The 4th of July is, of course, Independence Day. Typically in New Zealand, those members of the secular blogosphere, who consider themselves to be classical liberals, have an annual rant on the 4th of July about the Declaration of Independence, praising the philosophy expounded in this document.

Not PC’s Peter Cresswell, for example, states in Happy July 4th! that “with the exception of just a few words, the words could hardly be bettered today;” the declaration is, “A wonderful, wonderful anthem to freedom that rings down through the years.”  He bemoans, “if only the real meaning of those words could be heard and understood.”

A few years ago Kiwiblog’s David Farrar made similar claims, he stated he would often “marvel at those marvelous words, written in the heat of oppression…Marvelous, absolutely marvelous.”

I agree. I would simply point out to my secular, liberal, country-men what the words in this document actually say, and some of the philosophical ideas they expound.

First, the declaration refers to God; it does so four times. Maverick Philosopher has an excellent analysis of the theological content;

In the initial paragraph, we find the phrase “…Laws of Nature and of Nature’s God….” This phrase rules out pantheism: God is distinct from Nature. In the second paragraph, there is the phrase, “…endowed by their Creator with certain unalienable rights….” Putting these two references together, we may infer that the God being referred to is not merely a deistic initiator of the temporally first segment of the physical universe, but a being involved in the creation of the human race. For if God endowed human beings with rights, this endowment had to occur at the time of the creation of human beings, which of course occurred later than the beginning of the physical universe. In traditional jargon, God is a creator continuans rather than a mere creator originans. He is not a mere cosmic starter-upper, but a being who is continuously involved in maintaining the universe in existence.

…

The other two references are in the final paragraph. There we find the phrase, “…Supreme Judge of the World for the Rectitude of our Intentions….” near the beginning of the paragraph, and near the end, “…a firm Reliance on the Protection of divine Providence….” Now if God is the Supreme Judge, then he is more than a mere metaphysical cause responsible for the universe’s beginning to exist; he is also the supreme moral arbiter. And since he endows human beings with rights, as opposed to being merely a judge of rights antecedently possessed, then it seems we may infer that God is the source of moral distinctions (as opposed to a mere judge of them).

The reference to divine providence is further evidence that the conception of God in the Declaration is non-deistic. For if God provides and protects, then God has an ongoing involvement with the world and its inhabitants such as would be ruled out by a deistic view. It should also be obvious that talk of providence (from the Latin, pro-videre) implies divine foreknowledge which implies intelligence and perhaps omniscience on the part of the deity. The God of the Declaration is not a blind metaphysical cause posited to explain why the universe began to exist, but a being with such attributes as moral goodness and intelligence…. So if by ‘deism’ is meant the doctrine that God is a mere metaphysical cause of the universe’s beginning to exist who is thereafter uninvolved in its continuing to exist, then the God of the Declaration is non-deistic.

Second, the declaration claims that belief in a creator is self-evident; that is, it is a properly basic belief, which is rationally acceptable to hold in the absence of any proof.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

Third, the declaration makes political pronouncements about public policy on the basis of these theological claims and expects these pronouncements to be taken seriously.

Fourth, the declaration says that various rights, such as the right to life and liberty, are unalienable. That is, a person cannot alienate one’s life or freedom as they can legally alienate a piece of property. You can’t take my property if I do not consent to you having it but if I do consent, you can take it; property is alienable, life and liberty are not. The argument of the declaration reflects John Locke’s argument in the Second Treatise of Civil Government;

To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.[1]

…

But though this be a state of liberty, yet it is not a state of licence: though man in that state have an uncontroulable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another’s pleasure[2]

…

This freedom from absolute, arbitrary power, is so necessary to, and closely joined with a man’s preservation, that he cannot part with it, but by what forfeits his preservation and life together: for a man, not having the power of his own life, cannot, by compact, or his own consent, enslave himself to any one, nor put himself under the absolute, arbitrary power of another, to take away his life, when he pleases. No body can give more power than he has himself; and he that cannot take away his own life, cannot give another power over it.[3]

The point here is that because your right to life and liberty are from God, no one can legitimately enslave or kill you, even if you consent to it. This was not a mere incidental addendum idea, it was central to Lockean political philosophy, which maintained (as the declaration does) that the government derives its powers from the consent of the governed. If a person can consent to be killed or enslaved then they can consent to the government enslaving them also to having the arbitrary power to kill them and hence tyranny can be legitimate. The reason tyranny is illegitimate is because, “No body can give more power than he has himself; and he that cannot take away his own life, cannot give another power over it.”

