A CREEPING THEOCRACY:
How The U.s. Government Uses Its Power To Enforce Religious Principles

By SHERRY F. COLB
Wednesday, Nov. 21, 2001

For the past two months, President Bush has been advising us to "get back to normal" and resume our regular routines. One way we can follow his advice is to continue to question the policy priorities of the current Administration when they deserve questioning.

While I support the war effort currently in progress, that support is not incompatible with criticism of other policies of the Administration. Rather, such critical assessment is part of the democracy we are defending. And right now, criticism is strongly warranted.

Religious freedom is an essential right in this country. Religion and religious organizations have often provided compassion and support to those in need. Observant members of religious groups have a fundamental constitutional right to practice their respective religions — a right enumerated explicitly in the First Amendment. Accordingly, I share the chagrin of religious groups in reacting to Employment Division v. Smith, in which the Supreme Court upheld facially neutral laws that have the effect of burdening religious practice.

But as strongly as our Constitution protects religion, it forbids our government from becoming a religious one. Nevertheless — in a development that is particularly troubling in the wake of the September 11 attacks — our federal government has demonstrated a continuing commitment to using its power to enforce religious injunctions.

That commitment conflicts with the spirit, and in some instances with the letter, of the Constitution's Establishment Clause. It also conflicts with the religious freedom of those whose beliefs differ from the government's.

Stem Cells

One example of this tendency preceded the terrorist attacks. On August 9, President Bush, after weeks of ethical consultation and deliberation, gave a speech in which he declared his "Great Compromise" on stem cell research.

Because of his belief that a human embryo is a "life" entitled to human rights, Bush said, he would block the use of federal tax dollars to fund the production of stem cells from discarded embryos. He carved out an exception, however, for stem cell lines developed prior to his speech.

I argued in another column that a truly pro-life position is incompatible with the legality of fertility medicine giving rise to discarded embryos in the first place. But apart from its internal contradictions, the Bush position on stem cell research also imposes a religious ideology.

The particular pro-life position to which Bush referred — the idea that full-fledged human life begins at conception — is a religious notion, and it is one to which some, but not all, religions subscribe.

The idea of "ensoulment" is, of course, a purely religious concept. The notion that life begins at conception is counterintuitive if understood in secular terms.

In a secular world, because an embryo lacks the capacity to think, to experience joy, and to suffer pain or distress, it accordingly lacks legal entitlements that could possibly trump or even equal the interest in saving lives and curing disease through research. A secular perspective, then, would unequivocally approve of stem cell research.

As I have argued in an earlier column, because a late-term fetus may be able to suffer, it may have entitlements separate from any religiously derived ones. Unlike the issue of late-term abortion, however, the stem cell dilemma does not really implicate two competing entitlements.

Only a religious view would equate a clump of undifferentiated cells the size of a pinprick with a fully formed human being — deeming both equivalent "life." Proceeding on the basis of this equation, as the Bush Administration has done, wrongfully imposes a religious perspective on all citizens, regardless of their religious belief or lack thereof.

Abortion

When the Senate considered John Ashcroft for the position he now holds as Attorney General, he promised that he would enforce existing laws protecting access to abortion clinics, notwithstanding his own, well-publicized view — grounded in his personal religious beliefs — that abortion is murder and ought to be illegal. Thus far, he has not kept his promise.

Ashcroft made this commitment in response to concerns arising from the terrorism and harassment that some abortion opponents have visited on clinics and doctors. These illegal activities threatened not only doctors' and patients' lives, but also doctors' and clinics' ability to provide a constitutionally protected service.

Two weeks ago, nearly 200 abortion clinics and organizations received anthrax threats sent by Federal Express. Despite the ongoing war on terror and the Attorney General's earlier commitment to fighting this form of terror in particular, Ashcroft has yet to meet with abortion rights groups. Nor — as of this writing — has he even deigned to criticize publicly what is reportedly the largest single orchestrated anthrax threat against any type of organization.

If anti-abortion terrorism is to enjoy the only exception from our full-scale war on terror, it will be because Attorney General Ashcroft has improperly allowed his personal religious beliefs (and those of his supporters) to prevent him from evenhandedly applying the law to protect all citizens' constitutional rights.

