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.

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.

“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

(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

(b)        Thinness

A closely related problem is that if it is applied consistently the argument from respect excludes too much. If justification is limited to principles that no reasonable person can reasonably be expected to reject then little will be able to be justified. Glenn Peoples notes the problem;[31]

Given this view of justification, you can only endorse a policy if it is such that it can be endorsed in light of the actual beliefs and goals held by the KKK, the Catholic Church and the humanist rationalist society.

Wolterstorff observes that “in our actual societies, anyone who embraced this position would simply refrain from advocating any position whatsoever on any issue of importance to society.”[32] Quinn agrees, “as Wolterstorff notes, he knows of no law or policy that has come up for discussion in the United Sates in recent years that has had the support of a consensus of all the rational adult citizens.”[33]

Gerald Gaus, who is otherwise sympathetic to the DRR, also agrees; he notes that, given Rawls’s requirement for consensus, public reason “loses its character as a liberal doctrine, for little, if anything, is the object of consensus among reasonable people.”[34] Kent Greenawalt argues that public reason is incapable of grounding policy on most contentious political issues.[35] Peter de Marneffe concurs.[36]

Wolterstorff contends that public reason must be supplemented by ideas drawn from comprehensive doctrines or it will not be able to function as an adequate base for justifying many substantive policies. To make his point, Wolterstorff cites the welfare debate. Advocates for the varying perspectives appeal to ‘freedom’ and ‘equality’ but mean different things by these terms; they prioritise the relevant rights differently, they disagree as to how such rights should be weighed against social utility. It is unlikely that public reason, common sense and uncontroversial science can justify welfare legislation to a standard that all can reasonably accept. [37]

Wolterstorff makes similar points over the fundamental premise in the abortion debate; equal protection has radically different meanings depending on how one interprets public reason’s answer to the question, ‘is the fetus a person or not?’[38] Eberle,[39] Quinn[40] and Jean Hampton[41] agree that public reason cannot settle the question as to whether a fetus is a person yet Rawls argues that public reason can settle the abortion debate (case in point: reasonable people disagree over the answers public reason can give). [42]

Rawls’ version of the argument from respect is not the only one that faces these problems; similar issues arise with other conceptions of the DRR. Any attempt to ground the DRR in the notion that coercive legislation cannot be justified unless the reasons advanced can be grounded in the reasonably-held principles and beliefs shared by all people will face the same problem. This is evident when one examines other versions of the DRR which do not employ Rawls’ idea of public reason.

Rawls employs public reason to place a restraint on all comprehensive viewpoints, whether religious or secular. Robert Audi’s position is less restrictive. Audi applies the restraint primarily to religious reasons. He proposes a principle of “secular rationale”, a principle of “secular motivation” and something he calls “theo-ethical equilibrium.”[43]

His secular rationale principle claims that “one should not advocate or support any law or public policy that restricts human conduct unless one has, and is willing to offer, adequate secular reason for this advocacy or support.”[44] His principle of secular motivation goes further; “one should not advocate or promote any legal or public policy restrictions on human conduct unless one not only has and is willing to offer, but is also motivated by, adequate secular reason, where this reason (or set of reasons) is motivationally sufficient for the conduct in question.”[45] Theo-ethical equilibrium is “a rational integration between religious deliverances and insights and, on the other hand, secular ethical considerations … a mature, conscientious theist who cannot reach it [theo-ethical equilibrium] should be reluctant or unwilling to support coercive laws or public policies on a religious basis that cannot be placed in that equilibrium.”[46]

Audi argues that “an adequate reason for a law or policy is a proposition whose truth is sufficient to justify it.”[47] He places the restraint on religious reasons;[48]

A secular reason is, roughly, one whose normative force, that is, its status as a prima facie justificatory element, does not (evidentially) depend on the existence of God (for example, through appeals to divine command) or on theological considerations (such as interpretations of a sacred text), or on the pronouncements of a person or institution qua religious authority.

Given that comprehensive secular perspectives are not excluded by this version of the DRR, it appears that Audi’s conception can escape the problem of thinness that Rawls’ public reason faces. Comprehensive secular viewpoints should provide people with a thicker perspective, broad enough to justify many substantive policies.

