Brettschneider Reading Group: Chapter 5, Religious Freedom and the Reasons for Rights

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.

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8 Responses to Brettschneider Reading Group: Chapter 5, Religious Freedom and the Reasons for Rights

  1. I have a couple questions about Kevin’s reply:

    1. I’m not sure why the state engages in “moral theology and comprehensive philosophy” when it refuses to support groups that (it believes) discriminate unfairly against some protected class. Suppose the state contracts with religious groups to provide some social service, and suppose further than it requires that the groups not discriminate on the basis of race in providing that service. Now suppose group G has a policy of providing its services to members of any race, provided that they sign a statement that they believe only members of a particular racial group (of which G is overwhelming comprised) are entitled to full protection under the law. On this basis, the state declines to contract with G. In making this determination, the state says that G’s practice discriminates unfairly on the basis of race. Why does this statement necessarily implicate the state in moral theology or comprehensive doctrine? I can see why the members of G might think the state is rejecting their comprehensive doctrine, or at least a part of it. But from the state’s perspective, that rejection is an inference from a principle of nondiscrimination that is, in itself, not predicated upon any particular claims about moral theology (or any comprehensive doctrine).

    I don’t see why the state’s position in CLS is any different. That’s not to defend the all-comers rule in CLS, only to suggest that its justification doesn’t require determinations beyond the state’s competence in promoting a reasonable political conception of justice.

    2. With respect to the influence of comprehensive doctrines on reasonable conceptions, I don’t think Kevin has Rawls right on this. This is an exegetical point. Reasonable people might reject some reasonable political conceptions of justice. But they should be seen to do that on the basis of public reasons. Suppose A and B are debating a matter of basic justice. A says that his reasonable political conception favors policy P. Now suppose B says: “I agree that your reasonable political conception favors P. But I reject your political conception because it conflicts with my comprehensive doctrine. Instead, on the basis of my comprehensive doctrine, I favor a different (reasonable) political conception, which would reject P.”

    B’s argument here seems foreign to Rawls’s approach to disagreements about competing (reasonable) political conceptions of justice. Political conceptions are supposed to be complete in the sense that they have sufficient internal resources to resolve disagreements about constitutional essentials and matters of basic justice. Such conceptions are not supposed to be “puppets” (Rawls’s term) for comprehensive doctrines. So I don’t think it’s quite right to say that comprehensive doctrines can determine the content of reasonable political conceptions.

    Again, this is just an exegetical point. It’s possible to imagine a version of political liberalism that uses reasonableness as a constraint on political conceptions and then allows appeals to comprehensive doctrines to select among them. The idea of reasonableness might narrow the set of available conceptions to {C1, C2, and C3}. Once the set is established, it doesn’t matter why one chooses to adopt any one of its members. All that matters is that there is a set of reasonable conceptions and that at least one option within it conforms to all, or nearly all, reasonable comprehensive doctrines.

    This might be an interesting version of political liberalism, but I don’t think it was Rawls’s.

  2. Micah,

    I greatly appreciate your reply. Taking your concerns one by one:

    (1) Remember that I’m replying to Corey’s view specifically. On his view, the state is to engage in belief transformation on the basis of its judgment that certain doctrines are (a) hateful and discriminatory and (b) conflict with the ideal of free and equal citizenship. That’s a much taller order than simply “refus[ing] to support groups (it believes) discriminate unfairly against some protected class.” I have no problem, for instance, with the state deciding that it cannot support proselytization with state funds by determining that proselytization isn’t necessary to support religious charities. That requires minimal theological judgment. But Corey’s rather more controversial claim requires theological subtlety.

    And so I think the case of the CLS is illustrative in this regard, as in the passage I cite, Corey explicitly engages in moral theology and comprehensive philosophy in making the case that the American state properly used democratic persuasion. Am I misreading Corey? (Corey’s free to chime in!). The implication, I believe, is that the CLS is the object of democratic persuasion because their attitude to homosexuals is ultimately based on status, not behavior. But how can we draw that distinction without wading into controversial theological matters?

    (2) I take full responsibility for what appears to be an inevitable descent into Rawls exegesis. So many people are advised to stay far away from this point!

    I think the idea that reasonable political conceptions can only be rejected on the basis of public reasons is hard to square with the “Reply to Habermas,” in particular the idea of full justification. Consider his description:

    Second, full justification is carried out by an individual citizen as a member of civil society.… In this case, the citizen accepts a political conception and fills out its justification by embedding it in some way into the citizen’s comprehensive doctrine as either true or reasonable, depending on what that doctrine allows. Some may consider the political conception fully justified even though it is not accepted by other people. Whether our view is endorsed by them is not given sufficient weight to suspend its full justification in our own eyes.

