Religious Premises, Legislative Judgments, and the Establishment Clause

Abstract

This article addresses the constitutionality under the First Amendment Establishment Clause of the legislative use of religious premises - particularly religious moral premises--in the formulation of regulatory and criminal statutes. Although much scholarly writing has been devoted to analyzing the philosophical acceptability of such legislative reliance, very little has been written specifically addressing the issue under the Establishment Clause, which is, of course, a question of great potential significance to actual or prospective litigants, to legislators and legislative drafters, and ultimately to judges. The analysis consists of three perspectives: the tests or doctrines of the Establishment Clause, the special role of tradition under the clause, and various contextual principles such as participatory self-governance and the moral resonance of law.

Keywords: religion, morality, legislation, law, constitution, first amendment