The declaration then makes a metaphysical claim: God exists. It makes an epistemological claim about faith and reason: that belief in God is rational independent of proof. It makes an implicit claim of political philosophy: religion is not a private thing that should not influence public life but rather, theological claims should influence public life. Finally it makes a moral claim; that consenting adults do not have a right to do whatever they like with their own bodies, rather there are “Laws of Nature and of Nature’s God” that bind all human beings, that they are compelled to follow even if all parties consent otherwise. Governments are legitimate to the extent in which they respect these laws.

I agree with PC, it is hard to improve on this philosophy; I have defended it in several places on this blog.

Ironically, however, the militant secular liberals in NZ who parrot the declaration seem committed to attacking these ideas and rejecting them on every point. They argue that belief in God is irrational because it cannot be empirically proven, they claim that the public square should be secular, that religion should be private and not influence public policy and they argue that liberty means consenting adults can do whatever they like with their own bodies and lives. Far from being unalienable, a person’s life and freedom is his property to alienate as that person sees fit.

It is also hard to disagree with PC’s sentiments that the declaration is “A wonderful, wonderful anthem to freedom that rings down through the years. If only the real meaning of those words could be heard and understood.” “Indeed, if only.”

[1] John Locke Second Treatise of Civil Government Section II 4.
[2] Ibid II6.
[3] Ibid IV 23.

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

RELATED POSTS:
Contra Mundum: Richard Dawkins and Open Mindedness
Contra Mundum: Slavery and the Old Testament
Contra Mundum: Secular Smoke Screens and Plato’s Euthyphro
Contra Mundum: What’s Wrong with Imposing your Beliefs onto Others?
Contra Mundum: God, Proof and Faith
Contra Mundum: “Bigoted Fundamentalist” as Orwellian Double-Speak
Contra Mundum: The Flat-Earth Myth
Contra Mundum: Confessions of an Anti-Choice Fanatic
Contra Mundum: The Judgmental Jesus

The first hurdle was to get his paper accepted, which is no small feat but one that Glenn has pulled off – well done Glenn!

The second hurdle is to raise the funds to get there, which is a work in progress…

Glenn’s situation is much like Matt’s. Glenn holds a PhD in Philosophy and a Masters in Theology (the opposite way around to Matt). He is a very good Christian philosopher; I referenced him in my own philosophy of law paper on the subject, Matt has cited from him also  in several works (see our Glenn Peoples tag) and we both view Glenn’s blog to be MandM’s toughest competition in the NZ blog rankings for our niche .  Like Matt,  since graduating, Glenn has struggled to find work in his field. He currently works for the IRD and earns a very modest wage. Glenn is trying to find a position using his skills, if not in New Zealand, anywhere in the world so this conference is not only an opportunity for him to meet one of the world’s best living philosophers in Glenn’s field, it is not just an opportunity to have New Zealand Christian philosophy showcased at Oxford but it is a chance to help someone with a gift take another step towards using that gift to provide for his family and to support the broader church. Donations are currently being gathered and more information is available here if you would like to help and/or follow his progress.

As a holiday weekend that coincides with the most significant festival on the Christian calendar, Easter, concludes we should reflect on the freedom of religion we have in this nation. The Human Rights Commission is calling for submissions on a draft statement on freedom of religion and belief that includes the statement:

‘New Zealand has no official or established religion.’

Race relations conciliator Joris de Bres has publicly said that New Zealand’s absence of a state religion is a statement of fact[1]. Former Prime Minister Helen Clark was also quoted as saying there is no state religion, there will be no state religion[2]. These comments may be a surprise to those Kiwis who thought rugby has the role of a national religion!

Given the above comments by influential New Zealanders and the tax payer supported Human Rights Commission it must be clearly correct legally to say that New Zealand has no official religion.

Well, actually, no, it is not.

Does New Zealand Have an Official Religion?
An important distinction needs to be made at the outset. A state with an established religion is one in which a particular religion or church is effectively an arm of the state, and the state identifies with a particular religion. A state with an official religion gives special recognition or privileges to a religion. While an established religion and an official religion are usually found together, that is not always the case.

One of the most (if not the most) important offices in New Zealand is that of our head of state. New Zealand is a constitutional monarchy and the head of state in New Zealand is our monarch, currently Queen Elizabeth II.

The Accession Declaration Act 1910 provides New Zealand’s head of state’s oath of office’ This accession declaration states:

“I … do solemnly and sincerely in the presence of God profess, testify, and declare that I am a faithful Protestant, and that I will, according to the true intent of the enactments which secure the Protestant succession to the Throne of my Realm, uphold and maintain the said enactments to the best of my powers according to law.”

