The Facebook page for this event states:

The New Zealand Bill of Rights Act states:

13 – Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.

14 – Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

15 – Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

• How should we read these sections alongside idea that New Zealand is a secular society?
• How should we read them alongside the viewpoint advanced most notably by philosophers such as John Rawls that religion should be privatised?
• Does Separation of Church and State require Separation of Religion from public life?
• Can we still have Freedom of Religion in New Zealand and hold to these views?
• What approach is just and fair in a pluralistic society like ours?

Analytic Theologian and Ethicist, Dr Matthew Flannagan and Legal Scholar, Madeleine Flannagan (a post-graduate student in Law at Auckland) will give a joint lecture followed by a Q&A session on the topic Freedom of Religion in a Secular Society from 7.00-8.30pm on Monday 12 September 2011 in Clock Tower 032.

http://www.youtube.com/watch?v=sfnCKFs9DWk

Each speaker has published the speeches they wrote for this event:

• Matthew Flannagan’s speech – Theology
• Glenn Peoples’ speech – Philosophy
• Madeleine Flannagan’s speech – Law

Hat tip (and credit for filming and editing this video): Stuart at Thinking Matters.

A few weeks ago, as part of Jesus Week at the University of Auckland, Thinking Matters and Evangelical Union hosted an event entitled A Godless Public Square: Do ‘Private’ Christian Beliefs Have a Place in Public Life? This event was a conversation between Theology, Philosophy and Law and featured Matthew Flannagan - Analytic Theologian, Glenn Peoples - Philosopher and Madeleine Flannagan - Legal Scholar. The video is still being edited and will be available soon but for now, this 3-part series comprises the written speeches of each speaker.

Madeleine Flannagan – Law

Glenn and Matt dealt with moral restraint; the idea prevalent in our society that those of us with religious convictions ought to keep them to ourselves when we participate in public life.

Often people contend or try to imply that this obligation is required by law. We’ve all heard politicians, people in the media, leaders in our communities, lecturers at university assert that we are a secular nation and that our commitment to freedom of religion requires a secular public square.[1]

And they are not wrong to a degree. It is evident that something like this ‘obligation’ advanced by the likes of Rawls, Audi, Gaus, et al is present in western jurisprudence – most obviously in that coming out of the United States; you do not need to have studied law to be aware of this, you will have picked up on it if you have watched any American TV.

Separation of Church and State or Separationism?

Most people are aware that the US Supreme Court has interpreted America’s Religious Freedom and Free Exercise laws to mean that religious instruction, prayer, references to God, displays of the 10 commandments, nativity scenes — even where participation is totally voluntary — are banned from public institutions.

This “separationist” reading of the 1st amendment is drawn from US Founding Father Thomas Jefferson’s “Wall of separation Letter” to the Danbury Baptists Association in 1802. But it is unlikely that this reading is what Jefferson meant. At the time he was writing in early nineteenth century America, the common perception of the relationship between church and state reflected a long-standing European tradition.

Legal scholar Steven Smith wrote in “Separation and the Secular: Reconstructing the Disestablishment Decision” that,

… At least since the middle ages, scholars and polemicists of all stripes had argued-on both religious and political grounds-that the church should exercise control over the state or-again on both religious and political grounds-that the state should control the church. The common view for centuries had been that an established church was essential to political and social stability.[2]

He added,

… In medieval Europe, for example, kings had claimed, and had exercised, the power to appoint bishops and popes. After the Reformation, the British monarch became the official head of the Church of England, and British government assumed control over both the selection of ecclesiastical officials and the formulation of religious doctrine.[3]

In fact, the Book of Common Prayer, including the 39 Articles, was commissioned and approved by the Crown.

Smith goes on,

… medieval popes regularly crowned earthly emperors and kings, and they claimed (and frequently purported to exercise) the authority not merely to excommunicate but actually to depose those kings. Popes sometimes asserted jurisdiction to adjudicate what were essentially political or property disputes. In England, the Church enjoyed-and still enjoys-official representation in Parliament. Immigrants later imported established churches in some form into most of the American colonies.[4]

The church-state relationship that was familiar to an eighteenth century American was that “governments controlled or directly intervened in the internal affairs of churches, and churches claimed and were formally endowed with governmental powers.”

At the time Jefferson was writing, many US States had established churches; so when the United States Congress promised to “… make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”[5] they more likely had in mind that Separation of Church and State is simply the idea that the church should not be formally endowed with governmental powers and the state should not try to intervene in or control the church.

Separation of church and state is not separation of religious beliefs from public life (perhaps this confusion arises because both concepts have the word “separation” in them). The idea that Congress meant something more than mere Separation of Church and State when it passed the first amendment – that Congress meant Separationism — was birthed in the mid to late 20th century – some 200 years later – by the US Supreme Court when it began to hear cases about prayer in schools and the funding of Catholic schools.

Separationism and Separation of Church and State, as we have seen, are different ideas and one doe not entail the other.

Comparitive Jurisdictions

This is not just about the US. Separationist understandings of freedom of religion can be seen in Western jurisprudence elsewhere. There are European cases that exhibit it – even in places like the UK that do have an established church. Many of you will have heard the cases in the media of workers being sent home from their jobs after refusing to follow an instructions from their employers to remove religious jewellery[6] – normal jewellery was fine, just not anything that symbolised God.

The “Liberty Intervening” case is another UK example; a state-Celebrant refused to perform civil partnerships between members of the same sex. Because of her views on marriage, she was found to have discriminated against those couples. She could not appeal to freedom of religion as the court held that her employer’s requirement she perform same sex civil partnerships did not interfere with her ability to worship.[7]

Then there is this case, the summary from the head note explains it clearly:

Summary: The Employment Appeal Tribunal had correctly decided that a counselling organisation had not breached the Employment Equality (Religion or Belief) Regulations 2003 reg.3(1)(a) or reg.3(1)(b) when it dismissed one of its relationship counsellors who refused to counsel same sex couples on sexual matters because of his Christian beliefs. Although the law protected a person’s right to hold or express their religious beliefs, it did not protect the substance or content of those beliefs on the ground only that they were based on religious precepts.[8]

The last line seems to suggest a denial of the existence of a right to freedom of religion. In the judgment of the case this summary note comes from, Lord Justice Laws gave a lengthy spiel on its views on religion in public life, despite going on to rule as just stated, part of that spiel was:

“We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion, any belief system, cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other.”[9]

Sounds all good and equal right? – keep this quote in mind as we move onto the next case.

Earlier this year, 2011, this next one hit the news here in New Zealand; it was that of Eunice and Owen Johns, Christian foster parents, who had been disallowed from continuing to be foster parents after telling a social worker that they could not state that homosexual conduct was a good thing to one of their charges. The Johns took a case on the grounds of discrimination against their religious belief – which they understood they were free to hold to and live by – and they lost.

In their case the Lord Justice Munby quoted Lord Justice Laws’s lengthy spiel in McFarlane and Relate Avon Limited, including the quote I said to keep in mind, and after doing so they said: “We respectfully and emphatically agree with every word of that.” Then the court offered as its basis for refusing to let the Johns be foster parents,

“In the circumstances we cannot avoid the need to re-state what ought to be, but seemingly are not, well understood principles regulating the relationship of religion and law in our society. We preface what follows with the obvious point that we live in this country in a democratic and pluralistic society, in a secular state not a theocracy.”[Emphasis mine.]

So basically, it is the Court’s position that all viewpoints are equal – they referred to “religion” and “any belief system” BUT! (channelling some Orwell here) secular viewpoints are more equal than other viewpoints — and to suggest otherwise is to advocate for a theocracy.

Religious Freedom in New Zealand

So that all said about other countries; how does Freedom of Religion work for us in New Zealand?

Now, obviously NZ has its own laws and it is not bound by international laws and jurisprudence, but, if and when we do get some cases on these issues (we have not had many at all so far) it will be jurisdictions like the United Kingdom, the United States, Australia and Canada – the latter’s Bill of Rights arguably operates the closest to ours – that our judges will look to this body of jurisprudence for guidance in interpreting our laws because many of the same questions and factors come in to play in these western nations with a common law history and more litigation on this topic than we have had.

NZ Rights and Freedom law expert, Paul Rishworth, makes the point, and I think he is right, that as a group or belief system increasingly dominates as a majority in society there tends to be a rise in litigation over rights of minority groups. This is because the smaller they get the less the mainstream cares about their rights being infringed. Rishworth expects that we will see a rise in religious freedom cases in New Zealand in the future because of this.[10]

This is why it is important for us to have this conversation now, for us to be thinking about what the Church’s, what our response to the ideas being discussed here tonight are and what sort of Jurisprudence and public policy we want to see be developed here in NZ. [Other organisations in our society are as I documented in The New Zealand Association of Rationalist Humanists and the Privileging of Secularism. The “NZARH” has published a statement of aspirational ideals for the New Zealand state on their website. Entitled “The Tolerant Secular State” the document seeks the eradication of religion from public life.]

Central to these church-state debates are questions around which circumstances governmental accommodation or endorsement of a religious practice or idea amounts to coercion of a dissenter from that practice, and is therefore, a violation of freedom of religion.

It is here that questions of religion in public life come to the fore. Does the guarantee of freedom of religion entail that religion be regulated to the private sphere with the state adopting and privileging a “secular” perspective on the grounds that this is allegedly neutral towards religions?

I will argue it does not; especially not in New Zealand. Let us turn to the New Zealand Bill of Rights Act.

Bill of Rights Act

What sets our freedom of religion clauses in our Bill of Rights apart from, say, the US Constitution, is that we do not have an establishment clause. Further, we do not define religion narrowly nor do we view narrowly its expressions.

There is one other interesting aspect to how NZ has approached this issue (and no, I am not talking about the fact our Bill of Rights Act is a simple statute).

Our freedom of religion clauses are contained in three passages, sections: 13, 14 and 15 – the placement of section 14 between sections 13 and 15 was deliberate. Let’s look at each.

13 Freedom of thought, conscience, and religion

Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference. [Emphasis mine]

Now in law when you see a list of things separated by commas in the same section of an Act, as you do here, you know that Parliament is meaning to place these things on par with each other and is meaning to suggest they have a sort of equality or sameness to each other. Unless the text explicitly says otherwise, they have to be treated and weighted the same.

The New Zealand Bill of Rights then protects equally not just religion but thought, conscience and belief.

The nature of what “belief” is is what I want to focus on here.

No New Zealand cases under s13 have yet defined religion or belief – although we have a definition in s21(d) of the Human Rights Act “ethical belief, which means the lack of a religious belief, whether in respect of a particular religion or religions or all religions” and in other legislation.[11] A judge is likely to look further afield than this to be sure that the definition is appropriate for the legal issues in this particular area of law.

 International and comparative Jurisprudence has some definitions specific to this area. The International Covenant on Civil and Political Rights (ICCPR) Travaux Prepetoire states that ‘belief’ entails “such other beliefs as agnosticism, free thought, atheism and rationalism”.

