The question whether in a liberal democracy religion–that is, religious rationales–may serve as a basis of lawmaking should be disaggregated into two distinct questions. First, is religion a morally legitimate basis of lawmaking in a liberal democracy? Second, is religion a constitutionally legitimate basis of lawmaking in the United States? I have addressed (elsewhere) the first question–as have many others (Neuhaus, 1986; Greenawalt, 1988, 1995; Carter, 1993; Audi & Wolsterstorff, 1997; Weithman, 1997, 2002; Audi, 2000, 2001; Eberle, 2002; Cuneo, 2005). In my judgment, the answer is yes, and the most powerful defense of that answer is philosopher Christopher Eberle's book Religious Conviction in Liberal Politics (2002). My focus in this paper 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 fr...