Physician-Assisted Suicide

At the other end of the life/death continuum is the issue of physician-assisted suicide. Two weeks ago, Attorney General Ashcroft declared that assisted suicide was not "a legitimate medical purpose" for any drug. He accordingly directed agents of the federal Drug Enforcement Administration to revoke the drug license of every Oregon doctor who prescribes medication for this purpose.

Ashcroft angered many Oregonians in acting as he did, because Oregon's Death With Dignity Act specifically gives doctors authority to prescribe lethal drugs for ending the suffering of terminally ill people. The Attorney General's new federal policy would effectively nullify Oregon law, which permits (in limited circumstances) Oregon residents to receive physician assistance in dying.

The issue of physician-assisted suicide, or "PAS," is, of course, quite different from that of stem cells and abortion. For one thing, both sides agree that people's lives hang in the balance. Indeed, PAS proponents claim that it is precisely because terminally ill individuals are autonomous persons that they are entitled to choose to hasten their own deaths to avoid a prolonged and painful dying process. Absolutist opponents of PAS respond that when life is at issue, only God should make the final decision.

Some other opponents of PAS — such as Professor Yale Kamisar of the Michigan Law School — take a different (and secular) view that is less absolute. They worry about a slippery slope that could lead to devaluation of the lives of those people who might otherwise wish to live.

This view recognizes the possibility of exceptions when patients are gravely ill and in terrible pain. "[I]n certain rare instances," Kamisar acknowledges, "PAS/euthanasia might constitute 'a positive good.'" (Kamisar cites a patient in the final stages of ALS — Lou Gehrig's disease — who begs for death as an example of such an exceptional circumstance.) In these rare cases, these proponents of statutes banning PAS believe that the law ought to turn a blind eye without having to condone the practice expressly by legalizing it.

There are others, however, who feel that PAS is inherently immoral under all circumstances. They condemn all suicides as sinful and hold that our lives belong not to us but to a higher power. Such people are surely entitled to embrace and act on their beliefs in their own private lives. They ought not, however, be permitted to force these beliefs upon the rest of the nation.

By utilizing the resources of the Drug Enforcement Administration to target doctors who assist their dying patients in Oregon, Attorney General Ashcroft demonstrates that he falls into the absolutist camp. Rather than look the other way, he will — if permitted — punish the doctor who helps the patient suffering from ALS who begs for immediate death. The notion that any activity is "inherently immoral" regardless of the facts and wishes of the affected parties, however, is one that reflects absolutist religious priorities, not a secular weighing of costs and benefits, and pain and suffering.

Ashcroft has claimed that federal law confers authority for his campaign against PAS — in an uncharacteristic renunciation of federalism. (In a column that appeared a week ago, Professor Michael C. Dorf argued persuasively that this is an area where federalism should apply). But shortly after Ashcroft's announcement, a federal judge issued a temporary restraining order against the new policy.

Thus, for reasons having to do with the respective roles of states and the federal government in our constitutional system, Ashcroft may not be able to carry out his religious agenda there.

Theocracy and the Constitution

Just as we all have an important right to practice the religion we choose, we have an equally important right to be free of religious tyranny. It is a right that should be available not only to members of dominant religions but also to people who belong to minority religions, or who identify themselves as secular.

This right does not just mean that the government cannot entangle its operations with those of religious institutions, or grant money for solely religious purposes. It also means, more subtly, that the government must not act on the basis of purely religious motivations. Yet, as I have argued, such motivations are evident in a number of the actions taken by the Bush Administration.

One might conceivably support any of the positions I have described above — the anti-stem cell research, anti-abortion, and anti-physician assisted suicide positions — using a secular rationale. But the rationales Bush and Ashcroft have provided are not secular; their absolute nature, and their embrace of the inherently religious precepts that life begins at conception and ought to end only at God's choosing, make that clear.

Moreover, the Administration's adoption of all these positions, in combination and in concert, strongly suggests a theocratic program. The government's continuing willingness to press a religious agenda should worry us greatly at a time like this, when our very lives are threatened by extremists who would impose their will in the name of God.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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