The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This perennial question came up again in an e-mail from a reader about the abortion debate, so I thought I'd blog again about it. I think the answer is not just "no," but "hell, no"—I think it would be an outrageous discrimination against religious believers to have such a constitutional rule, and fortunately nothing in the history or the precedents of the Establishment Clause supports this position.
The argument is this: Isn't it illegitimate for the government to ban abortion, or to ban cloning, or fail to recognize same-sex marriages, when most of the arguments for that position are essentially religious? Isn't that an unconstitutional violation of the separation of church and state, or at least a violation of some democratic norm that people ought not force their religious views on others?
But most of the coercive laws that we hotly debate involve the forcing of a majority's views on the minority. That's true of laws protecting endangered species, antislavery laws, antidiscrimination laws, animal cruelty laws, environmental laws, intellectual property laws—or for that matter bans on infanticide, child sexual abuse, or more generally murder, rape, or theft. Some of these laws may be sound on the merits, and others unsound. But the fact that they force one group's views on another doesn't make them violations of the Establishment Clause, regardless of the source of the first group's views.
Likewise, specifically as to abortion, different people have different views about when life begins, or, to be more precise, when the protection against being killed or aborted by one's parent or parents should arise. A few people believe that this line is some point after birth. (Indeed, historically, the ancient Romans allowed parents to expose their unwanted children.) Some people believe it's at birth, though that appears to be very much a minority view in America (at least as of 2012).
Some people believe it's at around six months into the pregnancy, the point at which Roe v. Wade held abortion could generally be forbidden. Some people believe it's at viability, the point at which Planned Parenthood v. Casey held abortion could generally be forbidden. Some people believe it's at three months. Some believe it's at conception. Some would draw other lines. But wherever the line is drawn—and it must be drawn somewhere—that's a legal constraint that forces some people's views on others.
Religious people have moral views just like secular people do, and they're just as entitled as secular people to use the political process to enact their views into law. True, religious people's moral views may rest on unproven and probably unprovable metaphysical assumptions—but the same is generally true as to secular people's moral views.
To say that religious arguments must be excluded from public debate, while equally unprovable secular moral arguments may continue to be made, would be to turn into second-class citizens those people whose basic moral views come from their religion. Neither the Constitution nor sound political morality require this.
In fact, many important political movements—the antislavery movement, the civil rights movement, and various antiwar movements—were composed in large part of religious people who acted for explicitly religious reasons, and justified their positions using explicitly religious arguments. Would we say that opposition to slavery was illegitimate because it was mostly overtly religious? If not, then we also can't condemn opposition to cloning or abortion or same-sex marriage on these grounds.
But what about the Establishment Clause? Well, the Supreme Court has explicitly held that the Establishment Clause doesn't invalidate laws simply because their supporters backed them for religious reasons. See, e.g., McGowan v. Maryland, 366 U.S. 420, 442 (1961); Bob Jones Univ. v. United States, 461 U.S. 574 (1983); Harris v. McRae, 448 U.S 297, 319-20 (1980). And for the reasons I mention above, the Court's decisions here were correct.
True, the First Amendment does bar the government from teaching religion, from requiring religious practices such as prayer, and (generally) from singling out conduct for better or worse treatment because it's religiously motivated (e.g., punishing religious animal sacrifices but not secularly motivated animal killing, or giving a sales tax exemption to religious publications but not secular ones). But it doesn't bar the government from implementing religiously-motivated prohibitions on people's conduct, whether as to murder, theft, slavery, civil rights, cloning, or abortion.
Nor do I know of any evidence that the Establishment Clause was generally understood in 1791, in 1868, or any time in between or since as discriminating against religious believers this way. It may be convenient for secularists—and I myself am not religious—to have their moral reasons for lawmaking be permitted, and have their religious rivals' moral reasons declared unconstitutional or otherwise illegitimate. But there's no basis for thinking that the Constitution embodies any such discriminatory rule.
There are lots of good arguments to oppose cloning bans, abortion bans, bans on homosexual conduct, and the like. The supporters of such prohibitions may be wrong on moral or pragmatic or constitutional grounds. But the bans aren't made invalid by the fact that many of their supporters act for religiously influenced moral reasons, as opposed to secularly influenced moral reasons.
(For a different connection between abortion and religion, see my post on abortion and the Free Exercise Clause.)