Without Religion, W(h)ither Family Law?

Most fields of law in the United States appear to be heeding the exhortation of a big-selling song, Imagine no religion, in that they manifest a commitment to secular rather than religious authority.1 Within the Articles of the nation’s founding document, before any amendments were ratified, framers of the new American design provisioned that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”2 The first—and to some observers the foremost—amendment added to the United States Constitution announced an official separation between religion and government.3 In the 7,591 words that fill its articles and amendments, the Constitution says nothing about a deity.4 Important expressions of national priorities—including the Declaration of Independence, the official motto of the United States, pronouncements of ostensible fact printed on American currency, and state constitutions (all of them)—do mention God by name,5 but they all rank below the Constitution. Following the Constitution in this respect and proceeding consistent with a directive stated in Supreme Court decisional law that “the government must pursue a course of complete neutrality toward religion,”6 American legislatures and courts “imagine there’s no heaven”7 when they make and interpret laws of general application. They bolster and encourage individual decisions to engage in religious observance, to be sure. Maybe more than is desirable.8 But the rule that any obligation that the law imposes must rest on a secular purpose remains in place.