"no harm, no foul"
Tuesday, August 26, 2003
PUBLIC REASON AND RELIGION CON’T: Lawrence Solum has an excellent long post on what Eugene Volokh has recently written on religion in the public square. Although I only skimmed Volokh’s post, my sense was that he didn’t adequately take into account the fact that some religions (I’m thinking especially of Catholicism here) have a natural law/natural reason tradition – so that certain moral prohibitions can be based on grounds accessible to all, through the light of natural reason. This is what distinguishes, in the Christian Ten Commandments., those particularly religious commandments (about worshipping idols, e.g.) and those which have more obviously moral content (e.g., prohibitions against murder, adultery, theft). My sense is that many theologians believe they are making a moral, and not a specifically religious, case against homosexuality: this is why it’s OK to discriminate against gays and not Hindus, because we can show, through natural reason, why homosexuality is bad – but the incorrectness of Hinduism is only showable via appeal to revelation, the truth of which is not rationally provable (though it can be shown to be consistent with reason).

But Solum has a number of interesting things to say about public reason, two of which I want to comment on.

First, is public reason an ideal or a norm? Solum writes that “public reason … helps to define an ideal of good citizenship, of what it means to be a good citizen in civic solidarity with fellow citizens.” This makes it sound as if giving public reasons is not strictly speaking an obligation people have, but more like a virtue – so that we are better people if we give public reasons, but this is not strictly morally required of us.

At the same time, Solum ends his post with the claim that giving nonpublic, sectarian reasons as a basis for the criminalization of homosexuality “violate an important norm of political morality.” I think Solum would be wise to stick to the talk of public reason as a norm, rather than public reason as an ideal, this both for exegetical reasons (if we’re in the business of interpreting Rawls, my feel is that this is closer to what Rawls actually says) and because it seems that one is unjust if one imposes one’s will on another for reasons he can’t reasonably be expected to accept. I see why Solum might want to use “ideal” talk: the norm of public reason is not, as he says “a law,” so it’s not something we are going to legally enforce. But this doesn’t mean that giving public reasons falls to being merely a “good thing.” Rather, giving public reasons, at least on some issues (“constitutional essentials and matters of basic justice,” according to Rawls) is a moral duty each of us has to one another, qua citizens of a well-ordered society.

(An aside: I do think it is an ideal, the ideal of civic friendship, to be sincere in offering the public reasons one does. That is, one shouldn’t give public reasons that support favored policy X if one doesn’t, oneself, believe in the validity of those public reasons. Again, this is an “ideal” not enforcable by law – there’s nothing criminal about offereing insincere public reasons. Still, one is being less of a “good citizen” when one passes on public reasons – even objectively valid ones – that aren’t truly your own.)

Second, I still find myself stumped in trying to figure out why the religiously devout person, as a general matter, has a good reason that is not a merely “prudential” reason for (in Solum’s words) “affirming the principle that law should be justified on the basis of public reasons.” The disconnect I feel here is that whereas the liberal will be concerned with what is “reasonable” the religiously devout person will be concerned with what the truth of the matter is. It’s certainly the case, as Solum points out, that we need to do a lot of digging into particular religious traditions to see what tenets that have internal to their belief systems that might allow them to be good political liberals. So, for example, some churches might have no problem with homosexual conduct (cf. the recent developments in the Episcopal church). Still other religious may believe that (as Solum puts it) the “inherent dignity and worth of the individual” means not interfering with his non-harm causing choices, and so on this basis will oppose laws that would criminalize homosexual conduct.

But it strikes me that we need to go on a case-by-case basis here. It’s not outlandish to think that protecting a person from his own homosexual inclinations might be respecting his dignity as an individual – by getting him to move away from disordered to ordered sexual activity (i.e., marriage and procreation). Some passages in Paul, it seems to me, strongly suggest this. In any case, the problem is that “inherent worth and dignity” is an extremely formal notion, that can be filled in by almost any sort of content – including illiberal content.

I want to get back to my general point, about the difference between wanting to base policy on what is true, rather than what is reasonable. Solum writes that, “if you would not want to live in a society where law was justified based on the sectarian premises of a faith that is alien to your own, then you have good reason to affirm the principle that law should be justified on the basis of public reasons.” Now, my question is what kind of reason this “good reason” is. If I am a person with a “comprehensive religious theory of the right on the good,” then I certainly won’t want to live in a society that governs according to a faith that is alien to my own.

But if I believe my comprehensive religious theory is true, it doesn’t follow that I should refrain from giving my reasons and for hoping that they will someday be a basis for policy – unless, for purely prudential reasons, I believe that this would hurt my political standing (or worse). That’s because my religious truths are not just mine; they are God’s. If I’m this type of devout religious believer, the distinction I’m interested in is not between reasonable and unreasonable, but between true and false – and I will see no moral reason for assenting to a regime governed by principles which I deem to be false.

The lesson here is that there will be some forms of religious belief, viz., those that do not, internally subscribe to some fundamental norms of political liberalism, that will be unwelcome in a politically liberal regime (though they might be grudgingly tolerated). But didn’t we know this already? I don’t want to say that political liberalism and public reason are notions inherently at odds with religious belief, but it is certainly the case that, for the most part, only liberal religious denominations will be comfortable living in such a regime. So I conclude with the points that (1) if discrimination against gays can be given only a religious, and not a moral basis, (2) if a religious tradition does not have political liberal norms internal to it that will give it a reason not to want to discriminate against gays, then (3) members of that religious tradition have no general moral reason to subscribe to the norm of public reason when it comes to discrimination against homosexuals, although it may have a prudential one.

A note on free faith: Solum relies a lot on the idea of “free faith” as a way religious traditions can give a reason, a religious reason, for tolerating those of other religions. The free faith concept, as I understand it, is that genuine religious belief can only be had when a religious believer freely assents to the religion. We’re supposed to derive from this concept the idea that you can’t be coerced into religious belief. But it seems to me that these two things are analytically distinct, (1) real religious belief is religious belief freely entered into, and (2) one ought to tolerate other religions.

For one, there are a whole lot of things, short of outright physical coercion, that may make people more likely to assent to religious belief. Take early religious education, for example: we might see this as setting the stage (the necessary prerequisite) of later, freely assented to religious belief. To be sure, we can’t force real religious belief, but there are many other things we can force that may make it much more likely that one will, in the long run, give one’s free assent to the true religion. As a matter of fact, coercing one to outwardly conform to a religious belief may lead to one, later on, to accept that religion as your own. (More generally, the lines between a religious belief that is freely entered into, and one that you are socialized into accepting, seems to me a very fuzzy one).

Second, it may be that outward conformity to religion, even if it doesn’t lead to true, free, belief, can still be a good. So we might want to enforce that, to support some other (perhaps a moral) good, even if by enforcing outward conformity to religion alpha, we’re not getting people to actually believe in the religion in question. So for example, if we think homosexuality a disordered form of sexual conduct, we might criminalize it, and thereby realize a good for the homosexual – even if by coercing him we’re not getting him to act for the right reasons. At least we’re getting him to act rightly

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