- The peyote case—an Indian tribe uses peyote in its religious ceremonies; the state outlaws peyote.
- The Amish case—the Amish don’t want their kids to attend high school, in violation of the state’s compulsory schooling law.
- The Ten Commandments case—is it lawful to post the Ten Commandments in a courthouse or other public building?
- May a state ban the teaching of evolution, or require teaching of “creation science,” in its public schools.
- Should the fact that most opposition to abortion is based on belief in ensoulment invalidate laws restricting abortion on demand?
- Should the fact that much of the opposition to gay marriage rests on religious belief invalidate laws refusing to recognize such marriages?
In the first two cases, religion is seeking an exemption from secularly motivated laws of general applicability. In the next pair of cases, the state is being asked to enact, in effect, a religious dogma. The last two cases are the interesting ones. A law prohibiting abortion or gay marriage is not an enactment of religion in the same sense as posting the Ten Commandments or teaching divine creation, because those prohibitions do not mention religion or contain a religious message; they are merely inspired by religion. It would be a leap to regard them as “establishing” religion. And, in my view, a leap too far.I think Posner's view of 5 and 6 is an oversimplification, and not simply because his description of it is so short. I think the difference between cases 3 and 4 and cases 5 and 6 is much more difficult to define. I think the fact that the primary (and perhaps the only sound) justifications for outlawing abortion and gay marriage are religious means that, in effect, such laws do contain a religious message. That the religious message is not made explicit in the wording of the relevant laws does not mean it is not there. If the religious message defines the laws, then whether or not we acknowledge this in the wording is irrelevant. In a sense then, and contrary to Posner's assertion, such laws do amount to the establishment of religion.
The leap would imply that the only morality that should guide public policy in today’s United States is a secular morality.
To see why I think this is the case, let's look again at the other case I used in my original post: laws requiring that women wear burkhas. I suspect that if such laws were passed, Posner and many others would argue that they amounted to the establishment of religion, because the wearing of burkhas is prescribed entirely on religious grounds. Yet, if we adopted Posner's justification for his views on the abortion and gay marriage cases, we would have to accept that, if Muslims constituted a majority of American voters, it would be constitutionally permissable for them to vote for laws that required women to wear burkhas. Here is Posner's statement justifying his view:
If morality, or at least a large part of the moral domain, lives below reason as it were, isn’t the practical consequence that morality is simply dominant public opinion? And so if the population is religious, religion will influence morality, which in turn will influence law, subject to constitutional limitations narrowly interpreted to protect the handful of rights that ought not to be at the mercy of the majority.If, under this view, the majority of Americans were Muslim, and held strict Islamic views of sexual morality and gender, then there religion would and should influence law. Yet I think most of us, even those Christians who feel that abortion and gay marriage should be outlawed for strictly religious reasons, are likely to feel that if non-Muslim women are forced to wear burkhas based on the moral views of a religion to which they do not adhere, this would amount to government endoresement of a particular religion. The constitutional limitations that Posner mentions are designed to protect individual religious (and non-religious) liberties from the majority's religious beliefs. Why, if they should protect us against the Muslim belief that women should wear burkhas in public, should they not protect us from the Christian and Jewish belief that abortion is murder because we are endowed with souls from conception, or the belief that gay marriage should be outlawed because homosexuality is strictly prohibited in Christian and Jewish scriptures (under some interpretations)? Do not these laws also restrict the liberties of those who do not share these religious beliefs?
One potential way around this is to argue that there are, in fact, secular moral reasons for outlawing abortion and gay marriage (or forcing women to wear burkhas). This is the argument that Jeremy Pierce made in some good comments to my previous post. Is it in fact the case that there are non-religious moral reasons for opposing abortion and gay marriage? There have been some non-religious arguments offered against both, but two problems arise when we consider them. Does this mean that outlawing them is not, in fact, the establishment of religion? I don't think it's so straightforward. Putting aside for a moment that I have yet to hear any valid or sound arguments against either that are based entirely on non-religious premises, the existence of such arguments, perhaps even under Posner's view, is insufficient to demonstrate that the laws have not been enacted for religious reasons. For the majority of Americans who oppose gay marriage or abortion, their primary moral reasons for doing so are in fact religious (even the arguments criticized in the pro-choice essay cited by Jeremy are all religious ones, put forward primarily by the Catholic church), and thus their influence on public policy still amounts to the legal adoption of a particular religious view.
Now that I've gotten all that out of the way, I should say that I think even my view is an oversimplification, though one that is less internally inconsistent than Posner's. As I said in the previous post, voting one's values, or morality, or conscience, really just means voting for particular reasons, be they religious or secular. The point I'm ultimately trying to get across is that I feel completely justified in criticizing anti-choice and anti-gay voters for voting on religious grounds. However, I also don't think it's practical to attempt to prevent them from doing so. My only real hope is that such criticisms will be allowed, and taken seriously, in the public debates over these issues, and that lawmakers will take into consideration the religious nature of such laws.