28 June 2011

Against Religious Freedom


Austin Dacey & Colin Koproske
Dissent (Summer 2011), posted with permission

Controversy in the summer and fall of 2010 over plans for the construction of an Islamic community center in New York City near Ground Zero reminds us that America's legacy of religious freedom is by no means settled. Debates about the proper limits of religious freedom don’t arise only with respect to new Muslim populations. Even as conservative Christians seek to restrict Muslims' freedom, they allege that their own freedom is under threat from aggressive secularism: school administrators are infringing students' rights to pray and discriminating against creationist biology teachers. And atheists argue that their rights are violated when they are compelled to recite the Pledge of Allegiance.

As disparate as these views may be, they agree on the importance of religious freedom. And yet few of us have thought through its real meaning and implications. In fact, there are two quite distinct ideas that fly under the banner of "religious freedom." The first is that people have the right to practice a faith, consistent with the rights of everyone else. We think this is vital and unassailable. However, as we will contend, it is misleading to label this idea "religious freedom." The second idea is that religions deserve some special accommodations under the law that are not available to comparable secular institutions or commitments.

Traditionally cherished and unquestioned though it may be, this latter notion of religious freedom is philosophically unsound, legally incoherent, and morally indefensible. To make real progress in the conversation about church and state, we must give it up.

Paradoxes of accommodation

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The religion clauses of the First Amendment to the U.S. Constitution were perhaps the boldest and most novel assertions of the American experiment. Their formulators, Thomas Jefferson and James Madison, hoped "to keep forever from these shores the ceaseless strife that has soaked the soil of Europe with blood for centuries," as Madison put it. Neither man foresaw that the Free Exercise clause would come to mean what it does today: the "accommodation" of religion by granting practitioners a presumptive right to violate otherwise valid laws.

This is a relatively recent development. The seminal 1963 case Sherbert v. Verner concerned unemployment compensation for Adell Sherbert, a Seventh-day Adventist who was denied benefits under South Carolina law because she refused to take available suitable jobs. Sherbert felt religiously bound to reject such jobs because they would require her to work on Saturday, her Sabbath. The Court ruled in favor of Sherbert, granting her an exemption to the state law. This case, together with the 1972 decision in Wisconsin v. Yoder, set a far-reaching precedent: free exercise of religion entails that religiously motivated persons may disobey a valid and generally applicable law unless the government can demonstrate, first, that there is a "compelling state interest" in enforcing it and, second, that there is no alternative, less burdensome legislative means of pursuing this interest. In practice, this is a tall order, because a compelling state interest is considered more powerful than a merely "rational," “important," "valid," or "legitimate" purpose.

The 1980s and 1990s saw a series of judicial and legislative twists and turns, pivoting on the controversial 1990 case Employment Division v. Smith and the legislative backlash against it in the form of the federal Religious Freedom Restoration Act and similar state-level laws. Today, many areas of law in many states still operate within the Sherbert-Yoder framework. Statutory and case law tends to grant presumptive exemptions to the religious, typically making no provisions for those nonreligious individuals who might be substantially burdened by a law on account of their moral convictions.

A survey of federal and state laws conducted about a decade ago found that more than two thousand statutes of all kinds provide for so-called religious exemptions. For example, in numerous states, religiously affiliated child care providers are exempt from many of the regulations—such as minimum staff-child ratios and training standards—that apply to their secular counterparts, despite the fact that the religious day care centers may receive federal subsidies. In addition, many states exempt religious organizations from paying property taxes even as they collect property taxes from secular non-profits. The law often defines religious uses of property broadly, qualifying everything from churches to commercial parking lots and multimillion-dollar "parsonages" with golf-course views. Religious exemptions are not just unfair. They can be deadly. Dozens of states provide exemptions from criminal prosecution for child abuse or neglect by members of faith communities that engage in “faith healing”— Christian Scientists among them—and whose children suffer or die while under their care.

A regime of religious freedom gives favorable treatment to some people not because they have a weightier claim but because they claim a particular identity. If the courts were to apply the compelling state interest standard robustly and consistently, then religious organizations and individuals would be free to disregard a significant swath of zoning, environmental, tax, and other law. We would be left with a system, as the Supreme Court put it in Smith, “in which each conscience is a law unto itself.”

The legal quandary goes deeper, right to the core of the constitutional order. Church-state separationists, of course, want to uphold the Free Exercise Clause, but also the so- called Establishment Clause. And yet the Establishment Clause stands in tension with the Free Exercise Clause, interpreted as a protection of religious freedom. The Establishment Clause, as currently understood, forbids government from disfavoring or favoring religion as such. But by conferring special benefits on religion in the form of presumptive exemptions, the government is favoring it, in violation of the Establishment Clause. No wonder, then, that an increasing number of constitutional scholars are calling for an end to the special treatment of religion.