However, an examination of the reasons Audi advances in favour of his version of the DRR will reveal this contention to be mistaken. By broadening public reason to adequate secular reason Audi’s position is thicker than Rawls’ but its asymmetrical treatment of religious and secular views puts it back in the path of the charges of incoherence and thinness. I will elaborate.

Like Rawls, Audi offers a version of the argument from respect. He 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”[49] [Emphasis added] In another article, he argues that[50]

adherence to the principle of secular rationale helps to ensure that, in determining the scope of freedom in a society, the decisive principles and considerations can be shared by people of differing religious views, or even no religious convictions at all.

Audi assumes that secular views are accepted by all whereas not everyone accepts the truth of religious premises. This is a big assumption. In fact some secular views are not accepted by all; religious people can and do reasonably reject secular views. This renders Audi’s position incoherent as adherence to Audi’s position, by Audi’s position, requires us to reject it. Quinn explains, [51]

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. For example, justification of a restrictive law or policy by an appeal to its maximization of utility should be excluded because many citizens reasonably reject utilitarianism. 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.

In addition, Audi’s position imposes a burden on religion that is not imposed on secularism despite secularism possessing the same features used to exclude religion. In the absence of some other factor, specific to religion and not applicable to secularism, the asymmetry is arbitrary. To escape this problem Audi would have to reject not only religious reasons but all reasons that are not “shared by people of differing religious views, or even no religious convictions at all.” However, if he takes this line, his position is rendered too thin and fares no better than Rawls.’

(c)        Audi’s defence

In a defence of his position against this line of critique, Robert Audi questions if the DRR is as thin as critics maintain, [52]

I would think that if we stick to principles of justice, which form only a small part of a comprehensive view, and if we do not take agreement to imply unanimity as opposed to consensus, there is a better chance of agreement than on the whole of such a larger view. Perhaps the chance is still not good, … But is there not a strong consensus, at least among citizens of democratic societies, that justice requires not only equal protection of the laws but also laws that protect liberty, including political and religious liberty and freedom of speech, up to a certain level? There are of course disagreements on matters of detail…

While it is true that most people hold to some conception of justice and equality, and affirm the right to exercise certain liberties, the details of their understanding of these norms are not as minor as Audi suggests. As I alluded to earlier, people can mean quite different things by these terms and can prioritise and weigh their importance quite differently. Closer examination of these “matters of detail” reveals substantive lack of consensus.

Equal protection requires agreement over the question as to whom it applies. In Nazi Germany everyone was owed equal protection by the state; however, certain classes of people were deemed sub-human. Likewise with justifications offered for the new-world slavery as practised in the British Empire and antebellum United States, slaves did not qualify; similarly, with the abortion debate over the status of the fetus. Then there is the extent and nature of the protection to consider. Should the state regulate how many times a week one engages in exercise and eats fruit and vegetables on the grounds of protecting the health of its people or should it simply protect people from aggressors? Is Audi suggesting that simply agreeing that such protection should apply equally to all is sufficient to make his case and what form that should take is mere detail? Unless supplemented by definitions as to its recipients, nature and scope the term “equal protection before the law” is a vague statement lacking substantive content.

The liberties Audi lists are also fraught with difficulty in interpretation as reasonable people do not agree on them.  Are they negative or does the state have a duty to provide or subsidise them? The substantive content and meaning of the terms ‘freedom’ and ‘liberty’ is disputed depending on whether one is talking to a libertarian or a socialist. Then there are the problems specific to each liberty.

Consider freedom of religion. Steven Smith has argued that, strictly speaking, it is inaccurate to claim there is such a thing as a right to freedom religion. Instead there exists a spectrum of views about religious tolerance. Diverse writers, such as Aquinas, Cromwell, Locke and Mill each agreed that some religious dissent should be tolerated by the state but disagreed both on the limits and on which religions should be tolerated in society. Smith concluded that as no state tolerates all religious sects and very few tolerate none, the idea of a concept of freedom of religion supported by some and opposed by others is illusory. Which account of religious tolerance is correct depends on comprehensive views; adjudication between different understandings of religious tolerance is not possible without appealing to some comprehensive view. Settling these matters from something like public reason or adequate secular reason seems extremely difficult.[53]

Does freedom of speech entail prior restraint or does it stop at the initiation of force? What about content and the manner of expression? How should we define speech? Does it include a right to engage in hate, racist, blasphemous, defamatory or sexist speech? Is it acceptable to wear Nazi emblems or deny the holocaust?

