Posted by Eugene Volokh:
Pigs, Horses, Religion, and Morality:
http://volokh.com/archives/archive_2006_07_23-2006_07_29.shtml#1153861726
[1]Geof Stone, who argues that it's improper for a government official
to make a decision based on "his own, sectarian religious belief" (see
[2]this post for more), gives this example, which I've also seen
others give (emphasis added):
[I]n what sense is it �ethical� for Mr. Bush -� acting as President
of the United States -- to place his own sectarian, religious
belief [about stem cell research] above the convictions of a
majority of the American people and a substantial majority of both
the House of Representatives and the Senate? In my judgment, this
is no different from the President vetoing a law providing a
subsidy to pork producers because eating pork offends his religious
faith. Such a veto is an unethical and illegitimate usurpation of
state authority designed to impose on all of society a particular
religious faith.
But, as I noted [3]last year, it turns out that many laws do ban the
eating of various animal products, for reasons quite unrelated to
"objective" matters such as human health. California voters in 1998,
for instance, banned the sale of horsemeat for human consumption.
Georgia law bans the sale of dogmeat for human consumption; I'm sure
some other states have similar laws.
I have no reason to think that this law was motivated by religion.
Rather, I suspect that most voters supported it because of their gut
feel that eating horse or dog is disgusting or, in the words of one
critic of eating horsemeat, [4]"morally perverse," "a perversion of
the human-animal bond." Many of the laws' backers probably didn't even
think that horses had a right to life, or a right not to be eaten; the
law banned only the sale of horsemeat for human consumption -- the
sale of horsemeat for animal consumption is, to my knowledge, still
allowed.
Both religiously motivated pork bans and the gut-feel-motivated
horsemeat bans burden people's liberty to eat what they please. (Geof
Stone's exact hypo, which is the denial of a subsidy to pork
producers, doesn't even suffer from that problem, but I'll happily use
the more troubling case of a total pork sales ban.) Both of them do so
because of the unproven and unprovable views of the majority.
One can say that both are permissible, on democratic grounds. One can
say that both are impermissible, on libertarian grounds. But it
doesn't seem to me sound to say that (1) the pork (religiously
motivated) ban is impermissible, (2) the horsemeat (disgust-motivated)
ban is permissible, and (3) if it turned out that in some state the
supporters of the horsemeat ban were actually motivated by a belief
that it was sacrilegious to eat horse, then the horsemeat ban would
become impermissible. In any event, supporters of such a distinction
have some explaining to do, it seems to me.
References
1. http://uchicagolaw.typepad.com/faculty/2006/07/religious_right.html#more
2. http://volokh.com/archives/archive_2006_07_23-2006_07_29.shtml#1153852071
3. http://volokh.com/archives/archive_2005_05_29-2005_06_04.shtml#1117638330
4. http://kaufmanzoning.net/horsemeat/IllinoisTimes11062003.htm
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