What is so special about religion?

Before considering a constructive alternative to religious freedom let us examine its motivation. Why would one think that religion deserves special protection by the state? Suppose someone were to propose a basic constitutional right to literary freedom, the right of writers to put on paper whatever they wish. Two problems would immediately be obvious. First, the freedom to write is already protected as it is a subset of more general freedoms that are guaranteed to everyone, such as the freedom of expression. Second, if the idea instead is that writers get some kind of additional assistance not already received by everyone, then the following question arises: what is so special about writing—as opposed to painting, cooking, or volunteering for charity—that it deserves to be singled out for favorable treatment from government? In a liberal democracy, the government works to ensure that all people enjoy a certain sphere of personal liberty and privacy in which they can do what they want. It does not give special treatment to those who use that liberty and privacy to write instead of cook. So, while everyone gets the freedom to write, no one gets literary freedom.

Although it is more familiar, religious freedom makes about as much sense as literary freedom. This is overlooked because we are so accustomed to thinking of religious freedom as a unique and basic right. But the free exercise of religion should be seen as one manifestation of more fundamental rights held by all people, religious and secular alike: private property, personal autonomy, freedom of expression, freedom of association, and perhaps most important, freedom of conscience—the right to make up our own minds on moral and spiritual questions. Some people exercise these rights by being observant Christians, Jews, Sikhs, Hindus, or Muslims. Others exercise them by being Marxists, existentialists, secular humanists, or devotees of self-help psychology. Still others remain uncommitted.

A number of scholars and public intellectuals have argued that religion is special; that among all the possible manifestations of our fundamental freedoms, it stands apart by its very nature and therefore deserves unique treatment. But they all fail to show that there is something about a religious exercise of conscience that makes it more worthy of state solicitude than a secular exercise of conscience.

Three families of arguments loom large in the literature. Remember that a successful case would have to apply only to religion. It could not apply equally to political or other secular commitments, but to all religions, reasonably defined. If not, it would only prove that particular religious communities deserve special protection. And finally, it would have to illustrate that the distinctions it cites are relevant to political rights.

One family of arguments maintains that religion, or some characteristic of religion, is an important good that warrants special considerations in law and government. In this vein, legal philosopher Timothy Macklem argues that faith, understood as “a mode of belief distinct from reason,” provides “a way to come to terms with the unknowable where to do so is necessary to human well-being.” Yet this way of knowing, whether it is explained in terms of a priori intuitions or basic beliefs not arrived at by inference, is too narrow to capture all religious commitments—see Aquinas, Maimonides, and Ibn Rushd (Averroes) on the indispensible role of reason. At the same time, it is too broad to rule out important nonreligious commitments—see Hobbes, Hume, and Mill on the place of desire and value in the foundations of secular ethics.

But insofar as “faith” is distinctive of religion, why should we think that the state has a legitimate duty to subsidize it? Shouldn’t we rather be wary of the public dangers posed by beliefs that are nonnegotiable and unresponsive to evidence, as the philosopher Brian Leiter has observed?

Another candidate for a public good inherent in religion is the search for “ultimate meaning.” Martha Nussbaum writes that “religion merits special deference from the liberal state, given its central importance to citizens in the search for meaning.” This conception of religion succeeds at excluding some secular pursuits, such as playing baseball or day-trading, and points to some- thing that most of us do care deeply about. But like the argument from faith, it is too broad to exclude all secular pursuits. We know of no reason to think that believers’ search for meaning is necessarily more profound than that of their unbelieving counterparts. Nussbaum’s argument serves better as a defense of “liberty of conscience”—not accidentally the title of her recent book on religious freedom, a liberty that belongs to all citizens.

A second family of arguments for religious specialness maintains that religious belief is an exceptionally binding kind of commitment, central to the believer’s integrity. Treating citizens fairly means understanding and respecting such commitments. This suggestion has been developed impressively in the writings of William Galston and Michael Sandel, who emphasize that religious beliefs are not regarded by believers as optional but rather as unchosen commitments that are constitutive of their identity. This line of thought draws our attention to three features that a commitment might have: it is regarded as a categorical obligation rather than a mere preference; it was not voluntarily adopted; and it is essential to a person’s identity. But we must be careful not to overstate the presence of these features in religious commitments or their absence from secular commitments.

