mobbed_hypatia

I've been involved in a pretty interesting discussion on another message board for a week or so about whether religious groups should be able to use their political power to legislate certain religious beliefs that restrict the freedoms of other citizens (for example: restricting the rights of homosexuals from, as I see it, equal protection under the law by prohibitng homosexual behavior (sodomy laws) or not allowing gays to enjoy the benefits of marriage or adopt children).

Now, it is my interpretation that the 1st Amendment not only allows freedom of religion, but also allows freedom from religion. I also believe that allowing certain religious groups to legislate their morality acts as a governmental endorsement of that religion, thereby violating the establishment clause.

The theists of that board disagree; they see no reason, moral or legal, why religious groups should not be allowed to, as I see it, interfere with the rights of people who do not follow their religious beliefs. They seem to think I'm nuts for believing that the government should remain neutral to religion and that religious groups
have no right to use their political power to legislate morality.

So please help me out, am I nuts, incredibly uniformed about the first amendment, or am I just dealing with people who have no idea what it's like to be marginalized by the powerfully religious in our society?

[ March 18, 2002: Message edited by: mobbed_hypatia ]</p>

The Resistance

I think you're partially right. The Establishment Clause allows Freedom FROM Religion as well as Freedom of Religion. However, as much as I normally hate what the Religious Reich stands for, they do have the right to lobby against homosexuals.

Seperation of Church and State disallows religious documents to be publically displayed on public property, organized prayer, and forced professions of faith in any situation. However, it doesn't cover fundies trying to legislate morality in ways not covered from what I already mentioned.

Government must be neutral to religion, but religious groups are allowed to try and use their political power in legislation. Our only recourse is to work against them in a similiar manner.

Daggah

This really is more of a church/state discussion, so I'm moving it there.

Toto

The First Amendment guarantees freedom from religion. The Supreme Court has struck down legislation that has a clear religious purpose as a violation of the First Amendment.

However, the First Amendment also guarantees religious groups the right to organize and petition the government. If they can disguise their religious agenda as something with a secular purpose, it is unlikely that the courts will strike the legislation down.

That is why the anti-abortion forces spend so much time trying to prove that abortion is harmful, so their struggle will not look like a project of the Catholic church. The legislation against gay marriages will be framed in some non-religious terms, like "tradition". Even "blue laws" which forced businesses to close on Sunday were justified as worker protection acts, not as legislating the commandment about honoring the Sabbath.

Alonzo Fyfe

The test case to me is one in which the religion seeks to impose a moral dictate of positive law, as opposed to negative law.

Positive law is here defined as a duty to do something; as opposed to negative law, an obligation to refrain.

For example, assume that the religion dictates that one must pray 5 times per day, or to tithe 10% of one's income to The Church. Clearly, the 1st Amendment is to be interpreted as prohibiting the imposition of positive obligations.

Then, the question becomes: Why ought negative obligations (obligations to refrain) be treated differently?

I can think of no rational justification.

MassAtheist

Well, the argument could be made that laws against murder are just legislating "Thou shalt not kill". Just because a religion says you should not do something doesn't mean you should do it. Established religions are not always wrong.

Alonzo Fyfe

The difference rests on whether there exists a nonreligious argument supporting the same conclusion. Laws against murder, theft, lying, kidnapping, all fit this criterion.

Of course, many who support a particularly relgioius prohibition are good at convincing themselves that a particular nonreligious argument against the same act is invalid -- such as those who argue that homosexuality is not only against God, it is unhealthy and promotes crime.

These types of arguments are valid concerns for a legislature, and religous groups ought not to be limited to pursuing objectives that can be defended by arguments such as these.

The only problem exists where nonreligious arguments are lacking, or where it is clear that the nonreligious arguments are so weak that none could believe them except those despirate to see support for a corresponding religious principle.

ohwilleke

It depends. Certainly the 1st amendment does not prohibit the government from enacting laws intended to enforce a moral position. Few moral positions are particularly religious. Homosexuality, for example, would have received as much condemnation in most secular circles as it would have in religious circles 100 years ago. The establishment clause in theory is restricted to the government openingly taking sides in specifically religious choices.

The establishment clause does have subtle and close calls that are rarely litigated. At some point not specifically religious acts can so toe the line of a particular religion as to cast doubt on whether the government hasn't taken sides. But, generally, it is much easier to discern.

Jamie_L

Legislating morality is not necessarily prohibited - even if it is motivated by religious desires on the part of law-makers or constituents. However, all the other protections of the constitution must be followed as well.

If, for example, a good argument can be made that denying homosexual marriages violates equal protection under the law, then it doesn't matter if the restriction is religiously motivated. It's still unconstitutional.

Of course, you have to convince a court of that. And then you run into Judges with religious convictions...

Have I mentioned in other threads that Bush has to go before he gets another religious conservative on the Supreme Court bench? I have? Oh, well, sorry to repeat myself.

Jamie

randman

For my 2 cents, I agree with much of the analysis here. Morality is not the same as religion, and moral laws have been upheld as valid. So just because someone's morality is formed by religion perhaps, that cannot negate the idea of any legislation based on that morality. The key is that positive negative issue mentioned above.
Homosexuality can be legitimately outlawed, but compulsion say for church attendance would be unConstitutional.

Let me also state that many laws are based on morality. Laws against pedophilia are based on morality, and soceity ought not to hurry to remove the principle of legal moral restraints too hastily.

Also, abortion is nothing more than a civil rights issue. The child in the womb for the pro-lifer is a human being deserving legal protections. If you think an unborn baby, or when you think an unborn child, is or becomes human, the only decent thing is to be pro-life at that point. If you really don't think a partially-born child, for instance, is a living human being, then I guess you can feel fine with abortion as it exists today.