The European Court of Human Rights (ECHR) supports this view and adds (sounding a bit like Rawls) that “coherent views on fundamental problems” will qualify as beliefs.

Similar definitions can be found in the jurisprudence of other western jurisdictions. Comprehensive secular viewpoints count as ‘belief’ and the State is required to protect and treat them equally with religion.

Whilst s 13 deals with what you are allowed to think and believe s 14 is about finding out more and sharing what think and believe:

14 Freedom of expression

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form. [Emphasis mine]

Note that your right to seek, receive and impart information about what you believe, is stated absolutely and without limit as to location; it entails that both private and public forums is what is meant. This is bourn out in s 15, the section that covers what you do with your beliefs:

15 Manifestation of religion and belief

Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private. [Emphasis mine]

You can act on your comprehensive secular belief and/or your religious belief in public or in private – again the wording is broad and unlimited.

So if freedom of religion entails that public policy discussions and administration cannot include religious considerations – that religion must be excluded from public life to safeguard religious freedom – then parity of argument suggests that freedom of ethical belief – such as secular humanism, agnosticism or atheism – precludes ethical beliefs in public policy considerations. We’re supposed to treat beliefs equally afterall.

In fact, s 15 gives proponents of religious beliefs and secular beliefs the same rights to express and manifest their belief, teach them, share them, practice them, live in accord with them, in public without limitation. The Bill of Rights allows – no, requires – parallel arguments either way.

So holding that in mind, take a look at the Education Act 1989 (just read the italicised parts if you find legalese confusing):

77  State primary schools to be kept open at certain times
Except to the extent that—

(a) a school term commences on any day other than a Monday or ends with any day other than a Friday; or

(b) a school is lawfully closed pursuant to section 129C,—

every State primary school shall be kept open 5 days in each week for at least 4 hours each day, of which hours 2 in the morning and 2 in the afternoon shall be; and the teaching shall be entirely of a secular character. [Emphasis mine]

78 Religious instruction and observances in State primary schools
Notwithstanding anything to the contrary in section 77, if the school’s board for the school district in which the school is situated, after consultation with the principal, so determines, any class or classes at the school, or the school as a whole, may be closed at any time or times of the school day for any period or periods exceeding in the aggregate neither 60 minutes in any week nor 20 hours in any school year, for any class, for the purposes of religious instruction given by voluntary instructors approved by the school’s board and of religious observances conducted in a manner approved by the school’s board or for either of those purposes; and the school buildings may be used for those purposes or for either of them.

Basically, section 77 states that all teaching in a state school must be secular. Section 78 provides that if you want to bring religious teaching into a state school you have to go to the board, have consultations, officially close the school and bring in volunteers… Equal treatment of viewpoints much?

[The justification for this affront to the Bill of Rights, involves a jurisprudential move utilising a Rawlsian approach and the operational clauses of the Bill of Rights Act - sections 5, 4 and 6. I do not have time to go into how this works here tonight, perhaps another time.]

The only reason the lack of parallel argument is accepted and that some of what you have heard tonight is news is because so many people, including the church, accept the false claim that secular beliefs are neutral and that permitting religious beliefs to be out there in public, in our schools, expressed our government would be somehow tipping the balance towards a bias – privileging one viewpoint over the others – and that that would be unjust. What is unjust and biased is the claim that in order for the state to discharge its duties under the Bill of Rights to treat public expressions of ethical belief as being on par with religion, it must privilege secularism and relegate religion to the private sphere.

A few weeks ago, as part of Jesus Week at the University of Auckland, Thinking Matters and Evangelical Union hosted an event entitled A Godless Public Square: Do ‘Private’ Christian Beliefs Have a Place in Public Life? This event was a conversation between Theology, Philosophy and Law and featured Matthew Flannagan - Analytic Theologian, Glenn Peoples - Philosopher and Madeleine Flannagan - Legal Scholar. The video is still being edited and will be available soon but for now, this 3-part series comprises the written speeches of each speaker.

Glenn Peoples – Philosophy

Often the subject of religion and politics is alluded to by way of references to terrorism, vigilantism, totalitarianism and persecution, as though these are the only alternative to a public square stripped of religious conviction altogether. This is about as helpful and honest as the automatic association of secularism with the purges of Stalin. The truth is that the flourishing debate in the Western world over the legitimate role of religious convictions in our public decision making is set within the broad liberal democratic tradition. Within that tradition, taking for granted things like freedom of religion, freedom of speech, clear institutional separation of church and state, freedom of association and so on, we’ve seen that it is clearly possible to hold a variety of views on the proper place of religious belief in politics, policy, public lobbying, your own voting and so on. Of course, there are plenty of religious people in the world and in history who do not cherish liberty and mutual respect (as there are and have been non-religious people who do not cherish these things), but you and I do.

Our popular level discussion here in New Zealand over the proper role of religion in a free society – in the media, in letters to the editor, on talkback radio, in religious speeches, could have been greatly benefited by an exposure to the way that this issue has been dealt with in philosophy, specifically in political philosophy, in ethics and philosophy of religion, which are the areas that really interest me. In particular the following issues need to be seen as central: What is the specific concern that justifies people in identifying religious convictions as an area of worry over and above other convictions? Are these concerns applied consistently and fairly when not thinking in terms of religious convictions? Are they the right concerns to have about public life generally? Secondly, should these concerns really cause us to reconsider the role of religious convictions at all? If so, then how?

Why is religion singled out?

Conflict and Polarisation
Why is there an issue centred specifically around religion in the public square? We don’t hear much, if anything, about the worry of acting on our political beliefs or (usually) our ethical convictions or our scientific findings – at least not because they are political beliefs, ethical convictions scientific findings, yet there is a concern about religious beliefs in the public square, and that concern exists because the beliefs in question are religious. What makes religion special?

Perhaps the more popular reason that people might have for wanting to see religion take a back seat when it comes to public reason is that, in their view, religious beliefs unleashed in public are dangerous in certain ways. American philosopher Robert Audi is not alone in voicing the concern that “religious disagreements are likely to polarize government” leading to irresolvable disputes and political stand-offs.[1] In order to avoid strong polarisation and the associated mischiefs that come with it (lack of co-operation, social unease and mutual suspicion, perhaps even rioting and acts of violence or terrorism as in Northern Ireland), let us keep our religious beliefs well away from our political reason.

Matt has already said a thing or two about this, so I’ll just be brief. Is this fair? For starters, is it really true that as soon as we allow people to lobby, vote or even legislate in certain ways because of their religious convictions, we will witness intractable political stand-offs and social disorder? Not at all. We can easily imagine scenarios in which one person or group lobbies for a given policy because their religious convictions motivate them to do so, and another person or group lobbies for exactly the same policy with quite different motives. I think, for example, of the government’s role in marriage. I know of religious people who maintain that the state has no role in formalising marriage since this is, in brief, “God’s business” that the government should frankly stay out of as a matter of the purity of marriage as a holy institution. I also know of libertarians committed to the doctrine of self-ownership and the priority of personal liberty who also think, without any reference to God, that marriage properly belongs entirely to the private realm. So it can’t be the case that endorsing policies because of one’s religious convictions will inevitably or always lead to social or political polarisation and conflict.

That said, it’s true that different religious convictions (including convictions against religious beliefs) have led to considerable differences of opinion over public policy. But this does not show that this polarisation is relevant in deciding whether or not people should endorse policies for religious reasons. In order to assess that, we must ask: Is religious belief in any way unique because it often perpetuates the kind of polarisation lurking behind this fear? I do not see that it is. The last century of western history alone proves fairly conclusively that human societies can become polarised with no help from religion. Civil and political clashes between fascists and communists, for example, did not take place because someone was smuggling their religious beliefs into politics. On a somewhat less dramatic scale, I see no end to disputes in New Zealand over the rights bestowed upon Iwi by the Treaty of Waitangi, nor to the hostile attitudes in society that get stirred up by these stand-offs. Again, these disputes did not arise because of the clandestine combination of religious convictions and political lobbying. What is more, there is no reason to think that policies that are likely to polarise should never be advocated. It is easy for us to appreciate, for example, that the attempt to ban slave trading in the British Empire was intensely polarising, and yet we admire those who advocated abolitionist policy.

So firstly, making political decisions because of our religions convictions does not necessarily cause polarisation and conflict and secondly, even where it does cause polarisation, religion cannot legitimately be singled out as the culprit since politics in general can have the same effect – an effect which does not necessarily indicate that the policy being advocated should not be advocated. So if there is something basically wrong with bringing our religious convictions into the public square, it is unlikely to be because this practice results in social polarisation and conflict.

Two Concerns: Respect and Justification

Most political philosophers realise that if there is a principled reason for keeping religious convictions separate from politics, it will not be the pragmatic reason suggested above. A more sophisticated and arguably more plausible line of argument has been developed in various forms in the literature.

The argument starts, not with religion, but with very general principles in political philosophy. One of the crucial concepts of the modern western liberal democracy is that of equality. There is no politically privileged class. This affects the way our societies function in all kinds of way. It’s why we have the slogan one man, one vote. Everybody’s voice counts the same. It’s why women and men both vote. But the principle of equality and consequently of equal respect is more pervasive than that. It’s the reason you care – or should care – about the way your fellow citizen is treated, politically speaking. Just as you don’t want to be subjected to arbitrary legal coercion for which there is, as far as you are concerned, no good justification, you also don’t want your fellow citizen to be treated that way either. Because we’re all equal, your fellow citizen, no less than you, is owed an explanation for why he or she is subjected to the laws that she is being asked to live by.

In short, the policies that you advocate need to be justified to your fellow citizen in the right way, or else you’re just coercing them and you’re not showing them proper respect as your equal.

20^th century political scientist Jown Rawls introduced the term overlapping consensus to describe the sorts of policies that are appropriate in a liberal democracy. Basically, the idea is that there are policies that are justified to you – justified by your own desires, beliefs, values goals, and so on. But of course the fact that they are justified to you doesn’t make them justified to anybody else. Everybody has their own set of beliefs, values, desires and so on, and their set makes a set of policies justified to them. Think of everybody’s set of justified policies as a large circle. Although it’s clear that these circles won’t share exactly the same outlines – because the liberal democracy is marked by pluralism – the fact that we share basic values, says Rawls, means that there will be considerable overlap. Think of all of us as a circle of beliefs, desires and values, and the area where we overlap in the middle is the area where those beliefs, values and desires overlap enough to support the same policies. There will, said Rawls, be an overlapping consensus on a range of policies. Those policies will be justified to all of us. To use Rawls’s language, there will be a consensus among reasonable citizens on a set of overlapping policy ideals, and it is those policies that meet the standard of justification that properly expresses respect for all our fellow citizens.

