Evangelicals Debate a Broadened Agenda: How Much Mixing of Religion and Politics Does the First Amendment Permit?

By MICHAEL C. DORF

Wednesday, Mar. 16, 2005

At a Washington luncheon last week, the National Association of Evangelicals began debating a proposed "call to civic responsibility." If adopted, it would ask the organization's thirty million evangelical Christian members to take a liberal stand on issues such as environmental protection, racial equality, and distributive justice.

In light of the recent success of conservatives in mobilizing evangelicals for their candidates based on opposition to abortion and same-sex marriage, evangelical activism in favor of liberal causes has the potential to create a significant realignment in national politics.

Before liberals start dancing in the streets, however, they would do well to consider the separation of church and state. If that principle means anything, it must mean that efforts by religious groups to push their agenda on the state are potentially suspect, whether they favor conservative or liberal policies.

To be sure, persons of faith cannot and should not be barred from acting on their political ideals. But there is a difference--a subtle but nonetheless important one--between, on the one hand, acting on the basis of religious motivation in favor of policies that could be favored on secular grounds as well, and, on the other hand, attempting to impose religious, sectarian views on those who do not share one's own faith.

The Important Role of Religion in American Social Justice Movements

Religion has played an important role--indeed, often the leading role--in American social justice movements since the earliest days of the Republic. A 1790 Quaker petition to Congress, presented by Benjamin Franklin, sought the immediate prohibition of the slave trade. Likewise, religiously motivated actors led the abolitionist and temperance movements of the nineteenth century, and played a critical part in the civil rights movement of the twentieth century.

That is not to say, of course, that religion has always been on the right side of history. The Crusades, the Spanish Inquisition--and, closer to home, defenses of slavery and later segregation that were rooted in supposed Biblical exegesis--contribute to a decidedly mixed legacy.

So too, in our own time, the willingness of terrorists to justify their actions in religious terms--whether purported Koranic authorization for the slaughter of innocents or supposed Biblical justification for the murder of doctors who perform abortions--illustrates the dangerous potency of the belief in Divine approval of one's conduct.

Why Religious Motivation Cannot and Should Not Disqualify Individual Political Action

Nonetheless, it would be impossible and, in any event, unfair, to disqualify political participation simply because it proceeds from religious motives. It would be impossible, of course, because such a restriction simply could not be enforced.

Sorting out the motives of the few hundred legislators who vote for a particular law is a notoriously difficult problem. How much more difficult it would be to sort out, if one could even discover, the motives of the voters who elect individual representatives.

One might try to distinguish between the motives of voters and those of elected officials. But even that task is daunting.

Suppose the First Amendment's Establishment Clause prohibits a lawmaker from voting for an abortion prohibition on the grounds that he himself believes abortion is a sin. Can a different lawmaker who has no religious or other moral opposition to abortion, vote for the same prohibition because his constituents oppose abortion on religious grounds? Can he do so because a quarter of his constituents oppose abortion on religious grounds (while another quarter of his constituents don't care about abortion but support his position on taxes)? The lines must be drawn very fine indeed--and seem arbitrary once drawn.

Beyond these practical considerations lies a deeper principle: Religious motivation should not disqualify political action. After all, much of what religion makes sinful, law also makes--or might legitimately make--illegal, as the Ten Commandments cases now before the Supreme Court dramatically illustrate.

Suppose you believe that murder and theft should be crimes because they violate the Sixth and Eighth Commandments respectively. Now, suppose that you are told that you cannot act in politics on the basis of your religious motives. You might legitimately be baffled.

How would you feel about murder and theft were they not prohibited by the Bible? If you are like many people, the counterfactual question assumes a world you can scarcely imagine. You can readily articulate secular arguments for the prohibition of murder and theft, but if your moral sentiments are inextricably intertwined with your religious beliefs, then you cannot honestly say how you would weigh these arguments in the absence of the religious beliefs you hold.

It is a little like asking a proud mother whether she thinks her baby is objectively beautiful: she cannot truly say how she would view her baby if they were not related, because she cannot look at the baby without seeing him as her own. Likewise, the person who has been taught since early childhood that theft and murder are sinful cannot truly say what she would think of these practices absent her religious feelings.

Accordingly, unless we are to prohibit all persons who hold deeply religious views from participating in politics--which itself would be a form of invidious discrimination--we cannot and should not stop people from acting on religious motives.

The Requirement of "Public Reason"

Nonetheless, in a pluralistic society like ours, it is fair to demand that our laws be justifiable by reference to secular ends and means.

Your belief that adultery is wrong because the Seventh Commandment makes it sinful may be a sufficient reason for you to support criminal punishment for adulterers. Yet in a free society, something more must be offered as justification for a legal requirement that will be imposed on those who do not share the view that the Ten Commandments are Divinely authored.

The late moral and political philosopher John Rawls called the requirement that laws be defensible in secular terms an obligation of "public reason." The Supreme Court's cases interpreting the Establishment Clause similarly require that all laws serve secular purposes.

How Demanding is the Requirement of "Public Reason"?

As a technical matter, the demands of public reason and the Establishment Clause are usually met rather easily. Prohibitions on murder and theft can be readily justified by invoking secular reasons for protecting life and property. And while criminal adultery prohibitions may be suspect on the ground that they infringe a right of sexual autonomy, they are not invalid on Establishment Clause grounds: secular reasons such as the enforcement of contracts (including the marriage contract), or the protection of minor children who will predictably suffer harm if adultery occurs, could well be thought to support proscriptions on adultery.

But the demands of public reason are not toothless. For example, suppose a legal prohibition on the eating of pork in a community with a majority of religious Jews or Muslims were to be defended as a measure aimed at animal cruelty. That defense would be implausible, if the law also followed the course of Judaism and Islam in permitting the eating of other animals slaughtered by methods arguably no less cruel than those commonly used for killing pigs. If the community truly were concerned with the animals' wellbeing, rather than religious commandments, then its animal cruelty laws would be much broader.

Nor are the demands of public reason enforced exclusively through the courts. Those who oppose same-sex marriage on religious grounds understand that in trying to persuade their fellow citizens to maintain bans on the practice, they cannot simply point to church teachings. Tolerance and respect often require mounting secular arguments because one understands that one's religious principles and tenets are not shared by all.

And the same is true for liberal causes supported by persons of religious faith. It may be harder for a rich man to enter the kingdom of heaven than for a camel to pass through the eye of a needle, but that is not a sufficient ground for progressive taxation to aid the poor.

The Dangerous Argument Against Public Reason

In recent years, some religious persons and groups have argued that the demands of public reason are unfair. They argue this way: Secularists who favor a policy are permitted to argue for that policy based on the grounds they deem most persuasive. So why should persons who hold pervasively religious world views be denied the same opportunity?

There is undoubtedly something right about this objection. Efforts to keep the public sphere free of religious arguments do indeed disadvantage those who hold pervasively religious views.

But what the objection overlooks is the reason we as a society have for trying to prevent public policy debates from becoming competitions between different religious sects. As the framers of our Constitution and Bill of Rights well knew, history teaches that societies in which political divisions track religious ones frequently descend into bloodletting. And sadly, our own era provides no shortage of further examples.

Of course, I do not suggest that the injection of religious arguments into American politics by evangelicals or others will plunge us immediately into a religious civil war. But the abundant lessons of the past and present do provide reasons to be wary of even the first step down that path.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases.

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