But if Christians vote for a president who will undo things like Roe v. Wade, that is their prerogative. When they vote for a president who appoints Justices who will vote the Christian way, in effect you have the influence of Christianity on the law. They don’t have to invoke their Christian heritage re: Roe v. Wade, for example. All they have to do is appeal to the natural law and common sense. We should not kill our children, in the womb or outside it. Christianity morality is build on common sense. No one has the right to insist that the law reflect uncommon nonsense, such as that women should marry each other, or men should marry each other.
If Roe v Wade ever gets overturned, it won’t be because of any religious argument. You do understand that don’t you?
For example, consider the 2003 Lawrence v. Texas decision which struck down sodomy laws. The Court decided that, “the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Religious arguments against sodomy were not even deemed worthy of consideration. Secular “legitimate state interests” were what would have been needed to maintain anti-sodomy laws. Those secular reasons presented by Texas were found to be unconvincing. In oral argument Justice Breyer summarized the justifications Texas offered for outlawing sodomy:
“…you said procreation, marriage and children, those are your three justifications. Now from what you recently said, I don’t see what it has to do with marriage, since, in fact, marriage has nothing to do with the conduct that either this or other statutes do or don’t forbid. I don’t see what it has to do with children, since, in fact, the gay people can certainly adopt children and they do. And I don’t see what it has to do with procreation, because that’s the same as the children. All right. So… so what is the justification for this statute, other than, you know, it’s not what they say on the other side, is this is simply, I do not like thee, Doctor Fell, the reason why I cannot tell.”
The Lawrence ruling of 2003 overturned the previous Bowers v. Hardwick decision which had, incorrectly as it turned out, upheld sodomy laws. Justice Stephens wrote the dissenting opinion at that time which was cited in the majority decision in the Lawrence case:
“Bowers’ rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of “liberty” protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled.”
It is not sufficient to show that something is or even always has been considered to be immoral, there must be some state interest in forbidding it. There must be some non-religious basis for a case against it. It is in no way enough to argue, say, that in this country right now the Shias (or the Catholics, or the Jains, or the Sikhs) think it is immoral based on their holy book, and since they are the majority it ought to be illegal for everyone. It is not always enough to be a majority in a democracy where all citizens have an individual right to freedom of religion that a majority can’t vote away.
Legal practice shows us that the Law is not just the laws, it is also the implicit or explicit reasoning in support of the laws since laws are always subject to judicial review with respect to the Constitution. What the Constitution itself means is also open to continuous debate. The laws and the Constitution are interpreted by recurring to generated lines of reasoning which situate the words on the pages within a web of justification. This web constructed by lines of reasoning is functionally the Law itself. It is not just a set of rules, but also the reasonings that support them. If lines of religious reasoning that depend on premises requiring belief in a particular religion are allowed to become embedded into the law, then we have lost our right to believe and practice whatever religion we personally choose. We will have instead been required by law to practice one religion in particular.
Custom ought to forbid religious reason-giving in support or opposition to all laws. Such reasonings ought to be regarded as irrelevant, since religious premises–premises which cannot be accepted without subscribing to a particular religion–cannot not be admitted as legal justification given the Constitutional guarantee of religious freedom. While people are free to have opinions about the law informed by their religions, we ought to insist that the reasoning politicians tell their constituents for voting on a law be reasoning that will pass Constitutional muster, reasoning that we all can at least in principle find convincing.
Best,
Leela