Clearly, the Muslim police officer who refuses on religious grounds to shave his beard to comply with police force regulations is acting under an obligation in a way not true of the officer who simply wants to make a fashion statement. But from the fact that some secular claims express mere preferences, it does not follow that all do. It would be perverse to conclude that the commitment to racial justice of Andrew Goodman and Michael Schwerner—murdered for their civil rights activism during Freedom Summer—was not sufficiently “binding” because it sprang from secular attitudes.

At the same time, it is not a necessary condition of a religious practice that it is regarded as inescapable. A self-identifying Catholic might recognize that as a Catholic she has a duty to attend Sunday Mass, while at the same time affirming other identities—as friend, colleague, mother, or life partner—that generate their own, conflicting duties and that sometimes take priority over her religious identity. Furthermore, believers may regard a religious identity itself as chosen. As Alan Wolfe documents in The Transformation of American Religion, “religion in the United States is as much about choice and personal autonomy as it is about belonging and community.” Readers who are attracted to Galston’s or Sandel’s position may doubt the “authenticity” or worth of such individualistic adherence. Yet if we are seeking an understanding of religion to inform our general system of law, empirical generalizations about the lived experience of people of faith should carry more weight than the opinions of political theorists.

What these two strategies—religion-as-good and religion-as-binding—have in common is that they posit some property of religion that is supposed to justify special accommodation by the state. However, if our analysis is correct, the properties proposed do not map onto all and only religious practice. So, the most that these strategies could show is that the state must be sensitive to such properties, not that it must accommodate religious practice as such.

A third and different strategy for vindicating the specialness of religion draws strength, perhaps surprisingly, from the doctrine of “separation of church and state.” For Establishment Clause reasons, we already single out religion for special treatment, such as denial of certain kinds of aid. It may seem that if the National Council on the Humanities but not the National Council of Churches is to be constitutionally permitted to receive direct government funding, then we must attribute to religion a special importance. However, this conclusion would be unavoidable only if we could locate no other, more fundamental constitutional rationale for preventing government establishment or endorsement of religion. There is such a rationale. It is the value of equal respect for citizens.

An alternative: Equal liberty

In Religious Freedom and the Constitution, a 2007 book that deserves a broad audience beyond academia, Christopher Eisgruber and Lawrence Sager, of Princeton University and the University of Texas, respectively, propose a comprehensive new understanding of the place of religion under the law. They call their model Equal Liberty. According to this model, the Free Exercise and Establishment Clauses are not requirements on how the state should treat religion, but rather requirements on how the state should treat citizens.

Equal Liberty encompasses three principles: antidiscrimination, neutrality, and general liberty. The antidiscrimination principle “insists in the name of equality that no members of our political community ought to be devalued on account of the spiritual foundations of their important commitments or projects.” The neutrality principle holds that apart from concerns over discrimination, “we have no constitutional reason to treat religion as deserving special benefits or as subject to special disabilities.” Finally, the general liberty principle holds that “all persons— whether engaged in religiously inspired enterprises or not—enjoy rights of free speech, personal autonomy, associative freedom, and private property that, while neither uniquely relevant to religion nor defined in terms of religion, will allow religious practice to flourish.”

If Eisgruber and Sager’s proposals were to be adopted, many aspects of the present legal landscape would remain in place, though they would be affixed within a more coherent framework. For example, Equal Liberty is consistent with the decision to grant welfare benefits to Adell Sherbert, though not for the reason that she had a religious claim and the state had no compelling interest. Rather, Eisgruber and Sager argue, denying benefits to Sherbert would have violated the antidiscrimination principle by treating her claim differently from mainstream faiths already accommodated by the law. Other exemptions could survive by expanding to countenance comparable nonreligious claims. The Supreme Court’s decision in the Vietnam-era United States v. Seeger, for instance, acted consistently with Equal Liberty when it expanded the existing conscientious-objector status, formerly reserved for theists, so as to include the claims of Daniel Seeger, a pacifist on principled, secular moral grounds.

However, under an equality-based framework, many privileges currently enjoyed by religious organizations and individuals could not survive. What reason—apart from discrimination on the basis of “spiritual foundations”—could be given for granting immunity from zoning or employment regulations to religious charities but not their secular counterparts? Indeed, it may well be that in many of the cases where religious exemptions seem most justifiable—dress codes in public school gym classes, for example—this is not because of the strength of the religious claims but the weakness of the rationale for the rules themselves. On the other hand, where the rationale is particularly powerful—think of the safety of children in the medical neglect and abuse cases—no exemptions of any kind appear justifiable.