Before you support any policy with your vote – your voice as a citizen, Rawls says, it must be one that is justified to everyone else. The devil, however, is in the details. Rawls stressed that we’re only interested in the policies that our fellow citizens support in light of their reasonably held convictions, goals, values etc. And which beliefs, values, goals etc are reasonable? As good supporters of the liberal democracy, we don’t think racism is a reasonable set of values – or sexism. But what about socialism? Or strong views on private property rights and individualism? Or – and here’s where things get interesting – what about atheism? The father of classical liberalism, John Locke thought that atheism was such a despicable and dangerous view that it shouldn’t even be tolerated in a modern democracy. Or what about Islam? Or Buddhism? Or Christianity?

Part of the respect that is promoted in the modern liberal democracy is that we are accepting of pluralism. We don’t try to change the fact that we have pluralism, we accept that other people inhabit different circles and they are welcome to do so. Provided we take this open minded approach to what counts as a reasonable outlook, without imposing our beliefs upon others, the actual ground on which all those circles overlap starts shrinking.

Political philosopher Gerald Gaus was stating the obvious – even if slightly exaggerating – when he said “little, if anything, is the object of consensus among reasonable people.”[2] We recognise the danger in deferring too much to our fellow citizen, in a sense, showing them too much respect. If we give up our support of a policy just because there exists, somewhere, a reasonable person who doesn’t currently support it, the democratic state is likely to be paralysed.  What about same sex marriage? Which way should the law go? Should we use trade tariffs? Should charitable organisations – like churches – be tax exempt? Should churches be treated like charities? Should manufacturers and producers be required to regulate their business activities to take account of public concern over global warming? Is there a total consensus of reasonable people on any of these issues one way of the other? In fact there is not, and yet we do have policies one way of the other on these things, and we really can’t help doing so.

Let’s not swing too far the other way. We do want to respect our fellow citizens and not just coerce them with our will. But we have no power over what they accept and don’t accept. Justifying our policies to our fellow citizens in a way that treats them with adequate respect cannot mean that we can’t propose any policy that they don’t accept already. Just imagine advocating a policy on abortion only if it was supported both by those who believe in the sanctity of human life from conception and those on the extreme end of the pro-choice side of the issue, who think that even if the unborn child is a human person in the full sense, a mother has the right to terminate pregnancy at any stage. Good luck.

But if you don’t have to successfully convince people that your policy is the right one in light of what they believe and value, then what do you have to do? According to Gaus, and I think this moves us in the right direction, you have to idealise. You idealise or imagine away from what your fellow citizen is right now willing to accept, and you think of what, as far as you can tell, they – given what they now believe about reason and evidence – would accept if they were better informed and willing to fairly consider all the available reasons. As Gaus puts it when considering our hypothetical fellow citizen, Alf, to whom we owe a justification, “if Alf’s beliefs were subject to extensive criticism and additional information, does his viewpoint commit him to revise his beliefs?”[3] If so and if we offer reasons for him to think so, then we are doing our duty in terms of showing Alf that what we are proposing really does have something going for it. So according to this view, you’re not hamstrung by what your fellow citizen is currently willing to endorse. At the same time, you regard them as worthy of a justification and you offer them one in good faith – one that you are justified in believing that they should accept based on what they know and are capable of coming to understand, but recognising that they may in fact not accept it.

Where does this leave religion?

Once we’ve strengthened the notion of political justification to make it plausible and workable, we’ve got to sit back and ask, “OK, now does this actually leave us with any problems for policies that we support for religious reasons.” Take my stance on abortion or on marriage. Let’s say that I hold to my views on those issues for religious reasons – reasons that ultimately involve my beliefs about what God wants. Does that automatically mean that there is no form of justification that I could offer for those policies? Maybe – if we are pre-committed to the personal belief that there is no justification for any of these beliefs about God. If we assume that there are no reasons for our beliefs and hence our policies that we can give our fellow citizens, reasons that we reasonably believe that they should consider if they were open minded, willing to listen to reasons, consider all the arguments and evidence, and not reject considerations out of hand just because we’re talking about the supernatural.

But why assume that? To ask Christians to assume this is to basically ask them to assume that Christianity is intellectually indefensible. It may be that you think of religious faith as being irrational, unconcerned with reasons and basically being blind devotion. I regard that caricature as a symptom just the sort of ignorance and unfairness that modern secular liberals sometimes accuse religious people, ironically enough. Now, of course Christians realise that they aren’t going to successfully persuade everybody, just as defenders of a whole range of theories on ethics understand they aren’t going to actually persuade everybody, as scientists do also when it comes to one of their findings (but this should not stop them from urging people to support policies on, say, smoking, pollution or climate change). But to ask Christians to just assume that there exists no justification for their beliefs that they can offer is not neutral. It asks them to assume that at least some of their beliefs are false, namely their beliefs about just how defensible their beliefs are.

The fact is, the disagreement over whether or not any religious beliefs are properly justified is just as evident as the disagreement over religious beliefs themselves. To claim that religious convictions must not drive public reason, and to claim the justification test as our reason for this, is simply to take a controversial stance on religious matters. It is to veil an anti-religious bias in the name of neutrality.

In a liberal, pluralistic society, of course you are welcome to the private belief that all religious beliefs lack appropriate justification, and the belief that nobody should be convinced to hold them. But to require everybody else stay out of the political game altogether until they are prepared to live in accordance with that belief steps way over the line of what is acceptable in a free society. You are welcome to advocate policies that are compatible with your beliefs, as long as you are willing to engage your fellow citizen conscientiously, as an equal with you, only propose policies that are compatible with this doctrine of equality, and therefore genuinely offer your fellow citizen justifications for your policy that you think there are good reasons to accept. But to suppose that only people whose beliefs are not religious are morally permitted to do this is to manifest a kind of bigotry that has no place in a modern, pluralistic and democratic society.

A few weeks ago, as part of Jesus Week at the University of Auckland, Thinking Matters and Evangelical Union hosted an event entitled A Godless Public Square: Do ‘Private’ Christian Beliefs Have a Place in Public Life? This event was a conversation between Theology, Philosophy and Law and featured Matthew Flannagan - Analytic Theologian, Glenn Peoples - Philosopher and Madeleine Flannagan - Legal Scholar. The video is still being edited and will be available soon but for now, this 3-part series comprises the written speeches of each speaker.

Matthew Flannagan – Analytic Theology

Recently, many Christian ethicists have defended the central place of God’s commands in Theological ethics. In this talk I want to discuss one important objection to appeals to God’s commands; this is the claim that, while it is perfectly appropriate for believers to appeal to purported divine commands when regulating their private conduct or the conduct of voluntary religious communities who believe in such commands, it is morally wrong to appeal to theological beliefs of this sort in any discussion of social ethics. When doing Ethics as a public enterprise i.e. engaging in debates over social policy or offering criticism of cultural and social practices, Christian Ethicists are morally bound to only appeal to secular considerations. I will argue that this position, though widely accepted inside and outside of the church, is mistaken.

The Objection
So what is the problem with appealing to divine commands in social ethics? Christian theological convictions ought to impact the whole of life both in the private and public spheres; this is what is meant by the idea of an “undivided life”, where Jesus is Lord of all aspects of our lives.

Yet this consequence of Christian faith conflicts with a pervasive contemporary attitude: the view that that religion is fundamentally a private matter. It is accepted that a Christian is free to utilise theological convictions when they make decisions about their own life but in a pluralistic society it is increasingly deemed inappropriate to bring such convictions into public discussions about morality, law, politics, economics, education, scholarship and so on. The desire to influence society with Christian ideals or to convert others to the faith is viewed by many as an intolerant desire to impose one’s private views onto others.

It is widely accepted that theological convictions can govern churches and the private lives of believers yet we are told that the public square – government, public policy, the courts, the academy, education, business, arts, media, etc – should be secular only.The problem is nicely summarised by Stephen Carter Christian theological convictions ought to impact the whole of life both in the private and public spheres; this is what is meant by the idea of an “undivided life”, where Jesus is Lord of all aspects of our lives.

Yet this consequence of Christian faith conflicts with a pervasive contemporary attitude: the view that that religion is fundamentally a private matter. It is accepted that a Christian is free to utilise theological convictions when they make decisions about their own life but in a pluralistic society it is increasingly deemed inappropriate to bring such convictions into public discussions about morality, law, politics, economics, education, scholarship and so on. The desire to influence society with Christian ideals or to convert others to the faith is viewed by many as an intolerant desire to impose one’s private views onto others.

It is widely accepted that theological convictions can govern churches and the private lives of believers yet we are told that the public square – government, public policy, the courts, the academy, education, business, arts, media, etc – should be secular only.

This event looks at this issue. The conversation will span Theology, Philosophy and Law led by a panel made up of Christian representatives from each discipline along with you the audience:

“One good way to end a conversation – or start an argument – is to tell a group of well educated professionals that you hold a political position (preferably a controversial one such as being against abortion or pornography) because it is required by your understanding of God’s will. In the unlikely event that anyone hangs around to talk with you about it, chances are that you will be challenged on the ground that you are intent on imposing your religious beliefs on other people. And in contemporary political and legal culture, nothing is worse.”[1]

Carter cites the objection that appealing to God’s commands in public moral debate involves imposing one’s religious beliefs onto other people, and points out that such impositions are morally wrong. Note that the objection is not that such divine commands do not exist or that it is irrational to believe that they do. The objection is a specifically moral one. It is morally wrong to appeal to such beliefs; doing so violates a moral obligation people have to not impose their religious beliefs onto others. Something like this moral objection is widely held, both inside and outside the church. In response to this I will make four points.

I

First, unqualified, the claim it is wrong to impose your moral beliefs onto others is problematic. Consider acts such as rape, assault or infanticide. I personally believe each of these practices is wrong for me to engage in and I support the commission of these acts being considered a crime punishable by the state. However, if it were wrong to impose moral beliefs onto others then my position on rape, assault or infanticide would be unacceptable. I would have to leave others free to choose whether they wished to rape, assault or kill children – to do otherwise would be to impose my moral beliefs onto others.

II

So there cannot be an unqualified obligation to not impose one’s beliefs onto other people. This brings me to my second point. Carter’s example is not unqualified. It explicitly mentions religious beliefs about what God wills. Carter alludes to what Richard Rorty dubbed as:

“The happy, Jeffersonian compromise that the Enlightenment reached with the religious. This compromise consists in privatizing religion — keeping it out of … ‘the public square,’ making it seem bad taste to bring religion into discussions of public policy.”[2]

A particularly rigorous elaboration of this stance comes from Robert Audi. Audi argues that one should not advocate any “[policy] restrictions on human conduct unless one has, and is willing to offer an adequate secular reason for this advocacy or support”.[3]  By ‘secular reason’ he meant a reason that “does not depend on the existence of God (such as through a divine command) or on theological considerations (such as a sacred text)”.[4] So qualified, the objection is that religious believers have a moral obligation to not advocate policies or positions that restrict others on the basis of beliefs about God’s commands. In discussions in public they are to appeal to secular premises that do not invoke God, scripture or specific theological authorities.

