Just to continue the conversation (see recent posts by Steve S., Michael P., Rick G., Fr. Araujo, and Richard S.): I take it that everyone agrees that a just government should not -- and that, in particular, our Constitution would not permit our government to -- pass a law requiring everyone to either go to Confession during Lent or pay a fine. I take it, also, that everyone agrees that just governments should -- and that our Constitution permits our government to -- prohibit and punish intentional homicides. The question I meant to ask, in my earlier post responding to Steve S., is whether these two common-sense points of agreement (and others like them) are really explainable with reference to an underlying "principle" like "the government may not enact laws for religious reasons", "the government may only pass laws that have a secular purpose", etc.
Now, Steve proposes, as a general principle that "subject to narrow exceptions . . . government is barred from acting as a theologian." Well, that sounds right, but (and I'm not, I promise, trying to be obstructionist or stubborn), what does that mean? Andy Koppelman has said that the government may not "declare religious truth", which also sounds right, but what *counts* as "religious" truth (as opposed to just "truth.")
Sometimes, in this debate, it seems to me that what is really being asserted (this is not what I take Steve S. to be asserting) is that "the reasons that motivate religious people are fine, as long as they motivate them to support a policy that I (the "objective" or "reasonable" or "secular" speaker) also support." It is not clear to me, though, why we should be moved by such an assertion.
Steve writes:
At the same time, I believe that laws based on secular purposes are constitutional even if they are derived from a religious framework. The key, however, is that government may not employ the religious framework even though citizens may in proposing legislation. To pass Establishment Clause muster their religious views must be translated by government into secular terms.
I suspect strongly that, in almost every case, Steve and I would agree about how this proposal of his would "cash out". But, I really do wonder what "secular terms" are, as opposed to a "religious framework." As I see it, the "framework" that makes human-rights talk meaningful is (whether or not the person engaging in the talk is a religious believer) a "religious" framework. Is the rule simply that "the government may never say, 'we are doing this because a particular religious authority has commanded it'?" If so, fine. Whatever the Establishment Clause means, really, I'm happy to go along with the proposal that it should mean this. But, I assume that instances of such proclamations are going to be few and far between. What about "we are not going to fund embryo-destructive research because such research is inconsistent with the dignity of the human person, properly understood"? Such a statement says nothing about "religious authority". What would Steve S. say to, say, Geof Stone, who believes (if I remember correctly) that such a statement can only be based on religion, and so the policy for which it is offered is unconstitutional?
Friday, February 20, 2009
It was great to see Steve Shiffrin (and many other MOJers) at Villanova. I appreciate Steve's report from the Scarpa conference, and will soon be posting some reactions of my own. For now, just a quick question: Steve says that it is "clearly right" to say that a law "founded on a religious purpose" is unconstitutional. How, though, do we distinguish between "religious" purposes, and "purposes that many people who are religious hold"?
Tuesday, February 17, 2009
Readers might be interested in attending Villanova Law School’s third annual Scarpa Conference on Law, Politics and Culture this Thursday, February 19, 2009, at the Connelly Center on Villanova’s main campus.
The theme of the conference is “Liberty of Conscience and Religious Equality,” and the all-star speakers include Martha Nussbaum from the University of Chicago, Patrick M. Brennan from Villanova, Jesse Choppr from Berkeley, . . . Kent Greenawalt from Columbia, John McGreevey from Notre Dame, Roderick Hills from New York University, Very Rev. Richard Schenk, OP from the Dominican School of Philosophy and Theology at the Graduate Theological Union at Berkeley, and Geoffrey Stone from the University of Chicago.
HT: First Things
Continuing legal education credit is available for attorneys, and more information can be found here (PDF).
Sunday, February 15, 2009
With respect to Network's endorsement, which Michael P. posted recently, of the "stimulus" package, it seems to me that, whatever one thinks of the social-justice or other merits of the various spending items listed by Network, the fact that the package includes provisions requiring discrimination against religious schools and universities is one (of many) reason(s) to withhold full throated support for this bloated monstrosity spending measure.
An interesting story, about "eightmaps", a site that takes the names and ZIP codes of people who donated to California's Prop. 8 — information that California collects and makes public under state campaign finance disclosure laws — and overlays the data on a Google map:
FOR the backers of Proposition 8, the state ballot measure to stop single-sex couples from marrying in California, victory has been soured by the ugly specter of intimidation.
Some donors to groups supporting the measure have received death threats and envelopes containing a powdery white substance, and their businesses have been boycotted.
Intimidation is bad, of course, but we're supposed to think that disclosure and transparency are good, right? So, what about this?
I teach a course on the Freedom of Speech, which focuses primarily on the First Amendment. Each year, I struggle with the presentation of the cases and debates about obscenity and pornography. On the one hand, I am moved by limited state, slippery slope, "counterspeech, not regulation", civil-libertarian arguments. On the other, I am deeply unsatisfied by the view that pervades so much of our talk and thinking about regulating expression, i.e., "speech does not cause harm, and even if it does, pornography does not cause harms of a type that the government ought to be permitted to forestall through regulation." Of course speech causes harm; we simply choose (as, in my view, we usually should) to assume the risk of that harm, or to employ means other than regulation to prevent and redress it.
Anyway . . . check out these two thought-provoking essays, over at "Public Discourse", by Roger Scruton and James Stoner, on the matter.
David Gibson posted this, a few days ago, the 80th anniversary of the Lateran Pacts which, among other things, regularized the status of the Vatican. While I'm pretty sure there is not -- any longer, anyway -- a need for the Papal States, etc., it does seem to me that not only the freedom of the Church, but religious freedom generally, is powerfully aided by the fact that the Roman Catholic Church has a place. Thoughts?
