Friday, November 13, 2009

Marci Hamilton calls for religious test for citizens to exercise their right to self-government

According to Yeshiva University law professor, Marci Hamilton, the Stupak Amendment is unconstitutional because its supporters are motivated by religion. It's not clear how Professor Hamilton knows the motivations of every single person who supports the amendment. But setting that question aside, why should "religious motivation" matter to the legitimacy of a citizen's participation in the public conversation on an issue over which citizens from a wide variety of traditions disagree? Apparently, according to Professor Hamilton, a citizen who takes his or her religious beliefs seriously is the proper subject of civic disenfranchisement. As I write in an article I published in the Hastings Constitutional Law Quarterly in 2006 ("The Court of Disbelief: The Constitution’s Article VI Religious Test Prohibition and the Judiciary’s Religious Motive Analysis")
[M]otives are types of beliefs...; citizens, including legislators, have an ultima facie right to their beliefs such that the state ought not reward or punish them for having these beliefs..; and a statute’s purpose and the reasons for it are conceptually distinct from the motives of the statute’s supporters in both the legislature and in the citizenry. Therefore, when the Court claims that a statute or policy violates the Establishment Clause because of a legislator’s or a citizen’s religious motives, it is in fact limiting one of the enumerated powers of that legislator or the political rights of that citizen solely based on the religious quality of beliefs that contribute causally to the exercise of each individual’s political powers and rights.

Concerning citizens who hold public office, the Court’s religious motive analysis functions as a de facto religious test in violation of the no Religious Test Clause for legislators since it limits the powers of their office. The fact that the legislators have already assumed office does not seem to be relevant, since it seems to me that an Article VI violation would occur if a state passed a law that forbade only Catholic elected officials from voting on matters concerning human reproduction. Therefore, a religious test that limits a citizen’s right to exercise the powers of public office — whether to limit all her powers by forbidding her to hold office or to limit some of her powers after she holds office — is nevertheless an impermissible religious test for public office under Article VI. Moreover, just because a court, rather than a legislature or an executive branch, offers the test and targets a legislator’s religious motive, rather than her ecclesiology or her creedal commitments, neither makes it any less a government action nor any less a religious test for public office.

When the religious motive analysis is applied to citizens in general, it shows, in the words of the Supreme Court, disrespect for “the individual’s freedom of conscience” and “freedom of mind,” for it results in a subtle coercion of, and provides an incentive to, religiously-motivated citizens to publicly pretend as if they do not have the motives they in fact have. It punishes these citizens because of their beliefs, since their political freedom as citizens to shape their communities is limited by a judicial prohibition of laws and policies that happen to have proponents who are motivated exclusively by their religious beliefs. In addition, the religious motive analysis provides sustenance to a political culture in which citizens are taught that any public disclosure of their beliefs that serve to motivate a legislative proposal may result in the judiciary’s rejection of that proposal regardless of its content or the reasons offered for the proposal.

Read the whole article here.

(Originally posed on Southern Appeal)

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