Beyond religious freedom

While it is not our intention here to defend Equal Liberty in every detail, we hope to have made clear that there are workable, constructive alternatives to the automatic accommodation of religion as such. To be clear: we would not deny that people have the right to construct a mosque or religiously affiliated community center in Lower Manhattan, but we maintain that their right is not a right of “religious freedom.” Fundamentally, they would be exercising rights that the New York Academy of Sciences, an educational nonprofit organization, exercised when it moved into its offices at 7 World Trade Center: rights of free association and private property. On the other hand, we would oppose presumptively granting to a mosque special privileges that are not also available to the New York Academy of Sciences, unless such privileges can be justified solely by appeals to personal equality and liberty that can be brought by all citizens.

The twin moral pillars of a liberal democratic order are freedom and equality. In the end, the current regime of religious freedom runs counter to the value of treating all citizens equally regardless of their convictions of conscience. In Lynch v. Donnelly, Justice Sandra Day O'Conner wrote that government endorsement of religion is unacceptable because it "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." The present legal system of religious freedom does just that. It tells the religious that they are favored members of the political community, while telling secular people of conscience that they are outsiders. What a liberal democracy must stand for is not freedom of religion, but freedom of conscience.

(Read William Galston's response here, and our reply to Galson here.)

19 comments:

Manns Word said...

On the surface, the Dacey and Koproske proposal of “equal liberty,” in favor of “religious liberty,” is not such a bad proposal. However, I suspect that it’s little more than a Trojan Horse, containing all sorts of nasty surprises.

While religion has enjoyed certain privileges in this nation, it has also been experiencing a whole host of liabilities, increasing so. Let me just mention a few:

1. Here in NYC, recent ordinances have prohibited churches to rent space in the NYC schools, while other groups continue to enjoy this right. Pro-life pregnancy clinics are now required to post warnings – unlike secular groups – that have adversely affected their provision of services.

2. The Obama administration has repealed some laws safeguarding health-care workers from participating in things that violate their conscience.

3. There are now two lawsuits pending by Christian students who had been expelled from graduate counseling programs at two different state colleges for refusing to undergo re-education to force them to accept same-sex marriage.

4. Hastings Law School has successfully disenfranchised a student Christian legal group because they practice religious discrimination – members have to be Christian – while similar groups having their own religious/sexist requirements haven’t been affected.

These examples point to the growing hostility of our secular institutions towards the Christian faith – a favoring of one set of values over another. The growing power and influence of these secular institutions are troubling. It is hard for me to not suspect that the authors are comfortable with their increasing hegemony simple because they reflect their own values/religion.

Colin Koproske said...

Thanks for the comment, Manns Word.

Two points in response:

(1) To the extent that an exemption relies on the religious character of the claim, and not some other consideration, then yes, such an exemption would be likely to lose out under "equal liberty." In a way that is the very essence of our argument; we are suggesting that religion qua religion is not entitled to special protection--that it must pass muster as all other claims do under the rubric of free expression, association, private property, and liberty of conscience. The challenge, then, for the cases you identify is whether those exemptions can be justified without reference to the "specialness" of religion. Conscience clauses for health-care professionals may fail this test, as we don't generally accept a broad right to opt-out of delivering health care based on personal belief or political view.

(2) Still, there are areas where undue discrimination against religion, under the guise of "church-state separation," would also fail to satisfy equal liberty. We are prepared to accept the consequences of a religion-blind jurisprudence, despite our particular views and values, on principle. Your first example, of faith groups barred from renting school space when others are allowed, might be an instance where equal liberty provides greater, not fewer, rights for religious groups.

Ultimately, we view the resolution of these conflicts not as a matter of favoring secular or religious values over others, but as a complex set of tradeoffs between spheres of public regulation and civil liberties (in that sense, we invite objections from all sides). Religious beliefs and institutions, in our view, should be considered on their merits alongside their secular counterparts, and we would have to be prepared for the consequences of dropping the faith-based distinction.

Manns Word said...

Colin,

I appreciate the fact that you are willing to admit that the "separation clause" has also led to some discrimination against religion.

I think that there is another problem that also has to be weighed on the scale - all law also reflects a worldview or religious orientation. As such, it represents a stealth religion that has increasingly been dictating within the social arena at the expense of other religions.

Of course, if these new initiatives reflect your own religion, no problem. But if they contradict and circumscribe your religion, then it's little consolation that you share the same freedoms/liberties as everyone else in face of the fact that the government has gobbled up a large part of these liberties.

Mark Hausam said...

