In my judgment, the nonestablishment norm does not stand in the way of citizens or legislators or other policymakers banning or otherwise disfavoring conduct on the basis of a religiously grounded belief that the conduct is immoral, even if the belief lacks plausible, independent secular grounding.
If, as I conclude in the essay cited at the beginning of this note, the weaker claim cannot be sustained that, according to the morality of liberal democracy, one may not make a political choice disfavoring conduct on the basis of a religiously grounded belief that the conduct is immoral, it is unnecessary to focus on the stronger claim that in making the choice one may not rely on the belief at all.
Of course, this is not to say that the political choice they make--for example, a choice disfavoring racial intermarriage, or same-sex marriage, on the ground that it is immoral--is necessarily constitutional.
6) Surely, these data, not to [TABULAR DATA FOR TABLE 1 OMITTED] mention the Court's own rules, suggest that we ought to consider issues raised in the balance of briefs before reaching any strong conclusions about the existence (or lack) of the norm disfavoring issue creation.
We began by obtaining the syllabi in the 18 cases in which McGuire and Palmer claimed that the Court "discovered" issues, that is, violated the norm disfavoring issue creation.
A second set of implications of our study, of course, centers on the norm disfavoring the creation of issues.
For one thing, if the Court did not respect the norm disfavoring the creation of issues, then it merely would have reconsidered Runyon without asking for rearguments; in other words, if the Court could discover issues, it could surely reexamine past cases sua sponte.
In both instances, justices were perceived as attempting to violate the norm disfavoring the creation of issues.