Religious Freedom Project

Freedom to Flourish: Is Religious Freedom Necessary for Peace, Prosperity, and Democracy

October 9, 2013 RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 About the Religious Freedom Project

The Religious Freedom Project (RFP) at Georgetown University’s Berkley Center for Religion, Peace, and World Affairs began in Janu- ary 2011 with the generous support of the John Templeton Founda- tion. The RFP is the nation’s only university-based program devoted exclusively to the analysis of religious freedom, a basic human right restricted in many parts of the world. Our team of interdisciplinary scholars examines different understandings of religious liberty as it relates to other fundamental freedoms; its importance for democracy; and its role in social and economic development, international diplomacy, and the struggle against violent religious extremism. Our target audiences are the academy, the media, policymakers, and the general public, both here and abroad. For more information about the RFP’s research, teaching, publications, conferences, and workshops, visit http://berkleycenter.georgetown.edu/rfp.

About the Berkley Center for Religion, Peace & World Affairs

The Berkley Center for Religion, Peace, and World Affairs at Georgetown University, created within the Office of the President in 2006, is dedicated to the interdisciplinary study of religion, ethics, and public life. Through research, teaching, and service, the center explores global challenges of democracy and human rights; economic and social development; international diplomacy; and inter- religious understanding. Two premises guide the center’s work: that a deep examination of faith and values is critical to address these challenges, and that the open engagement of religious and cultural traditions with one another can promote peace.

2 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY Introduction

Scholars as diverse as Alfred Stepan and the Berkley Center’s own José Casanova have recognized that religious freedom includes the right of religious groups to organize and contend for their views in public and political life. According to this view, religious freedom is necessarily public, not just private. However, many questions arise. What are the foundations of such a robust right to public religious freedom? Is it rooted in no more than practice and convention? Or is it rooted in the very nature and capacities of human beings? Further- more, what are the limits to religious freedom? In a liberal democracy, do religious citizens have the right to introduce religious views and arguments into political debate? Or should they do so only when they can support their views with non-religious arguments? Today, these questions are more vital and controversial than ever, not only in established Western democracies but also in non-Western contexts in which religious groups are influential political actors, such as India, Tunisia, and Indonesia.

To discuss these crucial questions, the Religious Freedom Project brought two of Ameri- ca’s most distinguished political and ethical thinkers together for an extensive—and often intense—discussion. This discussion kicked off the RFP’s two-day capstone conference, Freedom to Flourish: Is Religious Freedom for Peace, Prosperity, and Democracy? Nicholas Wolterstorff, the Noah Porter Professor of Philosophy Emeritus at Yale University, began the conversation with a wide-ranging lecture arguing that religious freedom—including its public dimensions—is a “natural right” rooted in our natural human capacities. He also argued that liberalism permits religious citizens to make religious arguments for their political positions, even when they lack a non-religious rationale for these positions. Stephen Macedo, the Laurance S. Rockefeller Professor of Politics at Princeton University, responded by arguing that liberal democracy is a shared political project that requires citizens to find common ground. It therefore requires that religious citizens offer reasons for their positions that non-religious citizens can understand and endorse. Following their remarks, RFP associate director Timothy Shah moderated a vigorous conversation between Wolterstorff and Macedo that also involved a large audience of students, scholars, and policy thinkers assembled in Georgetown’s historic Copley Hall.

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 3 Why Everybody Everywhere Has a Right to Religious Freedom

NICHOLAS WOLTERSTORFF: In his In a letter of 494 to Emperor Anasta- initial email to me about this colloqui- sius, Pope Gelasius I declared: “Two um, Tim Shah, associate director of the there are, august emperor, by which this Religious Freedom Project at the Berk- world is ruled: the consecrated authority ley Center for Religion, Peace & World of priests and the royal power.” The idea Affairs, invited me to compose an essay that Gelasius here expresses is that pope on “the foundations and character of re- and emperor, church and state, are dis- ligious freedom as a normative principle, tinct authority structures whose essential and the integral importance of religious difference is that they have jurisdiction liberty for liberal democracy.” This is a over two distinct domains of human ac- daunting invitation: to discuss the nature tivity.1 of religious freedom, the foundations of religious freedom, and the importance of In his tract of two years later, On the religious freedom for liberal democracy. I Bond of Anathema, Gelasius elaborated can treat only a few aspects of the topic. his idea. Church and empire each have I hope that the aspects I have selected— a distinct “sphere of competence,” a dis- and what I have to say about them—will tinct “jurisdiction.” Christ himself, says prove interesting and worthwhile for us Gelasius, “made a distinction between to discuss. the two rules, assigning each its sphere of operation and its due respect.” The The historical origin of the religion emperor has governance over human or clauses in the US Bill of Rights secular affairs. The Pope, along with his

4 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY bishops and priests, has governance over the state, as they did of the Church: state divine affairs and spiritual activity. and church together aim at perfecting the people in virtue and piety. This assump- The doctrine that Gelasius articulated in tion remained implicit in Gelasius’ letter these passages came to be known as the and tract; in numerous later writings it “two- rules” doctrine. From the time he was stated explicitly. From the many pas- wrote his letter until a century or so af- sages that could be quoted on the matter the Protestant Reformation, this doc- ter, let me select one from John Calvin. trine was almost always the framework Calvin is emphatic in his insistence on employed in the West for discussing the importance of distinguishing the two the relation of the state to religion and rules. “These two, as we have divided the Church.2 The doctrine assumed that them, must always be examined separate- the Church in a given area was unified ly; and while one is being considered, we and that its membership was very nearly must call away and turn aside the mind identical with the body of those who were from thinking about the other. There are subjects of whatever was the government in man, so to speak, two worlds, over in that area. What differentiated church which different kings and different laws and state was not a difference in those have authority” (Institutes III. xix. 15).4 they govern but a difference in the activi- As to the task of government, this is what ties that fall under their governance.3 Calvin says: “[Government] does not merely see to The traditional separation of church it…that men breathe, eat, drink, and are and state was a crucial part of the con- kept warm, even though it surely em- text within which freedom of religion braces all these activities when it provides emerged in the West. There can be a cer- for their living together. It does not, I re- tain degree of freedom of religion in a so- peat, look to this only, but also prevents ciety that has a single unified governance idolatry, sacrilege against God’s name, structure with authority over the lives of blasphemies against his truth, and other the subjects as a whole, including their public offenses against religion from aris- religion. But it will take a significantly ing and spreading among the people; it different form from the form it has taken prevents the public peace from being in the West. It may take the form, for ex- disturbed, it provides that each man may ample, of the Ottoman millet system for keep his property safe and sound, that non-Muslims. men may carry on blameless intercourse among themselves, that honesty and Though the separation of church and modesty may be preserved among men. state presupposed by the two-rules doc- In short, it provides that a public mani- trine was an important part of the con- festation of religion may exist among text within which freedom of religion Christians, and that humanity be main- emerged in the West, those who thought tained among men. (Institutes IV. xx. 3)” in terms of the doctrine seldom affirmed freedom of religion. Rather, they almost In 1579, twenty years after the fourth always assumed a perfectionist view of and final edition of Calvin’s Institutes,

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 5 there appeared a tract with the title, in is gone. Many have left the Catholic English translation, A Discourse upon Church and become Protestant. Any at- the Permission of Freedom of Religion, tempt to recover the hegemony of the called Religions-Vrede in the Netherlands. Catholic Church by force of arms would Though the author presents himself as require appalling bloodshed, devastating Catholic, the predominant scholarly the Catholic population as well as the opinion nowadays is that he was the Protestant and leaving both at the mercy prominent Huguenot Philip du Plessis of the Spaniards. The only option is for Mornay. Here is what the author says in the state to give up its perfectionist at- one place: tempt to enforce religious conformity. “I ask those who do not want to admit Protestants as well as Catholics should the two religions in this country how they have a civil right to practice their reli- now intend to abolish one of them… gion. Catholics should tolerate and live It goes without saying that you cannot at peace with the Protestants so that to- abolish any religious practice without us- gether they can fight Don Juan. ing force and taking up arms, and going to war against each other instead of tak- Du Plessis Mornay’s argument was pre- ing up arms in unison against Don John scient. The impossibility of undoing the and his adherents and delivering us from religious fission caused by the emergence the insupportable tyranny of the foreign- of Protestantism forced Europeans to ers. If we intend to ruin the Protestants consider an alternative to the two-rules we will ruin ourselves, as the French did. doctrine and the perfectionist view of The conclusion to be drawn from this is the state. Initially they played with the that it would be better to live in peace idea of mini-Christendoms, each politi- with them, rather than ruin ourselves by cal unit enforcing its own preferred re- internal discord and carry on a hazard- ligion, be that Catholic or some version ous, disastrous, long and difficult war or of Protestantism: cuius regio, eius religio. rather a perpetual and impossible one. But within a relatively short time even Taking everything into consideration, we that proved impossible. What then slow- can choose between two things: we can ly took place among western European either allow them to live in peace with us political thinkers and actors was a fun- or we can all die together; we can either damental rethinking of the task of the let them be or, desiring to destroy them, state and of the relation of the state to its be ourselves destroyed by their ruin…As citizens—not just to the religions of its we cannot forbid these people to practice citizens but to its citizens more generally. their religion without starting a war and cannot destroy them by that war without The idea of natural rights had been cur- being destroyed ourselves let us conclude rent ever since the twelfth century among that we must let them live in peace and canon lawyers and, to a lesser extent, grant them liberty…5” among philosophers, theologians, and other theorists.6 That idea was now em- The argument is eloquent and poignant. ployed to replace the perfectionist idea of The situation in the Lowlands is that the state with what might be called the the religious unity that once prevailed “protectionist idea.” The state is to pro-

6 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY tect citizens against violations of their hibiting the free exercise thereof.” This natural rights by their fellow citizens, represents a stunning rejection of the and citizens are in turn to be protected perfectionism that went hand-in-hand against violation of their natural rights with the two-rules doctrine: Instead of by the state. the state being enjoined, in conjunction with the church, to seek the perfection of The idea of the state as a rights-protect- the citizens with respect to religion, this ing institution received canonical for- first article protects the people against mulation in the US Declaration of In- the state with respect to the exercise of dependence: “We hold these truths to be their religion. The first amendment does self-evident, that all men are...endowed not explicitly declare that freedom of re- by their Creator with certain inalien- ligious exercise and freedom from estab- able rights, that lishment are to among these are be civil rights life, liberty, and “The traditional separation of because they are the pursuit of hap- church and state was a crucial natural rights; piness. That, to part of the context within but as we shall secure these rights, see later, there governments are which freedom of religion is considerable instituted among emerged in the West. There evidence for men.” can be a certain degree of the conclusion freedom of religion in a soci- that that is how The idea of the ety that has a single unified many, if not all, state as a rights- of its authors honoring insti- governance structure with were thinking. tution received authority over the lives of the elaborate, binding subjects as a whole, including The reference expression in the their religion; but it will take to non-estab- first ten amend- a significantly different form lishment can ments to the US seem baffling in Constitution, from the form it has taken in this connection: known as the Bill the West.” Why would it of Rights, the aim be thought that of which was de- Nicholas Wolterstorff there is a natural clared to be to right to freedom “prevent miscon- from establish- struction or abuse ment, if indeed of [the federal government’s] powers.” that is how the authors were thinking? The first amendment famously paired It helps, then, to remind ourselves of religious freedom with non-establish- how people at the time thought of this ment by declaring, in its opening clause, right; subsequent jurisprudence has led “Congress shall make no law respecting us to think of it quite differently. Here an establishment of religion, or pro- is how the Pennsylvania Constitution of

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 7 1776 put it: “No man ought or of right These controversies take different forms can be compelled to attend any religious than in the past. In former days, the con- worship, or erect or support any place of troversies were almost always jurisdiction- worship, or maintain any ministry, con- al controversies between church and state; trary to or against, his own free will and now and then, controversies of that sort consent.” 7 still erupt in the US in the form of legal cases involving the so-called “ministerial Let me summarize what I have said thus exception.”8 For the most part, however, far. The religion clause of the Bill of Rights our controversies are not jurisdictional declares that citizens are to have the civil disputes between church and state. None- right to freedom of religious exercise and theless, religion remains a problem for the to freedom from establishment. The emer- liberal democratic state. One sometimes gence of that conviction was the result of hears someone from the West talking to the confluence of three factors: (1) the the rest of the world as if religion no lon- traditional understanding of church and ger poses problems for the state in West- state as two distinct institutions with dif- ern liberal democracies. The truth is quite ferent jurisdictions; (2) the breakup of the otherwise. religious unity of Europe and the subsequent abandonment of the perfectionist What is it about religion and the liberal view of the state; and (3) the employment democratic state that results in religion of the idea of natural rights, long common continuing to pose quandaries to the among canon lawyers, to think of the state state? And how do those quandaries, and as a rights-protecting and rights-honoring the state’s handling of them, cause contro- institution, with religious freedom and versies in the public? To get at the issues, non-establishment prominent among the I will use the US as my example. The out- natural rights to be honored. come of our discussion will be an understanding of why the civil right to religious The nature of religious freedom freedom has taken the particular form it has in the US. Once we understand that, Let me now turn to the assignment Tim we will also realize that we must expect it Shah gave me, beginning with the nature to take different forms in other countries. of religious freedom. Let me approach the Considerations of space require me to fo- topic from a somewhat oblique angle. cus exclusively on free exercise and to say next to nothing about non-establishment; In modern liberal democracies Protestants that is unfortunate, since the form that and Catholics are not killing each other, as the civil right to religious freedom has they were when the author of A Discourse taken in the US is due, in good measure, upon the Permission of Freedom of Religion to its intertwinement with the proscrip- wrote his tract. But the relation of the tion of establishment. state to the religions of its citizens remains the site of controversy in our liberal de- Some of the quandaries presented by re- mocracy as it does in all others. ligion to the liberal democratic state are definitional controversies. Is this act on

8 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY the part of these citizens an exercise of used by the ancient Romans to group to- their religion or not? If it is, does this gether certain activities whose similarities law or policy on the part of government they found important to take note of for constitute an infringement on their free the purposes at hand. The same is true exercise of their religion?9 Sometimes for our term “religion.” Though a much- these definitional questions have no clear used item in our English vocabulary, answer, with the result that reasonable Sullivan holds that the term is, nonethe- people disagree on the answer or prefer less, “deeply problematic” because it is to give no answer. “manifestly conditioned by the history of its use” and because it generalizes across In her contribution to an online forum a “very wide range of human cultural on the politics of religious freedom, goings-on.” Others argue that it is prob- sponsored in 2012 by the blog The Im- lematic because there are borderline cases manent Frame, Winifred Fallers Sullivan in which we are not sure whether to call wrote: some activity religious or not. “It is a commonplace in the academic study of religion to observe that the word I do not find these arguments compel- religion is manifestly conditioned by the ling. In particular, I am not persuaded history of its use and that it is deeply by the argument that we should give problematic, epistemologically and po- up talking about freedom of religion litically, to generalize across the very because the concept of religion is too wide range of human cultural goings-on problematic. All terms are conditioned that are now included in this capacious by the history of their use. And many term…It is also common to note the terms generalize across a wide range of very specific difficulty of definition that phenomena. The term “heavenly body” faces interpreters and enforcers of legal generalizes across a wide range of phe- instruments purporting to protect and nomena; that does not make its use par- regulate the freedom of religion.” ticularly problematic. And as to the fact that there are borderline cases in which I understand Sullivan to be suggesting, we are not sure whether to apply the though not quite saying, that the term term “religion” or not, many if not most “religion” is too vague for “freedom of terms are like that—the term “raining,” religion” to pick out anything definite. for example. That does not make such We should cease and desist from talking terms too problematic to be of any use. about freedom of religion.10 The term “raining” is very useful.

