Along with the other commenters, I’m grateful for the opportunity to take part in this reading group. I find Corey’s book both timely and provocative; perhaps one of the book’s main virtues is the way in which it frames controversial issues and brings critical assumptions of present debates into clear focus. While I do not always agree with Corey, I always found myself pleased to engage a developed, original view.
As with the other posts, I will begin with a summary of the chapter and then raise some concerns.
1. General Summary
In the book so far, Corey has argued that there is a middle-path between the conceptions of the roles of the democratic state offered by “neutralists” and “militant democrats.” While the state cannot use coercion to restrict hateful views that threaten to undermine the basis of liberal democracy (namely the value of free and equal citizenship), it can use “democratic persuasion” to help maintain the integrity and vivacity of liberal democratic institutions over time. The values underpinning liberal democracy also generate duties of “reflective revision” where citizens have an obligation to rethink and revise their beliefs when those beliefs are publicly relevant and incompatible with the ideal of free and equal citizenship.
Chapter 5 brings this approach to bear on religious freedom. As other commenters have noted, especially Jon, the plausibility of the idea that democratic persuasion is compatible with liberal democracy is potentially challenged by religious groups. Many religious groups seem to endorse “hateful” views that but we are often hesitant to use democratic persuasion to change theological convictions than convictions of other sorts.
In Chapter 5, Corey makes the controversial claim that, in contrast to the “static” view of religious freedom, where current beliefs and practices of a religious are thought to merit protection, “religious beliefs should not be exempt from the principle of public relevance” (143). Instead, if religious beliefs oppose free and equal citizenship, “democratic persuasion is justified in order to transform these beliefs.”
A subsidiary aim of the chapter is to show that by making religious beliefs subject to democratic persuasion, Corey has not thereby adopted an objectionably secularist approach to liberal democracy. To demonstrate, Corey stresses the “substance-based” and “means” limits on democratic persuasion. To recall, the substance-based limits holds that value democracy is limited to promoting the political values of free and equal citizenship, and not to promoting religious or non-religious comprehensive values. The means limit holds that democratic persuasion is limited to the state’s “expressive and subsidy capacities, not its coercive capacities” such that religion cannot be subjected to coercive transformation (143). By emphasizing these limits, Corey hopes to defang the objection from secularist bias.
Corey lays out his argument into three stages. He first argues that religious freedom, as a proper and principled part of free and equal citizenship, actually requires that hateful and discriminatory religious beliefs be transformed. Second, he situates this “transformative account” within his theory of value democracy to show that transformation is not an “all-or-nothing” choice between endorsing value democracy and endorsing religion. Finally, he argues that transformative approaches like his are compatible with basic rights like freedom of association.
2. The Lukumi Principle
Corey builds the arguments of Chapter 5 around the “Lukimi principle” following the Supreme Court case Church of the Lukimi Babalu Aye v. City of Hialeah, where the Supreme Court ruled that the Hialeah city council did not have the legal authority to restrict animal sacrifice practices characteristic of the Santeria religion. The lesson of the case, Corey argues, is that the SCOTUS did not merely strike down the law but articulated the “reasons for rights” of religious freedom in the case, scolding the city council for a failure to recognize the value of religious freedom. In doing so, the SCOTUS engaged in permissible democratic persuasion aimed at altering the city council’s supposedly Christian view that they had the legal authority to ban animal sacrifice. The ban was based on “animus” or hatred, and so was subject to democratic persuasion.
Note that the court did not criticize Christian beliefs generally. Instead, they only criticized those beliefs that impacted negatively and directly on the ideal of free and equal citizenship. In other words, they implicitly distinguished (as Corey wishes to explicitly distinguish) between publicly relevant religious beliefs and those properly cordoned off from public concern.
The discussion eventuates in the Lukumi principle, which holds that the commitment to religious tolerance in value democracy has two elements:
First, it entails the protection of the right to express religious beliefs and to practice one’s religion free from coercive sanction, even when that religion espouses principles at odds with the ideal of free and equal citizenship.
Second, the Lukumi principle entails that the state should explain why the democratic values underlying religious freedom are incompatible with religious beliefs that contradict the values of free and equal citizenship (148).
The Lukumi principle, note, is compatible with both the substance-based and means limits of democratic persuasion. But it has the controversial implication that insofar as a religious belief is hateful, discriminatory and impacts the expression of free and equal citizenship, to that extent it is the object of public, state concern. If the result is that religious doctrine a matter of government oversight, so be it.
