Wednesday, January 30, 2013

Answer to Jake

In the comment thread on Catholic blogger Leah Libresco’s important recent blog post in favor of same sex civil marriage, I’ve ended up dialoguing with other commenters there about whether the U.S. Constitution really does mandate what Fr. Neuhaus famously derided as “the naked public square,” in which religious arguments are to be banished as presumptively illegitimate. Since I ended up writing a reply on the issue just now that is as verbose as any blog post, and because it handily encapsulates my position on religious arguments in the public square, I repost it here.


So, in the course of being at least a wee bit concise and hopefully stimulatingly argumentatively agonistic, I think I’m going to come off pretty snarky below. So please accept a preemptive apology, and a reiteration of my gratitude at being able to dialogue with as thoughtful an interlocutor as you.

First and formost, I make a distinction between what is morally right vs. what should be legal.

Sure. I do, too. I have a post up on my blog this morning about why I think there are good Thomistic reasons for ending narcotics prohibition.

Second, as a descriptive moral relativist (I think it can be demonstrably shown from history, anthropology, religion, literature, etc. that morality _is_ in fact relative, whether we would like it to be so or not), I have a starting assumption that what’s morally right for me is not necessarily morally right for other people.

Yeah, we’re in disagreement there.

Now there are of course exceptions to such a rule- drinking and driving is no longer a question of personal morality, but of public safety. How do I deal with those? I’m glad you asked!

So, are you saying that there is an objective moral need to protect public safety, or what? This is the kind of thing that makes moral relativism self-defeating.

I think other people’s noses (and by extension, Uncle Sam’s shnoz) belong exactly nowhere other than where public health and safety are concerned.

Sounds pretty libertarian. So, are you saying that libertarian assumptions about morally acceptable spheres of state action are objectively true, or that all morality is relative, but you just kinda sorta personally prefer libertarian ways of running the state? Because if it’s just your personal preference, well, there are 300 million of us and you get just the one vote.

Further, “public health and safety” does not mean protecting me from making bad decisions, immoral choices, or having sub-optimal beliefs.

Your personal preference is that public good not be considered to concern moral virtue, but only physical health. Plato, Aristotle, Aquinas, and others have had different preferences. Why does your personal preference determine the meaning of the words? Speaking of meanings of words, why be a “descriptive moral relativist” and yet be a prescriptivist about word meanings? Some sort of descriptivist/nominalist bundle of beliefs about word meanings seems like it would mesh better.

It means that the government ought to act IFF I pose a clear, present, and direct danger to other members of society, or to provide a service that cannot reasonably be provided by private institutions (in practice, this still turns out to be a very wide net to cast.)

This is not an unattractive vision of the role of the state. But “government ought to act”? Whence this “ought”?

Now, obviously Catholics will disagree with me here on several points- why should I expect them to vote in such a way that conforms to my ideology? I am free to think them morally obligated to do so, but what gives me the right to make it a legal requirement?

You’re getting ahead of yourself here. How can you think anybody morally obligated to do anything?

My answer is the Constitution, as I attempted to outline above.

Other than a Burkean desire not to upset established institutions, and the general warm glow surrounding it from American patriotism, I don’t, as a Catholic, have any special reverence for the Constitution. So, even if your interpretation of what the Constitution requires is correct, that doesn’t make it in my mind a source of moral obligation or “right.” It’s just positive law that I am obligated to obey insofar as I may licitly “render unto Caesar” obedience in the temporal sphere wherever Caesar doesn’t ask me to sin. Back when the Constitution countenanced slavery, the abolitionist William Lloyd Garrison (IIRC) denounced it, on objective moral grounds, as “a pact with the devil.” He was, in those antebellum days, literally correct IMHO, since American slavery was diabolical indeed. Where the Constitution has been immoral, a Christian stands toward it as Antigone to Creon: appealing to a higher natural law against the injustice of positive law. Not, of course, a relativist attitude. But how can you hold the Constitution to be binding on anybody without holding that *anything* is binding on anybody? I at least have warrant to obey Caesar wherever he doesn’t mandate sin, and to expect others to do the same. You don’t really have warrant, as a relativist, for enjoining anybody else to obey anything. Anyway, all this assumes that your interpretation of the Constitution is correct, which I dispute below.