It is true, of course, that the term “re- As to jurisprudence concerning the free ligion” is not a natural kind term; it is exercise clause, the issue to consider more like the term “game” that Wittgen- here is whether there are so many cases stein discussed at length in Philosophi- in which it is not clear whether or not cal Investigations. Games, he argued, are something is a religion that the term has united not by some shared essence but by become useless for the purposes of the family resemblances. The term religio was law. I judge that that is definitely not the

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 9 case. In a great many cases it is perfectly be little doubt that some law or policy obvious that something is a religion and on the part of government is an example perfectly obvious that it is being exer- of infringing on someone’s exercise of his cised. Such cas- or her religion; es do not find nonetheless, it their way into “Many of our fellow citizens hold may be a point the courts, for that there are no natural rights, of controversy as the reason that only rights bestowed by laws, social to whether or not they are obvi- it is permissible. ous. It is the practices, and speech actions. Of Let’s see why this borderline cases those who agree that there are is. that turn up on natural rights, many hold that the dockets of there is no god, almighty or other- Most of the reli- courts and that wise, and so, of course, there is no gions present in catch our at- western liberal tention. In such natural right to worship almighty democracies are cases, judges God. Some of those who hold that exercised by ad- have to make a there is no god regard religion as a herents of the reli- judgment call menacing relic of irrational primi- gion participating that reason- tive ways of thinking and see no in communal rit- able people can uals and engaging disagree about. more reason to think that there is a in acts of private Unlike judges, natural right to the free exercise of devotion. One you and I can one’s religion than there is a natural would think that say, “In a way right, say, to the practice of quack such forms of ex- it is a religion medicine. Yet others hold that it ercise would pose and in a way it few quandaries to is not,” and let it is a mistake to single out religion the liberal demo- go at that. And for special treatment. The right to cratic state. It is unlike judges, religious belief should be treated as easy to see that we can say, “In a a species of the right to liberty of these activities way it is an ex- conscience, and the right to reli- count as an exer- ercise of religion cise of the religion and in a way it gious exercise should be treated as a in question, and is not.” species, say, of the right to freedom usually it is easy of speech and assembly.” to tell whether or By no means are not some law or all the quanda- Nicholas Wolterstorff policy infringes ries and con- on their free exer- troversies sur- cise.11 But things rounding the prove not to be as civil right of Americans to freedom of simple as one would have expected. religion definitional, however. There may

10 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY Here’s why. The religion clauses in the first Suppose that the members of some reli- article of the US Bill of Rights have the gion have come to the conviction that rhetorical flavor of articulating absolutes: they are called by God to offer the occa- Congress shall make no law respecting an sional child sacrifice in their communal establishment of religion and no law pro- rituals. Should they be permitted to do hibiting the free exercise thereof. But that so? It is obvious that they should not be is not how the courts have interpreted permitted; no liberal democracy would these clauses. They have interpreted them permit them to do so. But suppose that as articulating prima facie rather than ul- it is the long established practice of some tima facie, or absolute, prohibitions on group to use certain mind-altering drugs governmental action—or to view it from when performing their rituals; and sup- the other end, as articulating prima facie pose that the government, in the interest rights of citizens vis-à-vis the government of public health, passes a law that has the rather than absolute, ultima facie, rights. effect of making this illegal. Would this One’s prima facie right to the free exer- infringement on free exercise be permissi- cise of one’s religion can be outweighed by ble? The answer in this case is not obvious. other weightier rights. The currently op- In a famous case, the US Supreme Court erative formula, as I understand it, is that declared that such an infringement is the government may substantially burden permissible. Again, suppose that the gov- a person’s exercise of his or her religion ernment passes a general law forbidding only if it can demonstrate a compelling alcohol in prisons whose effect is to make interest in doing so and only if it uses the it impossible for prisoners to receive wine least restrictive means available. in the Eucharist. Would this infringement on free exercise be permissible? The an- Whether or not a person’s prima facie swer is not obvious. right to free exercise is in fact outweighed in a given instance by other rights is very The quandaries posed to the government much a judgment call on the part of the by the communal rituals and private de- courts. These judgment calls are invari- votions of the religions present in soci- ably controversial; and liberal democra- ety pale before the quandaries posed by cies differ considerably in how they make the fact that seldom is the exercise of a them. To know what the American gov- religion limited to such activities. Al- ernment is actually prohibited from doing most always the exercise of a religion by the two religion clauses, and hence to spreads into everyday life, sometimes know what our civil right to religious free- in surprising ways. In order to exercise dom actually comes to, one cannot just their religion as they believe it should be exegete the language of the clauses. One exercised, groups establish faith-based has to look at the long and complex series hospitals, adoption agencies, educational of often convoluted court decisions as to institutions, relief agencies, development which infringements on free exercise and agencies, housing agencies, social justice which violations of no-establishment are organizations, and so forth. To exercise permissible and which are not. their religion as they believe it should be exercised they do such things as pray and

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 11 wear religious garb in public and post the “They’re trying to take our guns away,” Ten Commandments in public places. they say. In this case, the US Supreme To exercise their religion as they believe Court has explicitly stated that the right it should be exercised they resist doing is not absolute. The issue to be debated such things as serving in the military, concerning any proposed restriction is getting vaccinated, educating their chil- always whether the restriction is wise and dren beyond elementary school, working is justified, all things considered. on Saturdays or Sundays, or employing members of other religions or of same- One of the lessons I want to draw from sex couples in their businesses and orga- these observations is that the precise con- nizations. tour of the civil right of Americans to freedom of religion depends on how the It is easy to see that such forms of reli- courts resolve disputes over borderline gious exercise will regularly pose quanda- applications of the terms “religion” and ries to the government. Suppose the gov- “free exercise” and on how they resolve ernment decides that recitation by school disputes over when the prima facie right children of the Pledge of Allegiance to free exercise is outweighed by other enhances national unity and that such weightier rights.12 Each decision on these unity is important. Is it then permitted matters slightly alters the contour from to require recitation of the pledge by all what it was before, so that the contour school children even though reciting the is constantly changing. A second lesson I pledge would violate the religious con- wish to draw is that we must expect that victions of Jehovah’s Witnesses? When the precise contour of the civil right to the US Supreme Court was faced with freedom of religion will differ from one this question, it determined that this was liberal democracy to another, as indeed not permissible. it does. The contour of the civil right to We do not have to dredge the past for freedom of religion in the United States cases of this sort. The current debate over is significantly different from the contour the restrictions on free exercise of reli- of the civil right to freedom of religion in gion implicit in the Affordable Care Act France, for example. in its present form is another example of the point. We do not yet know what the What follows? Does it follow that there courts will say on this matter. is the present-day American civil right to freedom of religion, the present-day It is worth noting that the civil right French civil right to freedom of religion, to free exercise of one’s religion is not and so forth, and that that is the end unique in being a prima facie rather than of the matter? Does it follow that there an absolute right. The same is true, for is no such thing as the natural right to example, of the civil right of Americans free exercise of one’s religion? When the to free speech and their right to bear US Congress passed the International arms. Those opposed to one and another Religious Freedom Act in 1998, requir- form of gun control sometimes talk as ing the State Department to report an- if any restriction on the right to bear nually on the state of religious freedom arms is a violation of the Bill of Rights. around the world and, in various ways,

12 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY Nicholas Wolterstorff to promote religious freedom, was it, at pott attributes to them. I hold that their bottom, just engaging in an attempt at position does not follow from the fact that cultural domination? Was the passage of the particular contour of the civil right the act nothing but power masquerading to religious freedom differs from society as high principle? to society and from time to time within a given society. In denying that religious I understand it to be the view of some of freedom is “a universally valid principle,” those who posted contributions to The the new critics presumably mean to deny Immanent Frame on the politics of reli- that there is a natural right to religious gious freedom that these things do follow. freedom. But from the fact that certain In the draft of a book he is working on, persons have a civil right to so-and-so, Dan Philpott calls these “the new critics of nothing follows, one way or the other, as religious freedom.” He summarizes their to whether or not they also have a natu- position as follows: “Far from being a ral right to so-and-so. Some civil rights universally valid principle…religious free- are grounded in natural rights; some are dom is the product—and the agenda—of grounded in consequentialist consider- one culture in one historical period: the ations. So too, from the fact that certain modern West. And in the West it should persons do not have a civil right to so- stay—and be kept under strict surveil- and-so nothing follows, one way or the lance.” 13 other, as to whether or not they also lack a natural right to so-and-so. Let’s assume that Philpott’s interpretation is correct: There are “new critics of reli- A natural response to this observation is gion,” and they affirm the position Phil- that, though formally correct, it is irrel-

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 13 evant to the topic at hand. If there is no The contour of the civil right of Ameri- such thing as the civil right to freedom of cans to free speech is slightly different in religion, but only the civil right in 2013 2013 from what it was in 1913, and sig- of Americans to freedom of religion, the nificantly different from that of the right civil right in 1913 of Americans to free- of the English to free speech in 2013. dom of religion, the civil right in 2013 Assuming that there is a natural right to of the French to freedom of religion, free speech, these distinct contours of the and so forth, then how can these diverse civil right to free speech are all to be seen civil rights all be as positivizings of grounded in some- the natural right. thing referred to as “A person’s religion includes the “the natural right belief that there is some kind I have emphasized to freedom of reli- of all-encompassing mind or that the civil right gion”? spirit that is the foundation of of Americans to religious freedom Assume, for the the existence of the universe, arose out of a moment, that there of value, and of our own unique conflu- is a natural right existence, nature, and purpose. ence of historical to freedom of reli- Such a belief is obviously a factors; from this gion. My answer to manifestation of the remark- it does not fol- the question posed low that the civil is that the various able and precious capacity for right to religious contours of the civil interpretation that I took note freedom cannot right to freedom of of above. A person’s religion is emerge from a religion are all to be not just that belief, however, very different set understood as “pos- but includes, along with the of historical fac- itivizings”—to use tors—witness the a term that seems belief, her way of giving expres- Ottoman millet to have fallen out sion to that belief in life and system.14 I have of the vocabulary practice. That will perforce likewise empha- of political theo- be an exercise of the person’s sized that the civil rists—of the natu- capacity for forming a valorized right of Ameri- ral right to freedom cans to religious of religion. Each identity.” freedom has its particular contour own unique con- of the civil right to Nicholas Wolterstorff tours; from this freedom of religion it does not follow is the articulated that when I, an inscription into law, the positivizing, of American, urge some other government the natural right to freedom of religion. to grant religious freedom to its citizens, I am implicitly urging them to imitate There is nothing peculiar here about reli- the American contour. I may be doing gion. The points made about freedom of that; if so, I am rightly to be charged religion also apply to freedom of speech. with an attempt at cultural imperialism.

14 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY But rather than urging them to imitate myself doubt that very many Protestants the American contour, I may simply be thought that their religion consisted only urging them to positivize the natural of beliefs; it involved religious practices as right to religious freedom in whatever well: participation in the public liturgy, way they judge best for their society. reading of Scripture, and private devo- tions. What is true is that Protestantism The foundation of religious liberty gave considerably more salience to beliefs than did traditional Catholicism; what Now we get to a second part of the assign- they believed was, for Protestants, an ment that Tim Shah gave me—the “foun- important component of their religion, dations of religious freedom as a norma- though never more than a component. tive principle.” I think it will be helpful if, The fact that it was an important compo- before I present my own proposal, we take nent of their religion was enough, howev- note of those that were in the air at the er, for them to argue for religious freedom time of the American founding. on the ground of the futility of trying to control religion by law. Talal Asad has argued that an important part of what happened in sixteenth- and In his Bill for Establishing Religious Free- seventeenth-century Europe, as a result of dom of June 12, 1779, Thomas Jefferson the emergence and spread of Protestant- wrote: ism, was that religion came to be identi- “Well aware that the opinions and beliefs fied with belief, and that it was widely of men depend not on their own will, but held that what one believes is in one’s own follow involuntarily the evidence pro- hands; it cannot be coerced by laws and posed to their minds, that Almighty God sanctions or any other outside forces. It is hath created the mind free and manifested my own reading of the intellectual history his Supreme will that free it shall remain, of the time that a good many philosophers by making it altogether insusceptible of and other intellectuals not only held that restraint: That all attempts to influence it belief cannot be determined by outside by temporal punishments or burthens or forces, but also that it is not a product of by civil incapacitations, tend only to be- the believer’s will; it was commonly said get habits of hypocrisy and meanness [my to be determined by “evidence.” That was emphasis].” the view of John Locke, Thomas Jefferson, and James Madison. But if religion is a And James Madison, in his Memorial and matter of belief, and if what one believes Remonstrance against Religious Assessments cannot be determined by laws and sanc- of June 20, 1785, begins his argument for tions, then it is futile to pass laws aimed religious freedom by quoting from the at prohibiting one and another form of re- Virginia Declaration of 1776: “Religion ligion. Rather than securing true religion, or the duty which we owe to our Creator such laws will only encourage hypocrisy. and the manner of discharging it, can be directed only by reason and conviction, Speaking now as a Protestant who knows not by force or violence.” He then con- something about the relevant history, I tinues as follows: “The Religion then of

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 15 every man must be left to the conviction can never be restrained by force. One will and conscience of every man; and it is the have to tackle the problem in some other right of every man to exercise it as these way, for heresy must be opposed and dealt may dictate.”16 with otherwise than with the sword. Here God’s word must do the fighting. If it does It is worth noting that Jefferson and not succeed, certainly the temporal power Madison were here repeating, in their will not succeed either, even if it were to own way, a line of argument that goes far drench the world in blood. Heresy is a back in the Christian tradition (whether spiritual matter which you cannot hack they were aware of doing so, I do not to pieces with iron, consume with fire, or know). The Latin Church father Lac- drown in water.18” tantius (ca. 240-320), taking for granted that true devotion cannot be legislated, Let’s move on now to the authors of the echoed the Hebrew prophets in arguing US Bill of Rights. Why did they hold that God has no interest in ritual behav- that in the newly formed United States of ior that is not the expression of true de- America there should be a civil right to the votion: free exercise of religion? In the bill itself “[N]othing is so much a matter of free they do not say. Evidently they thought will as religion. The worship of God… it wasn’t necessary to say. Perhaps some requires full commitment [maximum de- of them were thinking along the same votionem] and faith. For how will God lines as Luther, Jefferson, and Madison.19 love the worshipper if He Himself is not I think it almost certain, however, that loved by him, or grant to the petitioner most of them, if not all of them, had an- whatever he asks when he draws near and other argument in mind as well: namely, a offers his prayer without sincerity [ex natural rights argument. Notice that the animo] or reverence. But they [the pa- Luther-Jefferson-Madison argument for gans], when they come to offer sacrifice, the civil right to religious freedom was offer to their gods nothing from within, not a natural rights argument, nor was du nothing of themselves, no innocence of Plessis Mornay’s argument a natural rights mind, no reverence, no awe.17” argument. I think it almost certain that, whatever other arguments the authors of And in characteristically vivid language, the religion clauses in the Bill of Rights Luther insisted to his fellow Christians may have had in mind, most, if not all of that though it would be a good thing if them, believed that there should be a civil heresy were restrained, laws and sanctions right to free exercise of religion because are useless for the purpose: there is a natural right to free exercise of “You say: “The temporal power is not forc- religion. I base my inference that this is ing men to believe; it is simply seeing to it how they were thinking on the fact that externally that no one deceives the people this line of thought was very much in the by false doctrine; but how could heretics air at the time. otherwise be restrained?” Answer: This the bishops should do; it is a function entrust- After the issuing of the Declaration of ed to them and not to the princes. Heresy Independence from England in 1776,

16 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY all of the newly formed states composed hold that there is no god, almighty or constitutions in which citizens were de- otherwise, and so, of course, there is no clared to have a civil right to free exercise natural right to worship almighty God. of their religion. With the exception of Some of those who hold that there is no the New York Constitution, all of these god regard religion as a menacing relic of constitutions base that declaration more irrational primitive ways of thinking and or less explicitly on the claim or assump- see no more reason to think that there is tion that there is a natural right to free a natural right to the free exercise of one’s exercise. The most explicit and elaborate religion than there is a natural right, say, of these declarations is that of the Penn- to the practice of quack medicine. Yet sylvania Constitution of 1776. I have al- others hold that it is a mistake to single ready quoted part of it; let me now quote out religion for special treatment. The it in its entirety: right to religious belief should be treated “That all men have a natural and unalien- as a species of the right to liberty of con- able right to worship Almighty God ac- science, and the right to religious exercise cording to the dictates of their own con- should be treated as a species, say, of the sciences and understanding. And that no right to freedom of speech and assembly. man ought or of right can be compelled to attend any religious worship, or erect In defense of the claim that there is a or support any place of worship, or main- natural right to free exercise of one’s re- tain any ministry, contrary to, or against, ligion his own free will and consent: Nor can any man, who acknowledges the being of I come now to the hard part: namely, my a God, be justly deprived or abridged of own attempt to defend the claim that any civil right as a citizen, on account of there is a natural right to free exercise of his religious sentiments or peculiar mode one’s religion. Looking back over previ- of religious worship: And that no author- ous writings of mine, I notice, to my sur- ity can or ought to be vested in, or as- prise, that this is something I have never sumed by any power whatever, that shall hitherto attempted.21 So almost certainly in any case interfere with, or in any man- my formulation of the argument will be ner controul, the right of conscience in flawed; perhaps the argument as such is 20 the free exercise of religious worship. ” flawed.