III

This brings me to my third point; why single religious out beliefs in this way? If there is no general obligation to refrain from imposing one’s beliefs onto others then why are religious beliefs different in this respect? By limiting the moral restriction to religious beliefs and allowing non-theological secular beliefs to play a role in public discourse that religious beliefs do not, Audi’s position shows that “There is an important asymmetry between religious and secular reasons in the following respect: some secular reasons can themselves justify state coercion but no religious reason can.”[5] Audi’s position appears to privilege secular ideologies and doctrines in public debate whilst relegating religious or theological perspectives to the private sphere. But why are theological beliefs singled out in this way? Three lines of argument seem to be common.

1. Wars and Conflict

The first is an appeal to religious wars and violence. It is contended that the only way to keep social peace and prevent the kind of violence that Europe witnessed in the 17^th century is to adopt a moral rule requiring that all political discussions take place on secular terms and that religious reasons be bracketed from such discussions.

However, this assumes that appeals to theological moral beliefs cause wars and appeals to secular reasons protect us against such wars. This is dubious. Christopher Eberle and Terence Cuneo note that the religious wars of the 17^th century were caused not by the appeal to religious reasons per sé but rather by the violation of religious freedom. Moreover, even in the 17^th century, religious persecution was typically justified on secular grounds. In addition, they note that some of the most important defences of religious persecution and defences of religious tolerance, such as those proposed by John Locke and Pierre Bayle, appealed to explicitly theological grounds.[6]

Nicholas Wolterstorff makes a similar point, he notes that much of “the slaughter, torture, and generalised brutality of our century has mainly been conducted in the name of one or another secular cause–nationalism of many sorts, communism, fascism, patriotisms of various kinds, economic hegemony.”[7] He also stated that “many of the social movements in the modern world that have moved societies in the direction of liberal democracy have been deeply and explicitly religious in their orientation.”[8] He cites examples such as the abolitionist and civil rights movements and various other resistance movements as examples.

The point is that secular and theological reasons are on par in this respect. Particular types of religious reasons in particular political contexts can lead to wars and abuse, whereas appealing to other types of religious reasons in other contexts can be beneficent. Similarly, certain types of secular reasons can be dangerous in particular contexts and other types of secular reasons are not. To single religious reasons out as being ‘too dangerous to be aired in public’ and insisting on a default to secular reasons seems ad hoc and unjustified.

2. Division

Similar things can be said about the objection that appeal to theological premises will be divisive. Robert Adam’s notes  “nothing in the history of modern secular moral theory gives us reason to expect that general agreement on a single comprehensive moral theory will ever be achieved or that, if achieved, it would long endure in a climate of free inquiry. His conclusion is that “the development and advocacy of a religious ethical theory, therefore, does not destroy a realistic possibility of agreement that would otherwise exist”.[9]

3. Pluralism

The main reason offered for excluding theological premises from public debate is that not everyone accepts the truth of such premises. Any policy decisions based on a purported divine law would be binding upon these people in spite of the fact they do not accept theological doctrines or that they do not accept these theological doctrines.

Michael Tooley states, “For it is surely true that it is inappropriate, at least in a pluralistic society, to appeal to specific theological beliefs … in support of legislation that will be binding upon everyone.”[10] Audi argues, “as advocates for laws and public policies, then, and especially for those that are coercive, virtuous citizens will seek grounds of a kind that any rational adult citizen can endorse as sufficient for the purpose.”[11] [Emphasis added]

One obvious problem with this line of argument is that exactly the same thing can be said about many secular, non-theological, beliefs. Phillip Quinn articulates this point,

“…If the fact that religious reasons cannot be shared by all in a religiously pluralistic society suffices to warrant any exclusion of religious reasons for advocating or supporting restrictive laws or policies, then much else ought in fairness also to be excluded on the same grounds.”[12]

Quinn notes correctly that secular moral theories such as Utilitarianism or Kantianism, Intuitionism, Socialism, Libertarianism, can all be reasonably rejected in a philosophically-pluralistic society.

“Indeed, it would seem that the appeal to any comprehensive ethical theory, including all known secular ethical theories, should be disallowed on the grounds that every such theory can be reasonably rejected by some citizens in a pluralistic democracy. And if justification of restrictive laws or policies can be conducted only in terms of moral considerations no citizen of a pluralistic democracy can reasonably reject, then in a pluralistic democracy such as ours very few restrictive laws or policies would be morally justified, a conclusion that would, I suspect, be welcome only to anarchists.”[13]

If we are to exclude appeals to theological beliefs because not all reasonable people accept such beliefs then we should be consistent and exclude from public discussion appeals to all secular moral, political, philosophical, beliefs about which reasonable people do not agree. This would gut public discussion of any substantive content.

IV

My final point is that suppose a religious person does, as Carter mentions, take a “controversial political position … because it is required by their understanding of God’s will”? The objection Carter mentions is a specifically moral one, the objection is not that such divine commands do not exist, or that it is irrational to believe that they do.

On the face of it, this seems very odd. The objection entails that a person can be morally obligated to act contrary to what he rationally and correctly believes God’s will requires of him. A person who believes that a rational, all knowing, perfectly just and loving person requires a certain action of him is morally obligated to not take that action in public.

Normally when one assesses a moral question one should take into account all the relevant information – not just some of it. If it is true that God has issued certain commands, and this is relevant to the question, then it would be prima facie irrational to not take these factors into account.

The Christian believes her theological beliefs are true, and the objector does not contest this. Further the objection is not that her belief in such commands is irrational or subject to philosophical difficulties. The objector contends that, even if the Christian’s beliefs are true, and rationally believed, she is morally obligated to ignore them in such discussions.

This entails that when doing social ethics believers are morally required to act in accord with beliefs they rationally believe to be false. The objector appears to suggest that, in a pluralistic society, believers can hold certain beliefs as true in private but in public they must deny these beliefs; even though these beliefs may be both true and rationally held. This would seem to force believers to live a divided life where their intellectual and religious commitments are incoherently compromised. I contend that there is no good reason for thinking believers are under any moral obligation to do this.

If God truly is sovereign then his commands govern the whole of life, both private and public; believers should strive to live an undivided life of loyalty to him. The fact that other people do not share this commitment does not entail that it is wrong for them to follow it.

Part II of A Godless Public Square: Do ‘Private’ Christian Beliefs Have a Place in Public Life? features Glenn Peoples’ talk from the perspective of Philosophy.

The first two sentences of the document exhibit a confusion which is inherent throughout (and commonly found in discussions of church and state):

“The NZARH strongly believes that government should be secular; that is dealing with the issues of this world rather than following a religious agenda. Our law should not give one set of beliefs privilege over another and the state should treat religious organisations the same as any other organisation.”

An equivocation on the meaning of the word “secular” in the very first sentence is immediately apparent.

Stephen Smith notes that the word secular has two distinct meanings. Etymologically, “secular” refers to things pertaining to this world and life as opposed to the next. In this sense of the word “secular” is not opposed to religion; many religious beliefs and values pertain to life in this world, beliefs about: marriage, sex, human life, killing,  justice for the poor, what one’s duties are in this life, what God’s purposes are in this life and so on are all secular beliefs in this sense. The second and more common meaning of “secular” is to say it excludes, is in opposition to beliefs and values that are religious in nature; this is usually the first definition one will find in a dictionary.

The NZARH use both meanings in the first sentence of their “Tolerant Secular State” document. They start by defining secular in the first of these senses, in terms of “dealing with the issues of this world.” The switch to the second definition occurs immediately in the claim that a secular state must not follow a “religious agenda.” From what the NZARH subsequently argues it is clear that this second sense is what it really has in mind as much of what it says simply does not follow from the first sense.

It is important to note here what the NZARH mean by “privilege” in ”our law should not give one set of beliefs privilege over another.” The NZARH specifically mean that the viewpoint of religion must not be a source of law or public policy and by implication, cannot be a motivation or a justification for a source of law or public policy. If this is not what they mean by privilege then their argument makes no sense; the claim that the government must not follow “a religious agenda” and must “be secular” is supported by the contention that religious beliefs should not be privileged. If basing a law on a religious agenda is not privileging it then the argument does not follow.

That clarified, the NZARH’s argument is essentially:

1) The government should be secular, not religious;

This means the state should make a clear distinction between secular views and non-secular views and it should treat them differently. It should base its policies on the former type of view and not the latter. As such, on the understanding of “privilege” outlined above, the State should privilege secular beliefs over religious ones.

The basis for this is that,

2) Our laws should not privilege any one view over another, the state should treat religion the same as any other view.

So let us get this straight. Secularism is a type of viewpoint that 1) the NZARH seeks to privilege over religion but then 2) states that viewpoints must not be privileged.

Of course, if one assumes from the outset that secularism is not a specific view and is somehow some kind of neutral position that everyone can subscribe to then the statements read together might make sense but that is an erroneous assumption.

Secularism is a Viewpoint under New Zealand Law
The New Zealand Bill of Rights Act (1990), which the NZARH’s “Tolerant Secular State” document holds out as “key legislation that upholds the principles of the fair and tolerant society” identifies and treats secularism as a view or a set of beliefs. The Bill of Rights has three relevant sections:

13 Freedom of thought, conscience, and religion
Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.
14 Freedom of expression
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
15 Manifestation of religion and belief
Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

The gist of these three sections is that in New Zealand anyone can form and identify with whatever belief, viewpoint or idea they please, find out more about it, discuss and share it with others and act in accord with it, in public as well as private, as long as they do so with regard to the other rights present in the Bill of Rights. What a lot of people miss however is how the Bill of Rights treats viewpoints.

Section 13 is typically thought of as the Freedom of Religion section. But read it closely you’ll see that “thought”, “conscience”, “religion” and “belief” are listed – all described as “opinions” not religious views. Had the drafters wished to make s13 solely a religion section then they would have kept the language that of religious terminology only.

Sections 14′s “information and opinions of any kind and in any form” and s15′s “religion and belief” tell us that under New Zealand law non-religious beliefs are intended to be treated and dealt with by the state in precisely the same way as religious beliefs.

This is backed up in the various commentaries and government documents that have been published on these sections of the Bill of Rights – here are a couple from New Zealand Human Rights Commission Documents. (I note that the NZARH’s Tolerant Secular State document also praises the Human Rights Act 1993 which was the source of law which created the Human Rights Commission). The first is speaking of the New Zealand Bill of Rights Act 1990;

“What religions or beliefs are covered?
Religion or belief includes mainstream religions, minority or atheistic beliefs and the right not to have a belief.”

[The Right to Freedom of Religion and Belief]

This one is a reference to the International Bill of Rights of which New Zealand has bound itself by and which is widely acknowledged to form part of the source of  the wording and meaning of our Bill of Rights:

“What is the right to freedom of religion and belief?
The right to freedom of religion and belief includes the right to hold a belief, the right to change one’s religion or belief, the right to express one’s religion or belief, and the right not to hold a belief. The right to believe is not limited to religion. It also includes atheistic beliefs, as well as matters of conscience such as pacifism and conscientious objection to military service.”