3. Undermining the Lukumi Principle’s Apparent Secularist Bias
In section 3, Corey adds detail to his thesis in order to show that the Lukumi principle does not exhibit secularist bias, specifically by arguing that the application of the Lukumi principle does not threaten to extinguish religion. Transformational dialectics does not require an all-or-nothing choice between religion and secularism. Instead, Corey’s view attempts to synthesize democratic and religious values, rather than replacing the former with the latter. Second, the transformation is not forced on any group.
In section 4, Corey argues that state expression and financial incentives should not be coercive, further dissolving the appearance that his view is overly secularist. Freedom of association means that groups have a right to resist democratic persuasion via their own organizational and theological decisions. For instance, in 2006, the Roman Catholic Church withdrew its facilitation of adoption services rather than “comply with a state law requiring adoption agencies not to discriminate against gay families.” (166). Corey argues that the state was permitted to impose this requirement and that the freedom of the Catholic Church was preserved by its right to withdraw. All the state did was use its power of the purse to promote the value of equality, which it was permitted to do based on Catholic Charities’ reliance on state funds. But the Catholic Church had a right to resist, despite the fact that the state should not accept or promote their discriminatory views.
4. First Concern: Corey’s Persuasive State Lacks Competence on Theological Matters
I have a lot to say, so I’m going to restrict myself to making a general point that I think is critical for Corey’s treatment of religion in Chapter 5 and throughout the book. Specifically, I believe Corey has not shown that the state’s capacity to judge whether theological views are hateful and publicly relevant is pragmatically effective or morally authoritative. Consequently, Corey’s conception of democratic persuasion of religious groups cannot meet the test of public justification.
Since religion and discrimination is covered not merely in Chapter 5, but throughout the book, assessing Corey’s view requires that we reach back a bit. In Corey’s discussion of Christian Legal Society v. Martinez, he combats a potential argument that the Christian Legal Society does not discriminate against homosexuals. Corey suggests that the CLS may have distinguished between a ban on homosexual acts as opposed to a ban on gay citizens as such (119). In other words, the CLS would discriminate based on behavior rather than “status.” Here is Corey’s reply, which I think is emblematic of his approach to religion,
But I believe that such an attempted distinction between status and choice of behavior is inconsistent with the ideal of free and equal citizenship. … It is not a choice to be gay, any more than it is a choice to be heterosexual. Discrimination against gay citizens, based supposedly on their actions, thus amounts to status discrimination. The Christian Legal Society cannot treat gays as equals while banning them on the basis of their most intimate bonds and relationships (120).
In this passage, Corey wades into matters of moral theology and comprehensive philosophy, though I do not think this is his intent. Nonetheless, the question of whether one can distinguish between status and behavior is not a merely political distinction but rather one rooted in complex theological conceptions of the body and personal identity.
For instance, on some Christian views, there is no such thing as a sexual identity, but only one’s identity in Christ. While individuals may have inescapably biological homosexual sexual orientations, they are not in their essence gay. In fact, in the next life, they will have no sexual desires at all (and neither will heterosexuals). Thus at our deepest level, we are neither gay nor straight, and so a distinction between status and behavior is perfectly natural. Our status is as redeemed human beings; our behavior, gay or straight, is a different matter.
In the passage, Corey simply asserts, without consulting any of the great religious theological views, that the distinction between status and choice can be dismissed because asking gay citizens not to have gay sex as a condition of membership is, on Corey’s view, status discrimination. Such a judgment is hasty and bound to unsettle citizens of faith who have a developed theology of sexuality, the body and family life. I’ve tried to briefly give one example of such a position, but there are a great many of them.
And this is precisely the problem with having the state make explicit, pedagogical distinctions between religious beliefs that violate free and equal citizenship, and so publicly relevant, and those that do not. The state is a bad theologian even if its officials are well-meaning. Even the SCOTUS does not have the general knowledge necessary to determine how to separate some religious beliefs from others. And even the SCOTUS is probably not well-equipped to determine whether theological objections are based on animus or whether they are due to a deep, sincere theological opposition to the contemporary liberal democratic citizen’s historically anomalous view of human sexuality and social identity.
Thus, the democratic state’s pedagogy is bound to be ham-handed at best and offensive and authoritarian at worst. And this concern is not idiosyncratic to me. It is raised repeatedly in discussions of constitutional law on religious freedom, as Kent Greenawalt’s magisterial Religion and the Constitution makes plain. Unfortunately, Corey provides no genuine assessment of the state’s theological abilities in the book.