In our day and age, we who believe that Let me say at the outset that to establish the civil right to religious freedom is of that there is a natural right to religious fundamental importance can obviously freedom, it will not be sufficient to ar- not just recite these words from the gue, as does John Finnis in Natural Law Pennsylvania Constitution in defense of and Natural Rights, that religion is a great our conviction. Many of our fellow citi- good in our lives. For one thing, if reli- zens hold that there are no natural rights, gion is just a great good in our lives, then only rights bestowed by laws, social prac- it is possible that situations would arise tices, and speech actions. Of those who in which a society would judge that the agree that there are natural rights, many form religious exercise has taken in that

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 17 society is so destructive of the common ers, we have to introduce into the pic- good that it should be severely restricted. ture something other than life-goods.22 I More important for our purposes here, hold that that something is the worth or however, is the fact that one cannot pull dignity of the rights-holder. You have a the rabbit of rights out of a hat that con- right to the life-good of my treating you tains only life-goods. It would be a great a certain way just in case, were I not to good in my life if the Rijksmuseum in treat you that way, I would not treat you Amsterdam gave me Rembrandt’s The as befits your worth or dignity. Jewish Bride to hang on my living room wall, along with a round-the-clock secu- On this occasion, let me assume, with- rity force to stand guard. But I do not out argument, that rights are indeed have a right to their doing that; the Rijks- grounded in the worth or dignity of museum is not wronging me by not do- the rights-holder. Let me also assume, ing that. On the other hand, the brusque without argument, that there are natural reply to my inquiry by the receptionist rights—that is, rights not conferred on in the health service is but a small harm rights-holders by laws, social practices, in my life. Nonetheless, I have a right to or speech actions. I know, of course, that her not answering me in that way. There both of these assumptions are highly are some great life-goods to which one controversial. I have defended them at has no right and some small life-goods to length elsewhere.23 If I did so here, we which one does have a right. would never get to the topic at hand.

To account for why it is that we have a I invite those of you who are dubious right to certain life-goods and not to oth- about these two assumptions to adopt

Nicholas Wolterstorff

18 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY a hypothetical attitude toward the argu- expression to that temperament in her ment that follows. Suppose that there are way of living, including her religious natural rights, and suppose that they are practices. A person’s religion is her par- grounded in the worth or dignity of the ticular way of living “in harmony with rights-bearer: What reason might there the universe.” The beliefs comprised be for holding that among our natural within her religious temperament will rights there is a natural right to free exer- often be implicit within her way of living cise of one’s religion? and within her religious practices, rather than consciously entertained. For my purposes here, I need some account of religion. Rather than devising I judge that everything covered by this ac- and offering my own account, let me count would naturally be called a religion; employ the account Thomas Nagel offers whether it is also the case that everything of what he calls the “religious tempera- that would naturally be called a religion ment” in his book, Secular Philosophy is covered by this account is perhaps less and the Religious Temperament.24 clear. But whatever one concludes on that matter will not make a difference to my The religious temperament, says Nagel, is argument. Opponents of religion often the belief “that there is some kind of all- speak as if it were some quirky add-on to encompassing mind or spiritual principle what science and common sense tell us, a in addition to the minds of individual relic of the childhood of the human race. human beings and other creatures—and On Nagel’s description, it is anything but that this mind or spirit is the founda- that. Our question now is whether, and in tion of the existence of the universe, of what way, depriving a person of the free- the natural order, of value, and of our dom to practice her religion constitutes existence, nature, and purpose.” The treating her in a way that does not befit religious temperament is the “belief in her worth. such a conception of the universe, and the incorporation of that belief into one’s Most present-day thinkers who hold both conception of oneself and one’s life.” The that there are natural rights and that these religious temperament addresses “the are grounded in the worth or dignity of question of how a human individual can those who possess the rights are of the live in harmony with the universe.”25 view that what imparts to the rights-holder the relevant dignity is the capacity for In Nagel’s explanation of the religious rational agency—that is, the capacity to temperament, belief is prominent. We act for reasons and not just from causes. can debate whether it should have the Some hold the more specific view that prominence that Nagel gives it. More the dignity in question is grounded in the important for my purposes here, how- capacity for normative agency—that is, ever, is that a person’s religion should not in the capacity to perform an action for be identified with her religious tempera- the reason that one judges it to be a good ment; her religion is her religious tem- or obligatory thing for one to do. This is perament along with her way of giving the view defended, for example, by James

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 19 Griffin in his book On Human Rights. He To account for natural rights we need a urges his readers to “see human rights as richer account of what it is to be a human protections of our normative agency.”26 person.

I have argued in a number of places that Here is not the place to present an ac- this account of the dignity that grounds count of the human person rich enough natural rights is inadequate.27 Obviously to account for the dignity that grounds it does not account for the dignity of the full panoply of natural rights.28 Let those human beings who are not capable me confine myself to singling out those of functioning as persons and who, ac- aspects of the human person, in addition cordingly, lack the capacity for norma- to the capacities for rational and normative agency—infants, for example, and tive agency, that seem to me directly rel- those in a permanent coma or suffering evant to the natural right to free exercise from the final stages of Alzheimer’s dis- of one’s religion.29 ease. More relevant to our purposes here, it also fails to account for a good many 1. To be a human person is to have the ca- of the rights possessed by those who pacity to interpret reality and one’s place are capable of functioning as persons. therein. Some of these interpretations It does not account for the right not to happen naturally, as in perception and in- have one’s privacy invaded. Even if the trospection; I just naturally interpret what person who invades one’s privacy does is presented to me as the sun rising above nothing with what he learns other than the horizon. In our capacity for such in- enjoy it at home, thus in no way impair- terpretations, we are similar to some of ing one’s agency, one has nonetheless been the animals. But to be a human person wronged. Neither does it account, in my is also to have the capacity for interpreta- judgment, for the right not to be raped or tions that are optional, not given with our castrated. Rape and castration do indeed nature, and that go far beyond percep- constitute an impairment of one’s nor- tual and introspective interpretation. We mative agency, but I find it grotesque to interpret what is happening as the gods suggest that this is what is fundamentally being angry, as the far-flung effects of the wrong with rape and castration. Rape and Big Bang, as the dire effects of libertarian- castration are gross violations of a person’s ism spreading among the populace, and bodily integrity. so forth. Interpretations such as these go vastly beyond perceptual and introspec- Rational and normative agency do indeed tive interpretation and are optional, in the give to those creatures who possess such sense that some human beings interpret agency great worth and dignity. But what reality in this way and some do not. is indicated by the examples I have given, along with a good many others, is that As for myself, I cannot imagine what it what gives to human beings the worth would be like not to have the capacity for and dignity on which human rights su- such interpretations of reality and of my pervene has to be more than just the ca- place therein; it is a pervasive and funda- pacity for rational and normative agency. mental part of my life, so pervasive and

20 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY fundamental that I hardly ever take note and normative agency, and yet others that of it. I take it for granted. But when I do I have not mentioned, human persons are stand back and take note of it, I find it remarkable, amazing. So far as we know, remarkable, amazing. If any of the non- no other creatures that dwell on earth human animals have this capacity, or possess these capacities to anywhere near something like it, they have it only to a the same degree, if, indeed, they possess minimal degree. them at all. Not only are human persons remarkable on account of possessing these 2. To be a full-fledged human person is to capacities; they also have great worth on have the capacity to form what I shall call account of possessing these capacities. On a “valorized identity.” What I mean by the account of possessing these capacities hu- “valorized identity” of a person is the rela- man persons are precious. They have mul- tive importance that the person assigns to tifaceted dignity. They are to be prized. the states and events in her own life: to Something of great worth is lost when her various beliefs, her various commit- these capacities are destroyed or lost. ments, her plans for action, her memories, her attachments to persons, animals, and Religions represent a remarkable exer- objects, and so forth. We say such things cise of these two capacities, along, of as, “This commitment is more important course, with the capacities for rational to me than any other; I cannot imagine and normative agency. To see this, recall giving it up. It is fundamental to who I Nagel’s description of the religious tem- am.” Thereby one is verbalizing one aspect perament. The religious temperament is of one’s valorized identity. One’s valorized the belief “that there is some kind of all- identity consists not of the importance encompassing mind or spiritual principle one assigns to things outside oneself but, in addition to the minds of individual to repeat, to the various states and events human beings and other creatures—and in one’s own life. that this mind or spirit is the foundation of the existence of the universe, of As for myself, I cannot imagine what it the natural order, of value, and of our would be like not to have the capacity existence, nature, and purpose.” The to form my own valorized identity; it, religious temperament is the “belief in too, is a pervasive and fundamental part such a conception of the universe and of my life, so much so that I hardly ever the incorporation of that belief into one’s take note of it. I take it for granted. But conception of oneself and one’s life.” The when I do stand back and take note of it, religious temperament addresses “the I find it remarkable, amazing. If any of the question of how a human individual can non-human animals have this capacity, or live in harmony with the universe.” I sug- something like it, they have it only to a gested that we think of a person’s religion minimal degree. as her religious temperament along with her way of giving expression to that tem- I have stressed that these capacities are perament in her life and practices, espe- amazing. On account of possessing these cially her religious practices. capacities, in addition to those of rational

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 21 It is obvious that religion, so under- argument. I regard it as an implication stood, is a manifestation of the two ca- that should be embraced. Making it il- pacities I identified, along with those of legal for Dennett to express and practice rational and moral agency. A person’s his secular alternative to religion would religion includes the belief that there is be a violation of his personhood in the some kind of all-encompassing mind or same way that making it illegal for me to spirit that is the foundation of the ex- express and practice my religion would istence of the universe, of value, and of be a violation of my personhood. our own existence, nature, and purpose. Such a belief is obviously a manifesta- Additional shaping up? tion of the remarkable and precious capacity for interpretation that I took note Rather often one hears it said that a fun- of above. A person’s religion is not just damental principle of liberal democracy that belief, however, but includes, along is that the state is to be neutral between with the belief, her way of giving expres- one religion and another and between sion to that belief in life and practice. religion and non-religion. We can dis- That will perforce be an exercise of the cuss whether this is true, strictly speak- person’s capacity for forming a valorized ing, even for the religions embraced by identity. the citizenry of some liberal democracy. But certainly it is not true for religions If one holds, as I do, that these two rein general. Earlier I noted that the remarkable capacities give to those crea- ligious fracturing of Europe and the tures who possess them great worth, as subsequent wars of religion forced the do the capacities for rational and norma- emergence in Europe of a new form of tive agency, then one will have a prima state, liberal democracy; the old familiar facie reason to refrain from stifling or re- perfectionist form of state was no longer straining the exercise of these capacities possible. But not only did the fracturing and for resisting the attempt of others to of religion require a new kind of state; do so. the new kind of state required a certain Now consider Richard Dawkins, Daniel kind of religion. There had to be mutual Dennett, and others of their sort, people accommodation—accommodation of who embrace a secular alternative to re- the state to religion and accommodation ligion that is a manifestation of the same of religion to the state. capacities of which religion is a manifestation and to which they are as ardently Richard Rorty remarks in one place that attached as is any religious adherent to the “happy, Jeffersonian compromise his or her religion. The argument I have that the Enlightenment reached with given leads to the conclusion that their the religious…consists in privatizing embrace and exercise of that alternative religion—keeping it out” of the public should receive the same protection in square.30 That is clearly not correct; re- law as does the free exercise of religion. ligion in liberal democracies has not, in I dare say that some will regard this im- general, been privatized. But the larger plication as a reductio ad absurdum of my point, that certain forms of religion are

22 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY incompatible with the liberal democratic selves to the structural principles of liber- state, is undeniable. Were I to develop al democracy and even if religious people this point, I would look at the version do accept those infringements on the free of Islam that Sayyid Qutb propounded exercise of religion that the courts judge in the commentary that he wrote on the permissible. These voices call for a fur- Koran titled In the Shade of the Koran.31 ther shaping up on the part of religion. In good measure, Qutb shaped his view They do not propose that laws be enacted of Islam in conscious opposition to the to bring about this further shaping up; “hideous schizophrenia” between reli- they hope that moral suasion and intel-

Caption needed. gion and life that he saw as characteristic lectual argumentation will do the work. of Western liberal democracies. Let me order these voices, starting with those that call for the most limited form But rather than develop that point, let of shaping up and concluding with those me bring this essay to a close by calling that call for the most radical form. attention to the presence in liberal democracies of voices that find the structur- John Rawls and his followers hold that it al accommodations of religion to liberal is acceptable for citizens to employ rea- democracy inadequate. These voices hold sons drawn from their own particular re- that religions endanger peace, justice, ligion when debating significant political and the stability of liberal democracy issues in public and when making deci- even if they have accommodated them- sions on those issues; but if they do, they

