My subject concerns the connection between religious premises and political decisions that restrict people's liberty. This topic has implications for the constitutionality of laws adopted on religious grounds, and I sketch the most important of these implications at the conclusion of this article. My main focus, however, is the proper attitudes of citizens and legislators in our liberal democracy, and, in particular, whether they should rest their judgments on religious premises. In addressing this issue, I concentrate on the responsibilities of citizens and on laws restricting consenting sexual acts and abortions. My main burden is to illustrate two radically different ways in which religious premises may figure in political decisions, and to claim that one of these ways is consonant with the premises of liberal democracy while the other is not.
This article is part of a broader treatment of religious convictions and lawmaking. I try to place the present topic in perspective by indicating some critical features of that broader treatment, but I do so in a manner that is bound to be unsatisfactorily summary.
I first make a preliminary examination of the connection between religious premises and laws restrictive of liberty, the nature of religious premises, competing positions regarding the propriety of relying on religious premises, and some aspects of a model of liberal democracy. I then examine the premises underlying laws restricting consenting sexual acts and abortion, and consider whether it is legitimate for citizens to rely on religious premises to formulate their political positions on these subjects. This examination is followed by very brief comments on political discourse, the roles of officials, and the boundaries of constitutionality in a strict legal sense.
My major substantive contention is that neither citizens nor officials should aim to prohibit actions in a liberal society just because they believe the actions are wrong from a religious standpoint. However, religious convictions do properly figure in determining how much protection particular entities deserve from society. I claim that laws in a liberal society must have a secular purpose, but that religious convictions sometimes properly affect what is viewed as a secular purpose and how that purpose should be fulfilled.
Law | Religion Law
Religiously Based Premises and Laws Restrictive of Liberty,
BYU L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3806