Reasonable people disagree over more than just the details; they disagree over the terms, the nature, the extent and hold to a different range of finite cases. People use and understand the relevant terms in very different ways. Audi misconstrues the situation when he argues there is unanimity in society on fundamental principles of justice. The thinness objection stands.[54]

In my next post, Religious Restraint and Public Policy: Part IV, I will look at Gerald Gaus’ attempt to salvage the argument from epistemic inaccessibility and will offer some critical analysis of this.

[31] Glenn Peoples Religion in the Public Square: Liberal Political Philosophy and the Place of Religious Convictions
[32] 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, 154.
[33] Philip Quinn “Religion in the Public Square: The Place of Religious Convictions in Political Debate” (2000) 60:2 Philosophy and Phenomenological Research 486, 487 (book review), 488.
[34] Gerald Gaus Justificatory Liberalism: An Essay on Epistemology and Political Theory (Oxford University Press, New York, 1996) 293.
[35] Kent Greenawalt Private Consciences and Public Reasons (Oxford University Press, New York, 1995) 141-150.
[36] Peter de Marneffe “Rawls’s Idea of Public Reason” (1994) 75 Pacific Philosophical Quarterly232.
[37] Wolterstorff, above n 32, 103-104.
[38] Ibid 104.
[39] Christopher Eberle Religious Convictions in Liberal Politics (Cambridge University Press, Cambridge, 2002) 217-222.
[40] Phillip Quinn “Political Liberalisms and Their Exclusions of the Religious” (1995) 69:2 Proceedings and Addresses of the American Philosophical Association 35, 37-46.
[41] Jean Hampton “The Common Faith of Liberalism” (1994) 75 Pacific Philosophical Quarterly 208.
[42] John Rawls Political Liberalism (Columbia University Press, New York, 1993) 243-244.
[43] 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, 25-37.
[44] Robert Audi “The Separation of Church and State and the Obligations of Citizenship” (1989) 18 Philosophy and Public Affairs 259, 279.
[45] Ibid 284.
[46] Audi, above n 43, 21.
[47] Audi, above n 44, 284.
[48] Ibid 278.
[49] Audi, above n 43, 17.
[50] Audi, above n 44, 290.
[51] Quinn, above n 40, 39-40.
[52] Audi, above n 43, 131-132.
[53] Steven Smith Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (Oxford University Press, New York, 1995). (PhD Thesis, University of Otago, 2007) 118.
[54] Paul Rishworth suggests these examples do not show there is no secular consensus but rather that there is a secular consensus at a high level of abstraction. Supervisor’s feedback from Paul Rishworth to Madeleine Flannagan dated 30 October 2009. This may be the case, however, the thinness objection does not maintain that there is no secular consensus; it maintains that there is no secular consensus thick enough to provide an answer to many substantive public policy questions. For Rishworth’s objection to stand, this higher level of abstraction would have to furnish principles thick enough to answer such questions and the examples above show that it cannot.

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

II         Arguments for the Doctrine of Religious Restraint

Of the reasons advanced in favour of the DRR most fall into one of two categories, an appeal to respect or arguments around the dangers of religion.

A         Arguments from Respect
Two variants of the argument from respect are common in the literature; one appeals to the golden rule, that we should do to others what we would have them do to us, the other is that religious reasons are epistemically inaccessible.

1          The golden rule
Audi advances a version of the golden rule;[12]

Let us apply the do-unto-others rule to that case: one would not like having a different religious group, with which one deeply disagrees, press for its religiously preferred policies solely for religious reasons of its own, even if a good secular reason could be offered. … We are especially likely to disapprove of the dominance of religious motivation if the policy or law in question is backed by severe punishments.