    Thus, it is left to each citizen, individually or in association with others, to say how the claims of political justice are to be ordered, or weighed, against nonpolitical values. The political conception gives no guidance in such questions, since it does not say how nonpolitical values are to be counted. This guidance belongs to citizens’ comprehensive doctrines (emphasis added, PL, 2nd edition, 386).

    Now, it seems to me that this passage clearly allows for my interpretation. Reasonable citizens with reasonable comprehensive doctrines can reject reasonable political conceptions for comprehensive reasons. They don’t have to use public reasons. That’s why its possible for someone to regard a political conception as fully justified even when others reject it, because each group can appeal to comprehensive reasons. Perhaps Rawls thinks that they must use public reasons along to engage in full justification, and so their disagreement about whether a political conception is fully justified is due solely to their different judgments about the implications of public reasons. I can’t rule out your reading, but it seems more forced than mine.

    I take it that the second paragraph helps my interpretation more. Because the political conception in this case is explicitly not complete, at least in the sense that the political conception alone cannot determine whether it is acceptable to each reasonable comprehensive doctrine. The political conception “gives no guidance” in such questions!

    It is certainly true that political conceptions are supposed to be complete, but that completeness is relevant once the political conception is fully justified and publicly justified (the latter in Rawls’s specific sense in RTH). Political conceptions are supposed to be able to resolve disagreements, yes, but only when they have been securely established as embedded in each reasonable comprehensive doctrine.

    Further, I’m not sure the version of political liberalism you describe as “interesting” but not Rawls’s is so far from Rawls in “The Idea of Public Reason Revisited” and the Introduction to the Paperback edition. In both texts, citizens of a well-ordered society recognize multiple political conceptions as reasonable (so long as they meet Rawls’s three conditions – that they identify a scheme of basic liberties, given them special priority and provide the all-purpose means necessary to give the liberties sufficient worth). And Rawls even acknowledges that reasonable people may not think justice as fairness is the most reasonable.

    But, if reasonable citizens can disagree about rankings, on what basis are they to select political conceptions other than their comprehensive doctrines? Presumably shared values alone cannot decide the ranking, given that reasonable people can disagree about their ranking. Since I assume Rawls thinks one can make a rational determination, I assume that citizens can appeal to their reasonable comprehensive doctrines to decide which political conception to select.

    In any case, I don’t want to disprove your reading, simply to establish that mine is kosher. And I think I have, at least to a degree sufficient to justify a blog post comment!

  3. Matthew Hodgetts says:

    I have two further questions about your comments Kevin, one that picks up on something you said in reply to Micah above:

    1) Is your argument that any state trying to draw distinctions “between religious beliefs that violate free and equal citizenship … and those that do not” would inevitably have to engage in theological reasoning to do so? Or are you simply objecting to Corey’s state doing so, but that this need not be the case, as political reasons would suffice for the task? I am on-board with the latter objection, but I am not convinced if the former. Why is it “a much taller order” to distinguish hateful and discriminatory, and free and equal-violating religious groups from those that are not, such that it necessitates engaging in theological reasoning? Does this mean that for a non-religious group the state could not draw this distinction without engaging with that group’s particular comprehensive philosophical justification, or is this something particular to religion? Why can the state when it ‘speaks’ here by choosing who to condemn and who not, not just use political reasoning, avoiding comprehensive philosophical or religious reasoning altogether, assuming that some clear standard of exactly what free and equal entails could be formulated?

    2) I am simply curious about your pragmatic concern: why should the state avoid ‘offending’ members of particular religious groups by condemning those groups as hateful and discriminatory? Can any state always, in all cases (not just those in question here), avoid being perceived to be ‘offensive and authoritarian’ by some of its citizens? This seems to be a tall order! I am unclear why you think that pragmatically the argument is in difficulty just because it is going to offend some people. I take it that part of what gets reflective revision off the ground is to confront citizens with how their beliefs conflict with free and equal, and pragmatically the state might want to try to avoid offending people, but why is it going to be in a weakened position when it must/does? As an addendum: I suspect that members of the group in question are going to be offended by being told they are being hateful and discriminatory regardless of whether the state employs bad theological reasoning or not. This label is simply offensive, no matter how you justify it.

  4. Kevin,

    Thanks for the replies. I’m not convinced on either point, so here goes:

    1. I realize you’re responding to Corey’s view, but I don’t see why it’s a taller order for the state to express disapproval of a religious doctrine that violates what it takes to be a reasonable conception of equality. Take the case of Bob Jones as an example (or the hypothetical I provided above). The state denies a tax subsidy for educational institutions that have racially discriminatory policies. Suppose the state also announces publicly: “The government is withdrawing this tax subsidy because educational institutions (including those that are religious) that maintain racist policies should not receive public support. We hope that such institutions will reconsider their policies and bring them into conformity with the value of racial equality.” I don’t see what in any of this requires entering into moral theology or comprehensive philosophy.