I think that Dacey's and Koproske's idea of clearing up the philosophical confusion underlying ideas of "religious liberty" makes a lot of sense. As they mentioned, others have been making similar suggestions. I would mention the works of Stephen D. Smith in this regard as well. I think the key issue is figuring out which worldview the government is going to adopt. I agree with Manns Word that any law-order is going to reflect basic worldview beliefs (be they “religious” or “secular”). Coming to terms explicitly with what that worldview is or should be will enable law to become more philosophically coherent.

If the government assumes an atheist/agnostic worldview, I think Dacey's and Koproske's (and Eisgruber's and Sager's) specific idea of broadening out “religious freedom” to a form of “liberty of conscience” that includes secular as well as religious conscientious concerns makes perfect sense. In an agnostic worldview, religion is just people's speculative ideas about the unknown, and therefore has no special merit as an objective fact-producing institution. In itself, it is just a practice that people happen to engage in that has no objective, civil importance. Thus, it should not get special treatment. The real issue, then, becomes trying to make a space for all people to figure out their own ideas about life's meaning without being unnecessarily harassed by the government—liberty of conscience. If I were an agnostic, I think I would absolutely support this idea.

Mark Hausam said...

I would make one criticism, however: At the end of their piece, Dacey and Koproske refer to Justice Sandra Day O'Conner's idea that the equality required in a liberal democracy is opposed to religious establishment because it “"sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” But Justice O'Conner's idea of trying to avoid this situation is impossible, for the reason already mentioned—all law-orders must, in principle, unavoidably, reflect some particular worldview, and thus must send a message to those who hold that worldview that they are insiders and to those who don't that they are outsiders. I am a Christian, and indeed a theonomist who believes that God's law in the Bible should be the basis of the law of the land in any society. I believe that God, who is the ultimate moral authority in the universe, has commanded that it be so. This is the ideal we should strive towards. Thus, according to my worldview, the government should favor and endorse biblical Christianity. This would send a message to agnostics and other non-Christians that they are “outsiders” in the sense that their worldview is not favored and endorsed by the government. But Dacey and Koproske are advocating a position that is rooted in an agnostic worldview's evaluation of what religion is, and thus involves a favoring and endorsement of agnosticism by the government, thus sending a message to me and other non-agnostics that we are “outsiders” in the same sense. There is no way to avoid doing this. It is not a question of whether or not the government will favor or endorse a worldview, but which one will it endorse? Recognizing this fact (as Dacey seemed to do to some degree in his book The Secular Conscience) will go a long way towards enabling conversations about law to truly attain the kind of philosophical coherence that Dacey and Koproske are seeking. As Willam Galston's reply suggests, the founding fathers of the US did seem to think of religion as special, and it was because they themselves, as Madison makes explicit in his Memorial and Remonstrance, believed that liberty of conscience is to a great degree about allowing people to serve God in a way they think God wants to be served. In an agnostic worldview, this concern is a non-entity, and so there is some tension between the two views as to how to define liberty of conscience. Clarifying what worldview we are working from and making that explicit will make the conversation and debate over these issues much more clear, productive, and fruitful, I believe (although it will also, in some ways, make it more difficult, in that it will stop avoiding the central issue of truth that everyone seems to want to avoid because it seems too tough to tackle).

Mark Hausam

Manns Word said...

Mark,

Very well put! I think that we all agree that the maximum amount of liberty needs to be extended to all. However, the reality of law itself reflects the fact that liberty must be restricted, and who's to decide? Well, it always comes down to a question of values/religions.

While we need to respect the liberty of the other, but sometimes our values prevent this - a sticky matter!

I took a look at your blog - no recent entries???

A good friend of mine - Stan Sutton - is an OPC pastor. Know him?

Bruce Ledewitz said...

I posted the following comment in response to a somewhat different version of "Against Religious Freedom" that Austin Dacey wrote for Religion Dispatches magazine. As I read the original here, it seems to me that the point basically remains the same, so I am posting it here as well, where the terms of response are more flexible than at RD.

To the Editor:

As always, Austin Dacey raises provocative issues in his recent piece, "There is No Religious Freedom." But this time, Dacey does not take his analysis far enough.

Dacey argues that religion has no special claim to exemption from law or recognition in law. Government should not be supporting religion per se and whatever secular values religion may be said to be furthering, should be supported by government whether founded in religion or nonreligious traditions. Thus, there is no religious freedom, there is just freedom.

But the logical conclusion of this argument, is that there is no religion either. There are just normative claims of various kinds—“radical normative pluralism,” as Winnifred Fallers Sullivan puts it in Dacey’s article. We just happen to call some of these normative pluralisms “religious.”

