I really like it when my blog becomes a kind of backdoor pilot for spinoff conversations on other blogs. A conversation in the civil same sex marriage thread spun into a dialogue Irenist and Jake over at the former’s blog (Marginalia). There are three posts in the series so far.
In the first, Irenist responds to some of Jake’s comments and questions about how religiously motivated a law is allowed to be.
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…
The fact that you “would say” those [blue] 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.
In the second Jake expands a bit on his moral philosophy and Irenist reengages (Jake quoted below):
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.
And in their most recent tete-a-tete, Jake pushes back on some of Irenist’s con-law arguments and gets a response:
IRC, you asserted somewhere that you thought Blue Laws were unconstitutional. If a compelling secular purpose has been found for them, then they are not. Justice Douglas is certainly correct that offending Christian sentiment is not a compelling secular purpose. However, as I note in my recent blog post on my opposition to continuing prohibition of narcotics, America’s patchwork of pesky liquor laws has made it harder for alcohol purveyors to “rationalize” the liquor market into an efficient delivery system for cheap, addictive liquor akin to the disaster of the more “rationalized” distribution system that has afflicted Britain with so many violent “lager louts.” Thus, as you agree, there is a compelling secular purpose for those laws. The only reason, I think, that the First Amendment really came into it is specifically because a lot of Blue Laws are specific to Sundays, and the choice of that day does indeed seem rather arbitrary in the absence of religious motivation. “No work on the Sabbath” laws, e.g., even if rephrased to “No work on Sundays,” raise real establishment of religion questions. Why shouldn’t agnostics, atheists, Jews, Muslims, and Seventh Day Adventists work on Sundays? You can make a secular argument about the need for a coordinated day off, but it’s quite shallow, and the matter starts to look a lot like I.D. The fact that Sunday-specific laws have nevertheless survived indicates to me, at least, that courts are not eager to apply First Amendment considerations willy-nilly, since Sunday-specific laws seem a lot closer to the core of establishment concerns than SSM laws. Thus, to me, the survival of Sunday-specific laws is symptomatic of courts preferring to decide these cases on other grounds. YMMV.
All in all, a very good-spirited and aggressive (not mutually exclusive!) discussion.