Why Political Reliance on Religiously Grounded Morality Does Not Violate the Establishment Clause

Abstract

Imagine a legislator who must decide whether to vote to outlaw, or otherwise disfavor, particular conduct - abortion, for example, or same-sex unions. She wonders what weight, if any, she should put on her religiously grounded belief that the conduct is immoral; in particular, she worries that it might not be appropriate for her to disfavor the conduct on the basis of her religiously grounded moral belief. In another essay in the series of essays of which this essay is one, I argue that the morality of liberal democracy does not counsel her against disfavoring the conduct on the basis of religiously grounded moral belief. In this essay, I pursue a different but, for us citizens of the United States, complementary inquiry: Does the United States' constitutional morality of religious freedom - in particular, the requirement that government not "establish" religion - forbid government to disfavor conduct on the basis of a religiously grounded belief that the conduct is immoral? That the morality of liberal democracy does not counsel a legislator or other policymaker against disfavoring conduct on the basis of religiously grounded moral belief does not entail that the Establishment Clause permits government to disfavor conduct on the basis of such belief. The Establishment Clause is, in some respects, more restrictive than the morality of liberal democracy. Nonetheless, I argue in this essay that political reliance on religiously grounded morality does not violate the Establishment Clause.