Audi expands a hypothetical example offered by Kent Greenawalt[13] where people advocated voting for candidates on religious grounds because they would protect animals. [14]

Suppose, however, that much money must be spent in enforcement and that many jobs will be lost through the changes in the food sector of the economy, so that human conduct is significantly restricted, even if meat consumption remains legal. Then one might ask the religious voters in question whether they would accept comparable restrictions of their conduct, as well as similar job losses or mandatory shifts, on the basis of coercive legislation protecting the dandelion as a sacred species.

Audi’s example imagines a “religious group, with which one deeply disagrees,” and gives the example of a belief in “the dandelion as a sacred species.” However, it is not just that one is being subjected to coercion on religious grounds, it is that the grounds are ones that we consider to be false. Lydia McGrew explains,[15]

A major reason, perhaps the only reason, why many of us would not want other people to impose their religious standards on us is that we think their religions false, not that there is something special about religion. …. So the Golden Rule argument turns out to have very little to tell us about religion, specifically. [Emphasis added]

Imagine the situation where a false secular belief is being imposed; an environmentalist political party seeks to impose a policy that the aesthetic value of dandelions requires all adults within society to make the same substantial sacrifices Audi refers to. The policy could be reasonably objected to in spite of its grounds being secular. The same is true in reverse. Consider a policy most people strongly agree with being proposed on religious grounds; a Christian party advocates the abolition of female circumcision on the basis that the practice conflicts with its religious belief of the body being sacred. The policy could attract widespread support despite its grounds being religious.

These examples suggest that the merits of the policy itself are what is important and not that the grounds used for its justification are religious or secular.[16] Audi disagrees;[17]

Citizens in [a democracy] are naturally and permissibly resentful about coercion by religious factors…in a way in which they are not permissibly resentful concerning coercion by, for instance, considerations of public health. Even the moral errors of others are, for many, easier to abide as supports of coercion than religious convictions having the same result.

McGrew responds by contrasting two cases; first she argues that, “A slave owner would not be permissibly resentful of the emancipation of his slaves on the grounds that their emancipation had come about as a result of religious arguments.”[18] Conversely she argues, a parent would “be permissibly resentful of the forcible administration to his perfectly healthy child of mind-altering drugs even if such a policy was argued for from secular premises.”[19] So it appears that[20]

How permissible (if one means, as Audi must mean, something like “understandable” or “reasonable”) one’s resentment of some law is depends on how reasonable the law is. It does not depend upon the origin of the considerations that brought about the law but rather upon whether the law is good or bad, merely annoying or outrageous, and so forth.

That we should do to others what we would have them do to us does not just apply to the religious. While it is true that most people would strongly object to having to abide by religiously-grounded policies they reject as false, it is also true that they would strongly object to having to abide by secularly-grounded policies they reject as false. Consider a Muslim woman who believes it is her religious duty to wear a burqa. The passage of a law requiring her to remove her burqa for her driver’s license photo would likely be offensive to her. A parallel golden rule argument would require us to oppose coercive laws drawn from secular grounds.

2          Epistemic inaccessibility
Simplified, the most prominent type of argument offered in support of the DRR is that in a pluralistic society, coercive legislation cannot be justified unless the reasons advanced can be grounded in the reasonably-held principles and beliefs shared by all people. People disagree over which religious views, if any, are correct; therefore, any coercive laws justified on religious grounds cannot be legitimate because not all reasonable people accept religious premises. As such, religious reasons are epistemically inaccessible. Eberle sums this up, “the norm of respect imposes on each citizen an obligation to discipline herself in such a way that she resolutely refrains from supporting any coercive law for which she cannot provide the requisite public justification.”[21]

The paradigmatic and most influential version of this argument is that of John Rawls. Rawls argues that society [22]

is always marked by a diversity of opposing and irreconcilable religious, philosophical, and moral doctrines. Some of these are perfectly reasonable, and this diversity among reasonable doctrines political liberalism sees as the inevitable long-run result of the powers of human reason at work within the background of enduring free institutions.

