PRELIMINARIES

In this chapter, as in the preceding one, I address a question about the meaning of the constitutional imperative that government not “establish” religion. The question I address in this chapter is: Do legislators or other policymakers violate the nonestablishment norm by outlawing particular conduct, or otherwise disfavoring it, on the basis of a religiously grounded belief that the conduct is immoral – a religiously grounded belief, for example, that same-sex unions are immoral? (Government can disfavor conduct without banning it. For example, for a legislature to decline to extend to homosexual unions any of the benefits it grants to heterosexual marriages is not for the legislature to outlaw same-sex unions, but it is for the legislature to disfavor them.) This question is relevant to citizens of the United States, because the nonestablishment norm is an important part of the fundamental law – the constitutional law – of the United States.