Posted by Eugene Volokh:
President Bush's Stem Cell Veto and Separation of Chruch and State:
http://volokh.com/archives/archive_2006_07_23-2006_07_29.shtml#1153852071
[1]Chicago lawprof Geof Stone criticizes the veto on church-state
grounds, saying that it shows "a reckless disregard for the
fundamental American aspiration to keep church and state separate."
[2]Paul Horwitz (PrawfsBlawg) responds. [3]Larry Solum (Legal Theory)
passes along his own view.
My view is very close to Paul Horwitz's, for the reasons I expressed
in [4]my 2005 debate with Geof Stone on the subject of religious
reasons for government decisionmaking:
Geof Stone makes a [5]forceful argument, but it seems to me that
there are two quite different strands to it -- strands that need to
be separated.
At times, Geof is asking whether a "law [is] based on faith,"
whether a "law [is] based solely on sectarian religious belief,"
whether it "serves no legitimate public purpose." This category, he
suggests, does not include laws that are "perfectly sensible law
without regard to anyone's religious faith" or that have "a
religious as well as a secular purpose," which would include a
"moral-based reason" as well a "faith-based reason." Note that so
far we're talking about the law. [EV: I should add here that the
ban on stem-cell research can have obvious "moral-based"
justifications, albeit ones I disagree with, just as a ban on
experimentation on animals or a ban on killing endangered species
would have "moral-based" justifications, even if some may disagree
with them.]
At other times, though, he asks whether a person (including a
political leader) backs a law "based entirely on his own sectarian
religious beliefs," whether a person is "imposing [his] faith on
others." That is a very different inquiry, an inquiry into the
subjective motivations of a law's backers rather than whether the
law in fact serves some public or moral purpose. For instance, I
take it that all of us would agree that abolition of slavery,
prohibition of alcohol, opposition to war, or support for civil
rights are laws that have "moral-based reason[s]" as well as
potentially "faith-based reason[s]." But all these laws were backed
by some people -- perhaps many people -- for reasons that flowed
from their own sectarian religious beliefs. (I chose these
movements precisely because so many of their backers were deeply
religious.)
In fact, I suspect that for many deeply religious people, all their
moral beliefs are faith-based, because they believe morality only
comes from God. I'd wager that many religious pacifists,
abolitionists, and others would take precisely this view. Yet I
think that we surely shouldn't condemn either their cause or them
for this.
Your moral views may come from your understanding of human dignity;
another's view may come from utilitarianism; another's may come
from libertarianism; another's may come from fundamentalist
Christianity. None of these bases are somehow provable; none is
constitutionally superior to the others. (In fact, many of the
arguments for religious freedom itself came from the "sectarian
religious beliefs" of deeply religious people; I suspect that they
supported religious freedom for religious reasons since religious
reasons were the only moral reasons that counted to them.)
Any other approach is itself deeply discriminatory -- it suggests
that atheists, agnostics, utilitarians, and the like are entitled
to enact their moral views into law (because they don't rest on
religion) while devout Catholics, Protestants, Jews, Muslims, and
others are forbidden from enacting their moral views into law
(because they do rest on religion). That's not mandated by the
Constitution, it's not in my view compatible with our national
traditions, and it's not right.
Hence my claim: It is certainly quite proper to ask whether a law
is morally or constitutionally sound. A law banning the eating of
pork may be quite unsound. Likewise, laws banning -- or allowing --
abortion, infanticide, the destruction of embryos or chimpanzees
for medical purposes, or the killing of members of endangered
species might be sound or unsound.
But it shouldn't matter whether someone supports them because of
his belief that laws should turn on the greatest good for the
greatest number, his belief that we are all sons and daughters of
Gaea and must thus protect our environment, or his belief in the
Bible. For most, quite possibly all, of us, our moral beliefs
ultimately rest on unproven and unprovable moral axioms. The
Constitution doesn't consign those whose moral beliefs rest on
unproven and unprovable religious axioms to a lesser citizenship,
under which they may not enact their views into law, while others
with the same views that rest on unproven and unprovable secular
axioms are free to do so.
References
1. http://uchicagolaw.typepad.com/faculty/2006/07/religious_right.html#more
2. http://prawfsblawg.blogs.com/prawfsblawg/2006/07/stone_on_the_st.html
3. http://lsolum.typepad.com/legaltheory/2006/07/the_stem_cell_v.html
4. http://volokh.com/archives/archive_2005_05_22-2005_05_28.shtml#1117261999
5.
http://www.huffingtonpost.com/theblog/archive/geoffrey-r-stone/our-faithbased-president_1757.html
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