[Chapter 9: The right to freedom of religion and belief]

Evidence that these sections of the Bill of Rights Act were intended to include non-religious beliefs such as atheism, agnosticism, humanism, secularism, etc and place them on par can be found in this document put out by the Ministry of Justice, “The Guidelines on the New Zealand Bill of Rights Act 1990: A Guide to the Rights and Freedoms in the Bill of Rights Act for the Public Sector:”

Further discussion on the meaning of section 13
The protection in section 13 is far-reaching. The section is likely to include “freedom of thought on all matters, personal conviction and the commitment to religion or belief“. The freedom extends to thoughts and beliefs of any kind including theistic, non-theistic and atheistic beliefs.

…

How should I interpret the term ‘religion or belief’?
The United Nations Human Rights Committee states the terms “religion” and “belief” should be interpreted broadly to include theistic, non-theistic and atheistic beliefs. The protection in section 15 extends beyond obligatory doctrine and applies to all religions and beliefs, even those without the established doctrines and customs of traditional religions.

Now given the NZARH’s principle 2) that no one view should be privileged over another, all views should be treated equally, this is all perfectly compatible but this reading of the Bill of Rights Act (and the International Bill of Rights) conflicts radically with the NZARH principle 1). It also radically conflicts with the vision for New Zealand that the NZARH have clearly held out as aspirational in the six examples they identify in their document as areas of public life which need improving on. Their proposed solutions for the examples they have set out clearly demonstrate a call for one view (theirs) to be significantly privileged over another.

The most telling is their section on education which I will now briefly fisk:

“The New Zealand public education system was set up to be secular and still is in most cases.”

The education system must inculcate one type of viewpoint alone: secular views and not non-secular views.

“There are however too many cases where those running a school try to force their own beliefs on their students through religious observance.”

But it is ok for secular beliefs to be forced on students through the inculcation of unchallenged secular viewpoints in the classroom.

“The Education Act (1964) has incorporated a loophole to allow primary schools to “close” sections of the school for religious instruction where outside volunteers indoctrinate the children whose parents haven’t opted them out.”

and

“The NZARH strongly believes that public education should be free, secular and available equally to all children.”

The teaching of secular viewpoints are to be taught at all times, to all children – teachers can teach no other viewpoint. Religion can only figure if the school is willing to close and volunteers are available and parents choose to not opt students out. This is an extremely asymmetrical treatment of two types of viewpoints, secular viewpoints and religious viewpoints but even this asymmetry is not good enough for the NZARH, they want to tip the weight even further towards the bias of secularism, they strongly believe that all state funded education should be secular. Any citizen who wishes for an alternative to their view must pay more than citizens who do not.

As Paul Rishworth, Professor and outgoing Dean of Law at the University of Auckland, an expert in New Zealand’s Rights and Freedoms law, stated to the Human Rights Commission’s Diversity Forum on Religion in Schools:

Though I am perhaps the only person in the world who has not read Harry Potter, the point is well made in an extract from the seventh and last volume (p. 210):

“What’s Voldemort planning for Hogwarts?” she [Hermione] asked Lupin. “Attendance is now compulsory for every young witch and wizard,” he replied. “That was announced yesterday. It’s a change, because it was never obligatory before. Of course, nearly every witch and wizard in Britain has been educated at Hogwarts, but their parents had the right to teach them at home or send them abroad if they preferred. This way, Voldemort will have the whole Wizarding population under his eye from a young age.”

“One good way to end a conversation – or start an argument – is to tell a group of well educated professionals that you hold a political position (preferably a controversial one such as being against abortion or pornography) because it is required by your understanding of God’s will. In the unlikely event that anyone hangs around to talk with you about it, chances are that you will be challenged on the ground that you are intent on imposing your religious beliefs on other people. And in contemporary political and legal culture, nothing is worse.”[1]

Carter is referring to the separationist understanding of religion and public life, the idea that in a contemporary pluralistic society significant restraint must be put on the political role of religious reasons. This restraint is negative; when a functionary deliberates over a proposed policy it is not justified for that functionary to decide to support or oppose that policy on grounds derived from religion. A corollary of this is that citizens should not try to influence public policy by appealing to religious reasons. Separationists argue that the public policy of a pluralistic society must be able to be justified by a plausible secular justification in order for it to be just to all. Religious beliefs, while utilised and followed in private, should be kept separate from public policy debates, the administration of public institutions and the deliberation of public functionaries.

Dominant advocates of this view include philosophers John Rawls, Robert Audi, Gerald Gaus and Jürgen Habermas. In “Religion as a Conversation-Stopper” Richard Rorty described separationism as:

“the happy, Jeffersonian compromise that the Enlightenment reached with the religious. This compromise consists in privatizing religion — keeping it out of … “the public square,” making it seem bad taste to bring religion into discussions of public policy.”[2]

Advocates for religious restraint typically claim that it need not be codified. It is simply a moral requirement which applies to all citizens regardless of their role within society — some form of censure rather than legal stricture is what is suggested. This is what Rorty means when he refers to it being “bad taste” to bring religion into the public square. Notwithstanding the separationists stated intention, in my thesis I will argue that this call for religious restraint is not simply theoretical philosophy, which is present in society only by way of self-imposed moral restraint or the sort of peer-pressure Carter’s quote alluded to. I will argue that the norm of religious restraint is increasingly present in our public policy and jurisprudence.

Rorty alluded to Jefferson’s famous “Wall of Separation Letter” where Jefferson set out his understanding as to how the First Amendment’s Establishment Clause should be interpreted. Tellingly, this suggests a link between the separationist philosophy and the way the religious freedom components of Bills of Rights are interpreted. These components address the very same questions I opened with; how should religion fit into a just pluralistic society? The purported answers are commonly given in slogans, “freedom of religion”, “free exercise”, “freedom to manifest one’s religion” and statements declaring the separation of church and state, opposing Establishment and so on. I say ‘slogans’ because such clauses are typically light on detail; fleshing out what they mean and how they are to apply at a practical levels, to specific cases falls to the commentators, the lawyers who propose particular interpretations in their submissions and ultimately the judiciary. The resulting body of jurisprudence reflects the perspectives of the dominant views in society.

Consider the US Supreme Court’s three leading Establishment Clause precedents: Lemon, Endorsement and Coercion. The first of the three parts of the Lemon Test requires public policy to have a valid secular purpose, a non-religious rationale must be offered for all state actions. The Endorsement Test prohibits the state from “endorsing” religion over irreligion. The Coercion Test provides that the state must not coerce religious practice; not only must it not be required, but in Lee v Weisman the application was shifted to what Justice Scalia, in his dissent, termed a “test of psychological coercion”. The US Supreme Court essentially took the view that being one of few (or the only one) to opt out of a religious practice in a public setting was considered a form of state coercion by peer pressure. I will argue that in each of the dominant Establishment tests, a requirement for the state to place a restraint on religion or for religion to be kept from public life can be seen. This stricture affects public policy and is essentially separationism in codified form.

Despite its current orthodoxy, separationism has its critics, particularly in philosophy and law. These critics collectively hold that although separationism claims to operate impartially, it, in fact, gives public hegemony to secular perspectives. Critics argue that the call for religious restraint is unjust for religious citizens as it requires conformity to secularism and thus privileges secularism over religion. Philip Quinn observes;

These principles impose burdens on religious people that [the separationist] nowhere suggests imposing on nonreligious people. … [The separationist] does not propose that nonreligious people must be sufficiently motivated by adequate religious reason for their advocacy or support of restrictive laws or policies. The lack of symmetry is striking.[3]

Christopher Eberle, Terence Cuneo agree there is a clear asymmetry in the way religious beliefs are treated by the state compared with secular beliefs. They question why religious believers, who participate in public, are required to bracket beliefs they hold as both true, important and relevant to the issue; Stephen Carter labels this “[t]he separation of church and self.”[4] Nicholas Wolterstorff argues that separationism violates the equal freedom component of a pluralistic democratic society, “Using their religious convictions in making their decisions and conducting their debates on political issues is part of what constitutes conducting their lives as they see fit.”[5][Emphasis added] Philip Devine point out that “Freedom of religion is not only the freedom to advocate religious (or irreligious) ideas; it is the freedom to form, sustain, participate in, and transmit, forms of community life”.[6] Yet separationists maintain that some form of religious restraint is not only in accord with the notion of liberal democracy but essential to it. As Rorty put it, “we shall not be able to keep a democratic political community going unless the religious believers remain willing to trade privatization for a guarantee of religious liberty.”[7]

The dominant tests seek to apply a reading of Jefferson’s “Wall of Separation Letter”; but in an article in First Things entitled “Establishing Free Exercise,” Vincent Phillip Muñoz argues that James Madison, the author of the First Amendment and a noted authority on the subject, did not intend this;

“When editing the religious freedom amendment to Virginia’s state Bill of Rights, Madison proposed the following:

‘That religion or the duty we owe to our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not violence or compulsion, all men are equally entitled to the full and free exercise of it accord[in]g to the dictates of conscience; and therefore that no man or class of men ought, on account of religion to be invested with peculiar emoluments or privileges, nor subjected to any penalties or disabilities.’

Madison interpreted “free exercise” to mean no privileges and no penalties on account of religion.”[8][Emphasis added]

Munoz argues that Madison’s “no privileges, no penalties” test could unify “the no-establishment and free exercise provisions into a coherent whole that recognizes the legitimate concerns of both sides of the debate while, at the same time, respecting our nation’s founding heritage.”[9]

“no privileges, no penalties” would not require forays into students’ psychological feelings. Judges would not need to inquire if school children feel like “insiders” or “outsiders,” or if a child might perceive the state to be “endorsing” religion, which are necessarily subjective judgments. Courts would only need to ask if, on account of religion, religious citizens as such were granted a material benefit or if nonreligious citizens were subject to a penalty like a fine or imprisonment. For Newdow, the relevant question is: Was Michael Newdow’s daughter subject to some form of disciplinary action because she would not say the Pledge? Since she was not, the Pledge stands.”[10]

The “no privileges, no penalties” test upholds freedom of religion and separation of church and state by essentially permitting religion to have a place in public life as long as those who engage in public religious conduct do not gain a privilege for doing so and those who do not wish to participate are both free to opt out and are not penalised for doing so. Interestingly, the New Zealand jurisdiction’s approach, within the limited cases to date – where as long as one can ‘opt out’ of a religious practice there is no coercion, has some affinity or parallel with a “no privileges, no penalties” approach. Munoz’s appropriation of Madison has the potential to be a just way forward in both the debate within philosophy and in law. It does not have the privatising effect on religion that the dominant tests do, neither does it have the asymmetry.

I have this week been accepted into the University of Auckland’s LLM program. In 2011 I will start my studies towards a Masters of Law by thesis-only. This blog post is part of the proposal I have submitted to write it on – it may change as my supervisors and I work things out but this is the gist of what is in my head. I’d love to hear your thoughts – it will help get me thinking on where I am going with this!