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 23 must “stand ready” to offer reasons for In all liberal democratic societies there the positions they favor that are drawn are religious people who affirm liberal from what Rawls calls “public reason.” democracy but are not in the habit of What exactly Rawls means by “public debating and deciding political issues reason” is the subject of a literature that on the basis of reasons drawn from pub- is by now vast; lic reason. It is for our purposes their habit to de- here it will be suf- “So I think what the public bate and decide ficient to say that reason liberal should say to political issues on public reason, the basis of rea- as Rawls under- the Barthian is that, since he sons drawn from stands it, consists regards himself as having an their own partic- of principles that overriding duty to God to ular religion. For are drawn from employ only the resources of some, this is not the governing his religion in thinking about just a habit; they idea of liberal de- believe that this is mocracy for the political issues (plus whatever what they ought just distribution non-normative factual knowl- to do. Many of by the state and edge is relevant), and since he those who are other public in- is entitled to that conviction, in the habit of stitutions of ben- that is what he should do. He debating and efits and burdens deciding politi- and civil rights should not follow the public cal issues on the and duties. Rawls reason imperative. Perhaps basis of reasons holds that those others should. But he should drawn from their who affirm liberal not. Given his comprehensive own particular democracy, rath- doctrine, it is his ultima facie religion are not er than merely familiar with any putting up with duty not to conform to the other way of de- it, implicitly em- public reason imperative—un- bating and decid- brace such prin- less his comprehensive doctrine ing such issues; ciples, whatever has nothing to say on the mat- this is the way be their religious ter at hand.” they learned in disagreements. their families and Accordingly, ap- in their religious pealing to such Nicholas Wolterstorff institutions. They principles when do not know debating and de- how to appeal to ciding significant political issues enhanc- public reason. Satisfying the Rawlsian es the stability of a liberal democratic injunction requires of them that they society; resting content with employing shape up by acquiring the ability and our diverse religious reasons endangers the willingness to debate and decide sig- that stability. nificant political issues on the basis of

24 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY reasons drawn from public reason. the Enlightenment reached with the religious…consists in privatizing religion— Richard Rorty urges a more stringent keeping it out” of the public square. form of shaping up. In an unpublished essay consisting of remarks he made In John Hick’s and his allies’ discussions upon receiving the Eckhart Prize and tion religious pluralism one finds a yet tled “Religion after Onto-Theology: Re- more radical proposal for the shaping up flections on Vattimo’s Belief,” he asserts of religion. Both Rawls and Rorty pro- that ecclesiastical institutions, “despite pose setting bounds to religion as we find all the good they do—despite all the it: Religion must shape up so that it no comfort they provide to those in need or longer appeals exclusively to its own rein despair—are dangerous to the health sources when debating and deciding sig- of democratic societies, so that it would nificant political issues, or so that it no be best for them eventually to wither longer speaks on institutional matters in away.” The dangers posed to democracy general. Within those bounds, religion is by institutionalized religion are “par- free to take whatever form it wishes. In ticularly evident,” he says, in the pres- his well-known book Interpretation of Re- ent-day United States, where “Chris- ligion,32 John Hick urges that particular- tian fundamentalists whose support ist religions, rather than learning to live has become indispensable to right-wing within bounds, should reinterpret their American politicians are undermining particularisms so that they are no longer the secularist, Jeffersonian, tradition in exclusivist. American culture.” The danger fundamentalists pose to our liberal democracy Hick holds that any “axial” or “post ax- is not that they are threatening to over- ial” religion that does not accord equal throw the US government; the danger religious significance to all other such re- they pose is their support of legislation ligions perforce harbors within itself the restricting behavior that other groups threat of coercion and violence, thereby in society regard as completely accept- being a menace to peace.33 To cite just one able—abortion and homosexual activ- example: As long as Christianity harbors ity, for example. a supersessionist attitude toward Judaism, there can be no enduring peace between The danger can only be averted by religion the two religions. The solution is for each shaping up so that it becomes entirely per- axial and post-axial religion to regard all sonal and private. The religion of one’s in- such religions as alternative ways of engag- ner life can be of whatever form and inten- ing “The Real,” with none of them giving sity one wishes; no harm there. It is when us the literal truth of the matter, and for religion leaves the sanctuary of the inner each to concede that all are equally suc- life and tries to shape the state and other cessful in achieving salvation for their ad- social institutions in accord with its con- herents. victions that it endangers liberal democracy. To repeat a passage quoted earlier: A fourth, and yet more radical, version of The “happy Jeffersonian compromise that the line of thought that I am delineating

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 25 says that a particular religion, whatever lence is the transmutation of present-day its form, content, or self-understanding, religions into a religion in which mes- poses a danger to the liberal democratic sianism is purely structural; determinate society. It must wither away. Rather than messianisms necessarily harbor the threat shaping up by living within the bounds of war. of public reason, by living within the bounds of the inner life, or by interpret- The great grey eminence behind this way ing its particularism in non-exclusivist of thinking is Immanuel Kant, though it fashion, particularist religions must must at once be added that the religion shape up by transmuting themselves into Kant proposed was by no means a religion non-particularist religion. of pure structure and no content. It was a determinate religion without being a par- This is what Jacques Derrida proposed in ticular religion. Kant explicitly shared with some of his late writings. In his reflec- the other thinkers we have canvassed here tions on “the return of religion” that he the conviction that particular religion is a sensed to be occurring at the time, Der- danger to peace, justice, and the stability rida undertook “a program of analysis of liberal democracy. If “eternal peace” is for the forms of evil perpetrated in the to arrive, particularist religion must wither four corners of the world ‘in the name of away. Kant did not consider whether rein- religion.’”34 His analysis led him to the ing it in would be sufficient, nor did he conclusion that violence is the inevitable consider the possibility of religions rein- consequence of what he calls “determi- terpreting their particularisms so that they nate” religion. The violence may or may were no longer exclusivist. Since what not be what those of us would call “vio- Kant says about the menace of particular- lence” who are less given to hyperbole ist religion is as vivid as Kant’s writing ever than was Derrida; it might just be what gets, let me quote him at some length: we would call “coercion.” The so-called religious wars which have so often shaken the world and bespattered it The solution is for determinate religion with blood, have never been anything but to be transmuted into “religion without wrangles over ecclesiastical faith; and the religion.” Take an example. A structural oppressed have complained not that they feature typical of the religions that inter- were hindered from adhering to their re- ested Derrida is the messianic structure: ligion (for no external power can do this) Adherents of the religion look forward to but that they were not permitted publicly a day when justice and peace shall reign. to observe their ecclesiastical faith. “Religion without religion” would be religion in which all determinate content Now when, as usually happens, a church has been abstracted from such messianic proclaims itself to be the one Church anticipation, leaving only the pure struc- universal (even though it is based upon ture. Such religion would be “structural faith in a special revelation, which, being messianism,” “messianism without con- historical, can never be required of every- tent,” or simply, “the messianic.” A con- one), he who refuses to acknowledge its dition of the elimination of political vio- (peculiar) ecclesiastical faith is called by

26 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY it an unbeliever and is hated wholeheart- accordingly, shape up in ways that go be- edly; he who diverges therefrom only in yond what is required for living within part (in non-essentials) is called heterodox the structure of liberal democracy and and is at least shunned as a source of in- beyond acceptance of those infringe- fection. But he who avows [allegiance to] ments on free exercise that the courts this church and yet diverges from it on judge permissible. essentials of its faith (namely, regarding the practices connected with it), is called, My response is that I see no prospect especially if he spreads abroad his false be- whatsoever of religion in general disap- lief, a heretic, and, as a rebel, such a man pearing, nor of all determinate religions is held more culpable than a foreign foe, is disappearing to be replaced by some reli- expelled from the Church with an anath- gion of pure structure, nor of all particu- ema. . . and is given over to all the gods lar religions disappearing to be replaced of hell. The exclusive correctness of belief by a single determinate religion, nor of in matters of ecclesiastical faith claimed all particular and determinate religions by the Church’s teachers or heads is called reinterpreting themselves so that they are orthodoxy.35 no longer exclusivist, nor of all particular and determinate religions becoming The solution to these evils of religion is the privatized. That religion is often a dan- withering away of “positive” religions and ger to peace, justice, and the stability of their replacement with a purely rational our liberal democratic society is beyond religion—that is, a religion whose content doubt. I think we have no choice but to is grounded in reason alone and not in the deal with those dangers in ad hoc fashion particularities of revelation, mania, or tra- when and where they arise. There is no dition. As humankind progresses toward prospect of averting them all in advance. full rationality, this is the religion that it will increasingly embrace. Such religion, In the above list of what I saw no pros- though determinate in content, will none- pect of happening, I did not mention theless not be a particular religion, since that I saw no prospect of all adherents of it will enjoy universal acceptance; it will particular and determinate religions ap- therefore not be a danger to peace and jus- pealing to Rawlsian public reason in de- tice. The coming of such religion, shared bating and deciding political issues, not by all on account of their common ratio- even if it be in addition to appealing to nality, will finally bring about “the world the resources of their own particular re- of an eternal peace.”36 ligion. One of the best statements of the present state of the public reason debate Response is a recent essay by my commentator, Ste- phen Macedo, titled “Why Public Rea- The line of thought that I have just now son? Citizens’ Reasons and the Constitu- been highlighting runs deep in the mention of the Public Sphere.” In his opening tality of modernity. Religions pose a dan- paragraph, Macedo observes that among ger to peace, justice, and the stability of the objections to the public reason po- the liberal democratic polity. They must, sition launched by critics is this: “In a

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 27 deeply religious and pluralistic society the resources of his comprehensive doc- the proposed norm seems unlikely to be trine and only those resources in deliberat- accepted.” As Macedo well knows, I am ing, debating, and voting on some politi- one of the critics of the public reason cal issue (plus the relevant non-normative proposal, and I do indeed see no chance factual knowledge). Acting in accord with of citizens in general conforming to the that conviction is an important part of ex- Rawlsian norm. ercising his particular form of religion.38 Given the understanding of religion that But rather than pressing that point fur- I adopted from Nagel, an understanding ther, I want to close this essay by posing according to which religion is a compre- an objection to the public reason pro- hensive interpretation of reality rather posal that flows directly from my defense than some sort of add-on, we should not of there being a natural right to religious be surprised that there would be religious freedom. It is an objection that I have people of this sort. raised in previous writings; in the literature on these matters, it has come to be If the person in question is a Christian, he called “the integralist objection.”37 believes that his thinking about political issues should be shaped by the Old Tes- Consider a religious person of the follow- tament prophets and by the teachings of ing sort. He favors liberal democracy. He Jesus—not by some political conception endorses, to quote Rawls, the “ideas of of justice, be it that which Rawls favors citizens as free and equal persons and of or some other. He recognizes that he society as a fair system of cooperation over and the Rawlsian are likely to agree on time.” He has different views than Rawls a fairly large number of policies. He is does as to the implications of those ideas; happy about that convergence whenever but he affirms the ideas as stated. He is it occurs. He is even willing to inhabit the willing to offer reasons for the policies mind of the other person sufficiently to he favors, and he is willing to listen with point out to him or her unnoticed impli- open mind to criticisms of those reasons cations of their way of thinking, especially coming from others. when those implications coincide with his own convictions. But he himself is not go- As to the reasons he offers, he regards ing to think about political issues in Raw- himself as obligated to ground his po- lsian terms. For him, thinking that way litical reflections and arguments on the is unfaithful to God; and fidelity to God resources of his religion (plus relevant overrides all other considerations. non-normative factual knowledge) and on those resources alone—when these speak He knows that lots of people in his soci- to the matter at hand. The conviction that ety, including a good many of his co-re- he is so obligated belongs to his religion; ligionists, regard him as deeply misguid- he sees fidelity to God as requiring this of ed. They call him a “fundamentalist.”39 him. To use Rawls’ language, a compo- Whenever people go beyond referring to nent in his comprehensive religious doc- him with this pejorative language and give trine is the conviction that he should use him a reason for thinking that he is deeply

28 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY misguided, he listens carefully and with an have invited the reader to imagine. So open mind to what they say. So far, he has far as I can tell, he just assumes that no not been convinced. Having listened care- reasonable comprehensive doctrine—in fully and openly to their objections with- his sense of “reasonable”—would include out being convinced, he is now entitled to the conviction that one should reason his convictions; there’s nothing more that about political issues only in terms of can be asked of him. It cannot be asked one’s comprehensive doctrine. But sup- of him that he decide to change his views. pose a Rawlsian were asked the ques- Nobody can do that. tion: What should a religious citizen of this sort do? What would the Rawlsian Let’s give this sort of religious person a say? Would he say that if the Barthian name. Let’s call him a “Barthian.”40 The is unable or unwilling to renounce that attitude of the Barthian toward employ- troublesome component in his coming public reason in thinking and talking prehensive doctrine, he should refrain about political issues is very much like from advocating in public for political the attitude of the Kantian toward think- positions and refrain from voting? Pos- ing about moral and political issues along sibly some Rawlsians would say this. But utilitarian lines: The Kantian regards that given the Rawlsian position as a whole, I way of thinking as deeply misguided. do not think that is what they should say. He refuses to think in those terms about moral and political issues. The “should” in the imperative proposed by public reason liberals is a prima facie I think the Barthian should feel free to “should;” public reason liberals recognize think and argue as he believes he should. that citizens may find themselves in situ- In doing so, he is exercising his natural ations in which they see themselves as right to religious freedom. Of course, having, and do in fact have, other prima nobody proposes that there be a law for- facie obligations that conflict with and bidding him from acting thus; everybody outweigh their obligation to conform to agrees that he should have the civil right the public reason imperative. So I think to act thus. But beyond that, I fail to see what the public reason liberal should say that he is in any way violating the spirit, to the Barthian is that, since he regards the ethos, or the governing idea of liberal himself as having an overriding duty to democracy. God to employ only the resources of his That is my view. But what does public religion in thinking about political issues reason liberalism of the Rawlsian variety (plus whatever non-normative factual say about the Barthian? The answer to knowledge is relevant), and since he is that question proves to be less obvious entitled to that conviction, that is what than one would have thought; in fact, the he should do. He should not follow the answer that I think the Rawlsian should public reason imperative. Perhaps oth- give has an air of paradox about it. ers should. But he should not. Given his comprehensive doctrine, it is his ultima Nowhere that I know of does Rawls con- facie duty not to conform to the public sider the sort of religious citizen that I reason imperative—unless his compre-

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 29 hensive doctrine has nothing to say on introduction and first two chapters of his draft the matter at hand. Public reason liberal- manuscript. 14 ism leaves the Barthian free to use reli- It appears to me that the substantial difference between the Ottoman millet system for religious gious reasons and only religious reasons freedom and the American system is due to the fact in public debate on political issues and in that freedom of religion is paired in the US with deciding how to vote. the proscription on establishment, this now being interpreted by the courts, roughly speaking, as no

