The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Recent Supreme Court Decisions and the Non-Establishment Principle
I participated last Fall on a Wisconsin Law Review symposium panel on "Is the Court out of Control?," and wrote up a short (12-page) article for that. I'm posting it in several pieces; I hope some of you find it interesting, and I also still have time to make any corrections, if need be. Here's the third part (you can also read the first part and second part):
Some have suggested that the problem with Dobbs is that it lets states implement one particular, religious understanding of when life begins, or more precisely of when the right to life vests. But of course, any legal system must adopt some rule on this subject. The line could be drawn at conception, at the end of the first trimester, at viability, at the end of the second trimester, at birth, or after birth—ancient Romans, for instance, allowed exposing unwanted children to leave them to die.[1] All these decisions are based on unproven and unprovable views, whether moral, spiritual, or otherwise.
Likewise for animal rights. In my own state of California, it's a crime to sell horse meat for human consumption.[2] That's based on a nonrational moral or spiritual judgment: One argument for a similar proposal in Illinois, for instance, described eating horse meat as "morally perverse," "a perversion of the human-animal bond."[3] And it's a judgment that controls what people can put into their own bodies. Yet it's precisely the sort of judgment that democracies generally leave to the political process. The same is true for many other decisions about which animals the law should protect, and against what forms of treatment.
And of course, many voters' and legislators' moral judgments turn on their religious beliefs. Consider the draft, or the decision whether to start a war (or to stop one). Some people oppose all war for religious reasons. Some oppose unjust war for religious reasons.[4] Some support some wars for religious reasons. ("As He died to make men holy, let us die to make men free."[5])
Most of the coercive laws that we hotly debate involve forcing a majority's views on the minority. That is true, as noted above, 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, theft, sexual assault, or murder. 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.
Religious people are as entitled as nonreligious people to implement into law their views about right and wrong, even if those views are matters not of logic or empirical evidence but of fundamentally moral and spiritual (or, to religious people, religious) judgment. And of course, the Supreme Court has repeatedly reaffirmed this, for instance in Harris v. McRae,[6] a case involving bans on abortion funding.[7]
To be sure, Justices shouldn't decide cases purely based on their theological beliefs, or skew their readings of, say, text or original meaning or tradition based on what their own religious beliefs (or their own secular philosophical beliefs) command. But there's no Establishment Clause barrier to their returning disputes to the political process, where voters and legislators can make decisions based on their own moral judgment, including religiously informed moral judgment. And of course, if Justices are supposed to evaluate rights questions with an eye towards what they think is the proper standard of human dignity or liberty or equality, then religious Justices must be as free to consider their own religiously informed moral thoughts as much as, say, Kantian or Rawlsian or Dworkinian Justices are free to consider their own philosophically informed moral thoughts.
Naturally, this doesn't preclude arguments that the Constitution does secure a right to abortion, or a broader individual right to control one's own body (whether that means a right to get an abortion or a right not to have the body used to kill enemy soldiers), entirely apart from whether restrictions on such rights are motivated by religion. My point is simply that, whenever this question turns on matters of morality, religious people are as entitled as secular people to use their own morality to decide them, even when that morality is religiously infused.
[1]. See, e.g., Judith Evans Grubbs, Infant Exposure and Infanticide, in The Oxford Handbook of Childhood and Education in the Classical World 83, 85 (Judith Evans Grubbs, Tim Parkin & Roslynne Bell eds., 2013). Indeed, ancient Roman law allowed the eldest male in the family to kill any family member, even an adult, though the power may have been more formal than real. See, e.g., Barry Nicholas, An Introduction to Roman Law 65–67 (1975).
[2]. Cal. Penal Code § 598d (West 2022).
[3]. Horse Lovers Tell Illinois Lawmakers: Stop Turning Mr. Ed into Mr. Edible, Ill. Times: Neighsayers (Nov. 6, 2003), https://www.illinoistimes.com/springfield/neighsayers/Content?oid=11436462 [https://perma.cc/8LPF-FUGH].
[4]. See Gillette v. United States, 401 U.S. 437, 441 (1971).
[5]. Julia Ward Howe, The Battle Hymn of the Republic, in The New Oxford Book of War Poetry 140 (Jon Stallworthy ed., 2014).
[6]. 448 U.S. 297, 319 (1980).
[7]. See also Bob Jones Univ. v. United States, 461 U.S. 574, 604 n.30 (1983); McGowan v. Maryland, 366 U.S. 420, 442 (1961).