RELATED POSTS:
Contra Mundum: Secularism and Public Life
Religious Restraint and Public Policy: Part I
Religious Restraint and Public Policy: Part II
Religious Restraint and Public Policy: Part III
Religious Restraint and Public Policy: Part IV
Religious Restraint and Public Policy: Part V
Religious Restraint and Public Policy: Part VI

[1] Stephen Carter The Culture of Disbelief: How American Law and Politics Trivialise Religious Devotion (1993) 23-24.
[2] Richard Rorty “Religion as a Conversation-Stopper” (1994) 3:1 Common Knowledge 1, 2.
[3] Philip Quinn “Religion in the Public Square: The Place of Religious Convictions in Political Debate” (2000) 60:2 Philosophy and Phenomenological Research 487 (book review).
[4] Carter, above n 1, 1.
[5] Nicholas Wolterstorff “The Role of Religion in Decision and Discussion of Political Issues” in Nicholas Wolterstorff & Robert Audi (eds) Religion in the Public Square: The Place of Religious Convictions in Political Debate (1997) 77.
[6] Philip Devine We: A Study in Social and Political Philosophy, Ch 10 accessed 10 December 2010.
[7] Rorty, above n 2, 3.
[8] Vincent Phillip Muñoz “Establishing Free Exercise” First Things (January 2004) 139-142, 141.
[9] Ibid 139.
[10] Ibid 142.

One good way to end a conversation – or start an argument – is to tell a group of well educated professionals that you hold a political position (preferably a controversial one such as being against abortion or pornography) because it is required by your understanding of God’s will. In the unlikely event that anyone hangs around to talk with you about it, chances are that you will be challenged on the ground that you are intent on imposing your religious beliefs on other people. And in contemporary political and legal culture, nothing is worse.

Carter puts his finger on an important perspective which is pervasive in contemporary liberal societies. This is the view that citizens of liberal democracies may justly support the implementation of a law only if they reasonably believe themselves to have a plausible secular justification for that law. Further, they must be willing to appeal to secular justifications alone in political discussion. The upshot of this perspective is that it is perceived to be unjust to support or advocate for laws for theological or religious reasons.

I will refer to this position as secularism, the commitment to the position that the public square should be secular. The secularisation of political culture is, of course, an implication of accepting this position.  Richard Rorty described it as,

The happy, Jeffersonian compromise that the Enlightenment reached with the religious. This compromise consists in privatizing religion — keeping it out of … “the public square,” making it seem bad taste to bring religion into discussions of public policy.

My experience as a New Zealand citizen is that secularism is widely held and taken for granted in our culture by media, politicians and popular culture. I also think, perhaps predictably, that secularism of this sort is questionable.

Let me begin by pointing out that several writers have observed that prima facie there is something unfair or discriminatory about secularism. Contemporary critics of secularism, Christopher Eberle and Terence Cuneo, note that it entails “There is an important asymmetry between religious and secular reasons in the following respect: some secular reasons can themselves justify state coercion but no religious reason can.”

Another critic, Philip Quinn, observes that secularists impose “burdens on religious people” that they nowhere suggest “imposing on nonreligious people.” Secularists do “not propose that nonreligious people must be sufficiently motivated by adequate religious reason for their advocacy or support of restrictive laws or policies. The lack of symmetry is striking.”

This raises an obvious question, why the asymmetry? On the face of it secularism appears to privilege secular ideologies and doctrines in public debate whilst relegating religious or theological perspectives to the private sphere.  What is the basis for this? Two reasons are typically offered and neither is terribly compelling.

The first is that it is dangerous to allow theological or religious concerns into public debate. Defenders of secularism raise the specter of the wars of religion that tore Europe apart during the 17^th century or they mention episodes such as the Inquisition and Crusades, which are said to be consequences of allowing religious reasons to influence public and political life. It is argued that the only way to keep social peace and prevent the kind of violence that Europe witnessed is to ensure religious reasons do not influence public life and that all political discussions take place on secular terms.

This argument assumes that appeal to religious reasons is the cause of religious wars and appeals to secular reasons protect us against such wars. Writing in the Stanford Encyclopedia of Philosophy, Eberle and Cuneo note that the religious wars of the 17^th century were caused not by the appeal to religious reasons per se but rather by the violation of religious freedom. Moreover, they note that even in the 17^th century, religious persecution was typically justified on secular grounds. They go on to observe that religious freedom is not necessarily safeguarded by secularising public debate. They note that many “secularists have a long history of hostility to the right to religious freedom and, presumably, that hostility isn’t at all grounded in religious considerations” In addition, they note correctly that some of the most important defences of religious persecution and defences of religious tolerance, such as those proposed by John Locke and Pierre Bayle, appealed to explicitly theological grounds.

Yale philosopher Nicholas Wolterstorff makes a similar point, he notes that much of “the slaughter, torture, and generalised brutality of our century has mainly been conducted in the name of one or another secular cause–nationalism of many sorts, communism, fascism, patriotisms of various kinds, economic hegemony.” He also stated that “many of the social movements in the modern world that have moved societies in the direction of liberal democracy have been deeply and explicitly religious in their orientation.” Wolterstorff cites examples such as the abolitionist, civil rights and various other resistance movements as examples.

The assumption that secular reasoning is always tolerant and religious reasoning is always intolerant does not survive scrutiny. Particular types of religious reasons in particular political contexts can lead to wars and abuse, whereas appealing to other types of religious reasons in other contexts can be beneficent. The same is equally true of secular reasons. Certain types of secular reasons can be dangerous in particular contexts and other types of secular reasons are not. To single religious reasons out as being ‘too dangerous to be aired in public’ and insisting on a default to secular reasons seems ad hoc and unjustified.

The fear of religious wars is not the only argument typically offered for the secular public square. The main reason offered for secularism is that religious reasons are not accessible to all people. Auckland Law Professor Paul Rishworth observes, “some have contended that the nature of religious belief is such that, while it may be integral to individual autonomy and development, it has no proper role in public policy debates and that these ought to be conducted exclusively in secular terms that are equally accessible to all.” [Emphasis added]

Something like this is also evident in defences of secularism. Leading secular Philosopher Michael Tooley states, “For it is surely true that it is inappropriate, at least in a pluralistic society, to appeal to specific theological beliefs of a non moral sort… in support of legislation that will be binding upon everyone.” Robert Audi, one of the leading defenders of secularism, states “as advocates for laws and public policies, then, and especially for those that are coercive, virtuous citizens will seek grounds of a kind that any rational adult citizen can endorse as sufficient for the purpose.” [Emphasis added]  In essence, because not everyone in society accepts the existence of God or some theological perspective on life then it is unjust to base laws governing their conduct on theological or religious grounds.

This argument is deeply flawed. If taken consistently it would require not just the exclusion of religious reasons but the exclusion of any reasons that were controversial and not accepted by all people. The problem is that many secular justifications and ideologies are also controversial in the same way. Quinn makes the point,

If the fact that religious reasons cannot be shared by all in a religiously pluralistic society suffices to warrant any exclusion of religious reasons for advocating or supporting restrictive laws or policies, then much else ought in fairness also to be excluded on the same grounds.

He goes on to note,

Indeed, it would seem that the appeal to any comprehensive ethical theory, including all known secular ethical theories, should be disallowed on the grounds that every such theory can be reasonably rejected by some citizens of a pluralistic democracy. And if justification of restrictive laws or policies can be conducted only in terms of moral considerations no citizen of a pluralistic democracy can reasonably reject, then in a pluralistic democracy such as ours very few restrictive laws or policies can be morally justified, a conclusion that would, I suspect, be welcomed only by anarchists. [Emphasis added]

I agree with Quinn. There is special pleading going on whereby theological beliefs are rejected on certain grounds, while secular ones are not, even though the same grounds and reasons, consistently applied, should lead to the rejection of secular beliefs.

On examining secularism and the main arguments for it, it certainly is not evident that a just or fair society will have a secularised public square. To insist this is the case prima facie seems to favour secular views of the world for no adequate reason. Contrary to what some maintain, secular reasons, like religious reasons, can be used to justify atrocities and human rights abuses. Further, like religious reasons, secular reasons are frequently controversial and not shared by all intelligent people. Of course, secularists might consider religious views of the world to be false but then, of course, religious people consider secular views of the world to be false and given the diversity of secular moral theories on offer they cannot all be true (some are at odds with each other) so why single out religious views? The question remains as to why morality requires that public discussions privilege secular perspectives by requiring that all such discussions are engaged in on secular terms.  I suspect we will be waiting a long time for an answer.

[In this article I acknowledge being influenced by my wife Madeleine Flannagan’s supervised research paper “Religious Restraint and Public Policy” which she wrote under the supervision of Professor Rishworth, the Dean of the University of Auckland’s School of Law.]

I write a monthly column for Investigate Magazine entitled Contra Mundum. This blog post was published in the June 10 issue and is reproduced here with permission. Contra Mundum is Latin for ‘against the world;’ the phrase is usually attributed to Athanasius who was exiled for defending Christian orthodoxy.

Letters to the editor should be sent to: editorial@investigatemagazine.DELETE.com

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B          The Dangers of Religion

One explanation as to why this asymmetry is applied to religious reasons is offered by Quinn; “Some people fear that religious argument is apt to be dangerously divisive.”[82] Audi concurs, “[religious reasons] are special in relation to liberal democracy even by contrast with [secular reasons] … that are not accessible to any normal adult.” [83] He gives five “salient points” to support his case, all based on the idea that religious reasons are dangerous to society. [84]

First Audi claims that religious reasons are often “directly or indirectly taken to represent an infallible authority”.[85] The second point is that religious people often “believe that anyone who does not identify with [the ultimate divine source] is forsaken, damned, or in some other way fundamentally deficient.”[86] Third, “religious reasons often dictate practices that are distinctively religious in content (such as prayer) or intent (such as preserving the fetus on the ground that it is a gift from God)”.[87] Fourth, with many religious leaders, especially leaders of cults, there is a risk that they are “cloaking their prejudices with absolute authority.”[88] Finally, Audi contends that religious people tend to be “highly and stubbornly passionate about the importance of everyone’s acting in accordance with religious reasons”.[89]

Again these features are not unique to religion. As McGrew argues, all these features can be equally present in secular people and movements;[90]

It is sadly amusing to read this list and to consider how well its negative aspects apply to secular people and movements. Communism, for example, is as fanatical as any conventional religion and demands group-think on an unrivaled scale. Contemporary feminism aspires to control worldview, language, and behavior. The New Atheists are exceedingly passionate about making people behave in accordance with their own beliefs (making sure children are taught Darwinism as unquestioned fact, for example), and Richard Dawkins and P.Z. Myers have an inflated sense of self-importance that would make many a Christian megachurch pastor look modest by comparison. Dawkins is infamous for having repeatedly and insistently called a religious upbringing “child abuse,” and while Dawkins has shied away from the obvious legal implications of this accusation, not everyone who thinks as he does is so cautious. Other secularists, self-styled “comprehensive liberals,” have expressly advocated the use of the power of the state to monitor and limit parents’ ability to transmit their religion to their children (see Hitchcock, 2004). As for the vicious condemnation of children who do not fully conform to their parents’ secular ideology, a good example of this phenomenon is the strange story of Rebecca Walker, daughter of feminist icon Alice Walker. And, on the other hand, there are plenty of religious people who do not display such negative characteristics. It simply does not appear to be true that we reduce fanaticism, self-important leadership, attempts at thought control, and the like in society by reducing the role of religion in public life.