1 preference and no discrimination by the govern- My quotations from Gelasius are all from the ment among citizens on the basis of their religion translations to be found in Oliver O’Donovan & (or lack thereof). Joan Lockwood O’Donovan, From Irenaeus to Gro- 15 tius: A Sourcebook in Christian Political Thought: For my knowledge of Asad’s position I am in- 100-1625 (Grand Rapids: Wm. B. Eerdmans Publ. debted to the contribution on The Immanent Frame discussion by Elizabeth Shakman Hurd. Co., 1999), pp. 178-9. 16 2 The references for these passages can be found I realize that speaking of the governmental struc- in my Understanding Liberal Democracy, pp. 343-4. tures of the time as states is anachronistic. 17 3 Lactantius, Divine Institutes, v.20. I thank Robert Jews were an exception; they were subjects of the Wilken for the translation. government but not members of the Church, and 18 their anomalous position put them at risk. From Luther’s tract, Temporal Authority: To 4 What Extent It Should Be Obeyed. The passage is I am using the translation by Ford Lewis Battles to be found on pp. 502-03 in O’Donovan and (Philadelphia: Westminster Press), 1960. O’Donovan, eds. and trans., From Irenaeus to Gro- 5 Discours sur la Permission de Liberte de Religion, tius. The tract comes from early in Luther’s career. Dicte Religions-Vrede au Pays-Bas (1559), transla- In later writings he affirmed the traditional two- tion taken from E. H. Kossman & A. F. Mellink, rules doctrine. eds., Texts concerning the Revolt of the Netherlands 19 I exclude Lactantius at this point, since what he (Cambridge University Press, 1974), p. 163. says can only be a matter of “free will” is not belief 6 On this see especially Brian Tierney, The Idea of but full devotion and faith; I judge that by “full de- Natural Rights (Atlanta: Scholars Press, 1997). votion and faith” Lactantius did not have in mind 7 Until roughly twenty five years ago, the US Su- just belief. preme Court quite consistently interpreted the no- 20 I discuss the religion clauses in these various state establishment clause as meaning no governmental constitutions in some detail in my Understanding support for any religion. It appears to me that in Liberal Democracy (Oxford: Oxford University recent years it has been moving in the direction of Press, 2012), pp. 333-341. interpreting it as equal treatment: the state is not 21 This isn’t quite true. I gave a very brief formu- to favor anyone, or discriminate against anyone, on lation of a Christian case for religious freedom in account of his or her religion. Timothy Samuel Shah, Religious Freedom: Why 8 The most recent example is the U.S. Supreme Now? Defending an Embattled Human Right (Princ- Court case, Hosanna-Tabor v. EEOC. eton: The Witherspoon Institute, 2012). 9 The term that the Bill of Rights uses is not “in- 22 Finnis and others introduce the idea of basicness, fringing on” but “prohibiting.” and hold that what differentiates between those 10 Sullivan has a 2005 book titled The Impossibility goods to which one has a right and those to which of Religious Freedom (Princeton). one does not is that the former are basic. Those who 11 It is not always easy; it may be clear that a law think along these lines typically say that aesthetic places a burden on the free exercise by some people delight is a basic good. I hold that no matter how of their religion but not clear whether that burden much aesthetic delight my having a Rembrandt rises to the level of infringement. hanging on my living room wall would give me, I do not have a right to the Rijksmuseum offering me 12 It also depends on how courts resolve disputes one of their Rembrandts. over the sorts of entities that are deemed to bear the 23 right; cf. the Citizens United case. See my Justice: Rights and Wrongs (Princeton: Princeton University Press, 2008). 13 I hereby thank Dan for allowing me to see the

30 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY 24 Oxford: Oxford University Press, 2010. course, fundamentalist religious doctrines and au- 25 These passages are to be found on p. 5 of Nagel’s tocratic and dictatorial rulers will reject the idea Secular Philosophy and the Religious Temperament. of public reason and deliberative democracy. They 26 will say that democracy leads to a culture contrary Oxford: Oxford University Press, 2008, p. 33. to their religion, or denies the values that only au- 27 See, in particular, Justice: Rights and Wrongs. tocratic or dictatorial rule can secure. They assert 28 I have attempted that in chapter 8 of Understand- that the religiously true, or the philosophically true, ing Liberal Democracy. overrides the politically reasonable.” The sort of 29 The thought comes to mind that perhaps these person I have in mind is not Rawls’ fundamentalist. two capacities should be incorporated into a more He is in favor of liberal democracy; he is opposed to comprehensive understanding of rational and nor- autocracy and dictatorship. He realizes that liberal mative agency. I think not. Neither one is, strictly democracy may lead to a culture contrary to his re- speaking, a capacity for agency. ligion. He is willing to live with that fact. 40 30 Richard Rorty, Philosophy and Social Hope (Lon- I call him a “Barthian” on the ground that it is don: Penguin Books, 1999), p. 169. likely the great twentieth-century theologian Karl Barth would have held such a position. 31 Qutb was an Egyptian intellectual who spent some time as a student in the United States (Colo- rado) and then returned to Egypt; after being im- prisoned for more than ten years by the Egyptian government, he was executed in 1966. 32 London: Palgrave Macmillan, 2004. 33 The period extending from 800 to 200 BCE has been called “the axial age” in world religious history. Axial religions are those that emerged during that period, for example, Judaism, Buddhism, and Confucianism. Christianity, and Islam are post- axial religions. Hick regards pre-axial religions as inferior to axial and post-axial religions. 34 James K.A. Smith, “Determined Violence: Der- rida’s Structural Religion,” in The Journal of Religion (78:2), p. 197. The quoted phrases that follow are all taken from Smith’s article. 35 Immanuel Kant, Religion within the Bounds of Reason Alone, trans. T.M. Greene & H.H. Hudson (New York: Harper & Brothers, 1960), pp. 99-100. 36 Ibid.; the last words of Division One of Book Three. 37 Apparently, Nancy L. Rosenblum and Philip L. Quinn were the first to use the term “integralist” for this objection, and they did so independently of each other. See Quinn’s article, “Can Good Christians Be Good Liberals?” in Andrew Dole and Andrew Chignell, God and the Ethics of Belief (Cambridge: Cambridge University Press, 2005), 274, nt. 12. 38 In his book Religious Conviction in Liberal Politics (Cambridge: Cambridge University Press, 2002), Christopher Eberle poses the integralist objection with a somewhat different type of religious believer in mind. 38 In PRR, 178 Rawls writes the following: “Of

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 31 Response by Stephen Macedo

Stephen Macedo: I’m delighted to las describes the foundations of religious have this opportunity. I’m a great admirer liberty. of this center and Tom and Tim, and I’ve used Nicholas’ work in class many times. Nicholas also correctly notes—and I like I admire Nicholas’s work deeply while the way he puts this very much—that the disagreeing with it in part. It remains to precise shape of our civil or constitutional be seen how significant our disagreement rights varies quite a lot from one country is for practical questions in the US and to another, whether these rights are rights abroad involving the boundary between to religious freedom, or speech, or what religious freedom and legitimate public have you. The Europeans call this a mar- policy. But I imagine we’ll get to some of gin of discretion. I will quote Nicholas’s those questions later on. formulation: “the various contours of the civil right to freedom of religion are Nicholas argues that there is a natural all to be understood as positivisings of right to religious freedom, also a human the natural right to freedom of religion. right to religious freedom. I endorse those Each particular contour of the civil right broad assertions. I think his account of to freedom of religion is the articulated human capacities that underlie the reli- inscription into law—the positivising—of gious temperament and religious liberty the natural right to freedom of religion.” are insightful and useful. I sometimes worry that in practice, invocations of nat- That’s fine. All natural rights that we ural rights and natural law can lead to a have prior to government are bound to kind of false confidence, but nevertheless, be vague, and their contours are open I have no problems with the way Nicho- to disputation, requiring balancing with

32 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY other values in practice. And the unclarity So, let me just say a word about it. Rawls’ of natural rights is among the things that idea—and I don’t think it’s just Rawls’ make government necessary. The capacity idea, he just happens to have elaborated of shared legitimate political institutions it—articulates a norm that is easily dis- to authoritatively specify the contours of cernible in our political and constitu- our fundamental rights at least to some tional practice, and it is stated by Su- degree—obviously subject to ongoing preme Court justices and others quite disputation—and to give our equal basic independently of Rawls. The idea is that rights shape and definiteness is one of the citizens in a diverse democracy have an great achievements of government and obligation to one another when deciding one of the great achievements of liberal important political questions—includ- democratic government in particular. De- ing the shape and contours of our basic bating and deliberating on the shape of rights—to cite reasons and evidence for our basic rights is a project that all citizens the positions they support that are pub- properly participate in, in a democracy. lic, that can be shared in public. They should cite reasons and evidence whose I like the fact that Nicholas says—and Tom force doesn’t depend on accepting one said it in his introduction as well—that if particular religious worldview or even a we understand the religious temperament particular philosophical worldview. They properly, then we should also understand should draw on the shared ideals of our that religious freedom extends equally to common political and constitutional tra- those whose worldviews do not include a dition. In other words, when seeking to God or a supreme being. Ronald Dworkin help define our basic rights in one way or has just published a book posthumously, another, they should look for ground that Religion Without God. It mentions Rich- we can share. And note one further con- ard Dawkins and Daniel Dennett, and we cession to religious believers: Rawls says might add John Dewey, as among those that citizens are free to cite reasons that who have regarded the religious tempera- come from their religious perspectives ment as extending to those who do not but they ought, as well, to cite reasons embrace the idea of a supreme being. that can be shared by those who don’t share their religious perspective. Now, So, I agree with very much in the first when I explain this to ordinary people, to two-thirds of Nicholas’s paper. My dis- non-academics, the typical response has agreements come in the last third, and been, “Well, that’s a completely anodyne concern one of the four ways in which idea. Who could disagree with that?” In- religion must “shape up,” according to deed. some. I want, specifically, to defend the Rawlsian view that Nicholas criticizes. But we do have some disagreement with Nicholas regards this as the least objec- that here. Nicholas’ disagreement is not tionable of these four views, but he objects particularly radical. Nicholas is con- nevertheless, and it is here that I take issue cerned that there are people in our po- with him. litical community that don’t share these principles, and he’s concerned that Raw-

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 33 lsians and others require that they “shape from their religious beliefs, and they do up” in a way that’s inappropriate. In his not wish to go beyond that. remarks he has referred specifically to religious people who affirm liberal democra- Now one thing about these citizens is cy, so he’s suggesting that these are people that they may quite excellently exemplify with reasonable public views, but they’re many political virtues. However, it seems not in the habit of debating and decid- to me that they don’t exemplify one such ing political issues on the basis of public virtue, which is being concerned whether reasons. They believe that they should those outside their church also have good debate and decide on the basis of reasons reasons to support or even accept, the drawn from their own particular reli- positions they advance on the shape and gious tradition, period. They don’t know content of our basic rights, and other im- how to appeal to public reason, Nicholas portant political questions. Now if these says. Satisfying the Rawlsian injunction citizens are engaged in a liberal democrat- requires that they shape up, and Nicholas ic agenda, as Nicholas hypothesizes, such disagrees with that. He did add that they as fighting for civil rights, fighting for the will cite non-normative factual knowl- rights of the poor, well, my gosh, they’re edge, so he and Rawls agree, at least, that doing excellent work in all sorts of ways. religious people ought to look for factual And if their political positions, in fact, knowledge that is public in the right sort can be justified by public reasons, and it of way. But their normative beliefs, their just turns out that they’re not interested ethical beliefs, I suppose, that shape their in talking about those reasons, then I political convictions are drawn entirely don’t think anyone is going to have a very

Caption needed.

34 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY great objection. The problem tends to de- book. And that’s the important thing: It’s velop when people operate from purely not that there are many irreligious people religious premises, and their conclusions out there, but rather that there’s religious and positions are ones that we can’t come diversity, so we look for grounds that peo- up with good public reasons for. I think ple with diverse religious views can share. that’s when the I’ll come back problem arises. to that point “The capacity of shared legiti- in a minute. I So I think that think Nicholas such citizens in mate political institutions to and I partly just general are violat- authoritatively specify the con- disagree about ing one important tours of our fundamental rights whether this norm of citizen- at least to some degree—obvi- so-called Raw- ship, which is im- ously subject to ongoing dispu- lsian norm is portant in a diverse one that’s widely community: that tation—and to give our equal shared: I believe we should look for basic rights shape and definite- that indeed it is. a common ground. ness is one of the great achieve- At the same time, ments of government and one Nicholas men- if we can see that of the great achievements of tioned the views particular religious of several other citizens, motivated liberal democratic government people who wholly by their in particular. Debating and think that re- religious beliefs, deliberating on the shape of ligion should are advancing the our basic rights is a project that shape up, and cause of justice all citizens properly participate I agree with and equal rights, him in rejecting then they are vio- in, in a democracy.” those. Rorty’s lating the norm view that reli- of public reasons Stephen Macedo gion is danger- only quite mildly. ous unless it’s So, my view is that fully privatized it’s not enough to seems to be say, “The Bible says such and such, and quite an eccentric view that few people that’s the end of it.” It’s uncivil. It violates espouse, and I think it’s an unreasonable an important norm of citizenship in a view. The view of John Hick is interest- diverse democracy. Happily there are, it ing. I interpret it to be that religion itself seems to me, very few people that argue in should be non-exclusive; that from a reli- that way in our politics, especially in our gious point of view, we should regard var- national politics. For one thing, it would ious religions as different paths to a single be quite ineffective because we disagree ultimate truth. This seems to be the view about religion, we disagree in our inter- that all religions are the same in the eyes pretations of the Bible, if that’s our holy of God, not just in the eyes of the state—

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 35 that’s a view that others have advocated dom for all citizens, and we think it’s a too. Hinduism in some ways sort of incor- basic right. So I think we agree that reli- porates various religious perspectives into gions need to “shape up” if they have not one common perspective. But the point is endorsed basic rights to equal liberty for that’s not the liberal idea. The liberal idea all citizens. sticks to insisting that citizens’ differing religious views are equal in the eyes of the So, Nicholas and I agree, I think, that in state or the law, and in the public realm, order for religious freedom to be recog- we ought to practice these public virtues nized, there are religions in the past that of reasonableness, and it is up to people needed to shape up, and there are reli- to work out how they bring that into gions now that need to shape up. So, we alignment with their own religious views agree on the need for a lot of shaping up in their own way. Finally, there is the idea for the sake of liberal democracy. When that Nicholas associates with Derrida and John Locke wrote his Letter Concerning Kant that religion should be emptied of Toleration anonymously, arguing that determinate content. Now, these are all the first duty of Christians was to prac- religious claims about religion. None of tice meekness and toleration with those them is an appropriate basis for political they disagree with, he was not expressing action. The values and virtues of liberal the general view. There were many who democracy pertain to the public realm thought it was both a religious duty and and liberal political principles do not pre- politically prudent to impose religious scribe to religious people how they should conformity. So, shaping up was necessary. go about reconstructing their religion in the face of religious diversity. I hardly need mention here at George- town the sort of shaping up that came But there are a couple of things worth with Vatican II and its declaration of noting, and I think Nicholas and I agree religious freedom. John Courtney Mur- here. In the remarks in his paper, I wor- ray has already been mentioned. Samuel ried that he was against the sort of general Huntington’s important book The Third project of religious “shaping up” in gen- Wave argues that the third wave of democ- eral, but in fact, he believes that religion ratization was a Catholic wave. Catholic needs to shape up for the sake of liberal countries shaped up and became more democracy in a variety of ways, and I also democratic, less authoritarian in the wake agree with that. Religions that themselves of Vatican II. Catholicism went from be- are intolerant, that refuse to accord equal ing associated with anti-democratic au- rights to people with different religious thoritarian regimes to being associated, beliefs, that refuse to treat citizens of oth- empirically, with democratic regimes. So, er faiths equally, that would use the state a shaping up in terms of conformity with to disadvantage, harass, or persecute peo- basic rights to equal freedom is a very im- ple who dissent from the official religious portant part of our political and religious view—those religions do need to shape agendas. From a political standpoint the up, and they need to shape up precisely norms that we can reasonably expect all because we believe in equal religious free- of us to comply with are norms of equal

