Do EPA Regulations on CO2 Emissions Violate the Establishment Clause?
A brief filed by the National Council of Churches in a Supreme Court case involving a battle over whether the Environmental Protection Agency should regulate carbon dioxide emission points out a deficient and troubling argument made by left-wing activists about the Establishment Clause. In essence, left-wing activists argue that it violates the Establishment Clause for government to codify a public policy choice that harmonizes with a Biblical position. For example, last July, when the Washington State Supreme Court upheld the state’s marriage laws defining marriage as one man and one woman in Andersen v. King County, one dissenting justice, Bobbe J. Bridge, argued that the state marriage laws violate the Establishment Clause:
[W]hat we have done is permit the religious and moral strains of the Defense of Marriage Act (DOMA) to justify the State’s intrusion. As succinctly put by amici the Libertarian Party of Washington State and the Log Cabin Republicans of Washington: “To ban gay civil marriage because some, but not all, religions disfavor it, reflects an impermissible State religious establishment.” Amicus Curiae Br. of the Libertarian Party of Washington State et al. at 11. After all, we permit civil divorce though many religions prohibit it — why such fierce protection of marriage at its beginning but not its end?
Leftist activists trot out this “Establishment Clause” argument when they want to undercut a public policy position advocated by religious conservatives and traditionalists. But the argument does not hold up, because many laws conform to Biblical teaching, e.g., laws against bank robbery agree with the Ten Commandments’ admonition, “thou shalt not steal.” No one would seriously argue that laws against bank robbery violate the Establishment Clause.
Also, in many instances, religious groups come down on both sides of an issue, so the court would “violate” the Establishment Clause by ruling either way in the case, effectively neutralizing any value of an “Establishment Clause” analysis for deciding a case. Government would have only a few laws or maybe none at all, if it could not legislate in areas where a religious group has taken a stand on a certain law or public policy position.
I write about this today because of the latest example of how leftwing activists do not consistently apply this “Establishment Clause” principle to themselves and their own advocacy. The National Council of Churches, a consortium of churches holding leftist theological views, has just submitted an amicus brief in a case the Supreme Court has accepted for review, Commonwealth of Massachusetts v. Environmental Protection Agency, No. 05-1120. This is a case challenging the EPA’s decision that it lacks authority under the Clean Air Act to regulate carbon dioxide as a hazardous air pollutant because of its alleged role in global warming.
I do not express any opinion one way or the other on the merits of this case. But note how the National Council of Churches defends its interpretation of the federal Clean Air Act: “Followers of the Judeo-Christian tradition are called to be responsible, just stewards of the Earth and the abundant resources that it makes available, today and for future generations. See Genesis 2:15, 9:12.” Also, the NCC tells us that the EPA should regulate CO2 emissions because “Christian ethics preaches love of our fellow humans as ourselves, (Matthew 22:39 and Mark 12:31-33), and more particularly, care and compassion for those who are the most vulnerable and needy. See, e.g., Matthew 19:21, 25:34-40; Luke 14:13-14.” I have no problem with this kind of argument, but why aren’t the defenders of the Establishment Clause pouncing on this NCC brief?
I would be amazed if people like Justice Bobbe Bridge would find that the EPA would violate the Establishment Clause if it regulated carbon dioxide emissions under the Clean Air Act just because some group of churches happens to agree with that position. Of course, there is no Establishment Clause violation in that situation. And neither do states violate the Establishment Clause when they define marriage as one man and one woman.