The accession declaration provides that the Queen must claim to be a Protestant. This is inconsistent with the notion that New Zealand has no official religion. It also refers to other laws which “secure the Protestant succession.” These other laws are the Bill of Rights 1688[3] and The Act of Settlement 1700[4]. All these acts of parliament were re-affirmed as part of the law of New Zealand by our parliament as recently as 1988 in the Imperial Laws Application Act (which, curiously given her comments above, Helen Clark voted in favour of passing[5]). The other laws that secure the Protestant succession are intended to ensure that the King or Queen of New Zealand is always a Protestant Christian. These laws are, incidentally, identical to the current law in the now multi-religious United Kingdom. Where New Zealand differs from the United Kingdom is that neither the Anglican nor Presbyterian churches are established.

The legal requirement that New Zealand’s head of state must be a Protestant Christian means that in our constitutional form at least we are a Christian nation. Technically our official religion is Anglicanism[6]. Having an official religion of course in no way requires New Zealanders to profess a particular religion. But does an Official Religion pose a threat to Religious Minorities? To answer this question lets refer to some overseas examples.

Having no official religion and a secular state has been no guarantee that freedom of religion and human rights generally will be respected in North Korea, Cuba and the People’s Republic of China, all of which have woeful human rights records.

By contrast the Lutheran church is the established church in Norway (there is even a minister of church affairs). It would be fair to say that Norway is not known for its suppression of freedom of religion or for having a poor human rights record.

Likewise, the established Anglican Church in England and the Presbyterian Church in Scotland has not led to a lack of freedom of religion. Indeed the tolerant Anglican Church is preferable for religious minorities to intolerant secularism.

It may come as a surprise to learn that there are leading Muslim and Jewish scholars who are actually against disestablishing the Anglican Church in the United Kingdom. To paraphrase their argument, an established but tolerant Anglican Church is preferable to a nation where all reference to the religious or sacred is ruthlessly excluded from the public domain[7].

The intolerant secularism rightly feared by religious minorities has been evident in France recently. France has already banned the Islamic headscarf and outward wearing of the crucifix, and other religious symbols, in state schools[8] and is considering banning the wearing of a burqa altogether, moves which are causing public discord in France[9].

Having an official religion is not necessarily any threat to freedom of religion, and may actually be more beneficial to religious minorities than aggressive secularism. The advancement of the rights of religious minorities and multi-culturalism should not be mis-used as a Trojan horse to advance intolerant secularism.

Conclusion
As a nation we should celebrate our tolerant Christian tradition, not attempt to falsely deny the legal fact that Christianity is a part of our national constitution. Ironically denials that Christianity is our official religion are playing down the Christian religious tradition that bought about the very religious freedom and tolerance the Human Rights Commission is attempting to promote.

We have nothing to fear and will gain by having a National Statement on Religious Diversity in New Zealand and a Draft Statement on Freedom of Religion and Belief that acknowledge the existence of New Zealand’s official religion rather than willfully ignore it.

[1] “There’s No State Religion –De Bres” New Zealand Herald 19 February 2007.
[2] As above.
[3] The relevant section of Bill of Rights 1688 provides:

And whereas it hath beene found by experience that it is inconsistent with the safety and welfaire of this Protestant Kingdome to be governed by a Popish Prince or by and King or Queene marrying a Papist the said Lords Spirituall and Temporall and Commons doe further pray that it may be enacted that all and every person and persons that is are or shall be reconciled to or shall hold communion with the See or Church of Rome or shall professe the Popish religion or shall marry a Papist shall be excluded and be for ever uncapeable to inherit possesse or enjoy the Crowne and Government of this Realme.

[4] Section 3 of the Act of Settlement 1700 states (inter alia) “that whosoever shall hereafter come to the possession of this Crown shall joyn in Communion with the Church of England.”
[5] Hansard, 1988 (4^th Labour government 1984-1990).
[6] The Head of State is required to be an Anglican – refer to footnote 4.
[7] Tariq Modood “(Muslim) Establishment, Multiculturalism and British Citizenship,” Political Quarterly 65 (1994) pp.53-73; Rabbi Jonathan Sacks, Ibid at 63-64; also Jonathan Sacks, The Persistence of Faith: Morality and Society in a Secular Age, London, 1991, cited in R Ahdar and J Stenhous et al God and Government The New Zealand Experience, University of Otago Press 2000.
[8] “Party Pushes Burqa Law Despite Public Discord” New Zealand Herald 10 January 2010.
[9] Ibid.

[Wikipedia have a chart showing which countries Queen Elizabeth II is currently head of state of.]

The speakers are:

Jeff Tallon (PhD) is Distinguished Scientist at Industrial Research Ltd and a former Professor of Physics at Victoria University. He is internationally known for his research in high-temperature superconductors, is a Fellow of the Royal Society of New Zealand and in 2002 was awarded the Rutherford Medal, New Zealand’s highest science award.