Rawls uses the fact of diversity of comprehensive viewpoints, present in a pluralistic society, to argue for his version of restraint. Any justification drawn from such distinct grounds will always be reasonably rejected by someone.[23] Given this, some form of restraint is necessary.

Unlike most advocates of the standard view, Rawls’ version of the DRR does not only exclude religion but also other comprehensive secular doctrines that reasonable people disagree over. He notes,[24]

Our exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in light of principles and ideals acceptable to them as reasonable and rational.

Note that the reason that Rawls excludes comprehensive views is that “[not] all citizens may reasonably be expected to endorse [such views] in light of principles and ideals acceptable to them as reasonable and rational.” Rawls argues that when comprehensive views are removed from consideration there remains sufficient common ground from which coercive laws can be justified to all reasonable people. Rawls refers to this “public reason,” which he explains as follows;[25]

We start by looking to the public culture itself as the shared fund of implicitly recognized basic ideas and principles. We hope to formulate these ideas and principles clearly enough to be combined into a political conception of justice congenial to our most firmly held convictions. We express this by saying that a political conception of justice, to be acceptable, must accord with our considered convictions, at all levels of generality, or in what I have called elsewhere, ‘reflective equilibrium.’

Public reason should comprise[26]

presently accepted general beliefs and forms of reasoning found in common sense, and the methods and conclusions of science when these are not controversial … we are not to appeal to comprehensive religious and philosophical doctrines–to what we as individuals or members of associations see as the whole truth–nor to elaborate economic theories of general equilibrium, say, if these are in dispute.

Whilst the boundaries being drawn this way enables Rawls’ position to escape the charge of asymmetry, his critics and even many of those who also advocate some form of restraint on justificatory reasons claim that his position excludes too much.

(a)        Incoherence
Nicholas Wolterstorff identifies several problems; [27]

No matter what principles of justice a particular political theorist may propose, the reasonable thing for her to expect, given any plausible understanding whatsoever of ‘reasonable and rational,’ is not that all reasonable and rational citizens would accept those principles, but rather that not all of them would do so. It would be utterly unreasonable for her to expect all of them to accept them. It would be unreasonable of her even to expect all her reasonable and rational fellow theorists to accept them; the contested fate of Rawls’ own proposed principles of justice is illustrative. What is reasonable for her to expect is that her proposals will stir up controversy and dissent not only at the point of transition from the academy to general society, but within the academy.

In short, there is no more hope that reasonable and rational citizens will come to agreement, in the way Rawls recommends, on principles of justice, than that they will come to agreement, in the foreseeable future, on some comprehensive philosophical or religious doctrine. It is odd of Rawls to have thought otherwise; [Emphasis original]

The divisions in society over welfare, abortion, state funding of social projects, euthanasia, pornography, genetic modification of foods, climate change, capital punishment, Maori seats and so on seem very broad; in most cases no argument or reasons advanced for these issues are likely to be accepted by all reasonable people. That reasonable people will disagree over what constitutes public reason does, prima facie, seem plausible. If this is the case then Rawls’ position is incoherent.

Rawls argues that we have a moral obligation to reject any view that “[not] all citizens may reasonably be expected to endorse in light of principles and ideals acceptable to them as reasonable and rational.” Public reason will “alone give a reasonable public answer to all, or to nearly all, questions involving the constitutional essentials and basic questions of justice.”[28] However, as Wolterstorff pointed out, even the deliverances of public reason are such “that not all reasonable people will agree.” Wolterstorff’s reference to the lack of consensus on Rawls’ own “principles of justice” supports this claim. In A Theory of Justice Rawls attempted to expound on his idea of public reason to develop principles of justice that a society could be ordered by.[29] The reception to A Theory of Justice was not a consensus in favour; present in the literature are a number of rejections, offered by reasonable people, on anything from the conclusions drawn, through to the methods used, to the principles themselves.

If we have a moral obligation to reject any view that “[not] all citizens may reasonably be expected to endorse in light of principles and ideals acceptable to them as reasonable and rational” and principles drawn from public reason are themselves things that not all citizens may reasonably be expected to endorse then, by Rawls, we have a moral obligation to reject any principles drawn from public reason.

