Religious speech, Establishment clause
Constitutional Law | First Amendment | Religion Law
Should citizens armed with religious reasons for public policy outcomes present those reasons in the public forum or otherwise rely on them in making decisions? Those questions have produced a flurry of scholarship, both within and outside of the law. Moreover, as Kent Greenawalt's work richly demonstrates, these related questions raise many more questions still. Do the answers to those questions differ, for example, if the citizen is a judge, a legislator, a columnist, a religious leader, or a "mere" voter? Are some religious reasons acceptable for presentation in a public forum, but not others?
If one holds a constricted view of legal scholarship, the pursuit of these questions by legal scholars might seem odd. No one is contending that religious speech be banned. Instead, in most contexts, the claim is merely that the introduction of religious argument is uncivil, a type of political bad manners. But the debate is quite lively even in those contexts where no one seriously contends that an Establishment Clause issue exists. The debate, however, has important implications for free speech theory, for liberal theory, and for our understanding of the role of religion in a democratic society.
Although it is fruitful to attack these questions with particular attention to discrete and varying contexts, I aim for the most part to paint with a broad brush and to argue that the literature is overly critical about the role that religious speech may properly play in democratic life. In particular, I will criticize the arguments that it is unfair to use religious arguments and that religious arguments are dangerous, whether because they lead to political instability or reactionary politics. In painting with a broad brush, I do not mean to suggest that religious arguments are always appropriate in democratic life. In some contexts, the Establishment Clause should be interpreted to prevent the use of such arguments. I do not believe, for example, that judges should resort to religious arguments in their opinions or that legislatures should use religious arguments in their whereas clauses. On the other hand, I maintain that participants in political debate, be they religious leaders, columnists, or commoners, may appropriately use religious argument. Neither democratic theory, as I argue in the first two Parts of the Article, nor the Establishment Clause, as I argue in the final Part of the Article, should counsel against such participation.
Although I will deal with the fairness argument at some length, I should state at the outset that I have little patience with that aspect of the debate. Much of the literature is focused on how people should speak to one another in an imaginary well-ordered society—a utopian society that we do not now have and that I believe we never will have. I believe we live in an unjust society. Consequently, we should not be entertaining excessively precious conceptions of respect, nor should we be assuming that instability is necessarily a bad thing. We should instead be fostering dissent, and we should be recognizing that religious dissent has much to contribute to the creation of a more progressive society.
Shiffrin, Steven H., "Religion and Democracy" (1999). Cornell Law Faculty Publications. Paper 1182.
Published in: Notre Dame Law Review, vol. 74, no. 5 (June 1999).