Matthew Flannagan (PhD) adjunct lecturer in Philosophy at Laidlaw College and Bethlehem Tertiary Institute and is currently teaching philosophy, ethics and religious studies at St Peters College. He specialises in applied ethics and the interface between philosophy and theology. He is a prominent New Zealand Christian commentator, debater and blogger.

Michael Drake (DipTeach) is the principal of Carey College in Panmure and a pastor of the Tamaki Reformed Baptist Church. He has been involved in advocacy for Christian schools and in raising issues about race, education, and Christianity before Parliament. He is also a Tertiary Student Christian Fellowship Associate Chaplain at the Manukau Institute of Technology.

Joe Fleener (MDiv) lectures in Old Testament, Church History, Christian Worldview, Apologetics, and Christian Ethics at The Shepherd’s Bible College.

When: Tuesday 16 March at 7pm

Where: “The Centennial” 260 – 098 Owen G Glenn Building, 12 Grafton Road, The University of Auckland

The organisers – Thinking Matters, the sponsors – TSCF and I are expecting a good turnout. As this is the last event in this series it is definitely not to be missed so get your questions ready and come along!

This is a lay-friendly event, all the panelists will be speaking plain english and breaking down anything complicated so that the rest of us can follow. The three teenagers I brought to last week’s “Has Science Disproved God?” are all keen for more so that should give you an idea of how accessible these events are.

More information is available here.

… If teaching that homosexual conduct is wrong is akin to racism or propagation of apartheid, then the aforementioned religious organisations are the moral equivalent of the Ku Klux Klan. Those who propagate such arguments need to reflect on the implications of what they affirm. Imagine a society where the local synagogue or Mosque is treated as though it were the local Klan headquarters. Or where Muslim students are perceived and treated the way we currently relate to white supremacists. It is not difficult to see that the widespread dissemination and acceptance of this argument would lead to an atmosphere of pervasive religious intolerance – such intolerance is the very antithesis to what many of those protesters ostensibly claim to stand for.

The solution to intolerance is tolerance. Tolerance of those ideas you may fervently disagree with and recognition of another’s right to freely hold and express them. Tolerance requires one to respond to disagreement with rational persuasion, not vilification. This cuts both ways.

I was widely vilified and ridiculed for my comments and denounced as hate filled and bigoted. It is interesting to compare what I said with the comments of Chai Feldblum, the Georgetown University law professor nominated by Obama to serve on the Equal Employment Opportunity Commission.

Just as we do not tolerate private racial beliefs that adversely affect African-Americans in the commercial arena, even if such beliefs are based on religious views, we should similarly not tolerate private beliefs about sexual orientation and gender identity that adversely affect LGBT [lesbian, gay, bisexual, and transgender] people,” the Georgetown law professor argued…

For those who believe that a homosexual or bisexual orientation is not morally neutral, and that an individual who acts on his or her homosexual orientation is acting in a sinful or harmful manner (to himself or herself and to others), it is problematic when the government passes a law that gives such individuals equal access to all societal institutions.

Of course those religions that believe homosexual conduct is sinful include Roman Catholicism, Eastern Orthodoxy, evangelical Protestantism, many neo-orthodox Protestants, Islam, Orthodox Jews, Mormons, Jehovah’s Witness’s, Seventh Day Adventists and so on. So presumably, if we are to take Feldblum at her word, none of these groups should be tolerated in Obama’s society and all should be denied equal access to societal institutions.

Now in no way do I think I was treated unfairly, it was afterall a Catholic School and this was something that was  obvious both from the name on the advertisement in the education gazette and from the website linked to from the same ad. The function of this school was not simply to impart information; it was to imbibe a particular religious way of life, some of it involving what Nicholas Wolterstorff calls “educating for responsible action,”

The ultimate goal of all education, as Christians see it, is that those who are taught shall live in such a way as to carry out their responsibilities to God and find joy and delight in so doing. … But if responsible action is to ensue, more is necessary than for the students to have knowledge of the relevant matters and the ability to perform the relevant actions. Knowledge and ability are not yet performance. It is also necessary that the students’ tendencies, ranging all the way from their unreflective habits to highly self-conscious commitments, be those of acting in accord with the normative laws for right action. Education, accordingly, must have among its goals to secure–always in morally defensible ways–the formation of right tendencies.[1] [Emphasis original]