    I agree that CB sometimes makes claims that seem to go beyond this. For example, at one point he says: “[D]emocratic persuasion might consist of citizens or the state seeking to convince individuals to change aspects of their religious beliefs that conflict with a democratic commitment to free and equal citizenship” (p. 158). This might be understood to suggest that citizens (and the state) should engage in reasoning from conjecture, arguing from others’ religious doctrines in support of a reasonable political conception. If this is what CB has in mind, then (as I’ve written elsewhere) I agree that the practice of democratic persuasion is vulnerable to an epistemic authority objection (i.e., why should those with comprehensive views believe the state understands their views better than they do?). In some cases, there might be decent responses to such an objection, but there is no way to rule it out a priori.

    But in Bob Jones and CLS, I don’t see why the state has to do any reasoning from conjecture. It doesn’t have to make any assertions about how the comprehensive doctrines at issue in those cases might be changed to support a liberal conception of equality. The state merely expresses its view that those doctrines are wrongfully discriminatory and that it would be better if those who hold them would change their views.

    Again, I’m not (yet) defending CB’s idea of democratic persuasion against all objections. But I do think that government speech, which happens all the time, can express political values without relying on any particular comprehensive doctrine and without delving into the moral theology or philosophy of those it sometimes criticizes.

    2. As for the exegetical point about Rawls, if we have to apologize for debating it on a blog called “Public Reason: a blog for political philosophers,” what can I say?

    I can see why you think your view is consistent with the passages you cite from the Reply to Habermas, but I don’t think this is the best interpretation. The reason is that Rawls addresses the issue directly in the Idea of Public Reason Revisited, when he says:

    Another essential feature of public reason is that its political conceptions should be complete. This means that each conception should express principles, standards, and ideals … such that the values specified by it can be suitably ordered or otherwise united so that those values alone give a reasonable answer to all, or to nearly all, questions involving constitutional essentials and matters of basic justice. Here the ordering is made in light of their structure and features within the political conception itself, and not primarily from how they occur within citizens’ comprehensive doctrines. Political values are not to be ordered by viewing them separately and detached from one another or from any definite context. They are not puppets manipulated from behind the scenes by comprehensive doctrines. The ordering is not distorted by those doctrines provided that public reason sees the ordering as reasonable … Thus, we may be confident that the ordering of political values is not distorted by particular reasonable comprehensive doctrines. (I add that the only criterion of distortion is that the ordering of political values be itself unreasonable.) (Collected Papers, p. 585; emphasis added)

    and this:

    What we cannot do in public reason is to proceed directly from our comprehensive doctrine, or a part thereof, to one or several political principles and values, and the particular institutions they support. Instead we are required to first work to the basic ideas of a complete political conception and from there to elaborate its principles and ideals, and to use the arguments they provide. Otherwise public reason allows arguments that are too immediate and fragmentary. (Collected Papers, pp. 585-86; emphasis added)

    I read these passages as precluding the selection of competing political conceptions on the basis of comprehensive doctrines. Maybe the last sentence or two of the first quote above could be read as a hedge that would allow Kevin’s interpretation? Perhaps, but I don’t think that is the best understanding. Rawls is providing a limiting criteria for citizens to evaluate the ordering of political values presented by others. Unless we think those orderings are unreasonable, we should not conclude that they have been distorted by a comprehensive doctrine. But in reasoning about the ordering of a political conception, Rawls says quite clearly in these passages that it should follow from the internal structure and content of the conception and not from one’s comprehensive doctrine.

    I think this view is consistent with what Rawls says in the Reply to Habermas. There is he is discussing how citizens give a full justification for a political conception. This cannot be done from within the political conception, since such a conception says nothing (or as little as possible) about how it relates to various comprehensive doctrines. Citizens must give their own accounts of how a political conception fits with their broader views. This yields a full justification.

    Note that even without a full justification, a reasonable political conception could still be “complete” in Rawls’s sense. Provided it supplies answers to matters of basic justice and constitutional essentials, it gives citizens a pro tanto justification for the principles that regulate their political relations. In the Reply to Habermas, Rawls recognizes that this form of justification is not an all-things-considered justification. It must be considered along with nonpublic values to yield a full justification.

    This account of justification is consistent with the claim that political conceptions are not to be ordered by nonpublic values. They are to be ordered independently, and only then do we ask whether they are is consistent with particular comprehensive doctrines. Thus, in the passage Kevin cites, Rawls says: “[I]t is left to each citizen, individually or in association with others, to say how the claims of political justice are to be ordered, or weighed, against nonpolitical values.” This does not mean that the political values are themselves ordered and structured by a comprehensive doctrine; rather, the idea is that whether a (complete) reasonable political conception is overridden by nonpublic values must be a question left to citizens to decide in light of their comprehensive doctrines. Even an already ordered political conception cannot answer that question. It cannot provide its own full justification. But that is consistent with Rawls’s statement above that the internal structure of a political conception should not be given primarily by the content of a particular comprehensive view.

