Although it may come as a surprise to some, the Constitution does not enact Mr. John Rawls’s Political Liberalism. That is to say, it is a category error to attribute to the Constitution (via the establishment clause of the First Amendment) the Rawlsian concept that “public reason” and political discourse should exclude “comprehensive doctrines” such as religious belief systems.
The accents of this argument could be heard in the Iowa supreme court’s marriage ruling in 2009, in which the court held that “religious opposition to same-sex marriage” was the real reason the state protected conjugal marriage in its law. Therefore, the judgment went, the law lacked a rational basis and was unconstitutional. Likewise, Judge Vaughn Walker of the federal district court that struck down California’s Proposition 8 claimed to “find” as a “fact” that “moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples” with respect to marriage. For Walker, “moral” was fungible with “religious,” and therefore Prop 8—you guessed it—lacked a rational basis.
The granddaddy of this strange argument is the view of Justice John Paul Stevens in the 1989 abortion case of Webster v. Reproductive Health Services. Stevens preposterously argued that a Missouri abortion law lacked “any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization” (which happen to be two uncontroversial scientific facts); that he could perceive only theological propositions at work in such legislation; and that therefore it violated the Establishment Clause of the First Amendment.
This transparent attempt to cripple legislative efforts to regulate or prohibit abortions was predicated not only on a willful blindness about the character of the arguments employed by pro-life legislators, but on a tortured reading of the Establishment Clause. For even if it were the case that prohibition of abortion rested, in the final analysis for every one of its supporters, on a theological proposition about the sanctity of human life, such a prohibition would not violate any reasonable reading of the First Amendment.
For voters and legislators to act on religiously informed moral convictions in making the law may entail a blending of religion and politics that is disquieting to the secular liberal mind, but it closes no gap in the “separation of church and state,” even assuming (as we should not) that that phrase expresses the best understanding of the Establishment Clause. No coercion to profess a religious belief or even to conform to one appears in such a law, and no advantage or special position is given to any sectarian institution in the law.
God Forbid Someone Mention God
Quite apart from the Constitution, the Rawlsian public reason norm is a philosophical mistake, a transparently result-oriented political move that, even with the best of intentions regarding the prevention of political conflict, is doomed to backfire.
The idea of “public reason” expresses a norm under which “comprehensive doctrines,” including “reasonable” ones, are to be generally excluded from public discourse on constitutional questions or matters of “basic justice.” By Rawls’s definition, comprehensive doctrines are not necessarily religious, but religious belief is the paradigmatic example. No such belief, Rawls was certain, would ever possess the free and willing allegiance of everyone in a democratic society. And so, for the sake of peace and justice, the truth claims of comprehensive doctrines must not enter the arena of political contest and debate.
Whether cast in hard constitutional-legal form or, more softly, as an ethical norm of civic life, Rawlsian public reason seems to entail a simple rule for public discourse: God forbid one should mention God—unless one immediately makes another argument wholly disconnected from religious premises.
We should beware of a philosophy in which so much work is done by the adjectives. Rawls’s repeated insistence on the public character of the reason employed in political discussion should make us stop and ask, what is the opposite of the public? It is the private. And since the counterpart to genuinely public reason, in the Rawlsian calculus, is the comprehensive doctrine, then it seems that the comprehensive and the private are equivalent terms. But it is not obviously the case that people’s comprehensive views are private things in the sense that they do or should keep them to themselves—even the “reasonable” comprehensive doctrine, which is quite possibly correct. In the case of religion, the paradigm of a comprehensive view, people frequently hold themselves out in public as believers, and even act together in churches, mosques, synagogues, ashrams, gurdwaras, temples, schools, and various other institutions of civil society.
The one undeniable fact on which Rawls pins his whole notion of public reason is that there is a diversity of such (chiefly religious) comprehensive doctrines. It is not even a fact that this diversity is necessarily a cause of conflict, although it can be and often has been. But Rawls’s evident fear of such conflict leads him to construct a liberalism that deals with religious pluralism by demanding that the comprehensive be treated as the private. In short, religion must be privatized, as a requirement of justice itself.
Critics of Rawls and His Inconsistent Exceptions
The critics of Rawlsian public reason are legion, from John Finnis and Robert P. George to David Lewis Schaefer, from Christopher Wolfe and Steven D. Smith to Jeffrey Stout. Such critics have established that Rawlsian public reason is a “ramshackle” philosophy whose true purpose is to seize the high ground for secularist prejudices.
Rawls’s bad faith is demonstrated by the exceptions he makes. Although John Finnis, for instance, has offered natural law arguments against homosexual conduct that are perfectly accessible to reason and grounded on no theological presuppositions, these arguments provide Rawls with his one and only example of a secular “comprehensive doctrine” that must be classed with religion as beyond the pale. Because arguments of this kind are expressions of “moral doctrine,” they “fall outside of the domain of the political”—the domain, that is, of public reason. This distinction between the domain of the moral and the domain of the political seems utterly arbitrary, especially since the entire project of Rawlsian public reason is, on its own terms, an attempt to construct a moral framework for political life.