Wolterstorff argues that modelling plays an important role in cultivating tendencies. He notes that a series of studies show that students who view other people resisting the temptation to act in an immoral or inappropriate way fortify their own resistance to temptation.[2] Wolterstorff states, “The evidence seems to be that not only do a model’s low standards influence the student to lower the standards which otherwise he or she would adopt, but also a model’s high standards influence the child to raise his or hers.”[3] [Emphasis original]. An important caveat of this is that studies show “the self-denial induced by a stringent model gives way rather readily when the subject is confronted by another model with lower standards.”[4] Because the school was seeking to train students to internalise a Catholic ethos, and an important part of the pedagogy of internalising such an ethos is modelling, it follows that leaders within communities committed to this goal must themselves follow and be committed to the basic moral teachings of the community. I was not. I am a protestant and so would buck (internally) against many of the tendencies the RE department were trying to teach.

This does not seem terribly controversial to me. Schools dedicated to inculculating a religious way of life into their students have the right to demand that the leaders in their schools be committed to and reflect this way of life. It is perfectly reasonable for Jewish schools to expect people in positions of leadership to be faithful followers of the Torah. It is perfectly reasonable for Muslim schools to expect leaders in their community to be faithful Muslims; for atheist schools devoted to promoting atheism to expect their leaders to be atheists.

I reflect on this because of the recent outcry in response to a Campbell Live story that a Christian school in Rangiora, Rangiora New Life School, expelled a student for getting pregnant and subsequently revoked the deputy head-boy status given to her fiancé, the father of her child. Now, in light of what the media has reported, I will say I am not in agreement with everything the school did (I should qualify this by stating that I have very little faith that the media to report events like this terribly accurately – so take that concession with a grain of salt).

For example, Ollie Sterrit the deputy head-boy and his fiancé Sara Etherington stated that “if we decided not to keep her [abort their daughter] they didn’t support it, and they still didn’t support us if we did keep it. So we were stuck in the middle and couldn’t do anything to please them.” The media reports that the teen couple “are engaged and determined to stay together.” Now, I am inclined to think that if a teenage couple respond to getting pregnant unmarried by taking their responsibilities seriously by refusing to kill their child, getting engaged, making a commitment to stay together and to continue their education they should be supported and commended for doing the right thing. They are of course not yet “legally married” but given their age, in this country, that is impossible; hence it is not clear cut to me that this couple’s choice should not be supported. In fact, I think that a scriptural case could be made that people in this situation can, in certain circumstances, be viewed as being in a constituted kind of common law marriage and that, in fact, it is the duty of the father to marry the woman he has impregnated and to take his responsibilities to her and the child seriously (which is what appears to be happening in this situation).  However, Sara’s parents tell a different story (see the second comment on the Campbell Live link) “We have consistently tried to encourage Ollie and Sara to see the bigger picture (others affected by there decisions) all along, their choice of course. Sara has had every love and support from RNLS  [the school] and her family.“

Whatever the truth is on the matter of the school supporting the couple, stripping someone of a position of leadership is not the same thing as not supporting them -  though not permitting Sara to finish her education (she was apparently asked to leave the school) might be. Also giving someone a position of leadership, knowing about the pregnancy and then removing it from them, perhaps demonstrated a lack of wisdom in the first place on the part of the school or some dud processes (or bad media reporting).

However, these issues are not the focus of my concern in this blog post. First, Dave Crampton at Big News seems to suggest that the school had no policy on sex outside of marriage and as such they could not claim that this was part of the ethos they were trying to impart, meaning the school had no right to suddenly make an issue of the sexual conduct of its students, “The schools handbook has no mention of policies on sex, although swearing and alcohol are forbidden in school grounds, as are piercings for males.” If you visit Rangiora New Life’s website a very different picture emerges. First of all, the name of the school  “New Life” immediately suggests it is evangelical or pentecostal. On the front page the school mission states “Providing quality Christian education that equips and inspires all students to reach their life’s potential in order to serve God’s purposes.” There is a clear indication by the use of words such as “their life’s potential” and “serve God’s purpose” that the type of education they are seeking to inculculate is holistic, they hope that it will impact all aspects of the students’ lives. Click through to their Mission, Vision and Values page and you’ll find under the heading “Vision,”

GODLINESS – Building character in the students that will enable them to lead by example.

LIFE SKILLS – Equipping students with skills in relationships, home-life and vocation.

EVANGELISM – Taking every opportunity to share the life changing message of the gospel.

