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Wednesday, Jan. 24, 2001

Some Democratic Senators, as well as some commentators, have questioned whether, as Attorney General, John Ashcroft could faithfully enforce laws that conflict with his religious beliefs — such as the federal law barring harassment of women seeking abortions. They note that as a Senator, Ashcroft's voting record perfectly tracked the agenda of the religious right.

Ashcroft has responded that he believes there is a distinction between enacting and enforcing the law, and that as Attorney General, he would only be responsible for the latter task. Critics, however, remain skeptical.

The Ashcroft nomination, and some of former Vice Presidential candidate Joseph Lieberman's pronouncements during the recent campaign, together provide an opportunity to examine an important question: What role should religious beliefs legitimately play in government?

The question is difficult because it pits two constitutional principles against one another. The prohibition on religious tests means that persons of faith should not be excluded from government service (as some of Ashcroft's defenders have stressed). However, the First Amendment's Establishment Clause mandates some substantial separation of church and state.

The Extreme Positions For, and Against, a Role for Religion in Government

At the extreme, one might think that there ought to be no distinction between the obligations of religion and those of law. On this view, if abortion, alcohol consumption, masturbation, or idol worship is a sin, then it must also be a crime.

Although virtually no one in the United States takes such a view today, throughout much of human history it was believed that civil authorities were agents of God, empowered to give earthly effect to divine law. In the modern world, the Taliban in Afghanistan embodies this theocratic conception of government.

At the other extreme, one might think that religion has no legitimate place in government. If we adhered to this view, not only would we abolish such offices as military and prison chaplains, but also we would wholly extirpate religion from public life.

Although contemporary conservatives sometimes accuse liberals of hostility to religion, the United States today in fact affords a great many benefits to religious institutions: perhaps most concretely, exemption from taxation. (By contrast, during the French Revolution, church property was singled out for confiscation by the state.)

The Conscientious Religious Legislator

In avoiding the extremes of Taliban Afghanistan and Revolutionary France, how much rein should a legislator give to religious views?

Certainly the mere fact that a moral belief is also a religious belief should not disqualify the legislator from acting on it. Laws against murder and theft respectively violate the Biblical injunctions against killing and stealing; yet, they are plainly legitimate.

Granted, particular legislators might vote in favor of such laws because they prohibit acts proscribed by the Ten Commandments, but the protection of life and property are also valid secular purposes, and thus the religious motivation is not especially worrisome.

Constitutional law recognizes the principle that a bona fide secular motivation can make a second, religious motivation irrelevant. Thus, one way to show that a law violates the Establishment Clause is to show that it lacks a legitimate secular purpose.

Such a showing typically turns upon the objective purposes of the challenged law, rather than the subjective motivation of the legislators who voted for the law — and that is as it should be, partly because courts cannot easily discern the subjective motivation behind legislative decisions.

Should a Conscientious Legislator Vote Based on Purely Religious Motivation?

Of course, a law can be constitutional but still be a bad law, and a conscientious legislator might want to hold himself to a higher standard than the constitutional minimum.

Suppose, for example, that a legislator favors a law banning physician-assisted suicide for no other reason than that she believes suicide to be a sin. Can she in good conscience vote for the law for this purely religious reason, knowing that the courts will uphold the law by attributing to it some quite distinct secular purpose — for example, to avoid a practice that could undermine medical ethics, or to avoid the risk that the sick and elderly will be coerced into suicide?

Moreover, what if the legislator happens to think that legal physician-assisted suicide would not undermine medical ethics or lead to coercion — and thus that the law would not serve the secular purposes that would be ascribed to it? Can she still use these secular justifications as cover for her religiously-based vote?

Finally, what if the legislator has no substantive view about physician-assisted suicide, but knows that most of her constituents strongly oppose it on purely religious grounds?

Senator Lieberman's Claim that Religion Is Necessary for Morality

These are all difficult questions, but I suspect that in practice legislators rarely if ever interrogate their motives in this way. At the very least, however, we expect our government officials to offer secular justifications for the laws they favor.

That is why Senator Lieberman's statement that morality is impossible without religion was so troublesome. Not only does it offend non-believers; it also suggests that there can be no secular basis for laws rooted in moral principles.

Yet our most cherished legal ideals — the protection of life, liberty, and property, as well as the equality of all persons before the law — are moral principles as well. Senator Lieberman's claim was a challenge (albeit an unintentional one) to the very possibility of a secular state.

The Conscientious Religious Executive Branch Official

Whereas a legislator must check his impulse to enact his religious precepts into law, an executive official faces a somewhat different problem. For him, the question is whether he must enforce a law that he believes to be immoral.

In some instances, the conflict will be so deep as to be irresolvable. If an executive official believes that the legal system is fundamentally immoral, she has no business working within it, except perhaps to deliberately subvert the law. For example, before the Civil War, abolitionists charged with enforcing the Fugitive Slave Act found themselves in this position. But neither Ashcroft nor his critics have suggested that his religious beliefs are fundamentally incompatible with the American legal system today.

The dilemma nonetheless remains because of the substantial executive discretion lodged in the Attorney General. Like any government program, law enforcement operates in an environment of scarcity. Each additional prosecutor or FBI officer assigned to prosecute abortion clinic blockaders means fewer personnel remaining to fight the war on drugs. What if religion plays a role in setting an official's enforcement priorities?

Should Ashcroft's Religious Beliefs Matter?

To give a very current example, Democratic Senators worry that an Attorney General Ashcroft would devote the lion's share of resources to what he regards as righteous causes, even if Congress might prefer other priorities. The concern about an executive branch official's bucking Congress is legitimate but, importantly, it does not distinguish an executive official with religiously-based views from one with strong views that are not rooted in religion.

People have strong views about numerous issues that are relevant to law enforcement priorities, including abortion, capital punishment, drug legalization, and affirmative action. What matters is the strength of these views and an individual's willingness to subordinate them to Congressional policy, not whether the views themselves happen to be rooted in religious belief.

Thus, the fact that John Ashcroft's views on public policy are rooted in religious faith should play no role in the Senate's decision whether to confirm him as Attorney General.

Interestingly, while Ashcroft's religious fervor has been a frequent theme of the debate, some of the most troubling features of his record — such as his romantic views of the Confederacy, his hostility to desegregation efforts in Missouri, and his shabby treatment of Judge Ronnie White — appear to have nothing to do with his religion. If this record raises doubts about Ashcroft's ability to enforce the nation's civil rights laws vigorously, it is that inability, not the underlying reason for it that should worry us.

Michael C. Dorf, a FindLaw columnist, is Vice Dean and Professor of Law at Columbia University.

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