Religion as a Basis of Lawmaking? Herein of the Nonestablishment of Religion

33 Pages Posted: 6 Dec 2007 Last revised: 10 Mar 2020

Date Written: December 4, 2007

Abstract

The question whether in a liberal democracy religion - religious rationales - may serve as a basis of (coercive) lawmaking must be disaggregated into two distinct questions: First, is religion a morally legitimate basis of lawmaking in a liberal democracy? Second, is religion a constitutionally legitimate basis of lawmaking in the United States? I have addressed (elsewhere) the first question - as have many others. In my judgment, the answer is yes; and, again in my judgment, the most powerful defense of that answer is philosopher Christopher Eberle's important book Religious Conviction in Liberal Politics (2002). This Essay addresses the second question. The second question, which is about constitutional legitimacy, should not be confused with the first question, which is about moral legitimacy.

Like other liberal democracies, the United States is committed to the right to freedom of religious practice. Unlike most other liberal democracies, however, the United States is also committed to the nonestablishment of religion. According to the constitutional law of the United States, government - that is, lawmakers and other government officials - may neither prohibit the free exercise of religion nor establish religion. Does the nonestablishment norm (as I like to call it) ban religion as a basis of lawmaking? More precisely, should the nonestablishment norm be understood to ban laws (and policies) for which the only discernible rationale - or, at least, the only discernible rationale other than an implausible secular rationale - is religious?

Is it a good thing that government in the United States is constitutionally forbidden to establish religion? So far as I can tell, there is a virtual consensus among us citizens of the United States, including those of us who are religious believers, that, all things considered, it is good both for religions and for social harmony that our lawmakers may not establish religion. The serious question among us, therefore, is not whether the constitutional law of the United States should include the nonestablishment norm but what the nonestablishment norm should be understood to mean - to forbid - in one or another context. In this Essay I ask what the nonestablishment norm should be understood to forbid in the context of lawmaking. I conclude that the answer to the question whether the nonestablishment norm should be understood to ban laws for which the only discernible rationale is religious, depends: yes with respect to some religious rationales, no with respect to others. I also conclude, however, that insofar as the nonestablishment norm is concerned, lawmakers are free to support laws - to vote to enact laws - on the basis of any religious rationale whatsoever. Those two conclusions may seem to pull in opposite directions; I explain in this Essay why they do not.

Suggested Citation

Perry, Michael John, Religion as a Basis of Lawmaking? Herein of the Nonestablishment of Religion (December 4, 2007). Emory Public Law Research Paper No. 07-27, Available at SSRN: https://ssrn.com/abstract=1057721

Michael John Perry (Contact Author)

Emory University School of Law ( email )

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