SERVICE – Impacting our region and beyond through sacrificial service and giving. [Emphasis added]

Here we see concern with character, leading by example, reference to relationship skills, home-life and vocation tell us they mean more than relationships with their school peers and teachers. Evangelism and reference impacting the region and beyond show, again, the broader ethos of the school. The “guiding values” on this page continue these motifs and among these we find “Ensuring school relationships, procedures and policies reflect Biblical principles and the highest Christian conduct” and “Promoting personal responsibility in learning and conduct, and community responsibility by way of service and leadership skill.” Does anyone really think, on reading these, that banging your fellow teenage school peer and knocking her up is compatible with Rangiora New Life’s understanding of these terms and is the sort of example in leadership or high biblical standard that the school is seeking to promote by example and that this sort of conduct is what the other parents with kids in the school want modelled to their kids?

Now, as Madeleine points out, when contracts are formed (I’m getting at here Dave Crampton’s contractual suggestion) all aspects of the communication between the parties, the information freely offered about the parties states of mind, intent, etc as well as the surrounding documentation speak to how the minutae of the handbooks and policies should be read and interpreted. The school is clearly a conservative, pentecostal/evangelical bible believing Christian school. Did anyone miss the memo that people with such beliefs tend to frown on pre-marital sex and that such people have high expectations of the example of their leaders – that’s why church leaders being hypocrites is such a big deal.

Second, what is my concern is the widespread belief of some commentators that a religious school cannot demand that leaders in their community abide by the moral teachings of the religious ethos the school seeks to inculculate. Idiot/Savant of No Right Turn’s comments are typical,

This is clearly unlawful discrimination on the basis of marital status and family status, in violation of sections 21(1)(b) and s21(1)(l) of the Human Rights Act 1993. It may also constitute discrimination on the basis of religious belief in violation of s21(1)(c). Rangiora New Life School is a religious school, so it has an exemption for the latter – but not for the former. It can not legally exclude or punish students who have children or are in de facto relationships, any more than it can exclude or punish them for being divorced (or the children of people who are divorced).

Regardless of the merits (or lack thereof as Madeleine insists) of Idiot/Savant’s legal analysis here there is a moral point here worth addressing. Idiot/Savant seems to think that religious schools can discriminate on the grounds of religious belief but not on grounds of sexual behaviour. It is hard to see the sense in this because in many circumstances, and certainly in this case, a person’s religious beliefs include a set of beliefs about sexual morality. If we are to take this line of argument seriously a religious school can discriminate against people who believe that sex outside of marriage is wrong but they cannot discriminate against people who refuse to practice this belief. It is hard to see how such a view could be taken seriously; surely the whole point of these teachings is that they be followed.

Idiot/Savant continues,

But there’s another aspect to this: Rangiora New Life School is a state integrated school, and therefore effectively part of the state education system. The New Zealand Bill of Rights Act therefore clearly applies. By discriminating against its students and denying them any involvement in the decisions about them, the school has violated the right to be free from discrimination and the right to justice. And that is something we should not be tolerating from any part of our government. Rangiora New Life School’s board must be told to obey the law, cease its discrimination, and reinstate the student it has excluded. And if they do not, they should be replaced.

Idiot/Savant here makes heavy weather over the fact that Rangiora New Life is an integrated school. While this is true, it is also a religious school which aims to inculculate a particular religious way of life. Integrated religious schools, with special characters allowing them to promote a particular religion, are extremely common. If Idiot/Savant’s, position is correct none of these schools should be allowed to require leaders in the school or students who attend the schools to uphold a certain religious ethos. This would of course make a mockery out of their mission to promote such a way of life.

Lurking behind this complaint is, I think, a mindset that schools that promote a particular religious ethos (or at least take the ethos seriously) should not get public funds; only secular schools should get such funds. In practice this means that a school that promotes a secular perspective antithetical to a particular religion will get state funds whereas a school that inculculates certain religious beliefs will not. It’s odd that people like Idiot/Savant who maintain the right to be free from discrimination on the part of the state would support such a policy that clearly discriminates against tax paying parents with religious views.

Wolterstorff notes a deeper problem,

there are parents within society for whom it is a matter of religious conviction that their children receive a religiously integrated education. … If those parents are forbidden by law to establish and patronize schools that teach in accord with their religious convictions, then the discrimination is embodied in law. If they not legally forbidden to establish and patronize such schools then the discrimination is embodied in economics. Were those parents to establish and patronize schools that teach in accord with their convictions, they would have to pay for those schools out of their own pockets, while still contributing to the general tax fund for the other schools, obviously there free exercise of religion is thereby infringed upon in a way in which that of others is not. They do not enjoy equal freedom to live their lives as they see fit.[5]

To insist that schools either forgo public funds or compromise the religious ethos they seek to inculculate is itself discrimination. Wolterstorff notes the only escape from this dilemma apart from privatising education entirely is to “fund equitably all schools that meet minimum educational requirements” and this means allowing schools to take public funding that will require strict standards of sexual morality from student leaders. Of course one could always admit that one does not actually support the right of all to be free from religious discrimination…