36 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY freedom. And we leave it to religious peo- riage, and why a two-person status rela- ple to work out in their own ways how tion in the law of marriage should be fa- they go about integrating those views vored, and why we need not and should with their religious perspectives. But not move from same-sex marriage to po- there are many religions that still need to lygamy, polyamory, or plural marriage. I do some work and to revise some of their am responding to various slippery-slope convictions in order to conform to hu- arguments that have been brought forth man rights norms and equal basic rights. by conservatives: “If we have same-sex marriage, we’re going to have polygamy, But Nicholas’s objection and the point we’re going to have this, that, and the on which we disagree is a little different. other thing—probably have marriage As he said in his remarks, it represents privatization.” It seems to me monogamy the point of view of the person who has makes a huge amount of sense—indeed, an integralist view—it’s his integralist it makes just as much sense post-gay objection, concerning the “integralist” marriage as it makes pre-gay marriage. or “Barthian” citizen who believes that In fact, I want to argue that monogamy he or she should comport themselves is properly regarded as part of the basic in the public realm on the basis of their structure of a liberal democratic society religious convictions and when deciding because it promotes an equal opportu- important questions, including the shape nity to enjoy the great good of family and contours of basic rights. Now obvi- life. Polygamy and its various historical ously such people, as he says, are free in forms—apart from the fantasies of aca- a liberal democratic society to exercise demics—have involved vast inequalities their political rights however they wish: and greater social conflict and other per- the right to free speech protects religious sonal and social ills. advocacy for laws, and the right to vote may similarly be exercised on a purely re- So, if we look at the discussion in this ligious basis. But I adhere to the view country—the conflict around gay rights, that these ways of exercising our rights privacy rights, rights to sexual freedom fail in a basic duty of citizenship in a in the first instance, and the current diverse democracy: the duty to exercise debate about marriage—it’s deeply, sys- power over one another on grounds that tematically, and consistently informed by we can all share. norms of public reasoning. The reason is that everyone knows that claims about Now, one thing that Nicholas says is that sin are in the background, that religious he sees no chance of citizens in general teachings have shaped people’s attitudes conforming to the Rawlsian norm, which towards sex and marriage, and, thus, I have described, and I just want to sug- conservatives themselves have been em- gest against Nicholas that we do in fact barrassed by some of the arguments that largely do so, and it’s a good thing. And had been put forward in some authorita- I’ll cite one set of examples. I’m work- tive institutions to deny equal rights to ing on a book on the future of marriage, gays. which is to say marriage after gay mar-

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 37 This was strongly exhibited in the case ‘abominable crime not fit to be named of Bowers vs. Hardwick twenty-seven among Christians.’” years ago when the Supreme Court up- held Georgia’s criminal sodomy statute So many conservatives may have found as applied to gays. You look at the opin- the result in Bowers acceptable, but many ions of the slim majority in the Court were embarrassed by the Court’s reason- at that time, and they’re not strong ing or lack of reasoning. John Finnis arguments. There’s practically no argu- recognized that “embarrassment…ren- ment at all; there’s bald assertion. Justice ders most people more than usually White writing in 1986 simply declared inarticulate” with respect to homosexu- that homosexual sodomy bears no reality. And he insisted that “public poli- semblance to the Court’s previous pri- cies must be based on reasons, not mere vacy cases. Gay sex has no connection— emotions, prejudices, and biases.” Good he didn’t say “gay sex,” of course—with for him. And he’s participated in the family, marriage, or procreation. To ongoing debate and discussion, and I’ve claim otherwise is at best facetious. In been very delighted and honored to par- effect, the argument was that the people ticipate with him. And he would have of Georgia believed that this is wrong. added some variations on the Rawlsian Decent people have always thought it claim that the reasons ought to be not was wrong, and that’s enough. We don’t religious and doctrinal reasons but rea- need any further reasons. Justice Warren sons that could be presented as a mat- Burger wrote separately to emphasize a ter of public philosophy, in his case the long tradition of condemnation of ho- new natural law, and premises that can mosexual sodomy, “firmly rooted,” he be appreciated by people with different said, “in Judeo-Christian ethics, capital religious faiths. So, John Finnis, my col- crime in Roman law, an infamous crime league, Robert George, and others in against nature, not fit to be named,” so the natural law tradition have advanced on and so forth. I mean, the tone sug- public arguments, including in a recent gests, “How dare anyone actually ques- book by Sherif Girgis, Ryan Anderson, tion this?” And in his dissent, Justice and Robert George entitled What is Blackmun was equally pointed and said, Marriage?, which contains very philo- quoting Justice Holmes, “‘[i]t is revolt- sophically sophisticated argument. Not ing to have no better reason for a rule strong arguments, but arguments whose of law than that so it was laid down in force may be assessed without reference the time of Henry IV. It is still more to matters of faith or theology. And revolting if the grounds upon which it that’s good. was laid down have vanished long since, and the rule simply persists from blind So, it seems to me that this norm of public imitation of the past.’…. [B]efore Geor- reasoning is common, it is widely accept- gia can prosecute its citizens for making ed, and, indeed, it is accepted oftentimes choices about the most intimate aspects on both sides of very difficult political of their lives, it must do more than as- controversies. Some disagreement about sert that the choice they have made is an exactly how it applies and about the de-

38 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY Stephen Macedo pendence of the natural law argument relations based on religious and ethical on certain metaphysical premises may be ideals to which they aspire and which an issue. But the need to cite evidence thus determine the course of their lives. has been widely asserted, not just in the But the issue is whether the majority may courts, of course, but in legislatures, and use the power of the state to enforce these even on television talk shows. I can re- views on the whole society. I think that member hearing an episode of The Fac- Justice Kennedy was correct. And if there tor with Bill O’Reilly—not someone we are religious people who don’t recognize would think of as a Rawlsian—in which the essentially public nature of that ques- he was having a discussion about same- tion, and don’t recognize that they must sex marriage with a conservative. And Bill do more than cite their particular reli- O’Reilly is asking, “Sir, what’s the harm gious convictions when shaping the rights in same-sex marriage?,” followed by a of all, then my assertion is simply that bit of inarticulateness on the part of his they are violating a fundamental norm of interlocutor, and then, “Sir, what’s the citizenship. They may be very good citi- harm? You’re going to have to do better zens in other respects, but not in this one. than that.” So trying to find reasons and evidence that are common in order to ad- So with respect to marriage, the debate dress these matters is critical. has returned over and over to certain matters of obvious public interest, with the Not surprisingly, when Bowers was over- well-being of children being central to turned in 2003, Justice Kennedy observed the debate. Everyone acknowledges that that many people condemned same-sex the well-being of children is a reasonable

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 39 public concern central to the reservations woman because, in order to be the kind and past opposition of people like David of comprehensive union that marriage is, Blankenhorn and others, and that argu- it must involve and it must be consum- ment has been advanced and responded mated by sexual acts that have procreative to. Other public arguments, such as slip- significance. The new natural law posi- pery-slope arguments of the sort that I al- tion is not that hard to explain. I believe ready mentioned (i.e., same-sex marriage what’s hard to convey is its persuasiveness will lead to polygamy, incest, and bestial- to those who don’t share the wider perfec- ity), have been expressed and responded tionist sexual ethic. It’s not a crazy sexual to. The slippery slope arguments about ethic, and I don’t despise it or scorn it at gay marriage do hold that we would slide all. It just seems to me that there are many toward practices that involve real pub- reasonable grounds for rejecting it, and in lic harm. So those sorts of arguments, fact the vast majority of Americans have though unconvincing, are at least on the rejected it (including all of those who use right track. contraceptives).

And then, of course, the arguments of Interestingly, when the natural law argu- the new natural law are based on philo- ment was sidled up to by the attorney sophical and ethical claims, not religious defending Proposition 8 in California, premises. They are part of a wider sexual defending marriage as one man and one morality that I don’t need to explain here woman, and then again in the Supreme at Georgetown, in which marriage is nec- Court, that attorney, Charles Cooper was essarily the relationship of one man and asked: What is the harm of gay marriage?

Stephen Macedo

40 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY And Cooper’s frank response was, “Your He honestly said that. But, in any case, Honor, I don’t know.” In the Supreme this was an attempt to try to articulate the Court, he did attempt to advance the view that marriage must involve procre- marriage as procreation argument, and ation and gender complementarity and so it led to an exchange with Justice Kagan on—not very successfully. that Scalia joined in—you may But let me just have heard this say this in clos- on the radio. Jus- “One of the common grounds ing. I recently tice Kagan asked that should shape our public came across an Charles Cooper: conversation is a mutual ac- excellent piece If the state’s inter- reflecting on est is in keeping knowledgement that the shape the problems marriage focused of our free exercise rights is part faced by the on procreation, of a general scheme of equal new natural law would it be okay rights for people of different arguments con- if the state said religious faiths. And in a way, sidered as pub- that people over lic arguments. the age of fifty-five that’s why people need to step The piece was can’t marry? Well, out of their particular religious written by Paul Cooper said, both frameworks to see that there Griffiths, who parties to the mar- are people with other religious is a Catholic riage may not be faiths, in part, who have equal theologian at infertile. Laughter Duke. I’ve never in the courtroom. rights, and that it’s reasonable met him, and Justice Kagan: “I for them to expect that the he never men- can assure you, grounds that are offered by the tions Rawls, but if both the man state or by their fellow citizens it seems to me and the woman to shape their equal rights, our that he makes are over fifty-five, a very sensible there are not a lot equal rights, are grounds that point about the of children coming they and we can share.” natural law or- out of that mar- thodoxy. He riage.” More laugh- Stephen Macedo says, “I think ter. Scalia joins in, the orthodoxy is “Well, I suppose true. I think the you could have a arguments are questionnaire at the marriage desk when valid and it would be better if everyone people come in, are you fertile or are thought so. But there are not, as a mat- you not fertile?” More laughter. Cooper ter of fact, arguments available that do or comes back, “Well, one of the parties may should convince those who do not hold be fertile,” and Scalia can’t resist and says that orthodox view, whether Catholic or for some reason, “Strom Thurmond was.” non-Catholic, that they should. The lack

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 41 of such arguments, I’ll call them public Let me just quote one other thing on arguments, is empirically obvious. The these debates, by David Moats who won a premises are rationally disputable. The Pulitzer Prize. He was and may still be the truth about none of these things is obvi- editor of The Rutland Herald in Vermont, ous or self-evident, which is among the and he was there for the long debates reasons that thoughtful, well-meaning around civil unions in Vermont. And people differ so profoundly about them.” looking back, he reports this: “I had not That seems to me a very sensible remark read John Rawls at the time. But the edi- by someone who accepts the Catholic torials I wrote on the question of private natural law argument. morality and public justice reflected a Rawlsian conception of democracy.” And On the other hand, the fairness of argu- the way he put it is this—it’s a bit home- ments for including gays in marriage is spun, but I kind of like it—“The village very straightforward, and they’ve been green of a typical Vermont town was em- articulated by philosophers like Alec blematic of my view. The green might be Baldwin. I’ll quote a brief part: “There surrounded by a Congregational church, are people who are married in the eyes an Episcopal church, a Unitarian church, of the state, enjoying all of the legal ben- a Catholic church, a public library, and efits who have no intention of having a tavern. Citizens would enter each place children. They seek only companionship for their own personal reasons and they and all of the entitlements that come would be free to fashion their own mor- with marriage: sex, joy, partnering, car- al codes from what they learned inside. ing, and so on, all of that is theirs, even But when it came time to develop public though they’ll never bear children and policy, the citizens would have to emerge willfully so. If the state says they are free onto the village green and meet together to, why aren’t gay couples as well?” to pass laws that a majority could support. No individual sect would have the So, in any case, at every step along the authority to force its moral views on the way, there’s been an articulate and self- others. Somehow the separate groups conscious concern in the debate over would have to find common ground on gay rights, including now same-sex mar- which to act. What Rawls calls a compre- riage, about the kinds of reasons that are hensive view of morality as embodied in being cited. If you look back at the de- religion, philosophy, or some other moral bates in Congress in the mid-1990s over teaching is not the business of govern- the Defense of Marriage Act—exchang- ment.” And I agree. es between Henry Hyde and Barney Frank and so on—you find discussion Let me just mention one other quote along the lines of: “What’s the harm, on democracy and public reason. This how is it going to harm children?” So, is much briefer. It’s a book called The it seems to me that we do have a general Democratic Virtues of the Christian Right norm of public reasoning, and that is a by Jon Shields. It is an empirical study good thing. of Christian-right activists, and actually a student of mine at Princeton did some-

42 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY and asking questions, the rejection of appeals to theology and the practice of “Not surprisingly, when Bow- careful moral reasoning.” And he goes ers was overturned in 2003, on later in the paragraph, page two, Justice Kennedy observed that to say, “Christian apologetic organiza- many people condemned tions teach thousands of citizens every same-sex relations based on year to make philosophical arguments rather than scriptural ones because Paul religious and ethical ideals to instructs Christians to give reasons which they aspire and which for their beliefs. From this perspective thus determine the course then, Jesus Christ was not a belliger- of their lives. But the issue is ent moralist, thus, ignoring deliberative whether the majority may use norms is not merely impolitic, it is also considered to be unfaithful.” And that’s the power of the state to en- true. That’s also what my student Nate force these views on the whole Klemp found looking at Focus on the society. I think that Justice Family in Colorado. They recognized Kennedy was correct. And if that, in speaking to the wider polity there are religious people who about public policy issues, it’s pruden- tially important and also respectful of don’t recognize the essentially others to cite widely accessible reasons public nature of that question, and evidence—you’re trying to build and don’t recognize that they a political coalition after all. And they must do more than cite their also believe that there are religious particular religious convictions norms that support these norms of public reason. when shaping the rights of all, then my assertion is simply that So all of this, it seems to me, represents they are violating a fundamen- a good way for citizens to participate— tal norm of citizenship.” citizens with diverse religious and philosophical perspectives in a process of Stephen Macedo common deliberation, which is seeking common ground on the basis of which to shape the contours of our funda- thing very similar, looking at Focus on mental rights, good reasons that we can the Family in Colorado. Let me quote share, to transform, in effect, different how Shields characterizes the main point accounts of what people believe our nat- of his book: “I argue that the vast major- ural rights are into shared authoritative, ity of Christian right leaders have long la- civil, or constitutional rights. It ought to bored to inculcate deliberative norms in be a common conversation, seeking com- their rank-and-file activists, and especial- mon ground on which to shape our basic ly the practice of civility and respect, the common rights. cultivation of real dialogue by listening

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 43 I have a hard time seeing why Nicholas we, as I suggested and as John Rawls has thinks this endeavor is unimportant. He suggested, do it on the basis of common thinks there are people who opt out of it grounds. in a way that’s entirely excusable. I don’t know what I want to say about excuses, And let me just say this in concluding: but he made a remark towards the end, One of the common grounds that should to the effect: “Wouldn’t a Rawlsian say shape our public conversation is a mu- that these people are entirely justified in tual acknowledgement that the shape of what they’re doing if they consciously be- our free exercise rights is part of a gen- lieve that what they’re doing is required eral scheme of equal rights for people of by their religion?” Well, I would say that different religious faiths. And in a way, they’re subjectively justified, as it were, that’s why people need to step out of their but objectively wrong. I don’t believe that particular religious frameworks to see religion properly understood requires that that there are people with other religious sort of comportment in politics. I tend to faiths, in part, who have equal rights, and agree more with Jon Shields. So, you can that it’s reasonable for them to expect that be subjectively justified but objectively the grounds that are offered by the state wrong, and those citizens are objectively or by their fellow citizens to shape their wrong about the virtues of democratic equal rights, our equal rights, are grounds citizenship. that they and we can share.