Matthew Flannagan agrees,[30]

Rawls rejects appeals to comprehensive doctrines because people can reasonably reject them and argues that there is a duty to not decide questions of basic justice this way. If this is true then we should reject appeals to public reason as well; in fact, we have a duty to not follow public reason.

In my next post, Religious Restraint and Public Policy: Part III, I will look at the objection that the argument from respect is too thin, that applied consistently the argument from respect excludes too much. I will conclude by looking at Audi’s response to this.

[12] 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, 30.
[13] Kent Greenawalt Private Consciences and Public Reasons (Oxford University Press, New York, 1995) 67.
[14] Audi, above n 12, 28.
[15] Lydia McGrew “The Irrational Faith of the Naked Public Square” (2008) 1 The Christendom Review (at 2 October 2009).
[16] Wolterstorff makes the same point, above n 3, 106.
[17] Audi, above n 12, 32.
[18] McGrew, above n 15.
[19] Ibid.
[20] Ibid.
[21] Christopher Eberle Religious Convictions in Liberal Politics (Cambridge University Press, Cambridge, 2002) 12.
[22] Ibid 3-4.
[23] The policy itself might be accepted as it may be able to be justified on grounds the person does accept, though these grounds are not immune from being reasonably rejected by other people. I am grateful to Glenn Peoples for the development of this point.
[24] John Rawls Political Liberalism (Columbia University Press, New York, 1993) 217. Note: Rawls limits his support of a form of the DRR in the policy areas of “constitutional essentials and questions of basic justice.” Rawls’ critics argue that his position commits him to holding to his version of the DRR for all coercive legislation; see for example, Wolterstorff, above n 3, 106; Glenn Peoples Religion in the Public Square: Liberal Political Philosophy and the Place of Religious Convictions (PhD Thesis, University of Otago, 2007) 88; Matthew Flannagan Is Historic Christian Opposition to Feticide Defensible in the 21^st Century? (PhD Thesis, University of Otago, 2006) 200.
[25] Ibid 8.
[26] Ibid 224-225.
[27] 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, 99.
[28] Rawls, above n 24, 225.
[29] John Rawls A Theory of Justice (Harvard University Press, Cambridge MA, 1971).
[30] Matthew Flannagan Is Historic Christian Opposition to Feticide Defensible in the 21^st Century? (PhD Thesis, University of Otago, 2006) 195.

RELATED POSTS:
Religious Restraint and Public Policy: Part I
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

A secular reason is, roughly, one whose normative force, that is, its status as a prima facie justificatory element, does not (evidentially) depend on the existence of God (for example, through appeals to divine command) or on theological considerations (such as interpretations of a sacred text), or on the pronouncements of a person or institution qua religious authority.[4]

Audi supplants this principle of secular reason with two others, a principle of “secular motivation” and something he calls “theo-ethical equilibrium.”[5] His principle of secular motivation goes further; “one should not advocate or promote any legal or public policy restrictions on human conduct unless one not only has and is willing to offer, but is also motivated by, adequate secular reason, where this reason (or set of reasons) is motivationally sufficient for the conduct in question.”[6] Theo-ethical equilibrium is “a rational integration between religious deliverances and insights and, on the other hand, secular ethical considerations … a mature, conscientious theist who cannot reach it [theo-ethical equilibrium] should be reluctant or unwilling to support coercive laws or public policies on a religious basis that cannot be placed in that equilibrium.”[7]

So construed there is an obvious asymmetry in Audi’s position. In a review of a book which defends Audi’s position, Philip Quinn observes;

These principles impose burdens on religious people that Audi nowhere suggests imposing on nonreligious people. … Audi does not propose that nonreligious people must be sufficiently motivated by adequate religious reason for their advocacy or support of restrictive laws or politicise. The lack of symmetry is striking. [8]

The fact that Audi’s position singles religious reasons out for exclusion from public discourse in a manner which he does not apply to secular reasons, raises the obvious question of why? What’s so special or objectionable about theological reasons being used in public?