My lay understanding of the Constitution supports the notion that if a moral question is religious in nature, and cannot be adequately addressed secularly (or if the secular answer is clear and in opposition to the prevalent religious answer), then legislating that religious answer counts as limitting the free excercise of other people who would seek to make a religious decision counter to that made by the majority.

Yeah, that seems to be a pretty common lay misunderstanding. A lot of my law school classmates seem to have gone into our first year Con Law class thinking something similar. The reality is more nuanced. Under contemporary First Amendment jurisprudence, the state and state-affiliated actors cannot mandate religious observances, endorse religious doctrines or institutions, or ban religious observances, doctrines, or institutions. That’s the main outline of the law. There are other, subsidiary matters (like providing adequate opportunities for religious practice in federal prisons) that aren’t really to the point. But that’s the broad outline.

What the First Amendment does not require is that all legislation be enacted from secular motives. However, increasing numbers of liberal secularist Americans (generally of the “Team Blue” persuasion politically, as I am myself most of the time) seem to think it does, perhaps because they would very much *like* it to be true, perhaps because they’re blurring together their gut feelings about First Amendment law with experiences of arguing about whether there are non-religious reasons to ban abortion–which is an area of the law grounded (wrongly, IMHO) in Fourteenth Amendment Equal Protection / Due Process “privacy” grounds in current jurisprudence, rather than in anything specifically about not mandating religion. To disentangle the concerns, imagine that the government wanted to ban abortion for entirely secular reasons–e.g., maybe the population was declining dramatically, and future deficit hawks are panicked about having enough young workers to pay into Social Security and Medicare. Under current (IMHO, murderous) abortion jurisprudence, banning abortion for such natalist demographic reasons would be an unconstitutional intrusion on women’s privacy right to bodily autonomy and self-determination. The secular motivation for the abortion ban wouldn’t save it.

To return to the First Amendment: President Bush enacted PEPFAR, his African AIDS relief program, largely due to extensive evangelical lobbying. It was a religiously motivated policy. But it didn’t mandate or ban or endorse any religious practices, and was perfectly Constitutional. Now, I readily concede that there are also secular reasons for funding AIDS relief in Africa. But the *motivation* for the policy was, in simple fact, primarily religious. (Except from celebrity PEPFAR advocate Matt Damon, I guess. But definitely for all the evangelicals, and Bush didn’t pass it to please Matt Damon.) That didn’t make PEPFAR unconstitutional.

Also, your distinction between questions that can be adequately answered with only secular reasons and those that are merely religious would be an impossible nightmare for courts to adjudicate. I gave you an example above of an ostensibly secular reason to ban abortion. It’s silly. But a court can’t just say, “these political arguments are smart, but yours are dumb so you lose.” That’s what elections are for, not courts. Similarly, there are plenty of wholly secular arguments against same sex civil marriage. For example, SSM opponents argue that because children flourish best with a mother and a father (as opposed to two mothers or two fathers), the state ought to valorize marriages between one man and one woman. Now, you might think that’s a poor argument. You might think most of the researchers who produce studies supporting that view are right wing hacks. Doesn’t matter. You, the voter, can make that decision. But a court can’t take an entirely secular argument like that and issue a decision that reads, in essence, “Your ‘kids need a mom and a dad’ argument is stupid, and all your other arguments are religious, so you lose.” Deciding that political arguments are stupid is what voters do when they elect legislators and the executive. Not a judicial function at all. Thus, there’s no scenario where a court rules legislation unconstitutional just because the secular arguments for it are stupid. And there are always secular arguments for laws, except laws specifically about worship/religious observance/etc. which are, in fact, what the First Amendment is about.

So, a law mandating the teaching of Biblical creationism is going to be unconstitutional because it’s a state sponsorship of a religious doctrine. But if a law banning gay marriage is ruled unconstitutional by the Supreme Court this year, it will be on equal protection grounds, *not* because the law has religion cooties. Frankly, from a strictly Con Law (as opposed to Catholic) perspective, I think the pro-SSM equal protection argument has some real merit. However, that argument has zilch to do with religion. It has to do with the idea that current marriage law is allegedly discriminatory, not that current marriage law has or doesn’t have primarily religious justifications. It’s really hard to think usefully about these things if the distinction between equal protection arguments and establishment of religion arguments isn’t kept in mind.