None of this, I think, is going to help us much with difficult issues that face us nowadays as we think about particular issues involving religious freedom and conflicts involving public policy, such as whether it’s legitimate or not for the Health and Human Services to mandate health coverage to employees that includes contraceptive services. Should the mandate be applied to for-profit businesses—religious institutions and faith-based not-for-profits having been exempted— or would that be an infringement on the free exercise rights of the owners of com- panies who disapprove of certain forms of contraception? I don’t see how notions of natural rights can help us with that. These sorts of questions are too bound up with complicated institutional context. I think Nicholas and I will probably agree with that. And I would certainly prefer that when we have these conversations,

44 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY Religious Freedom and Social Flourishing

TIMOTHY SHAH: Everybody take a seat wide-ranging presentations, again, con- so we can start the discussion between our ducted with great clarity as well as civility. two featured speakers this morning, a dis- So, thanks very much to both of you. cussion into which I’m eager to welcome all of you. I want us to begin by talking about some of the areas where there was the most dis- My colleague, director of the Religious agreement between the two of you, namely Freedom Project, Tom Farr, quoted John public reason, its demand, and its relation- Courtney Murray earlier, who said that it’s ship to the demands of religious freedom. I actually an ideal and an achievement for don’t want this consideration to absorb all creeds to contend intelligibly with each of our time because there are other issues other. Sometimes our disagreements are as well, but I suppose it’s the elephant in not very intelligible or clear, so I hope that the room, given that it was the point that we will not only achieve, as we were saying you focused on, Steve, in your remarks. earlier, some clear disagreement and clarify the lines of disagreement that were defined Let me just ask you, Nick, to comment, earlier today, but also map out and per- however you’d like, on what Steve had to haps understand better some of the very say in saying, “Look, really, people mostly interesting and important lines of agree- actually do appeal to public reason.” One ment that were discussed earlier today be- of your arguments was that you really tween Professor Wolterstorff and Professor couldn’t see any prospect of many people Macedo. accepting the Rawlsian deliberative norms. Steve says, “Look, even very religious First, let me thank both of you for your people, people that we tend to think of as

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 45 making Biblicist sorts of arguments, actu- STEPHEN MACEDO: Right. I think ally are engaging in democratic delibera- one thing that’s important is that once we tive norms.” So, what’s the problem, why pass a law, in a way, that’s only the begin- is it so important to make the case that you ning, then we have to interpret the law and were making about the “Barthian,” as you we have to administer the law, we have to called him. revise the law. There’ll be a lot of rule-de- fining and, in effect, lawmaking that fol- NICHOLAS WOLTERSTORFF: No, I lows from administration and application don’t see that most people appeal to public of the law, and adjudication as well. And reason. I don’t see that most present-day as a practical point—not as deeply prin- Congressmen are appealing to reason. cipled a point as others, but I think it does make practical sense—if we don’t have any Steve, I’ve never understood why com- common sense of what the law was for, if mon ground is important. I do think what we don’t have any sort of common under- we should do in the liberal polity is aim standing, we’re very unlikely to interpret it at agreement on policy, but on that point with anything like common purposes, to I’m inclined to agree with the Gausians. be able to make sense of it, administer it, Who cares, in principle, provided they’re and so on. responsible views, why people converge on a common policy? What’s important is The fundamental principled point is a le- that we try to get convergence on a policy. gitimacy point. I think it’s very important When we don’t—and usually on signifi- that political power be exercised on the ba- cant issues, we don’t in a liberal democracy, sis of reasons that we’re presenting and that of course—we vote, and that seems to me we can all see that there are reasons for the at least to be a crucial part of it. law. It helps to reassure one another that our fellow citizens are not just committed So, take the natural law people. I don’t see to particular policy outcomes with which how they fit into your scheme, because as we agree but to ongoing deliberation on you yourself have observed and as Paul the basis of reasonableness. That seems to Griffiths, who is a good philosopher theo- me a fundamental norm of democratic le- logian, observed, in fact there’s not agree- gitimacy. ment on natural law. Even though it doesn’t appeal too explicitly on religious premises, TIMOTHY SHAH: If I could interrupt nonetheless—goodness knows—there’s you. not an agreement on it. But I think they should be free to use natural law argu- STEPHEN MACEDO: Yes. ments and inhabit the mind of other people insofar as possible to try to get them TIMOTHY SHAH: Doesn’t the Barthian, from their own standpoint to agree with as described by Nick, conform to reason- natural law conclusions, but let them do ableness? This is a person who engages in their own natural law thinking. So, I don’t an effort to understand other points of see the need for common ground. view. As you described the Barthian, he listens to criticisms of his point of view,

46 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY Stephen Macedo but he’s just not persuaded. In a way, like ed by good common reasons—this seems the critics of the new natural law you were to be the case that Nick has in mind. In talking about who just don’t find that posi- that case, it doesn’t make that much of tion persuasive, the Barthian doesn’t find a difference. But it becomes worrisome the secular critics of his position persua- when people support things that only have sive, and, therefore, what canon of delib- justifications within sectarian worldviews. erative democracy is he violating? To think about this practically, we’d have to think about cases where it really mat- STEPHEN MACEDO: Well, we live in ters, and those will tend to be cases where a religiously diverse community. On this some people think there’s a religious jus- particular issue, the Barthian may be ar- tification—that some practice is sinful riving at a reasonable standpoint because say—and there is no good public reason Nick describes him or her having a lib- for regarding the practice as wrong or eral democratic agenda of some sort. But harmful. there’s something, in general, worrisome about somebody who believes the law TIMOTHY SHAH: But isn’t the kind of ought to be used simply to enforce their scrutiny you described characteristic of all own religious worldview given that there disagreement? I mean, what you described are many people that disagree with that is not special with respect to religious religious worldview and given that there disagreement. I mean, libertarians and many people that reject it or don’t share it. welfare-state types have very, very deep Now, it happens to be the case that they’re disagreements about the nature of the in- supporting things that are in fact support- dividual and so forth.

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 47 STEPHEN MACEDO: Well, they have There may have been people that couldn’t different disagreements about how to see that slavery was wrong—though I think about liberty and how to think about think that people probably could see that equality and the role of the state in secur- it was wrong—but if something really is ing liberty and equality, and they have dif- important, of course one will feel person- ferent predictions about the consequences ally warranted in insisting upon some par- of government actions. In fact, those are ticular truth that corrupt others can’t see. disagreements that are tractable and about But that’s not generally the case in our which we can argue in common. This isn’t democracy, and I think we’d do far better about all of us agreeing, and it isn’t all to proceed in the way that we have been about us coming to the same conclusion, proceeding, which is by trying to deliber- but it’s very important, I think, that we ate together on the basis of reasons and try to focus our disagreements on grounds evidence appropriate to public forums. that we can talk about—like with marriage: the interest of children, the harm I do disagree with Nick about the extent that such-and-such notion of marriage to which people tend to conform with the might do, etc. norm of public reasoning: I think ordinary citizens and legislators do tend to conform These are common interests and common and that it’s good for our democracy. Let concerns, simply because we’re talking me put it this way. I think government is about making law for the whole commu- a very important instrument for the com- nity, applying the law to the whole common good. One of the things that contrib- munity, coercing people in the name of utes to its functioning as an instrument for this law that they will disagree with. It’s a the common good is that we’re capable of sign of respect to other people to give them deliberating collectively when we can— reasons, not just insist on sectarian dogmas not at the moment in Washington, obvi- that one thinks are true, but to offer them ously our politics is broken—but deliber- reasons and evidence that one thinks they ating collectively on the basis of common may be capable of regarding as true. It just purposes that we can appreciate, continue seems to be a moral requirement of respect to work out, pursue, and perfect over the in a democratic society to try. course of time. And it seems to me norms of shared reasoning are an important part Now, if one has the view that the truth of making this process work. is something that simply can’t be grasped by people with whom one disagrees and TIMOTHY SHAH: Now, you don’t dis- that truth is hugely important and that agree, Nick, that there may be a prima facie the only conscientious course is to insist case, as you were saying, for the kinds of upon the truth as you see it, you’re liable shared norms and civility that Steve was to believe that those others are corrupt in describing, but this may have to give way some way, that there’s some failure on their to an ultima facie, a more ultimate claim or part that makes it impossible for them to rights claim of religious individuals? see the truth. Then indeed one has conscientious reasons to proceed on that basis. NICHOLAS WOLTERSTORFF: Well,

48 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY suppose we distinguish between the rea- NICHOLAS WOLTERSTORFF: Fine. sons we have for some policy and the pol- Then, I’m going to do that. icy itself. I certainly think that when we engage in a liberal democracy and political STEPHEN MACEDO: Yes, fine, absolute- discussion, we should aim at arriving at an ly. It isn’t a question of whether the reasons agreement on the policy. I suppose in some are more important than the conclusions. ideal universe, we would also agree on the But I just don’t understand how politics reasons for our agreement on the policy, would work if large numbers of people had but it seems to me the really important the attitude that Nick has, and it seems to thing is to aim at agreement on the policy. me they manifestly don’t. It isn’t just a matter of deliberating and voting. It’s a mat- As a matter of fact, what we find in our so- ter of parties. The Republican and Demo- ciety is natural law theorists like John Finn- cratic Parties advance differing visions of is and Robert George, and Ayn Rand liber- the common good which they themselves tarians, and utilitarians, and Kantians, and have to arrive at within those huge, mul- here and there, my Barthian, and so forth. tifaceted, and diverse organizations on the So, my view is to let them start from what basis of hammering out some differences premises seem right to them. Aim at con- and advancing some sort of agenda for sensus. Give your own reasons and inhabit governance, and so on. That itself requires the mind of the other person sufficiently to common deliberations, so people can see be able to show, if at all possible, that the that they support a common policy and convictions of that person lead to the same see something of the common principles conclusion. So, aim at agreement on policy. that lead them to support it. But in the deep background, of course, Nicholas and But in democracy, as a matter of fact, on I agree that people will have different ulti- big issues, we almost always fail to reach mate convictions about how to think about agreement on policy. So, for me, voting has our place in the universe, religious truths, a greater importance than I think it does and various other philosophical questions. for Steve and for the Rawlsian tradition in But a common set of political principles general. Aim on agreement on policy. I’ve and some sort of common rationale for never seen the point of insisting on agree- them seems to me of practical importance ment on grounds or reasons. and it seems to me very much to be how things work. STEPHEN MACEDO: I certainly agree that it’s more important in most instances TIMOTHY SHAH: I just want to push to get people to agree to the right policy you a bit, Steve. Doesn’t that point of than to get them to agree for the right rea- view give greater weight to concerns like sons. And if the only way to argue someone political stability and consensus than to over to the side of civil rights is to invoke freedom? And don’t we, for example, think Christian beliefs that they ought to share it admirable when people, on the basis of and then argue that denying civil rights conviction, say, “No, I’m not going to go is inconsistent with their religious convic- along with that position of the state.” We tion, it’s— think this is the classic conflict in Anti-

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 49 gone. Creon issues a decree that’s not un- ing required to comply with the HHS reasonable. Traitors to the state shouldn’t mandate or something of that sort. Then, I receive proper burial. That’s not unreason- think, it’s very important that we appreci- able. She says, “No. I’m going to do that ate the burdens that the person feels that anyway,” and in they suffer or have fact, invokes a to bear on account kind of transcen- of their conscien- dent duty and, “On this particular issue, the tious beliefs. Those therefore, a right Barthian may be arriving at a will be questions to perform what reasonable standpoint because about accommo- is in fact an act Nick describes him or her dations or excep- of very grave dis- having a liberal democratic tions and so on: obedience to the “On account of state. agenda of some sort. But there’s my beliefs, I bear something, in general, worri- a much greater Looked at it that some about somebody who burden than oth- way, aren’t there believes the law ought to be ers who don’t have many cases where used simply to enforce their these particular be- individuals are liefs if you require under those kinds own religious worldview given me to do X, Y, or of circumstances that there are many people Z.” In those con- and we respect, that disagree with that religious texts, it’s extremely as a matter of worldview and given that there important for us religious free- many people that reject it or to sympathetically dom, their right understand peo- and their duty to don’t share it.” ple’s religious point say, as a Barthian of view or philo- Stephen Macedo might say, “Well, sophical point no. I actually feel of view to assess deeply obligated whether an unfair to invoke my religious convictions as not burden is being imposed as a consequence just the primary but the ultimate basis of someone’s beliefs. for my views on public policy.” Isn’t that admirable? Just for the sake of freedom, But when the question is different and in a don’t we have to make space for that sort way prior to that, if it’s rather, what should of view? the law be that’s going to be imposed on everyone in the community, then, I think, STEPHEN MACEDO: Well, let me say, the common point of view is one that we there are two different perspectives on this. have an obligation to take, because we’re One is the perspective of someone being making law for other people. And the asked to comply with the law or perhaps question is whether I care about whether even to take part in being an instrument you have reasons for the law I’m suggest- of the law, such as military service or being should be imposed on you? It’s a mat-

50 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY ter of other regard. I care not only that the NICHOLAS WOLTERSTORFF: The law is justified to me. I care about whether Barthian has his or her own way of think- it’s justified to others. That’s why I look at ing. But the Barthian also cares very much common considerations and do not just about convergence, consensus, and so tries think about a law from my perspective but to inhabit the mind of the other person think about it from our perspective. It’s a and tries to find arguments that start from “we” regarding standpoint. It just seems the premises of the other person which to me to go without saying that when it lead to the same policy conclusion. comes to lawmaking, we want to think about what the common interest is, what STEPHEN MACEDO: So, as far as I can the common good is. Again, I just think figure, this is a kind of a consociationalist this is kind of anodyne. model of politics—I think that is what it would be called. We operate within differ- TIMOTHY SHAH: What do you think, ent faith communities and other sorts of Nick? communities, and we seek a consensus at the top, as it were, on the law, but not on NICHOLAS WOLTERSTORFF: I agree the deliberation going down. very much with what Steve said just now. It’s a question not only of whether I have NICHOLAS WOLTERSTORFF: Ex- good reasons for accepting the law but of actly. whether you have good reasons for accepting the law. I just don’t see that those have STEPHEN MACEDO: And consocia- to be the same reasons. tionalism is associated with a variety of problems, not just problems of stability STEPHEN MACEDO: To some they but problems of negotiation. There’s no don’t have to be the same reasons. To some common negotiation. I mean, you could degree they can be somewhat different rea- run a department this way, you could run sons. an institute this way. We could always think about a legislature as being more NICHOLAS WOLTERSTORFF: I like the United Nations where represen- mean, it’d be nice if they were the same tatives come from very different points of reasons. view. This wouldn’t be a Burkean model in which we come and deliberate together TIMOTHY SHAH: But what do you say about our common good. It’s rather that to the charge that the Barthian is not as we have our own perspectives. I just think other regarding— it’s a strange way of proceeding, in which one bases one’s politics on deep suspicion NICHOLAS WOLTERSTORFF: Oh, and disagreement. One is operating from sure. The Barthian—I mean, my fictional a deeply sectarian point of view, in which Barthian. one insists on the entire truth as one sees it within one’s faith community, and one TIMOTHY SHAH: Yes, your fictional is not willing to go along with common Barthian is what I’m talking about, yes. deliberative institutions with people who

