Using Religious Arguments for Public Policy Does Not Violate the Establishment Clause

Using Religious Arguments for Public Policy Does Not Violate the Establishment Clause June 19, 2018

Since this has come up repeatedly in the comments and in discussion about Jeff Sessions citing the Bible as justification for the policy of separating children from their parents, let me make this clear: It is not a violation of the Establishment Clause or separation of church and state for a government official, or anyone else, to offer a religious rationale or argument for or against some public policy.

The policy itself might, if enacted, be constitutionally invalid, but advocating for it is not. So please stop claiming that Sessions citing a Bible verse to support separating children from parents at the border is a violation of separation of church and state. There are lots of other good reasons to criticize him for doing so, but that isn’t one of them.

Separation of church and state does not mean separation of religious belief from political belief. The civil rights movement was based almost entirely in black churches and mosques and Martin Luther King, Malcolm X and many others frequently offered religious arguments in favor of equality. That does not make the Voting Rights Act or the Civil Rights Act unconstitutional, so it certainly can’t make the advocacy of those laws a violation. And we can’t be inconsistent about it and say that it’s a violation when religious arguments are used to justify policies we don’t like, but fine if they are used to justify policies we do like.

And yes, I’m obviously aware of the Lemon test, but that applies only in Establishment Clause cases, not in immigration cases. And frankly, the Lemon test is as incoherent as virtually all of the other First Amendment jurisprudence, which is really little more than a hodgepodge of ad hoc and post hoc rationales, tests that are used sometimes but not other times and never for any coherent reason, pretexts and carved-out exceptions with no basis other than “we’ve always done it this way.” And even when applying the Lemon test, as my co-host likes to point out, the court just kind of waves at the intent prong on the way to the effect prong, accepting almost any non-religious rationale that could be offered for a policy or action, even if it makes little sense. And that is as it should be. The focus should be on the policy itself. If the policy falls within the legitimate powers of the government, it is constitutional no matter what someone’s intent might in enacting it (intent that is rarely expressed anyway, and may be one of several distinct motives at the same time).

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