[1] Nicholas Wolterstorff Educating for Responsible Action (Grand Rapids MI: Eerdmans Publishing Co) 14-15.
[2] Ibid 51-55.
[3] Ibid 55.
[4] Ibid.
[5] Nicholas Wolterstorff “The Role of Religion in Political Issues” Religion in the Public Square

RECOMMENDED READING:
Religious Restraint and Public Policy

While it is not central to my point I cannot ignore the fact that in two places now (see the second comment on the Campbell Live link for one) I have seen the parents express anger at Campbell Live’s intrusion into their home without their consent. They had apparently categorically told the producers that they did not give permission for their property to be used for the interview but Campbell Live ignored their wishes and waited til they were not home to film the piece. Appalling.

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. 8) 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.

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 VI

(d)        Gaus’ attempt to salvage the argument from epistemic inaccessibility

I have argued that the argument from respect is subject to two objections, incoherence and thinness. One should not appeal to religious reasons to justify coercive legislation because people can reasonably reject religious reasons; as religious reasons are not shared by all reasonable people there is a duty to not appeal to them.  However, if this is true then both the DRR in its “public reason” form, as exemplified by Rawls, and in its more secularist form, as exemplified by Audi, should also be rejected. Reasonable people do not agree on secular moral theory nor do they agree on the principles of public reason.

In addition to being incoherent the DRR excludes far too much. It leaves us with content that is insufficiently thin to justify substantive legislative questions. I cited Gaus above who agreed that “little, if anything, is the object of consensus among reasonable people.”

In response to the thinness objection Gaus introduced the idea of “open justification.”[55]

Open justification … takes a person’s current system of beliefs and asks, first, whether given this system that person is committed to accepting some new piece of information, and, second, whether that person is then committed to revising his or her system of beliefs in the light of that new information.

According to Gaus, what respect requires is not that laws be justified to all reasonable people in such a way that those reasonable people can be expected to accept the justification, but rather “a coercive law is justified to an agent only if, were he reasonable and adequately informed, then he would have a sufficient reason from his own perspective to support it.”[56] [Emphasis added]

Peoples explains,[57]

[One] might hold to all kinds of prejudices and false beliefs that would lead him to reject a policy, and yet we might still be justified in advocating that this policy be imposed on him because if he were a bit more reasonable and open to new information, he would have a reason to endorse it. Stated differently, a person can be openly justified in accepting a policy, and yet consciously reject that policy because he doesn’t realise that if he only knew a bit more, understood the situation a little better, or was more open minded, he would have reasons to accept the policy.

Gaus prefers open justification over two other forms he identifies as “closed justification” and “strong externalism.” Gaus describes closed justification as being justified internally from the viewpoints that person currently holds.[58] He defines strong externalism as being justified from a viewpoint where one was adequately informed and had no mistaken beliefs. Gaus suggests that respecting others means that one is able to openly justify the policies one supports to other reasonable people in society. He does not require that persuasion is achieved or that a person’s current comprehensive viewpoint endorses the policy in question. Rather he holds that one must be able show the person that his or her current viewpoint provides grounds or reasons for believing things they currently do not. Further, that if they did accept these other things then they would have reasons for embracing the coercive policy being advocated.

Gaus’ opinion does appear to improve on that of Rawls. He is not alone in suggesting this. Audi has offered a solution to the thinness problem along the lines Gaus suggests.[59]

Two people who disagree on the justice of allowing a Nazi group to present its case may share intuitions about freed speech in general and be divided by, for instance, paranoia about Nazis, which one party has and the other does not. When this happens, there is often a possible route from the shared intuitions about the justice of protecting freedom of expression to agreement on the case in hand. It appears, moreover, that among rational civilized people, establishing agreement on what factual information is relevant and on what the relevant facts are tends to bring intuitions closer together.

Often when two people disagree there will be a set of moral intuitions[60] on which they do agree. The disagreement stems from other facts brought about by certain biases. If people can be shown that they are mistaken on these facts, it is possible that the biases can be corrected and agreement might occur. Audi suggests that something like open justification will decrease the amount of disagreement between rational people on at least some issues of justice.

As Audi’s example is simply that of a dispute between two people I am not sure that it escapes the thinness objection. It is one thing for a person to openly justify his or her position to one other but, according to Gaus, it is wrong to advocate a coercive law unless one can provide open justification to all reasonable people. Further, in the context of a defence of the DRR, and in the face of a charge of unjust asymmetry, Gaus must also contend both that religious reasons can never achieve open justification in this manner and that secular reasons can.