McGrew suggests there are secular analogues of even Audi’s third reason, that religious reasons often dictate practices that are distinctively religious in content or intent;[91]

It would certainly be undesirable if people were being coerced to pray to any God, even the true God. But then, secular ideology can and sometimes does demand that we do homage to itself—in the form of changing our language to make it politically correct, for example, or treating two men or two women as “married” in all of our business activities. The problem with forcing people to pray to the true God is that the true God is not truly worshiped in that fashion. The problem with forcing people to pray to false gods and to pledge allegiance to false ideologies is that they are false. You will not avoid the problem of the coercion of conscience by limiting the role of religion in public life. You will only shift that problem so that the unreasonable coercion comes from some quarters rather than others.

Audi’s first point invites a parallel rejoinder. He defines infallible propositions as those that are “impossible that they be both endorsed or accepted by God and false”.[92] On this definition of infallibility every proposition is infallible. God, as Audi understands him, is omniscient. God only believes true propositions. It follows then that any proposition God accepts cannot be false; this is true whether it is a religious proposition or a secular one.

Audi’s main concern is that a person who believes an action is commanded by God believes that an omniscient, infallible being has endorsed that action. Appeals to purported divine commands are therefore problematic. However, some secular ethical theories face precisely the same problem.  One of the most influential secular theories, endorsed by ethicists as diverse as David Hume, Adam Smith, Henry Sidgwick, Richard Hare, Roderick Firth, John Stuart Mill, Tom Regan, Richard Brandt, Immanuel Kant and others, is the ideal observer theory. On this theory an action is wrong, if and only if, it would be proscribed by an ideal observer, by a person who is perfectly impartial and perfectly informed on all the relevant facts. A hypothetical ideal observer is no less infallible than religious believers take God to be. It is hard to see how invoking religious reasons is not acceptable but invoking the secular reasons is.[93]

C         Argument from Religious Wars
A more forcible danger of religion argument invokes the spectre of religious wars. Audi states “if religious considerations are not appropriately balanced with secular ones in matters of coercion, there is a special problem: a clash of Gods vying for social control. Such uncompromising absolutes easily lead to destruction and death”[94] Wolterstorff articulates the concern;[95]

One reason which liberals have offered ever since the emergence of liberalism in the seventeenth century is that it’s just too dangerous to let religious people debate political issues outside of their own confessional circles, and to act politically, on the basis of their religious views. The only way to forestall religious wars is to get people to stop invoking God and to stop invoking canonical scriptures when arguing and determining politics.

The adequacy of this argument can be contested on several grounds. First, Quinn, Greenwald and Wolterstorff note that while it was true of 17^th century England, “social peace did depend on getting citizens to stop invoking God, canonical scriptures, and religious authorities when discussing politics in public”,[96] it is not plausible that such a danger exists in 21^st century Western countries like New Zealand, Australia and the United States. Quinn notes, “current political debate in the United States exhibits failure to comply with Audi’s principles on a massive scale and yet shows no tendency to reignite the Wars of Religion of the early modern era.”[97]

Wolterstorff makes two other related points. He notes that “the slaughter, torture, and generalised brutality of our century has mainly been conducted in the name of one or another secular cause–nationalism of many sorts, communism, fascism, patriotisms of various kinds, economic hegemony.”[98] Second, he notes that “many of the social movements in the modern world that have moved societies in the direction of liberal democracy have been deeply and explicitly religious in their orientation”[99] He cites the abolitionist movement, the civil rights movement and movements resisting communism, facism and apartheid as examples. The invocation of religious reasons risks war and civil strife when certain types of religious reasons are invoked in particular socio-political contexts. This is equally true of secular reasons; certain types of secular reasons can be dangerously incendiary in particular socio-political contexts. There seems no basis for an asymmetry between secular and religious reasons on these grounds.

Eberle and Cuneo add that 17^th century “confessional conflict … [was] typically rooted in egregious violations of the right to religious freedom, when, for example, people are jailed, tortured, or otherwise abused because of their religious commitments.”[100] Given that few, if any, who appeal to religious reasons advocate such violations or could plausibly bring them about, such appeals are unlikely to have tumultuous effects.

In terms of protecting freedom of religion from these kinds of abuses it is not obvious that secular reasons fare any better, “secularists have a long history of hostility to the right to religious freedom and, presumably, that hostility isn’t at all grounded in religious considerations”.[101] Moreover when[102]

religious believers have employed coercive power to violate the right to religious freedom, they themselves rarely have done so in a way that violates the DRR … when such rights have been violated, the justifications offered, even by religious believers, appeal to alleged requirements for social order, such as the need for uniformity of belief on basic normative issues. One theological apologist for religious repression, for example, writes this: ‘The king punishes heretics as enemies, as extremely wicked rebels, who endanger the peace of the kingdom, which cannot be maintained without the unity of the faith. That is why they are burnt in Spain’.

Similarly, Aquinas, in a Rawlsian vein, famously justified the suppression of heretics by appealing to the accepted political culture of his day which required that counterfeiters be executed.

Consequently, the religious wars of the 17^th century were caused, not by the appeal to religious reasons per se but rather by the violation of religious freedom; this violation has often been defended on secular grounds. It is unlikely that the DRR provides a bulwark against such abuses.

III        Conclusion

On examining the DRR it appears that there is no good reason for singling out religious reasons for a particular restraint and limiting discourse to secular reasons. The grounds offered for doing so, the golden rule, the epistemic accessibility of religious premises, the dangers of religion and the potential for religious wars all apply with equal force to secular beliefs. Hence, the restriction appears arbitrary. Moreover, as applied, the DRR is often incoherent and if applied consistently would render most substantive coercive laws unjustified. The current practice of equating secularism with neutrality is flawed.

As Carter eloquently puts it,[103]

What is needed is not a requirement that the religiously devout choose a form of dialogue that liberalism accepts, but that liberalism develop a politics that accepts whatever form of dialogue a member of the public offers. Epistemic diversity, like diversity of other kinds, should be cherished, not ignored, and certainly not abolished. What is needed, then, is a willingness to listen, not because the speaker has the right voice but because the speaker has the right to speak. Moreover, the willingness to listen must hold out the possibility that the speaker is saying something worth listening to; to do less is to trivialize the forces that shape the moral convictions of tens of millions of Americans.

This series was written as a supervised research paper in pursuit of my LLB.

[82] Phillip Quinn “Political Liberalisms and Their Exclusions of the Religious” (1995) 69:2 Proceedings and Addresses of the American Philosophical Association 35, 143.
[83] Robert Audi “Liberal Democracy and the Place of Religion in Politics” in Nicholas Wolterstorff & Robert Audi (eds) Religion in the Public Square: The Place of Religious Convictions in Political Debate (Rowman and Littlefield Publishers Inc, Lanham Md, 1997) 1-66, 31.
[84] Ibid 31-32.
[85] Ibid 31.
[86] Ibid.
[87] Ibid.
[88] Ibid 31-32.
[89] Ibid 32.
[90] Lydia McGrew “The Irrational Faith of the Naked Public Square” (2008) 1 The Christendom Review (at 2 October 2009).
[91] Ibid.
[92] Audi, above n83, 63.
[93] I am grateful to Matthew Flannagan for the development of this point.
[94] Robert Audi Religious Commitment and Secular Reason (Cambridge University Press, New York, 2000) 103.
[95] Nicholas Wolterstorff “Why we should Reject what Liberalism tells us About Speaking and Acting in Public for Religious Reasons” in Paul Weithman (ed) Religion and Contemporary Liberalism (University of Notre Dame Press, Notre Dame IN, 1997) 167.
[96] Nicholas Wolterstorff “The Role of Religion in Decision and Discussion of Political Issues” in Nicholas Wolterstorff & Robert Audi (eds) Religion in the Public Square: The Place of Religious Convictions in Political Debate (Rowman and Littlefield Publishers Inc, Lanham Md, 1997) 67-120, 79.
[97] Quinn, above n82, 39.
[98] Wolterstorff, above n96, 80.
[99] Christopher J. Eberle and Terence Cuneo “Religion and Political Theory” (2008) Stanford Encyclopedia of Philosophy (at 9 August 2009).
[100] Ibid.
[101] Ibid.
[102] Ibid.
[103] Stephen Carter The Culture of Disbelief: How American Law and Politics Trivialise Religious Devotion (Basic Books, New York, 1993) 230.

RELATED POSTS:
Religious Restraint and Public Policy: Part I
Religious Restraint and Public Policy: Part II
Religious Restraint and Public Policy: Part III
Religious Restraint and Public Policy: Part IV
Religious Restraint and Public Policy: Part V

(ii)        Are religious reasons ever subject to open justification?

Gaus might rejoin that commitments to freedom of religion can be defended in terms of open justification. Consider some of the cases that divide society that I listed earlier; at least one side in such debates is mistaken, has made an error in rejecting the purported open justification presented to them. This is entirely possible. It could also be true of Qutb; perhaps he mistakenly rejected a premise that, given other things he believes, he should have embraced.

While this rejoinder would avoid the thinness objection, the problem is that it would no longer be clear or obvious, in the absence of substantive argument, that any viewpoint could be openly justified. Neither side in the above debates is likely to concede its position as the one in error. Cuneo and Eberle note the problem;[66]

Were we to ask Qutb whether he would have reasons to support laws that protect a robust right to religious freedom if he were adequately informed and reasonable, surely he would say: no. Moreover, he would claim that his compatriots would reject the liberal protection of such a right if they were adequately informed about the divine authorship of the Quran and the proper rules of its interpretation. While Qutb’s say-so doesn’t settle the issue of who would believe what in improved conditions, liberal critics maintain that his response indicates just how complicated the issue under consideration is. Among other things, to establish that Qutb is wrong it seems that one would have to deny the truth of various theological claims on which Qutb relies when he determines that he would reject the right to religious freedom were he adequately informed and reasonable. That would require advocates of the standard view to take a stand on contested religious issues. However, liberal critics point out that defenders of the standard view have been wary of explicitly denying the truth of religious claims, especially those found within the major theistic religions.

Gaus’ case for open justification can only succeed if one makes certain assumptions as to the merits of substantive contentions about morality, philosophy of religion, the truth or falsity of various religious doctrines and questions of meta-ethics. However, such contentions are controversial.

An additional problem is that open justification commits one to the DRR only if one assumes that religious reasons can never be openly justified. Recall that Audi’s definition of a religious reason is one that possesses “normative force, that is, its status as a prima facie justificatory element, does not (evidentially) depend on the existence of God.” This suggests that proponents of the DRR must assume that belief in God cannot ever be openly justified. I would dispute this.

