Coming late to this thread, and noting that the discussion has gone off in a different direction, I'd simply reinforce Marty's observation that "the view that 'religious transformation [and] faith' are good (when freely embraced)" is a theological proposition, by noting that it's perfectly coherent (theologically) to accept the proposition that religious transformation and faith are good even when embraced as a result of coercion (though of course there may be evidentiary concerns in particular instances of whether the faith is indeed "embraced" in the theologically relevant sense after coercion).
----- Original Message ----- From: [EMAIL PROTECTED] Date: Friday, May 5, 2006 9:30 pm Subject: Use of Religion to Achieve Secular Ends > The other day I posted about the unconstitutionality of the BOP > religious-rehabilitation funding program. See > http://balkin.blogspot.com/2006/04/blatantly-unconstitutional- > federal.html. > FYI, the Freedom from Religion Foundation has now sued to > challenge the program: > > http://ffrf.org/legal/gonzales_complaint.html > > Rob Vischer and Rick Garnett have each posted thoughtful questions > about my assertion that the state's interest in promoting > religious transformation is an illegitimate (and troubling) > governmental objective. > > Vischer: > > http://www.mirrorofjustice.com/mirrorofjustice/2006/05/government_fund.html > > Garnett: > > http://prawfsblawg.blogs.com/prawfsblawg/2006/05/religion_in_pri_1.html > > Rick writes, for example, the following: > > I certainly share Marty's (and Madison's) concern about religious > faith being reduced to a convenient means for achieving the > government's "secular" ends. That said, I'm not sure why it > should be unconstitutional -- or, in any event, why it would be > "profoundly disturbing" -- for the government, as a general > matter, to take, and act on (in non-coercive ways, of course, and > consistent with the freedom of conscience), the view that > "religious transformation [and] faith" are good (when freely > embraced). There are dangers here, absolutely. Still . . . (To > be clear: I'm not necessarily endorsing this particular program.) > > Also, Marty writes, "[t]he government cannot specifically aim at > religious transformation as a means of accomplishing those secular > ends." Does this mean, I wonder, that government may (or should) > not act with an eye specifically toward protecting, and even > creating, the conditions required (in the government's view) for > the flourishing of religious faith and freedom? > > > To which I have posted a response that includes the following. > (I'd very much appreciate reactions on, especially, the fourth and > final point): > > 1. You ask whether my critique means "that government may (or > should) not act with an eye specifically toward protecting, and > even creating, the conditions required (in the government's view) > for the flourishing of religious faith and freedom?" > > No, it doesn't *entirely* mean that. One of the principal > objectives of the religion clauses themselves is to encourage or > require the government to act so as to eliminate *government- > created obstacles* to the flourishing of religious faith and > freedom. So, for example, I favor -- and have worked to enact and > defend -- certain religious "accommodation" statutes, such as RFRA > and RLUIPA. > > However, although the state may advance the view that religious > *freedom* (including the freedom to reject religion) is a good > thing in and of itself, it may not advance the view that religious > *faith* is a positive good in and of itself -- or that it's the > means to valuable secular ends. > > 2. The government is simply not capable of determining whether > "religious transformation [and] faith" are a "good" thing (when > freely embraced) -- that's a question that is beyond the ken of > secular authorities, who do not have the (basically theological) > tools to make such determinations. Nor should the state try to do > so -- that's not the proper role of government. (Or so argues the > Madisonian, and modern, view of the Religion Clauses -- and I > agree, although I'm very interested in hearing dissenting views.) > And so it surely follows that government may not discriminate in > favor of religion in the dispersal of funds on the basis of such > judgments concerning the value of faith. > > 3. I think it's also "troubling," and unconstitutional, for the > state to conclude that religious transformation or faith is > correlated with secular objectives that the state *is* entitled to > promote, such as civic behavior, rehabilitation, cessation of > alcohol dependence, etc. For one thing -- and this isn't a > constitutional point -- as far as I can tell, it's simply not > true: If anything, human history (including, of course, obvious > dramatic recent examples) pellucidly demonstrates that religious > faith is no guarantee at all of righteousness, lack of cruelty, or > law-abiding conduct. > > More to the (constitutional) point, there is something profoundly > troubling about the state itself adopting any view about the > "typical" comparative social behaviors, and human qualities, of > believers and nonbelievers. > > 4. The hard question, I suppose, is this: Assume the state is > entirely agnostic as to the value or "truth" of religious > transformation and faith, but actually discovers a strong > empirical correlation between faith and some other quality that is > a proper object of the state's concern. For example, let's say > studies show a cause-and-effect correlation between faith and > graduation rates, or between religious transformation and > resisting drug addiction. (I'm not aware of any such empirical > evidence, but I'm willing to assume arguendo . . . .) I don't > think this would give the state the power to itself promote > religious faith -- after all, in that case the state would be > promoting something *that it does not believe,* which truly is a > perversion of religion. But if there is such a correlation, can a > government give resources to private groups that *do* have > religious faith, to enable them to transform those individuals who > don't? > Can the state, for instance, say: "Look, we really don't know > whether faith is true, or valuable, or something to which all > citizens should aspire. Those are eternal mysteries that are > appropriately left to individuals. And we beleive in religious > liberty -- so to each their own on questions of faith. But what we > *do* know, from rigiorous scientific studies (indulge me the > hypo), is that, for *whatever* reason -- indeed, for reasons that > we are incapable of understanding or assessing -- many prisoners > who would otherwise become recidivists do not do so if they come > to believe in God, and for *that* reason (and that secular reason > alone), we're giving discretionary grants to private religious > organizations that can help such prisoners make such > transformations. Indeed, the strongest correlation of all is with > conversion to *Christianity*, and so we're going to give our funds > primarily to Christian organizations. There's no such evidence > with respect to Islam, or Wicca, and so! > we wil > l not provide money to groups who have applied to encourage faith > in those traditions." > > Can the state do this? Madison thought not -- and I agree. But, > unlike the other questions raised by the BOP program, that truly > *would be* an interesting and difficult question (that is, > assuming once again that there were any such evidence). > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed > as private. Anyone can subscribe to the list and read messages > that are posted; people can read the Web archives; and list > members can (rightly or wrongly) forward the messages to others. >
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_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
