Religion as a basis of law-making?

Abstract

The question whether in a liberal democracy religion may serve as a basis of law-making should be desaggregated into two distinct questions. First, is religion a morally legitimate basis of law-making in a liberal democracy? Second, is religion a constitutionally legitimate basis of law-making in the United States? My focus in this article is on the second question, which, as a question about constitutional legitimacy, should not be confused with the first question, which is about moral legitimacy. Like other liberal democracies, the United States is committed to the right to freedom of religious practice. Unlike most other liberal democracies, however, the United States is also committed to the non-etablishment of religion. According to the constitutional law of the United States, law-makers and other government officials may neither prohibit the `free exercise' of religion nor `establish' religion. Does the non-establishment norm ban religion as a basis of law-making? More precisely, should the non-establishment norm be understood to ban laws for which the only discernible rationale — or, at least, the only discernible rationale other than an implausible secular rationale — is religious?