Philosophers and theologians have offered arguments for God’s existence entailing that the beliefs most rational people already accept commit them to theism.  Richard Swinburne has written several works arguing that Christianity is more probable than not on the public evidence than any alternative.[67] Robert Adams has argued that the best account of moral obligation is such that they are the commands of a loving God.[68] Alvin Plantinga sketched 26 arguments for God’s existence, which are currently being defended in the literature.[69] Blackwell recently published an encyclopaedia containing 11 current arguments used to defend the existence of God.[70] Edward Feser agrees,[71]

Versions of these arguments were defended by the likes of Plato, Aristotle, Augustine, Aquinas, Duns Scotus, Descartes, Leibniz, Locke, and Newton, and their defense had absolutely nothing to do with ignorance of modern science — indeed, some of these thinkers were among the founders of modern science — because the arguments do not ultimately stand or fall with any scientific results in the first place. … Among the contemporary defenders of the arguments are writers like Alvin Plantinga, Richard Swinburne, John J. Haldane, James F. Ross, Richard Taylor, William Lane Craig, David S. Oderberg, David Braine, Barry Miller, Robert Koons, Charles Taliaferro and many others — analytic philosophers highly respected within the field and applying the most rigorous methods of analysis and argumentation. … anyone familiar with the classical and contemporary literature on philosophical theology [cannot] deny that the arguments for the theistic worldview mentioned above are every bit as defensible today as any other philosophical argument.

Just as there are numerous secular arguments, each defended by intelligent and capable scholars, held to be sound by their proponents even if rejected by their opponents, so too are there arguments for the existence of God that meet these criteria. In light of this it seems arbitrary to simply assume that religious arguments cannot meet the standard of public justification. Critics can argue the merits of these arguments and claim that only secular arguments can succeed but this will not give proponents of religious reasons a real reason for accepting such claims. Religious believers hold quite different assessments on the cogency of these arguments. Therefore, the demand of open justification does not appear to be a sufficient reason for the restriction of religious reasons but not others.

(iii)       Are secular reasons for coercive laws subject to open justification?
Gaus contends that religious reasons cannot be openly justified and that secular beliefs can. Many thinkers have argued that secular perspectives cannot justify the core commitments of a liberal democracy. Nihilist thinkers have argued that secular naturalistic views of the world entail that all moral claims are false.[72] Stephen Layman[73] and George Mavrodes[74] have argued that a secular view renders belief in morality irrational. Using a Kantian line, John Hare has argued that atheism makes the moral life rationally unstable.[75] Mark De Linville argues that atheism, when combined with evolutionary theory, provides good reason for thinking our moral beliefs are unreliable.[76] Alvin Plantinga has articulated the case for the conclusion that evolution, when combined with atheism, provides a reason for being sceptical about everything we believe (public policy would be no exception).[77] Michael Perry and Wolterstorff claim that human beings possessing inherent rights (a fundamental commitment of liberal democracy) cannot be adequately defended on secular grounds and is only defensible if one assumes religious doctrines.[78]

As with many secular arguments, religious justifications for coercive policies have been advocated by intelligent and capable scholars, held to be sound by their proponents even if they are rejected by their opponents. It would be arbitrary to simply assume that secular arguments meet the criteria of open justification and that religious ones do not.  Cuneo and Eberle note the problem;[79]

Liberal critics maintain that we are simply not in good epistemic position to judge the reasons an agent would have to support laws that protect basic liberal commitments were he better informed and more reasonable. More exactly, liberal critics maintain that we are not in a good epistemic position to determine whether a secular agent who is reasonable and better informed would endorse or reject the type of theistic commitments that philosophers such as Wolterstorff claim justify the ascription of natural human rights. The problem is that we don’t really have any idea how radically a person would change his views were he to occupy these conditions. The main, and still unresolved, question for this version of the standard view, then, is whether there is some coherent and non-arbitrary construal of the relevant counterfactual conditions that is strong enough to prohibit exclusive reliance on religious reasons but weak enough to allow for the justification of basic liberal commitments.

Given the divide between intelligent and capable people over various arguments for and against particular coercive policies it is not prima facie evident that any of these arguments can meet the standard of open justification. Moreover, if an argument could, there appears to be no reason to assume that it could not be a religious one. Now Gaus could examine all currently unsettled policy disputes in society and defend the ones he agrees with and attack the others but the inevitable result will be that many who do not share Gaus’ position will likely be unconvinced. If this is the outcome, there seems no reason why those who do not agree should accept the DRR.

Feser suggests that this arbitrary singling-out of religious reasons for restraint with little or no basis seems to be based more on ignorance and bigotry than reason,[80]

The problem, in the view of many liberals, is that religious considerations are matters of faith, where “faith” connotes in their minds a kind of groundless commitment, a will to believe that for which there is no objective evidence. Opinions on matters of public policy, they would say, can only appropriately be arrived at via methods of argument assessable by all members of the political community, not by reference to the idiosyncratic and subjective feelings of a minority.

If religious arguments were in general really like this, then I would agree with the liberal that they ought to be kept out of the public square. But in fact this liberal depiction of religion is a ludicrous caricature, and manifests just the sort of ignorance and bigotry of which liberals frequently accuse others.

Jeremy Waldron makes a similar point,[81]

Secular theorists often assume that they know what a religious argument is like: they present it as a crude prescription from God, backed up with threat of hellfire, derived from general or particular revelation, and they contrast it with the elegant complexity of a philosophical argument by Rawls (say) or Dworkin. With this image in mind, they think it obvious that religious argument should be excluded from public life, … But those who have bothered to make themselves familiar with existing religious-based arguments in modern political theory know that this is mostly a travesty;

A common theme in the arguments from respect, despite both possessing the features considered relevant, is the asymmetry between religious reasons and secular reasons. On the golden rule argument, Audi privileges secular reasons over religious reasons even though secular reasons were potentially subject to the same charges of being false and burdensome. Similarly with the argument from epistemic inaccessibility, reasonable people are able to reject both secular and religious reasons in a pluralistic society yet Audi and Rawls use this fact to exclude the latter and not the former. Likewise, with open justification, prima facie, there is no reason to accept that religious beliefs cannot be openly justified whilst secular beliefs can. Nor is there a prima facie reason for assuming that liberal commitments can be openly justified on secular grounds. In both cases intelligent and capable scholars have advanced arguments from premises which they believe others are committed to holding. Further in both cases the cogency of these arguments can be reasonably disputed.

In my next post, Religious Restraint and Public Policy: Part VI, I will look at the dangers of religion as a justification for its asymmetrical treatment within the DRR and conclude my argument.

[66] Christopher J. Eberle and Terence Cuneo “Religion and Political Theory” (2008) Stanford Encyclopedia of Philosophy (at 9 August 2009).
[67] Richard Swinburne The Coherence of Theism (Clarendon Press, Oxford, 1977); The Existence of God (Clarendon Press, Oxford, 1979); Faith and Reason (Clarendon Press, Oxford, 2005); Responsibility and Atonement (Clarendon Press, Oxford, 1989); Revelation (Clarendon Press, Oxford, 2007); The Christian God (Clarendon Press, Oxford, 1994); Providence and The Problem of Evil (Clarendon Press, Oxford, 1998).
[68] Robert Adams Finite and Infinite Goods (Oxford University Press, New York, 1999); “Divine Command Meta-Ethics Modified Again” (1979) 7:1 Journal of Religious Ethics 66; “Moral Arguments for Theistic Belief” in Robert Adams (ed) The Virtue of Faith and Other Essays in Philosophical Theology (Oxford University Press, New York, 1987) 144; “Divine Commands and the Social Nature of Obligation” (1987) 4 Faith and Philosophy 262.
[69] Alvin Plantinga “Appendix: Two Dozen (or so) Theistic Arguments” in Deane-Peter Baker (ed) Alvin Plantinga
[70] JP Moreland and William Lane Craig Blackwell Companion to Natural Theology (Blackwell Publishing, Malden MA, 2009).
[71] Edward Feser “How to Mix Religion and Politics” (20056) TCSDaily (at 6 October 2009).
[72] Prominent examples are: JL Mackie Ethics: Inventing Right and Wrong (Penguin, Harmondsworth, 1977); Michael Ruse “Evolutionary Theory and Christian Ethics” in Michael Ruse (eds) The Darwinian Paradigm (Routledge, London, 1989) 251-273.
[73] C Stephen Layman “God and the Moral Order” (2002) 19:3 Faith and Philosophy 304; “God and the Moral Order: Replies and Objections” (2006) 32:2 Faith and Philosophy 209.
[74] George Mavrodes “Religion and the Queerness of Morality” in Robert Audi and William Wrainwright (eds) Rationality, Religious Belief and Moral Commitment (Cornell University Press, Ithaca, 1986) 213-226.
[75] John Hare The Moral Gap (Clarendon Press, Oxford, 1996); “Naturalism and Morality” in JP Moreland and William Lane Craig (eds) Naturalism: A Critical Appraisal (Routledge, London, 2000) 189-211; “Kant and the Rational Instability of Atheism” in Andrew Dole and Andrew Chignell (eds) The Ethics of Belief (Cambridge University Press, Cambridge, 2005).
[76] Mark D Linville “The Moral Argument” in JP Moreland and William Lane Craig (eds) Blackwell Companion to Natural Theology (Blackwell Publishing, Malden MA, 2009) 391 449.
[77] Alvin Plantinga Warrant and Proper Function (Oxford University, New York, 1993) 216-239; “The Evolutionary Argument against Naturalism” and “Replies to Beilby and his Cohorts” in James K Beilby (ed) Naturalism Defeated? Essays on Plantinga’s Evolutionary Argument Against Naturalism (Cornell University Press, New York, 2002) 1-15 & 204-277; “Naturalism vs Evolution: A Religion Science Conflict” in Paul Draper (ed) God or Blind Nature? Philosophers Debate the Evidence (at 3 September 2009).
[78] Nicholas Wolterstorff Justice Rights and Wrongs (Princeton University Press, Princeton NJ, 2008); Michael Perry Toward a Theory of Human Rights: Religion, Law, Courts (Cambridge University Press, Cambridge, 2006).
[79] Eberle and Cuneo, above n 65.
[80] Feser, above n 71.
[81] Jeremy Waldron God, Locke, and Equality: Christian Foundations of John Locke’s Political Thought (Cambridge University Press, Cambridge, 2002) 20. Gaus appears to agree; in his book review of Eberle’s work on the subject he writes, “At the outset, however, let me stress that Eberle has written a very good book indeed. It is manifest that he has thought much harder and deeper about justificatory liberalism than justificatory liberals have thought about religious justification and belief. His analysis of religious epistemology and mysticism (ch. clearly demonstrates the extent to which many liberals have attacked caricatures of religious justification. After Eberle’s book, secular liberals must be much more careful in their claims about religious beliefs and their justifications.” Gerald Gaus “Religious Convictions in Liberal Politics” (2003) Notre Dame Philosophical Reviews (at 13 September 2009) (book review). (Cambridge University Press, New York, 2007) 203-229.

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