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

Abstract

I say, sir, that the purity of the Christian church, the purity of our holy religion, and the preservation of our free institutions, require that Church and State shall be separated; that the preacher on the Sabbath day shall find his text in the Bible; shall preach "Jesus Christ and him crucified;" shall preach from the Holy Scriptures, and not attempt to control the political organizations and political parties of the day. --Senator Stephen A. Douglas(1) 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.(2) In another essay in the series of which this Essay is a part,(3) I argue that the morality of liberal democracy does not counsel her against disfavoring the conduct on the basis of religiously grounded moral belief.(4) In this Essay, I pursue a different but, for us citizens of the United States, complementary inquiry: Does the United States's 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 nonestablishment norm (as I prefer to call it) permits government to disfavor conduct on the basis of religiously grounded moral belief. As I have explained elsewhere, the nonestablishment norm that is part of American constitutional law is, in some respects, more restrictive than the morality of liberal democracy; in some respects, the limitations placed on government by the nonestablishment norm are greater than, they go beyond, the limitations placed on government by the morality of liberal democracy.(5) The First Amendment to the Constitution of the United States famously insists that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Yet, according to the authoritative case law--law that is constitutional bedrock in the United States(6)--it is not just "Congress" but all three branches of the national government that may not prohibit the free exercise of religion, abridge the freedom of speech, etc. Moreover, it is not just the (whole) national government but the government of every state that may not do what the First Amendment forbids. I have suggested elsewhere that there is a path from the text of the First Amendment, which speaks just of Congress, to the authoritative case law.(7) But even if there were no such path, it would nonetheless be constitutional bedrock in the United States that neither the national government nor state government may either prohibit the free exercise of religion or establish religion (or abridge "the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances").(8) For Americans at the beginning of the twenty-first century, the serious practical question is no longer whether the "free exercise" and "nonestablishment" norms apply to the whole of American government, including state government. They do so apply. And there is no going back. The sovereignty of the free exercise and nonestablishment norms over every branch and level of American government--in particular, their sovereignty over state government as well as the national government--is now, as I said, constitutional bedrock in the United States. …