I sympathize with complaints about shouting down the free speech of others- that was not my intention, though clearly that’s the way I came across to several people, and I truly do apologize for that. However, when someone makes a claim that secular civil society ought to abide by a particular religious view _because religion X says so_, then it is fair game to challenge such thinking as both immoral and unconstitutional. I interpreted (and still do interpret) Oregon Catholic to be making just such a claim.

Well, you can’t challenge his thinking as immoral, because you’re a relativist, so he can think whatever he wants and he’s just a diverse little snowflake you can’t criticize in his specialness. As for “unconstitutional,” that is never a description of a thought, as you know. Freedom of speech presupposes freedom of thought.

But the meat of the issue is this. Let’s say that a bunch more LDS folks move to Nevada to join the many Mormons already living in the Harry “I am too timid to properly reform the filibuster” Reid state. Let’s say the new Mormon majority votes for legislators eager to amend the Nevada state constitution to outlaw prostitution and gambling, entirely because they think it’s God’s will. Let’s say Oregon Catholic gets tired of all the “Portlandia” hippies, moves to Nevada, and votes the same way for the same reason. Well, guess what? There is nothing unconstitutional about outlawing prostitution or outlawing gambling. You might favor a harm reduction policy. You might think keeping/making these things illegal has only really dumb secular arguments in support. You might be right! Does. Not. Matter. If the state action in question (e.g., PEPFAR, abortion, heteronormative marriage laws, outlawing prostitution, outlawing gambling) doesn’t happen to be unconstitutional on other grounds (e.g., equal protection in abortion cases, and maybe SSM, too, depending on what Justice Kennedy has for breakfast the day SCOTUS hears oral argument) then the state law is constitutional despite the entirely religious motivations of all the stump speeches, all the voters’ votes, and all the legislators’ votes and the governor’s failure to veto. Religion cooties simply do not make otherwise constitutional state acts unconstitutional.

[Rant: Thinking they do is like the MSNBC equivalent of Faux News global warming denialism: people who know law know (with a few academic exceptions on the left, I presume and preemptively concede) that it’s wrong, and it’s a weariness of the flesh for law-trained folks to keep coming across laypeople who just google the Constitution, read it, and think they can become instant Con Law scholars just because they read English. It’s like when us Catholics come across guys from “Bob’s Bible Shack and School of Agricultural Technology and Football Academy” who think they can do historical criticism of ancient Hebrew and Greek writers because, darn it, they’ve read the King James Bible from cover to cover, so there! Expertise exists. Climatologists, theologians, and lawyers all go to school for a reason. And yes, all three are real areas of knowledge and expertise, not just the science one, Dawkins’ know-nothing, global-warming-denier-idiot-esque “Leprechaunology” cracks about theology notwithstanding. /Rant.] (Sorry about the rant.)

Since this comment isn’t nearly verbose enough,
Oh, mine is now worse.

This is most certainly true on a straightforward reading- religion deserves a place in public discussion precisely as large as the place it has in the lives of the populace. In a place like the US, we should not be afraid to discuss religion. We should, however, refuse to legislate it.
Sure. No establishment of religion. Uncontroversial. But outlawing, e.g., abortion, SSM, gambling, or prostitution would happen in the context of secular arguments (however dumb you, Jake, think they are) being readily available. Make an equal protection argument or a due process argument. Religion is irrelevant, even if it’s the actual motive for voters and legislators, so long as secular arguments are available. Courts aren’t going to adjudicate whether the secular arguments are too dumb to count.

The proper lens to look through, I think, is the kind of laws and protections you would want in place if Islam was the dominant religion. Would you want Sharia law enforced? I presume not (though I’ve been surprised by some people’s answers on this in the past).

Not sure how a moral relativist gets to mandate the “proper” anything.

As to Sharia: where and when are we talking about? Compared to pagan Arabia, or to corruptly administered and confiscatory Byzantine taxation of the Levantine and Egyptian peasantry, early Islamic jurisprudence was progressive, even-handed, and a huge improvement. (Which is a subsidiary but still real non-conquest reason for the rapid early spread of Islamic rule that we Christians are almost totally oblivious to, for the most part. Which is a shame: it’s an interesting historical period.)

