Nuremberg or Dachau?? Another Leftist Assault on Freedom and the First Amendment
The Left is always searching for a justification to exclude faith from the public square. One recent attempt asserts as follows: certain legal and policy positions can only be advanced because of religious rationales; therefore, to enforce such polices would be to violate the “establishment clause” of the First Amendment.
For example: limiting marriage to one man and one woman is a religious conviction, and consequently, this conviction cannot be imposed on society without violating the constitution. See e.g., Anderson v. King Co., 138 P3d 963, 1027 et. seq. (Wash. July 26, 2006) (dissenting op. by Bridge J.) It is possible recent U.S. Supreme Court dictum has propelled these kinds of arguments. See e.g., Lawrence v. Texas, 539 U.S. 558, 582-83 (2003) (O’Connor J. concurring) (asserting that moral disapproval alone is not a legitimate state interest).
Besides evidencing a crabbed view of the First Amendment, this notion is plainly absurd: murder, rape, theft, perjury, incest, are likewise religiously proscribed. Should the State therefore refuse to proscribe such conduct? Hardly. But there is a bigger problem with this assertion.
It presupposes that rights are created and conferred by the State. Therefore, the State ought to be free from any other authority, including religious authority, or even religious persuasion. If this assertion becomes the norm, then Nuremberg was wrong and Dachau was right. Remember that it was an appeal to a law above the law that allowed the war tribunals to justly condemn the Nazi regime. Absent that overly religious predicate, the “final solution” was justified because those laws were properly passed and executed . . . and so were millions of innocents.
To exclude religious persuasion from legal analysis is also to condemn Martin Luther King Jr.’s masterful epistle, the Letter from the Birmingham Jail. That letter too invokes with passion a law above the law, the natural law, in order to condemn “legal” segregation. Absent that “religious” analysis, Rosa Parks should rightly have been prosecuted. It is only an appeal to a law above law, a religious rationale, that allows unjust laws to be justly condemned.
Put bluntly, what’s really at stake is this: Nuremberg or Dachau.
For more on the natural law tradition, see the new book, Natural Law for Lawyers, by J. Budziszewski. See also a related post by Jordan Lorence, Do EPA Regulations on CO2 Emissions Violate the Establishment Clause?