Elsewhere in his article Audi offers some reasons for this; he notes, “[religious reasons] are special in relation to liberal democracy even by contrast with [secular reasons] … that are not accessible to any normal adult.”[9] He gives five “salient points” to support his case, all based on the idea that religious reasons are dangerous to society.[10]

In this post we want to focus on the first of these. Audi thinks any appeal to God’s commands in public debate is dangerously divisive because “religious reasons … are directly or indirectly taken to represent an infallible authority.”[11] This line of thought strikes a chord with many, concern about the infallible nature of divine will is often the basis for criticism of appeals to theology in public discourse.

However, as Audi defines the term ‘infallible’ any reason a person offers for their position would be infallible; according to Audi, propositions are infallible if it is “impossible that they be both endorsed or accepted by God and false”.[12] God, as Audi understands him, is omniscient. God only believes true propositions. It follows then that any proposition one can imagine, regardless of its content, will be such that it is impossible for both God to believe it and that the proposition be false. Given this it is hard to see how “religious reasons” are especially objectionable on Audi’s contention.

Perhaps, however, this is a technical point based on a mistaken definition of infallibility. Audi’s main concern is that a person, who believes that an action is commanded by God, believes that an omniscient, infallible being has endorsed that action. Appeals to purported divine commands are therefore problematic because the authority appealed to cannot err.

The obvious rejoinder is that many secular ethical theories face precisely the same problem. One of the most influential secular theories is the ideal observer theory, which is 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. 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.

This is probably enough to address Audi’s concerns but there are several other points worth noting.

Firstly, the fact that the law of God is infallible does not entail that there is or cannot be debate over what the law of God in fact is. Claiming that God’s law is infallible is not to claim that any human never errs in his or her discernment of what this law is, his or her interpretation of it or his or her application of it to particular cases. Claiming that there is debate over the interpretation of divine law and debate over how to apply various precepts of divine law to specific cases, is compatible with affirming that divine law is infallible.

In this, the law of God is analogous to deductive reasoning. By definition, a sound argument can never have a false conclusion. It is impossible for the conclusion to be false if the argument is sound, hence sound arguments are infallible. It does not follow from this that people never err in constructing arguments that they mistakenly believe are sound or that there is no debate over which arguments are sound. Reason is authoritative; however, human reasoners are not. It is hard to see why the infallibility of the law of God means that appeals to this law are any more problematic than appeals to logic.

A similar response is available on the immutability of divine law. The fact that God’s law is immutable does not mean that any person’s understanding of this law cannot change. He or she may find his or her particular beliefs about God’s law were mistaken or that he or she had applied it incorrectly.

In this respect, the law of God is analogous to numerous things that it is unobjectionable to appeal to. Consider an appeal to facts and reason; these too are immutable. If it is a fact that the world was round at the time of Columbus then this is something we cannot change. It cannot be true 100 years from now that the world was not round when Columbus sailed. Moreover, whether an argument is sound is also immutable; we cannot repeal the laws of logic. Therefore, both facts and reason are as immutable as God’s law is.

Moreover, consider a precept such as it is wrong to torture children for entertainment. Is this mutable so that society could repeal it tomorrow? Is the claim that rape and genocide of Jews is wrong something that is mutable, that human beings can change and repeal these things? Obviously not. Immutability is a feature of any serious, ethical viewpoint. If you cannot base civil law on immutable things, then you cannot base it on facts, reason or secular values.

[1] 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.
[2] Robert Audi “The Separation of Church and State and the Obligations of Citizenship” (1989) 18 Philosophy and Public Affairs 259, 279.
[3] Ibid 284.
[4] Ibid 278.
[5] Audi, above n 1, 25-37.
[6] Ibid 284.
[7] Audi, above n 1, 21.
[8] Philip Quinn “Religion in the Public Square: The Place of Religious Convictions in Political Debate” (2000) 60:2 Philosophy and Phenomenological Research 486, 487 (book review).
[9] Audi, above n 1, 31.
[10] Ibid 31-32.
[11] Audi, above n 1, 31.
[12] Audi, above n 1, 62.

This post was jointly authored. It is largely a mash of extracts from Madeleine’s  paper “Religious Restraint and Public Policy” and from Matt’s “Is Historic Christian Opposition to Feticide Defensible in the 21st Century.”