4b. Second Concern: Corey’s Persuasive State Lacks Normative Authority on Theological Matters
My concern is not merely pragmatic, however. I am also concerned about the state’s rightful authority to engage in democratic persuasion. Corey assumes the democratic state is entitled to make judgments determining when certain religious beliefs contradict an admittedly vague and contestable ideal like free and equal democratic citizenship, presumably based on the foundations of value democracy. But I can see little reason to think that it has this authority.
To see why, let’s step back to Rawls. The later Rawlsian project, as I understand it, is an attempt to show that a political conception of justice can be congruent with, supportive of or else not in conflict with a series of reasonable comprehensive doctrines in contemporary liberal democratic societies. As a result, theorists not only engage in a substantive determination of the content of the political conception but also determine whether the political conception is fully justified to each comprehensive doctrine (though most of the determination of fit is left “to each person” as Rawls says). On Rawls’s view, there is a genuine possibility that reasonable comprehensive doctrines might reject a reasonable political conception. And there is a critical reason for this: the entire point of political liberalism is to create a focal point of values, reasons and exegetical principles by which free and equal people who deeply disagree about matters of right and good can live together on moral terms. If comprehensive doctrines lacked this power, they would be superfluous (and in a way some political liberals, like Jon Quong, recognize this, though they respond to it differently than I would).
In political liberalism, the determination relation between the political conception and comprehensive doctrines is not uni-directional. Comprehensive doctrines can provide reasons to reject certain interpretations of political values. Political conceptions, after all, do not interpret themselves. And that means members of those comprehensive doctrines have a say in how their political institutions are to interpret the ideal of free and equal citizenship. The proper interpretation of free and equal citizenship is not written in the heavens. For an interpretation to be authoritative, then, it must comport with reasonable comprehensive doctrines in a particular society.
I know that Corey’s foundational views are different than Rawls’s. But there is good reason to agree with Rawls on allowing different comprehensive doctrines to help provide the authoritative interpretation of political values. If so, it is highly dubious that adherents of reasonable religious views would acknowledge the normative force of the state’s theological judgments, specifically those judgments necessary to articulate a doctrine of public relevance according to which religious beliefs would be subject to state transformation. This would be to give the state the authority to lord its interpretation of the essentials of a group’s theology over the group itself. And such authority would invariably be affected by fleeting fads and politically motivated considerations. Given this, why on earth should Roman Catholic comprehensive doctrines endorse the state’s authority to determine their financial viability and relationship with other social institutions based on the state’s conception of Catholic theology? I assume the same questions can be raised by other groups.
To put it briefly, if Corey wishes to give democratic persuasion a broadly politically liberal foundation, he has to show that the state’s authority to make theological judgments is publicly justified. But he has not shown this. He simply assumes that the vague value of free and equal citizenship provides it with that authority. But why should anyone accept that interpretative authority when that authority claims the right to put pressure on their very beliefs? What’s the argument?
Perhaps Corey can reply that the state’s expressive exercises are not the subject of public justification, as opposed to coercive exercises. But Corey repeatedly emphasizes that the judgments of the SCOTUS, for instance, exemplify public reason. From my understanding of the public reason tradition, exemplifying public reason means being sensitive to the fact that groups not only have the authority to determine their own organizational structure and teachings but a strong presumption in favor of making its own determinations about the public relevance of its theological doctrines.
In contrast to Corey, I think that in most cases states that exemplify public reason should say nothing at all. I guess I’m a neutralist!
In sum, Corey’s democratic state cannot respect persons as free and equal citizens and exercise this sort of pedagogical and exegetical authority of them, as such authority is neither publicly justified nor pragmatically trustworthy.
5. Addendum on Corey’s Interpretation of Mozert
A small but important point: I think Corey simply misrepresents Mozert. It is wrong to say that Vicki Frost wanted to “exclude even knowledge of these [non-Christian] cultures,” rather that the Holt Reader was biased against Protestant Christianity by presenting the comprehensive view that all religions were equal and that the paranormal was legitimate, among other things. Corey states that in this case “a mother objected to her child’s being subject to curriculum that included a textbook that taught non-biblical literature and presented information about other cultures” (163). I do not believe this claim is consistent with Ms. Frost’s original testimony, (as opposed to Frost’s “new” view Corey describes on p. 164). So I think we mischaracterize Mozert and Ms. Frost by glossing over what was a complex, systematic and well-thought-out series of objections to a particular reader, not a wholesale rejection of diversity education.