It should also follow that there is no “establishment of religion.” Government would just be furthering one normative pluralism or another. Undoubtedly for historical reasons, government should not be permitted to endorse the normative traditions associated with Christianity or other recognized religions, but government should be permitted to endorse the nondogmatic values that these traditions further.

Dacey might agree with this. But I wonder if he would go the next step. Let us say that the nondogmatic value we want expressed is that the government should obey fundamental norms of right and wrong, should be bound by human rights. If religion is not special, then why not express that value, at least sometimes, through a formula like “one Nation under God”?

If you say that the value can only be expressed through language not associated with traditional religions, you are not following the equality-based solution that Dacey says he supports, but are favoring one of the normative pluralisms over the others.

Austin Dacey said...

Bruce Ledewitz is correct that an equality-based approach would require revision to the legal treatment of the "establishment of religion" as well as religious freedom.

In the context of U.S. constitutional law, one of chief theoretical advantages of an equality-based model is that it resolves the tension between the Free Exercise Clause and the Establishment Clause of the First Amendment. As the Supreme Court as observed, these clauses "exert conflicting pressures" insofar as the first is understood to require the state to aid religion by conferring on it special benefits (e.g., blanket exemptions) and the second is understood to forbid the state from aiding religion (e.g., no public support).

Eisgruber and Sager's Equal Liberty proposal includes a "neutrality principle," which holds that “we have no constitutional reason to treat religion as deserving special benefits or as subject to special disabilities” except where such treatment would constitute discrimination, or a failure to show equal concern and respect for some citizens merely "on account of the spiritual foundations of their important commitments or projects"--the antidiscrimination principle.

Under this model, certain forms of government aid to religion would be permissible. For example, when federal dollars (along with adequate oversight and regulation) go to Catholic Charities among many recipients, and when there exist adequate secular alternatives to the services they provide, nonadherents are not necessarily marginalized or disvalued as a result. The official use of "In God We Trust," by contrast, "sends a message to nonadherents that they are outsiders, not full members of the political community," to use Sandra Day O'Conner's formulation. It is this failure of equal regard, and not the religious nature of the message as such, that arguably makes it unconstitutional.

This is no less true of "In Flying Spaghetti Monster We Trust" and "In Marx We Trust."

Apart from considerations of equality there is the matter of whether the policy is supported by adequate reasons that survive public deliberation and justification. An insupportable privilege is not made supportable by extending it to everyone. In the democratic process, citizens and their representatives would be responsible for crafting laws that take into consideration the space of personal and associative liberties common to all, without special appeal to religion.

Desiree Hausam said...

I am a theonomic Calvinist Christian. One of my beliefs is that God has commanded civil governments to acknowledge Christianity as the one true religion and to base laws and policies on biblical principles. If Dacey's and Koproske's goal is to honor the idea of the equality of all citizens, to avoid sending "a message to nonadherents that they are outsiders, not full members of the political community," then it should be acknowledged that even advocating the idea that government should treat all religious equally is a repudiation of my religious belief on this subject, and thus sends a message to me that I am an outsider, not a full member of the political community. Perhaps it could be argued that it is good to send that message to people like me. But, good or not, that message is being sent; and that unavoidable fact needs to be acknowledged and dealt with straightforwardly by anyone who claims to be a supporter of treating all citizens equally in the way Sandra Day O'Conner suggested. There is a fundamental paradox here that hardly anyone seems willing to acknowledge. This paradox calls into question the coherence of anything like the equality principle. To advocate the equality principle to be the official position of the government while some citizens' religious beliefs oppose the equality principle is to violate the equality principle.

Mark Hausam said...

Actually, that last comment was from me (Mark Hausam), not my wife (Desiree Hausam). There are cons to working from the same computer at times!

Manns Word said...

Austin,

I’d like to further examine this notion of an “equality paradox” that the Hausams have raised. Are ideas equal, or even people, and should they be? Each one of our laws discriminates. We discriminate against youth driving and drinking. Now, we find that there are more laws discriminating against parental rights in favor of the schools’ or society’s right’s over the children.

We discriminate against certain behaviors – bigamy, incest, and polygamy. We haven’t discriminated against heterosexual monogamy, but now society is beginning to embrace SSMs. It doesn’t seem that we can settle these kinds of questions by invoking “equality.” After all, all laws reflect underlying value judgments, while equality for one person represents discrimination against another.

In short, I don’t think that we can leave the question of values under the table. They have to be elevated to a place of prominence where they belong. Values, of course, are sticky issues, but I don’t think that we are doing justice to anyone by ignoring the underlying issues that motivate all of us. By refusing to deal with the real issues, we simply lapse into propaganda, subterfuge and manipulation.