In an imaginary Muslim-majority U.S., the Constitution would be an impediment to the enforcement of Sharia. That wouldn’t be a moral argument against it, though, just a fact on the ground. As to whether I, personally, would want Sharia implemented in the imaginary Muslim-majority U.S. if the Muslims called a new Constitutional Convention or otherwise got themselves a blank slate to write on, my views would be entirely a question of where Sharia mirrors Catholic social teaching, and where it doesn’t. IIRC, Sharia would ban abortion, which I’d favor. I think it might mandate a certain amount of taxation for the relief of the poor. It would probably decimate the investment banks due to its usury ban. I could get behind all of that. However, Sharia also seems to mandate capital punishment and amputation, both of which, as a Catholic, I would oppose. Similarly, given the Vatican II declaration of the human right to freedom of religion in Dignitatis Humanae, I would feel morally justified in objecting to the restrictions placed on my practice of Christianity by dhimmi status. As to being made to pay a jizya tax as a non-Muslim, I’d be unhappy about it, but willing to submit to Caesar on it, as Christians in pagan Rome and the Dar al-Islam have submitted to other not-sinful irritants over the centuries. In other words, it’d be a pretty case by case thing.

On a broader level, I think the First Amendment’s disestablishment of religion has allowed a competitive religious ecology to flourish here in stark contrast to, e.g., the stricken religious monocultures of European countries with state churches, or the reportedly stifling atmosphere of Wahhabi Saudi Arabia and other Salafi states. So my prudential judgment would lead me to prefer the current U.S. system. But that doesn’t make me think that some Muslim guy in Michigan fantasizing about an Islamic U.S. is illegitimately appealing to religion in the entirely secular realm of political preferences. Instead, I think he’s entitled to have religiously motivated preferences, and I’m entitled to have starkly opposed religiously motivated political preferences. Atheists are allowed, of course, to have philosophically/metaphysically motivated political preferences, too, like their preference for the rest of us shutting up about religion in public. I think the Muslim and the atheist are wrong, but so what? Every citizen is a democratic peer.

The point I’m trying to make is that the US is designed to be secular- not in an attempt to eliminate religion, but to be inclusive of all religions, and create an environment where they can coexist.
The U.S. was designed not to have an institution like the Church of England. That’s all. Since then, First Amendment jurisprudence has very recently moved toward a more secular public square in areas like school prayer in the last few decades. The U.S. was not designed to exclude religiously motivated arguments from the public square. The abolitionists, the civil rights movement, and the pro-life movement, have all made religiously motivated arguments in the public square, and all have been in the American mainstream in so doing.

But its very much supportable secularly- you can point to lots of demonstrable bad consequences that come from prostitution. Not so for homosexual marriage (or at least, I’ve never heard any that didn’t involve the words “disordered” and “God”)
Believe me, there are lots of secular arguments against SSM. The fact that you haven’t heard them, or think they’re dumb doesn’t mean a court can rule them dumb. Nonjusticiable.

Yeah, I would say those laws are a clear violation of the first amendment. They’re just not important enough that I care (plus, remember I’m not a fan of alcohol :) )

The fact that you “would say” those laws are unconstitutional, and yet they have been on the books for decades despite the existence of wealthy liquor distribution firms that would happily pay large law firms to challenge them, may indicate that your hunches about what is and isn’t constitutional are untrustworthy. If your hunches lead you to think that longstanding laws are unconstitutional, then barring a groundbreaking SCOTUS decision (on SSM, e.g.), that just means your hunches are wrong, and you know less about the Constitution than you think.

Fair enough. My actual objection to anti-SSM legislation is both moral and legal.
How can a moral relativist have moral objections?

I am under no illusion about the Constitution- it is man-made, imperfect, and it’s current application may or may not be close to its intended application.


However, the law of the land- which I vehemently support because I think it’s right, rather than because it happens to be the current law of the land- is that laws must be secular and not religious in nature.

Clearly, you and a lot of my secularist teammates on “Team Blue” do think that’s right. But, as I’ve attempted to elucidate above, that’s not what the Constitution has ever said, and it’s not even what the rather secularist jurisprudence of recent decades reads it as having said. It’s not the law of the land. It’s just what you wish it was.

When someone tries to enforce religious rules for religious reasons, I think it _ought_ to be banished because religion is an illigitimate _basis_ for policy.

And I think neo-classical, laissez faire, Mont Pelerin Society, freshwater school, libertarian, Randian economics is an illegitimate basis for policy, because it’s barbaric to the poor, intellectually cramped, and morally bankrupt. But it’s not an unconstitutional motive for policy. It’s just annoying to me personally. Too bad. I have to argue against it. I don’t get to banish it from the public square by fiat.

