Acton Institute Powerblog

It is Unconstitutional for Laws to be Based on Religiously Influenced Moral Reasons?

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Is it unconstitutional for laws to be based on their supporters’ religiously founded moral beliefs? While most of us—at least most readers of this blog—would consider such a question to be absurd, some people apparently think it should be answered in the affirmative.

Fortunately, legal scholar Eugene Volokh has provided a brilliant rebuttal which explains why “it would be an outrageous discrimination against religious believers to have such a constitutional rule”:

My most recent brush with the argument happened with regard to rules against recognizing same-sex marriage, but others have raised the same argument as to cloning bans, abortion bans, and the like: Isn’t it illegitimate for the government 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 wrong.

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. [emphasis in original]

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Joe Carter Joe Carter is a Senior Editor at the Acton Institute. Joe also serves as an editor at the The Gospel Coalition, a communications specialist for the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and as an adjunct professor of journalism at Patrick Henry College. He is the editor of the NIV Lifehacks Bible and co-author of How to Argue like Jesus: Learning Persuasion from History's Greatest Communicator (Crossway).

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