Bruce Ledewitz said...

I’m afraid I don’t follow Austin’s distinctions. An official statement such as “America is a democratic country” “sends a message” to monarchists that they are outsiders. Similarly, “America is a capitalist country” does the same to socialists. For that matter, what would be wrong with a slogan “Marx was right” by a communist country? Politics is not normless. Nor is a nation just a collection of individuals. I read The Secular Conscience as agreeing with the collective, normative nature of politics.

If there is no reason to treat religion differently in terms of liberty of conscience, and I agree with the original point that there is not, the reason must be that religious normative claims are not relevantly different from nonreligious normative claims. That is what Winnifred Sullivan means by “normative pluralism”.

But then what is special about religious normative claims by government such that government is uniquely prohibited from making those normative claims? The only reason I see is one of history. I accept that history as requiring government neutrality toward religion, but I do not agree that this means religious imagery may not be used to make nonreligious normative claims. In God We Trust does express the view that reality is trustworthy. The statement that reality is trustworthy is a normative claim that the majority is entitled to make through its government. Freedom just means that the rest of us can disagree.

Mark Hausam said...

I think that Dr. Ledewitz has accurately pointed out the impossibility of the equality principle as Sandra Day O'Conner articulated it. If the government takes any substantive philosophical/religious position that disagrees with the philosophical/religious positions of any citizens, it is violating the equality principle.

It is thus impossible to avoid violating the equality principle, since any nation that makes laws must base them on some substantive philosophical positions (secularism, democracy, Islam, etc.) that not every citizen will accept. As I pointed out previously, even the equality principle itself is a substantive philosophical position that disagrees with the views of some citizens, and thus the government could not affirm it without violating it.

If the equality principle is thus incoherent and practically impossible, and since if it was possible it would lead to a government that would be paralyzed from doing its job by a lack of ability to figure out what sorts of laws and policies it should have (since it would be forbidden to have any philosophical positions on pretty much any subject), why do we even want to value it and try to preserve it? Why not abandon it as the useless and meaningless idea that it is, and instead, as Manns Word has suggested, focus on figuring out what substantive values and philosophical positions ought to be affirmed by government (which would involve dealing with issues of fundamental truth)?

Dr. Ledewitz has also asked why, if normative positions (like "democracy is good" or "the nation should be secular") can be affirmed by the government--we are not, apparently, concerned about the equality principle when we affirm these kinds of claims--and if religious normative claims are the same in principle as secular normative claims and should be treated alike (which I also agree with, as does Dacey if I understand The Secular Conscience correctly)--if these things are so, why should religious claims like "In God We Trust" be excluded in principle for not adhering to the equality principle? Why do religious claims have to adhere to the equality principle while other claims, like the claims that secularism and democracy are good, don't? (I am, of course, adding to Dr. Ledewitz's articulation of his argument.)

Dr. Ledewitz says it is only "history" that causes us to treat religion differently here, and which causes us to try to hold on to the equality principle with regard to religious claims. But this is not a philosophical justification. Why not overturn historical precedent when it is incoherent and rationally absurd? We've done it before. Embracing the equality principle in the first place was a dramatic break from historical precedent when it occurred. We do momentous, precedent-breaking things all the time, like legalizing same-sex marriage. We rightly reason that moral good and rationality override historical precedent. So why shouldn't that affect our ideal goal here as well?

Bruce Ledewitz said...

Since Mark Hausam refers to my statement about "history", I suppose I should add that I think the lesson of history that governments should not endorse religious claims per se has been vindicated in practice. In a general sense, I believe the framers of the Constitution came to this conclusion as well, on the ground of divisiveness. (References to God in particular are something of a special case for reasons I try to articulate in Church, State, and the Crisis in American Secularism.)

Manns Word said...

Bruce,

As Hausam points out, religious claims are no different substantively from other values statements like "Democracy is good." Clearly, the constitution is filled with many values that it promotes over others, like the good of protecting its citizens against a powerful overbearing government.

I don't think that you can separate such values from religion, and I don't see where the Constitution attempts to do so, although it strenuously attempts to not favor one denomination over another.

In fact, some have argued that our Constitution rests upon Biblical principles - ie, "All men are created equal." This certainly isn't a truth that ancient Greek and Roman culture embraced. They believed that some had been created into slavery as they deserved.

Austin Dacey said...

I agree that the liberal principle of equality is a substantive moral principle that is incompatible with some theocratic doctrines, such as Mark Hausam's. So, there is a sense in which Mark is an outsider to the liberal political community.