Similarly, you think religion is an illegitimate basis for public policy. Fine. So go out and register some voters, canvas for your candidates, engage in public discourses like this one, etc. Argue against the religiously motivated policies you dislike. But religious people and our arguments aren’t going anywhere. There are a lot of us, and we vote. Convince us to vote otherwise. That’s how you make change. Telling us to “shut up” because our religion cooties aren’t allowed in America’s awesome secular tree house is not. You’re a good guy, Jake. Thoughtful and thought-provoking. So I think you really know all this already.


  1. *Meta-comment*
    I’m going to break this down into 2 separate comments, because I see 2 major themes that I’d like to address, and doing it in one comment would be ridiculously long. The two themes are:
    -Do moral relativists get to make claims?
    -The constitutionality of anti-SSM legislation

    I wanted to include a section on the hypothetical-Sharia-law United States, but alas, it’s after 2 a.m. here, and I have work tomorrow.

  2. Oh goodness... your comments have a character limit. This could get tricky.

    1. Ahh, it looks like several of my links are broken (I suspect due to the smartquotes MS Word uses being incompatible with html). If you have the ability to edit commenter's html, feel free to do so. If not, most of my links go directly to wikipedia anyways

  3. -------- Do moral relativists get to make claims?--------

    There seems to be a common thread of incredulity throughout your post every time I make a moral claim, so allow me to clarify both my position and what I believe to be the consequences of that position. Note that this seems like a bit of a side argument, but it’s a worthwhile experience for me to write it, and based on your comments it sounds like you’re arguing against a position I’m not actually taking. For any readers unfamiliar with Leah’s blog, see this rough draft of a humanist manifesto for a similar discussion.

    I am a descriptive moral relativist. To steal a line from the Wikipedia page, this simply means that I “admit that it is incorrect to assume that the same moral or ethical frameworks are always in play in all historical and cultural circumstances.”

    I go a step further than strict descriptive moral relativism, and say that the basis for morality is relative as well. I mean something very specific here- I mean that what it means to be “moral” is entirely contingent on what it means to be “human.” That is to say, if humans were different, by quirk of evolution or God, then morality itself would be different. This is a minor distinction, but quite important in practice, particularly when it comes to the debate we are currently engaged in. Whether or not homosexuality is morally acceptable is not a question of “do the parts fit?” or “is this relationship ordered towards an external goal?” Rather, it is a question of “does this maximize utility function X that I am trying to maximize?” (we shall get to my utility function later, but “human happiness” is a reasonable approximation.)

    I am not, however, a meta-ethical moral relativist or a normative moral relativist, in that I do think there are “right” and “wrong” answers to moral questions. However, I distinguish right and wrong answers in two ways that might or might not be objectionable to your sensibilities:

    Firstly, that whether something is right or wrong is a matter of reason, and derivable from whatever first principles you are using. Picking different first principles will (obviously) yield different results, but once you establish your first principles, there are indeed right and wrong answers (or more accurately, there is a hierarchical ranking of sub-optimal choices. Some things are “more wrong” than others.) I will revisit my first principles shortly.

    Secondly, I am not convinced (and indeed, I find it demonstrably untrue) that morality is the same for each person. What makes me happy is not necessarily the same as what makes someone else happy, and treating us in the exact same way may have very different moral implications. Case in point, I am not same-sex attracted. Telling me that I’m not allowed to marry another man is no burden to me- I wouldn't have wanted to do so anyways. But to someone who is exclusively SSA, this proscription is a much bigger deal. Clearly the moral _consequences_ are different, but I go a step further and say that the morality of such a proscription _changes_ based on the character of the two individuals being affected (me and the imaginary-SSA-person). This flows quite naturally from my earlier claim that the basis for morality is relative to the agents being affected.

    1. ---- My First Principles----

      I have three clear axioms that I appeal to unapologetically. I accept them as brute facts about reality (this is an area of research for me, and it would be nice to someday prove the latter two from the first)

      1) Reason is valid

      2) The subjective experience of other humans matters

      3) When in doubt, pick freedom

      Even though you can put together some decent game-theory reasons for why we should accept First Principle 2 as true even if it’s not, in practice I really am just accepting it as a brute fact. If I’m being totally honest, the game-theory-evolutionary-psychology angle seems like a more robust description of the way the world _actually_ works, but it would lead me down a path of selfish objectivism, which is not a way I want to live my life (I am in the unfortunate position of thinking that knowing and acting on the truth will probably make my life worse. It is an uncomfortable one for a secular empiricist.)

