitative" or "scientific" or "empirical" or "cost-benefit" . . . they are moral and, even if not explicitly, "religious." I continue to not see any real difference between what theorists are willing to accept as permissible "moral but not religious" arguments for laws that burden at least some people's interests and those that, although not couched in terms of revelation or divine authority or church teaching, get the label of impermissible "purely religious" reasons. Obergefell is not the end -- not really -- of "religious reasons" for laws; it is the defeat, with respect to a particular issue, of some "religious reasons" by others.
https://mirrorofjustice.blogs.com/mirrorofjustice/2015/07/obergefell-and-religious-reasons-for-lawmaking.html