However, that just shows that the principle of liberal equality is not acceptable to everyone. It does not show that some other principle is more just or wise than it.

In another more important sense, Mark is an insider, in that he enjoys rights to maximal liberty--to assemble, to worship, to participate in public discourse, and so on--consistent with the equal rights of others.

The charge that liberal equality is self-defeating arises from the conflation of two distinct levels at which questions of equality and neutrality can arise: 1) formal equality in the treatment of citizens, and 2) substantive moral neutrality in the justification of formal equality.

The state that does best at level (1) is not neutral at level (2).

Manns Word said...

Austin,

You mention, “formal equality in the treatment of citizens.” (BTW, I fail to understand your #2.) It might help us to examine what your “formal equality” might look like. Since you haven’t yet offered an example, let me offer one: Laura Fotusky just resigned as town clerk of Barker, NY,

• Rather than violate her conscience by facilitating gay marriage….She had hoped New York’s gay marriage law – passed by the Republican-led legislature on June 24 – would allow religious exemptions…But when the law didn’t allow such exemptions, Fotusky resigned: “Basically I had to choose between my God and my job.” (World, August 13, 2011, 10)

Governor Cuomo responded to Fotusky’s resignation, saying: “The law is the law…” However, the law hadn’t always been that way. It had demonstrated more respect for divergent opinions and issues of conscience. Instead of proclaiming that “the law is the law,” our Fathers would had made allowances, as even the freedom loving anti-clerical Jefferson had proclaimed that the people “shall be free to profess, and by argument to maintain, their opinions in matters of religion.” Would it have been too difficult to ask someone other than Fotusky to process same-sex marriage papers?

This is something that has been routinely done in mental health clinics. A new rape-case client is not assigned to a counselor who had just been raped. A Christian therapist is not assigned a same-sex couple. There had been respect for differing feelings and faiths. However, this is rapidly changing. In our present political climate, the freedom for one group represents the intolerance of another.

Mark Hausam said...

I agree that once you separate the two distinct ideas of equality, you can have a coherent viewpoint, which would look like this: The nation embraces some particular worldview and rejects alternate worldviews, and then makes laws and policies on the basis of principles flowing from that worldview, deciding what should be regarded as good, bad, harmful, harmless, what rights people have and don't have, etc., according to the facts as the chosen worldview understands them. In doing this, the government is not neutral, in that it sends a message to those who hold to the chosen worldview that they are insiders, while telling others that they are outsiders (in O'Conner's sense of these ideas). This is the rejection of substantive moral neutrality.

Regarding formal equality in the treatment of citizens, the government can establish how to treat citizens fairly and appropriately based on the criteria of the chosen worldview. If the chosen worldview is a secular, agnostic viewpoint, this will lead to a certain set of ideas about good and bad, what rights people have, how to treat people fairly, etc. If the chosen worldview is a biblical Christian viewpoint, this will lead to a different (though overlapping to some degree) set of ideas about good and bad, what rights people have, how to treat people fairly, etc.

So what we want is not a government that tries to embrace substantive moral and worldview neutrality, which is impossible, but a government that embraces a true view of the world and the accurate set of beliefs that go with it, and then tries to do the right thing based on the criteria established by that worldview and those beliefs. For Dacey and Koproske, that worldview seems to be secularism/agnosticism, while for me (and Manns Word), that worldview would be biblical Christianity. So recognizing that there is no substantive moral and worldview neutrality raises the fundamental underlying question, "What is really true?"

I think Dacey summed up the distinction between substantive neutrality and formal equality in the treatment of citizens very well in this quotation from The Secular Conscience: "We do not respect people by accepting whatever they think and do [this would be substantive neutrality], but by holding them to the same intellectual, moral, and legal standards we apply to ourselves [formal equality in the treatment of citizens]." Both biblical Christianity and agnostic secularism can agree on this, although they would disagree on what the intellectual, moral, and legal standards are that we should apply to ourselves and others.

Manns Word said...

I think that it comes down to the very picture that Hausam has painted. Moral neutrality is a myth. Instead, it becomes a question of which worldview will gain ascendency. As a Christian, I think that Christianity has a pretty good track record in terms of delivering positive results, and I’m not alone in this assessment. Even among our Founding Fathers, the notion for forming a government on the Christian worldview seems to have been universal. Even perhaps the greatest skeptic of the bunch, Thomas Jefferson, asserted that no system of morality would work “without the sanction of divine authority stampt upon it.” I marvel that we are so ready to jettison their collective wisdom and observations.