      First Principle 3 is admittedly poorly worded, but I hope the idea comes across. It seems to me that I have a much stronger argument here than I did for First Principle 2, because as a human, I have some special revelation as to what it is that makes the human experience better. My empirical first person experience is that freedom is paramount to human flourishing.
      All of my other beliefs (so far as I can tell) derive from these first principles and empiricism.

      ---- My Utility Function----

      This is just a note to say that I acknowledge that my moral system runs into problems (as all moral systems do) when confronted with competing goods or competing evils. We all exercise some implicit utility function to resolve such issues. I haven’t formalized mine, but it ranks freedom and happiness very high, and tradition, authority, and homogeny very low.

      I hope I’ve demonstrated why I think I can make moral claims despite the fact that morality is, in practice, relative. Moral imperatives around public safety derive from principle 2. My “libertarian assumptions about morally acceptable spheres of state action” derive from principle 3. I can answer other objections you raised specifically if it remains unclear how I derive those positions from my first principles.

  4. --------The constitutionality of anti-SSM legislation--------
    Three points to begin with:

    1) I’m going to be using the phrase “anti-SSM” as a label for the position that civil marriage should be exclusive to heterosexual couples. No offense or connotation is intended by this term, and if there is a preferred term, I would be happy to switch to it.

    2) I am not a constitutional law scholar, and many of the complaints you voiced (“I read the constitution once, ergo I can teach law students!”) are no doubt applicable to me. My primary qualification is adjudicating semi-weekly games of Magic The Gathering amongst my friends. Nevertheless, I shall do my best to mount a defense of my position, with a preemptive apology as to any insult this might cause.

    3) I source heavily from Wikipedia in the following comment. I tried to quote the parts that were quotes, but there’s probably some plagiarism in here somewhere.

    And now, onward and forward:

    I would like to draw a strong parallel between anti-SSM legislation (Hollingsworth v. Perry) and the teaching of Intelligent Design theory in classrooms(Kitzmiller v. Dover Area School District). Through referencing the decision in Kitzmiller, I will attempt to demonstrate that there is precedent for a law being deemed unconstitutional if it is a clear application of religious ideology
    without a valid secular basis, even if the wording of the law itself is not explicitly religious. I largely leave the argument about whether or not anti-SSM falls into this category by the wayside, for two reasons- firstly time, space, and the late hour at which I write this, and secondly, because it does not seem to be the thing which raised so many hackles over in the original thread. The main objections came to my claims of how to treat such a category, rather than whether anti-SSM legislation fell into this category (whether or not it does is obviously a hugely important question, but one to be left for another time, I think.)

    For those who don’t want to click through, the Kitzmiller decision ruled that “the religious nature of ID [intelligent design] would be readily apparent to an objective observer,” and that “A significant aspect of the IDM [intelligent design movement] is that despite Defendants' protestations to the contrary, it describes ID as a religious argument.” They further said that “The overwhelming evidence at trial established that ID is a religious view.”

    In light of this, the judge ruled that “The proper application of both the endorsement and Lemon tests to the facts of this case makes it abundantly clear that the Board's ID Policy violates the Establishment Clause.”

    Again for the click-weary, the endorsement test “asks whether a particular government action amounts to an endorsement of religion, thus violating the Establishment Clause of the First Amendment.” This renders a government action invalid “if it creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion.” Now an argument could be made here for anti-SSM laws failing the endorsement test by creating the perception in the mind of a reasonable observer that the government is endorsing Christianity. However, I think this argument is much weaker than the next, so I will leave it with just a mention and not pursue it further.

    1. The Lemon test is, in my mind, the clincher of this debate. The Lemon test, as established in Lemon v. Kurtzman, consists of three prongs:

      1. The government's action must have a secular legislative purpose;

      2. The government's action must not have the primary effect of either advancing or inhibiting religion;

      3. The government's action must not result in an "excessive government entanglement" with religion.

      If any of these 3 prongs are violated, the government's action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution.