    I should add: I’m not saying this is the only available understanding of political liberalism or public reason, but I do think it’s a better reading of what Rawls said about all this (which is by no means the final word).

  5. Peter Stone says:

    I think this discussion may be missing one of Corey’s most important points. In the Lukimi case, the state didn’t have a choice but to express a view regarding religious beliefs. In that case, the city council was avowedly trying to ban a religious practice because that practice was offensive to the religious practices of the council members. Whatever one thinks of the state’s abilities as a theologian, one would have to be politically tone-deaf to miss that fact. If freedom of religion ever demanded that a city council decision be overruled, this was it. And yet there was no way for the courts to decide on this decision without making a point about religious belief. If it sided with the city council, it would be endorsing the city council’s religious views of Santeria (because those views were the sole basis for the council’s actions). If it sided with Santeria, it would be saying that the council members had no right to do what their religious beliefs told them to do. I think Corey is right to suggest that the SCOTUS was wrong to punt on this and act like it was being neutral regarding religion here. But if that is right, then sometimes the state cannot help but play theologian, even if this does not play to the state’s strength.

  6. I actually don’t think the decision in Lukumi requires saying anything specifically about the religious beliefs of those who passed the statute banning the Santeria practice of ritual animal sacrifice — though the Court’s decision does imply a rejection of intolerant religious views.

    In his opinion for the Court, Justice Kennedy did discuss the religious views of some public officials, but that was in the context of an inquiry into direct and circumstantial evidence into the city’s discriminatory purpose (following the standard set in Arlington Heights). Kennedy cited various religious statements as evidence of discriminatory purpose, but any statements expressing animus toward the Santeria religion would have come within this inquiry. For the Court, what mattered wasn’t the religious source of the ban, but rather that the ban aimed at practices that were religiously motivated. After discussing direct and circumstantial evidence of animus, the Court concluded: “This history discloses the object of the ordinances to target animal sacrifice by Santeria worshippers because of its religious motivation” (580 U.S. at 542).

    My point here is continuous with what I wrote in my response to Kevin above. An implication of the Court’s decision is that citizens may not rely on their religious beliefs to prohibit religious practices they oppose. But the message of Lukumi is ultimately broader than this: citizens may not rely on any beliefs — religious or not — to pass laws that target religiously motivated practices for special burdens (or at least they can’t adopt such laws without satisfying strict scrutiny). I don’t see why the state has to “play theologian” to send that message.

  7. Peter Stone says:

    Micah, I’m having trouble understanding the distinction you are trying to draw. You say that Kennedy “did discuss the religious views of some public officials, but that was in the context of an inquiry into direct and circumstantial evidence into the city’s discriminatory purpose…” So if it was religious beliefs that led the public officials to do what they did, then how was a condemnation of what they did not also a condemnation of those beliefs? And how can the court tell people “not to rely” on religious beliefs in this way without also telling them not to believe certain things? Some religious beliefs tell you to do certain things. If I believed God told me to sacrifice my son on an altar with a knife, and that it was always right to do what God commanded, then I would of course gut my kid. I would be profoundly irrational not to do that given the beliefs I hold. To tell me not to kill my kid is either an injunction to be irrational or an injunction not to hold certain beliefs. There’s just no way around that I can see.

  8. Peter,

    The decision in Lukumi rejects a particular set of acts — those that have the purpose of discriminating against religious practices — whatever the motivation for them. The state doesn’t have to say anything about the specific motivations. And even if it does reject intolerant religious views, I don’t see why it has to engage in theological reasoning to do that. It can say: whatever the theological truth, it is unreasonable to invoke such claims as the basis for oppressing others.

    Your example serves equally well. The state prohibits murder, whether for religious reasons or otherwise. We don’t usually say that when a secular state prohibits murder, it is “doing theology” or engaging in religious reasoning. The prohibition can rest on shallower foundations than that. The sames goes for the requirement that the state not target religious practices for special burdens.

    Of course, those who reject those prohibitions will infer from them a denial of their views. But that does not mean the state engaged in any theological reasoning to reach that denial. It may be a consequence of the state’s claim, but not necessarily a source of it.

    To be sure, my claim is not that the state’s prohibition on burdening religious practices is neutral with respect to religious views that seek to impose such burdens. That obviously isn’t the case. But this non-neutrality does not mean that the state acted for religious reasons or arrived at its position only after engaging in theological reasoning. In Lukumi, the Court didn’t do anything of the kind.

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