The other notable exception made by Rawls is for the Christian motivations of the abolitionist and civil rights movements. Religious discourse such as Rev. Martin Luther King Jr.’s is permissible, Rawls says, “when a society is not well ordered and there is a profound division about constitutional essentials,” such that “nonpublic reasons” are thought to be “required to give sufficient strength” politically to “the ideal of public reason.” This exception appears to have been introduced to rescue Rawls from the embarrassment of condemning Reverend King. For what did King and his adversaries represent but a deep conflict over deep principles, resolvable only by choosing between two competing comprehensive doctrines?
Rawls disapproves of arguments against homosexual conduct, and approves of arguments in favor of equal civil rights regardless of race. He cannot, it seems, resist the urge to permit one of those arguments despite its being religious, and to exclude the other despite its being non-religious. This is not philosophy, but political base-stealing.
Rawlsian public reason is more likely to cause conflict than to reduce it. It’s the Chris Christie of public discourse, telling religious citizens to “sit down and shut up.” Rawls admits that “liberty of conscience” is one of the “constitutional essentials” in any liberal political order. This is good to hear. But he also says “separation of church and state . . . protects religion from the state and the state from religion; it protects citizens from their churches and citizens from one another.” This is “separation” with a decidedly secularist bias. It fails to give liberty of conscience the freedom to be active in the world as a witness to faith in word as well as deed.
Religious Discourse in the Public Square
Rawls’s Political Liberalism, for all its popularity and influence, was decisively rebutted by a better book nine years before its publication—The Naked Public Square, by Richard John Neuhaus. Since Neuhaus too wrote of an “obligation” religious believers have to “translate” their most religiously inflected arguments into reasons that people of other dispensations are willing to accept, some readers have seen no great difference between his view and Rawls’s. This is a serious misunderstanding. For Neuhaus, the idea of “public reason” is exactly what Rawls denied it was: a way of creating a diverse society in which various religions, and non-religious views, interact in democratic decision-making.
Neuhaus did not argue that “comprehensive doctrines” are, by virtue of being comprehensive, therefore suspect—i.e., incapable of being made accessible to others and thus necessarily private. Neuhaus’s argument was exactly the reverse. Democracy needs its “comprehensive doctrines” in the forefront of citizens’ consciousness, or else the state becomes its own totalizing comprehensive doctrine. As he put it, “a perverse notion of the disestablishment of religion leads to the establishment of the state as church.”
There is no compelling reason of principle for religious citizens to refrain from employing religious discourse in the public square. They must, of course, reason together with their fellow citizens in order to persuade others of their policy views. But if their major premises, so to speak, are theological, there is no harm done, so long as their policy conclusions can be reasonably embraced by others who have different commitments.
The attribution of a “strictly religious” motivation to a policy view offers an incomplete account of how people actually reason in political life. Beliefs that may be called “strictly” religious or theological typically supply only a major premise for a policy conclusion. The minor premise will usually be supplied by other considerations—of cost, of prudence or practicality, of justice to others, of forbearance toward those same others. Even “thou shalt not kill,” for instance, is not a principle that by itself can lead straight to anything in public policy—not even a coherent homicide law—without intervening minor premises that will tell us when, how, and with regard to whom the principle will be applied.
Some liberals are fond of arguing that conservative positions on abortion and marriage, for instance, are only held for “strictly religious reasons.” To my knowledge, they have failed to establish even the descriptive accuracy of this claim. But even if it were true without exception that all persons taking the conservative positions on these issues began with religious major premises about “what God commands” about human relations, it would amount to no disrespect of others.
“God commands respect for human life” or “God commands the virtue of chastity in sexual relations” is hardly the stuff of disrespect. It’s an invitation, the beginning of an argument. You can reject the invitation, or begin the argument another way, or demand a “translation” into terms you find more accessible. Maybe you’ll get one. But the policy conclusion—to protect human life from conception to natural death, or to define marriage as a conjugal union of a man and a woman with a view to raising any resulting children together—cannot credibly be called an imposition of a “strictly religious” view by coercive law. For it is nothing like requiring adherence to any particular view of the human person’s relationship to whatever divine reality there may be. It is not even a demand that we conform our behavior in accordance with the propositions stated by such a view. It is nothing more than the application of an ethical stricture to the legal environment, and it can be debated as an ethical stricture and as a policy worth pursuing—or not—on strictly practical grounds.
As Justice Robert Jackson said over seventy years ago, “freedom to differ is not limited to things that do not matter much.” To close down debate with a “that’s strictly religious” objection is the opposite of liberalism, and there is no justification for it.
Matthew J. Franck is the director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute. These remarks were prepared for a symposium on “Religion and Public Discourse” at Case Western Reserve University Law School on March 6, 2015.