(i)         Open justification and the thinness objection
According to Gaus, the provision of open justification for a policy, to another person who rejects that policy, should proceed in two stages. First, one should assess whether the other person’s viewpoint commits that person to “accepting some new piece of information”. If it does, then one should assess whether the person is then “committed to revising his or her system of beliefs in the light of that new information.” Consequently, a person is only permitted to advocate a position if he or she can show that the position follows from premises that all reasonable people in society currently accept and according to a type of inference that all reasonable people recognise as valid.

An immediate problem arises, namely that few, if any, laws are justified by arguments that meet this standard (probably because few arguments on any substantive topic meet this standard). Marilyn McCord Adams notes, “the defence of any well-formulated philosophical position will eventually involve premises which are fundamentally controversial and so unable to command the assent of all reasonable persons.”[61] Consider the list of controversial issues I gave earlier: welfare, abortion, state funding of social projects, euthanasia, pornography, genetic modification of foods, climate change, capital punishment, Maori seats and so on. Do any of the proponents on either side of these debates offer arguments that ultimately appeal to premises that all rational people accept, without ever appealing to some premise, that is either drawn from or depends for its plausibility on, a comprehensive perspective that only some reasonable people accept? Could anyone advance such a justification? I doubt it.

This doubt stems from the fact that in such ethical debates often the very foundations of the subject are a matter of dispute. Nihilists deny moral claims are defensible at all. Non-nihilists disagree fundamentally over whether moral language is descriptive, prescriptive, both or merely an expression of emotion. There is disagreement over how moral knowledge is gained, what the fundamental criteria for right actions are and so on. Given this, almost any moral premise will be subject to dispute by some reasonable people.[62]

Eberle and Cuneo raise a related point by citing the example of Islamic intellectual, Sayyid Qutb.[63]

While in prison, Qutb wrote an intelligent, informed, and morally serious commentary on the Koran in which he laid the ills of modern society at the feet of Christianity and liberal democracy. The only way to extricate ourselves from the problems spawned by liberal democracy, Qutb argued, is to implement shariah or Islamic legal code, which implies that the state should not protect a robust right to religious freedom. In short, Qutb articulates what is, from his point of view, a compelling theological rationale against any law that authorizes the state to protect a robust right to religious freedom.

People like Qutb are not alone in society. Whatever we might think of the conclusions they draw, Islamic intellectuals appear to be educated, rational and morally serious people. Qutb rejects “a robust right to religious freedom” and liberal democracy itself. A coercive law that protects a robust right to freedom of religion and any of the other substantive commitments of a liberal democracy is only defensible if secularists can provide a valid argument for these commitments, from premises that Qutb accepts, to the conclusion that such commitments are correct. It is doubtful that secularists have done this or even that they would be able to.[64] Cuneo and Eberle note the conclusion.[65]

If respect for persons requires that each coercive law be justified to those reasonable persons subject to that law, and if a person such as Qutb were a citizen of a liberal democracy, then the argument from respect implies that laws that protect the right to religious freedom are morally illegitimate, as they lack moral justification—at least for agents such as Qutb.

In my next post, Religious Restraint and Public Policy: Part V, I will examine and critique Gaus’s idea of open justification in more detail.

[55] Gerald Gaus Justificatory Liberalism: An Essay on Epistemology and Political Theory (Oxford University Press, New York, 1996) 32.
[56] Christopher J. Eberle and Terence Cuneo “Religion and Political Theory” (2008) Stanford Encyclopedia of Philosophy (at 9 August 2009).
[57] Glenn Peoples “Religion in the Public Square: Is it Justified?” (speech delivered at Thinking Matters, Laidlaw College, 12 May 2009, 14; text obtained via Email from Glenn Peoples to Madeleine Flannagan, 12 October 2009.
[58] Gaus, above n 54, 36.
[59] 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, 132-133.
[60] Audi is a moral intuitionist. He believes people can discern basic moral truths through moral intuition; hence, for Audi, agreement on intuitions means agreement on basic moral principles.
[61] Marilyn McCord Adams Horrendous Evils and the Goodness of God (Cornell University Press, Ithaca NY, 1999) 180.
[62] I am grateful to Matthew Flannagan for the development of this point.
[63] Eberle and Cuneo, above n 55.
[64] For a critical discussion on the standard arguments for religious freedom and the controversial premises on which they rest see, Philip Quinn “Religion and Politics” in William E Mann (ed) The Blackwell Guide to the Philosophy of Religion (Blackwell Publishing, Blackwell Reference Online 2004) (at 7 October 2009).
[65] Eberle and Cuneo, above n 55.

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 V
Religious Restraint and Public Policy: Part VI