      On the strength of prong 1 alone, I consider my point to be valid. If anti-SSM legislation cannot be demonstrated to have a secular legislative purpose (as was the case with Intelligent Design), then it is unconstitutional. Further, I would argue that prong 3 applies to anti-SSM legislation as well.

      So I return to my original claim:

      “My lay understanding of the Constitution supports the notion that if a moral question is religious in nature, and cannot be adequately addressed secularly (or if the secular answer is clear and in opposition to the prevalent religious answer), then legislating that religious answer counts as limitting the free excercise of other people who would seek to make a religious decision counter to that made by the majority.”
      Your response was that that is “a pretty common lay misunderstanding.” Based on the legal precedent I have cited, in particular prong 1 of the Lemon test, I contend that it is in fact a valid interpretation of the Constitution, and is applicable to the constitutionality of anti-SSM legislation.

      But wait, there’s more!

      You made the claim that “your distinction between questions that can be adequately answered with only secular reasons and those that are merely religious would be an impossible nightmare for courts to adjudicate.” I contend, again based on the precedent I’ve cited, that the courts do indeed make this distinction. I do not, however, contend that they are perfect at it. It does seem quite difficult. But as far as I can tell, it’s almost exclusively difficult decisions that end up in the courts in the first place. Isn’t it kind of their job to make difficult decisions based on necessarily vague law and reasonable precedent?

    2. I find it difficult to evaluate your claim that “people who know law know (with a few academic exceptions on the left, I presume and preemptively concede) that [this view of how the first amendment works is] wrong,” The evidence I have is that two very strong Catholics (you and the original anonymous commenter) who clearly know much more than me about constitutional law think I’m wrong, and say that the vast majority of law professionals agree with them. I am not a law professional, nor do I have experience with law professionals to draw from, but an attempt to find opinions that agree with me was trivially easy ( This one is a good example, though as far as I can tell written by an undergrad. This one is a bit more balanced, but certainly doesn’t give the impression that first amendment arguments against anti-SSM are a decided matter). Moreover, I think the precedent (and the discussion in legal circle reachable by a quick google query) is clear that this is at least a _discussion_, rather than an open-and-shut “you’re blatantly misinterpreting the first amendment” that you and anonymous seem to think it is.

      Similarly, I think your claim that the fact that Blue Laws are still on the books means they are somehow constitutional (and by extension, I ought to jettison my current understanding of constitutional law) miss the mark for several reasons. Firstly, most blue laws have been repealed. Secondly, the specific blue laws that we’re talking about (alcohol sale) to the best of my knowledge have never been challenged. Thirdly, in the decisions that maintained some other Blue Laws, the ruling was that there was a compelling secular purpose for those laws, which is exactly the distinction we’re discussing in the overarching thread (a distinction you seem to claim is invalid). Fourthly, I am certainly not alone in my view of the constitutionality of Blue Laws (as Justice William O. Douglas wrote in his dissenting opinion on McGowan v. Maryland, “I do not see how a State can make protesting citizens refrain from doing innocent acts on Sunday because the doing of those acts offends sentiments of their Christian neighbors.”)

      Finally, re: your rather apathetic view of the Constitution as law of the land, but not a good measure of morality. I actually agree with you. The constitution is the law of the land, and therefore a discussion of its implications is extremely important. However, my objects to anti-SSM legislation are fundamentally _not_ “it violates the rules laid out in this rather arbitrary document written several hundred years ago by people with whom I disagree on a number of moral issues.” My objections to it are moral, and I use the Constitution as an attack vector to try and take on what I think are immoral laws (which, if you think about it, is what a constitution is for*). It just so happens that I also think the constitution (as it is currently being interpreted) has it right. But the constitution isn’t magic. Things don’t suddenly become “right” if we pass an amendment- they just become legal.

      *That was a deliberate attempt to make a con law scholar mad at a lay person who thinks they read the constitution and are therefore an expert. Not very charitable of me, but I couldn’t resist.

    3. I don't have time for a full reply right now, but I'd like to add a piece of data - I am definitely not a "very strong Catholic"... or even a Catholic at all.

    4. Ooh- many apologies Anonymous. A foolish assumption on my part. -10 debate points from me :/

  5. This is all superbly argued, Jake. I'll need to come back to it later today, if not later this week, due to time constraints at work. So for now, let me just praise what you've done here, and issue a promissory note that I'll be returning to the discussion ASAP.