Religion and the Constitution - Vol. 2

By Kent Greenawalt | Go to book overview

CHAPTER 24
Legal Enforcement of Religion-Based Morality

This chapter explores the implications for constitutional law of the broader subject we considered in the previous chapter—legislative and executive policies that are grounded in religious premises. At the end of the day, these implications are very slight if one is interested in what measures courts should hold invalid, or so I shall argue. But the analysis leading to this conclusion can help dispel confusions about the relation between political rhetoric and judicially enforceable constitutional law. It can also enable those who would like the courts to play a more active role to see exactly how they differ from those who reject such a role.

The overarching question for us in this chapter is which laws and policies violate the Establishment Clause because they rest on religious premises. The question mainly has cogency in respect to legally enforced morality; but to understand why this is so, we need to clear away various matters that are not at issue.

Most of this volume has been about tangible assistance to religious groups and about government sponsorship of religious ideas. We have examined a number of topics and the major constitutional approaches for dealing with them. Government assistance can be open, as with financial aid to religious charities, or covert, as with the hypothetical example of a highway route chosen because it will benefit a particular church. Government sponsorship of religion can be undeniable, as with devotional Bible reading in public schools and the hiring of army chaplains, or it can be more subtle or debatable, as with moments of silence and “under God” in the Pledge of Allegiance. If the obvious and dominant purpose or a “primary” effect is to aid religion, legislation is invalid under the Establishment Clause.

As far as purpose is concerned, the Supreme Court has declared invalid only those laws whose overriding objective was to promote religion. One can certainly imagine stricter approaches, ones under which more legislation would fail a purpose test. A court might ask whether a religious aim was influential or whether a statute would have been adopted in the absence of religious objectives. Our highway board example involved secret deliberations, but let us suppose instead that the proceedings were open, that two of

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