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 51 have different faiths. Rather one is only the basis of accessible reasons. But if one willing to negotiate with them. That ap- regards political views as unimportant, or proach would create, it seems to me, an as deeply corrupt, and as a fount of false- extremely unfortunate political situation hood, and one regards the whole truth as that would make collective governance for simply within one’s faith community, one’s important political questions impossible sect, and wants to separate as much as pos- and very much at odds with the way the sible from this other model of public delib- Constitution has been conceived from the eration—we’re not going to call it public beginning. deliberation, but politics of negotiation—I could see how it would have some appeal. NICHOLAS WOLTERSTORFF: So, an I just don’t think that’s the world that the aspect we agree on. It’s by no means just vast majority of Americans live in, and I religious people or even primarily religious don’t think we’d be a better place for it. people who subscribe to this view. Nowa- days it seems to me it’s convinced libertar- TIMOTHY SHAH: I’m sure we’ll get ians who are most convinced. more into this when I get the audience involved. But for a few minutes I want to STEPHEN MACEDO: Right. Nozick- turn to some of the bigger claims that you ians, right, who have some deep sense of make, Nick, in your paper concerning nat- inviolability, that taxing them to support ural rights and religious freedom as a natu- common purposes uses them as a means to ral right. This whole notion that there are other people’s ends. natural rights and that religious freedom is among the natural rights is actually pretty TIMOTHY SHAH: Right. Right. controversial. Jeremy Bentham is famous for saying natural rights are “nonsense STEPHEN MACEDO: That seems to built on stilts,” but then we have more re- me to greatly exaggerate the incursion on cent critics of the whole notion of natural individual liberty as a result of taxation. universal rights—you mentioned some of But in any case, it’s an undemocratic or them, Nick, in your paper. anti-democratic point of view. If one regards the democratic community itself as What would we lose if we stopped talking an important community of shared pur- about religious freedom as a universal in- poses then it seems to me natural and ap- herent natural right? In this context let me propriate for participants to jointly expect just quote George Washington in his very their fellows to join with them in taking famous letter to the Hebrew Congrega- seriously the common point of view and tion at Newport, Rhode Island in August to be willing to engage in common forms 1790. He says, “The citizens of the United of reasoning about common aims. And States of America have a right to applaud again, the Catholic tradition in general has themselves for having given to mankind gone along with this idea that the political examples of an enlarged and liberal policy: community has its own important sphere a policy worthy of imitation.” To that ex- and its own important agenda and that tent, he thinks the policy is universalizable, the deliberations there should operate on if not universal at that time. “All possess

52 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY alike liberty of conscience and immunities In many cases, the form which religion of citizenship. It is now no more that tol- takes is pretty horrible. And even if it is a eration is spoken of, as if it were the indul- good, one who is a Stalin or a Hitler or a gence of one class of people, that another Pol Pot weighs religion against some sup- enjoy the exercise of their inherent natu- posed greater good, some classless society ral rights.” He is, of course talking about off in the future that we will achieve if we rights of conscience and religious liberty sacrifice this good of religious freedom. rights as inherent natural rights. What do So the important thing is that rights have we lose if we stop talking like that, Nick? this peremptory quality. If it’s a prima facie right, it can be outweighed by other prima NICHOLAS WOLTERSTORFF: So, it facie rights, but it’s not outweighed by seems to me that the very idea of a right, in mere goods. particular that of a natural right, is that if I have a right to some good, that has a cer- It may help if I mention autobiographi- tain peremptory quality in my assessment cally how the importance of rights first of various goods. If it’s a good to which became clear to me. In 1975 I was sent by I don’t have a right, then in deciding to the college at which I was teaching, Calvin pursue it or in somebody else’s deciding College to a meeting in Potchefstroom, whether or not to dispense it to me, we South Africa. The meeting was not about weigh up a variety of goods. If the status of apartheid. There were Afrikaners there, religion was simply a good, then it seems some English-speaking people, some so- to me that religious people like myself have called “colored,” some blacks from South to say that often it’s not a good. Africa, plus a contingent of South Africans

Nicholas Wolterstorff

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 53 and some of us from North America. be wonderful if they each found their own cultural identity? But they can’t find their The Dutch were very well informed about cultural identity if they’re all mingled with what was going on in South Africa and each other, hence they’ve got to be pulled were very angry about it. Furthermore, apart in apartheid. the Dutch understand Afrikaans and the Afrikaners understand Dutch, so the Af- I saw benevolence being used as an in- rikaners could not strument of op- say, as in those days pression. The as they said to al- “Now, I just don’t think the Afrikaners recog- most everybody, language of natural rights or nized no brakes “Well, you don’t on their pater- understand.” They the idea of natural rights is nalistic benevo- couldn’t say to the sufficiently clear in its contours lence. So, one Dutch, “You don’t to solve or even to provide way of putting understand.” At much traction on the issues it is that rights most, they can say that we face in a liberal democ- are a brake on to the Dutch, “But paternalistic be- you’re so judgmen- racy, where we’ve agreed that nevolence. They tal. Why are you so individuals have important say, “Count up judgmental?” So, equal basic liberties. We need all those goods. after some heated to think about the interests That doesn’t exchanges between that inform those rights, their make any differ- the Afrikaners and ence.” That is, I the Dutch, the weight, and how they interact think, why the so-called “blacks” with other interests on the part notion of rights and “coloreds” be- of the political community and is important. gan to speak up, the interest of other people.” began to speak of TIMOTHY the indignities that Stephen Macedo SHAH: What were daily heaped do you say about upon them, both that, Steve? You en masse and sepa- commented to rately. They issued a cry for justice. me you’re not sure how much work this natural rights language really does. You did I shall never forget the response of the Af- say you don’t disagree with it, but is it not rikaners. The Afrikaners responded by say- important in the ways that Nick describes? ing, “Justice is not the issue. Benevolence is the issue.” They talked about their private STEPHEN MACEDO: Well, I think acts of benevolence and they described Nick is absolutely right, that rights have apartheid as itself inspired by a visionary this peremptory quality, that they establish benevolence. There are 11 or 12 different a social world in which we can make cer- nationalities in South Africa. Wouldn’t it tain demands on one another, not, as he

54 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY said, on the basis of benevolence or request ing “I have a natural right to X” is just a or submission, but rather we can demand way of saying that the government would certain things, demand forms of equal sta- be illegitimate if it infringed upon it, but tus and equal treatment and so on. what we want to know is: Is that really so, and does it outweigh other rights and in- TIMOTHY SHAH: I take it that’s what terests? It’s more of a conclusion, I guess, Washington was saying in distinguishing and I just don’t think the language of natu- between toleration as an indulgence that’s ral rights is all that helpful. The language granted to the minority by the majority of rights is helpful. The extra endowment versus an inherent natural right of man- of “natural” doesn’t really help. Even Locke kind. said we enter society with a contract on the basis of unanimous consent—we ask what STEPHEN MACEDO: Right. It’s impor- the legitimate conditions that should ap- tant to clarify what the rights are and to ply to government power in order to make interpret them neither too narrowly nor that consent legitimate are. And again, we too broadly. In public life now, often the need to really justify these rights to one questions are of various complicated inter- another. We need to think about them in ests that implicate rights in certain ways ways that we’re all prepared to acknowl- and contour how those rights are going to edge, and that comes with a process of be defined given various kinds of rights of public deliberation and public argument others. These are questions about a regime and then probably some decisions through of equal rights and of public purposes public authority. of one sort or another that are also quite weighty and quite important and may ac- TIMOTHY SHAH: But there are some tually be partly about securing the rights of recent moves by a number of fairly promi- children or the rights of third parties. nent legal theorists, Brian Leiter, for ex- Now, I just don’t think the language of ample, who has written a book called Why natural rights or the idea of natural rights Tolerate Religion, in which he says, in effect, is sufficiently clear in its contours to solve “Look, there really shouldn’t be any well- or even to provide much traction on the established, respected right to religious issues that we face in a liberal democracy, freedom as such.” The rights that we think where we’ve agreed that individuals have of as being protected by religious freedom important equal basic liberties. We need to can better be protected by protecting free- think about the interests that inform those dom of speech and freedom of association. rights, their weight, and how they interact Religious people can be protected under with other interests on the part of the po- those freedoms. Do we lose anything if we litical community and the interest of other don’t have an especially carved out right to people. religious freedom? Noah Feldman has said something along these lines. What do you Rights are ways of making good on those think about that Steve? interests that we have, but generally, conflicts about rights need to refer and weigh STEPHEN MACEDO: Well, I would those interests that inform the rights. Say- have to work through Leiter’s book in

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 55 Timothy Shah detail, which I have not done. It may be and historically that’s often been the case. the case and often seems to be the case But I think it’s very important that we take that religious convictions have a special a broad view of religion, and that in effect kind of non-negotiable quality for people the regime of equal rights that we build in the context of their lives. They can be up around religious claims are ones that a source of conflict with other kinds of secular analogues can also claim, secular rights claims and interests. My colleague, convictions that are equally deep in the life now president of Princeton, Chris Eis- of a person, whether it’s exemptions from gruber, has a very good book on religious military draft or participation in other liberty with his former colleague, Larry kinds of programs. That seems to be sort of Sager, in which one of the things they ob- common ground. We have to define these serve at the beginning is that nobody really deep and serious convictions that have this has any serious problem with the National place in people’s lives, and religious beliefs Endowment for the Arts or the National are also included within this. Then I think Endowment for the Humanities and so most people wouldn’t have a problem. on. But if there were a “National Endow- ment for Religion,” that could be a source TIMOTHY SHAH: Do you have any- of greater conflict as to exactly what kind thing to say on that, Nick? of government support is acceptable. Now we do give tax exempt status to religious NICHOLAS WOLTERSTORFF: Well, groups, and we do argue things out. But it suppose that religion is roughly what Na- may be the case that religious convictions gel suggests it is. Then, it seems to me that are an especially fertile source of conflict, to say the only relevant right is the right

56 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY to free speech is a very reductionist and al- seems to me they’ve got the same rights as most weird take on it. I mean when you the Catholic Church does. look at what Nagel says, it isn’t speech that he is talking about. It includes speech but TIMOTHY SHAH: Let’s invite those in it’s not speech. It’s a certain way or style of the audience who are eager to jump in. Yes, interpreting the universe and one’s place in please? it, in which evaluation is a deep component. So thinking of it in terms of speech TIMOTHY SHAH: I’ll just ask you to just strikes me as off target. just quickly identity yourself and then ask your question or offer your comment. TIMOTHY SHAH: Yes, not robust enough. ADELAIDE MENA: My name is Ad- elaide Mena. I’m with Catholic News NICHOLAS WOLTERSTORFF: You Agency and EWTN News and a former know that I think speech in its own right student of Professor Macedo’s. My ques- is very important, but I want to think of it tion is: Who gets to decide what the com- along different lines. mon good is within society? Who gets to set the language with which we talk about STEPHEN MACEDO: Well, you’d have the good and determine what exactly is to include associated freedoms. The ques- owed to persons within society within the tion would be whether special exemptions, bounds of justice and what rights truly are? privileges, or burdens in particular cases make sense. I think that we shouldn’t be STEPHEN MACEDO: The short answer singling out religious communities as op- is that we all do. This is a democracy. I posed to other kinds of expressive com- think the interesting questions are the lim- munity. Generally, equal liberty interests its of the public good. Is there a legitimate apply quite broadly. public interest in supporting certain kinds of policies and programs that some people NICHOLAS WOLTERSTORFF: That I regard as controversial? I’m working on certainly agree with. marriage now, and there are those who say that the entire institution of marriage is STEPHEN MACEDO: We shouldn’t be too judgmental, that it violates some norm singling out religious groups, either for of ethical neutrality with which the state special privileges as compared with other ought to be required to comply. Therefore, conscientious communities, value com- the liberal state ought not to have mar- munities of some sort, or special burdens. riage; it ought to have some sort of contrac- tual regime instead. I think when we walk NICHOLAS WOLTERSTORFF: On through those arguments, they’re wrong. the way here, I walked past a building that There are public interests in marriage, and looked like a rehabbed old church build- marriage has a recognized public status. ing. The sign said, “Community of Divine There are perfectly reasonable public inter- Science.” Now, I have no idea what the ests in two-person monogamous marriage. Community of Divine Science is, but it There are arguments around the edges. I

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 57 think the important arguments are: What That’s not exactly different languages, but are our common interests? What are the they’re focusing on different sources of limits of our common interests? And how value. do we go about justifying them? But in a democracy we all participate—we partici- The question is: How do we actually work pate as members of civil society as well as this out in practice? It seems to me that citizens exercising our political power. they’re both right. Children’s interest may Did you have something more specific in well come first. And if same-sex marriage mind, or a controversy? was going to be bad for children as a general matter, then I think David Blanken- ADELAIDE horn would have a MENA: When strong argument. I there are compet- “We engage in discussion don’t believe it’s re- ing definitions of about that issue of the com- ally the case. But it’s what the com- also the case—and mon good is, and mon good and public justice. he acknowledges when we have But in a liberal democracy, this—that adults completely dif- we always do that within the have an interest in ferent language framework of the constitution. marriage. People for discussing That’s a crucial part of it. It’s get married intend- what that good ing not to have chil- is, how as a so- not just that we talk together dren. They get mar- ciety is it even and vote. We do the talking ried after they’re possible to get on and the voting within the no longer capable common ground framework of a constitution of having children. and use the same and with the procedures out- Marriage is obvi- language and ously hugely, deeply therefore be able lined in the constitution.” significant to adults to determine as well. the limits that Nicholas Wolterstorff you were talking One thing that about? worries me about this conversation a STEPHEN MACEDO: It depends on little bit is that we can only get so far talk- the case. With respect to the current mar- ing about these things in the abstract be- riage debate, there are those who want to fore we need to get into particulars. How say that the core interest is the interests of do we work this out? Well, we should just children and that marriage ought to be look to see how we do work it out or how child-centered. Maggie Gallagher argues we don’t work it out. I don’t think the that very strongly. David Blankenhorn also current conflicts we have in Washington argues it, though he’s shifted his position are really at that high level of abstraction. on same-sex marriage. Others want to put There are much more particular debates, more emphasis on the interest of adults. I think, about the limits of our collective

58 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY responsibility to the least well off, and the NICHOLAS WOLTERSTORFF: So, requirements of the thriving economy, etc. Tom, my view is that in a liberal democ- But I think the language in which we de- racy, if we’re behaving responsibly and an liberate about and debate these matters is issue comes up pertaining to the common perfectly common. It’s the interests that good or justice—public justice—we don’t are pulled apart to some degree. just give speeches to each other. Maybe sometimes my position sounds as if we just TIMOTHY SHAH: Other questions, give speeches to each other and then take comments? Tom Farr. a vote, but I don’t mean that. We engage on whatever basis we find compelling, be THOMAS F. FARR: Well, I don’t believe it natural law or libertarianism or my Bar- either one of you are lawyers, right, which thian. We engage in discussion about that is why you’re here. issue of the common good and public justice. But in a liberal democracy, we always NICHOLAS WOLTERSTORFF: No, do that within the framework of the consti- I’ve never been tempted by that. tution. That’s a crucial part of it. It’s not just that we talk together and vote. We do the THOMAS F. FARR: That’s why I like you, talking and the voting within the frame- Nick. But I want to ask you a question that work of a constitution and with the pro- has to do with law. I think it plays into cedures outlined in the constitution. So, in what you’re talking about, and Steve wants that case, the court decided to strike down to be specific, so let’s talk about gay mar- the proposition. And whether they were riage and the Prop 8 decision. Here we had right or wrong about that, that was faithful 54 percent of the people of California—I to the basic structure and procedure of a don’t know whether they were Barthians liberal democracy, it seems to me. Similar or not, if there are that many Barthians in things are going to happen eventually with California—who voted in a referendum to religion and the Affordable Care Act. make marriage in California law between one man and one woman. This was over- I think whenever I’ve talked about this turned on a number of grounds at the first I’ve said or implied that I mean within the level, including the ground that it was sort framework of the constitution, but about of a Rawlsian argument that there were five years ago, I had a discussion with Jür- moral and religious grounds for overturn- gen Habermas, and he had not heard that ing it, and then it went on up through the qualification, “within the framework of courts as you know. But again, this goes the constitution.” And then, for autobio- back to the first question: Who decides graphical reasons, he was very alarmed. He what the common good is? What is the ba- remembers growing up in Nazi Germany sis on which any reasoning and much less when there were in effect no constitutional the constitution overturns the democratic prohibitions whatsoever. Especially since decision on that basis? I’d like to ask both my discussion with him, I’ve been more of the panelists to address that. emphatic in saying that lawmaking is always within the framework of a constitu- TIMOTHY SHAH: Thank you, Tom. tion.

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 59 STEPHEN MACEDO: Right. As long as STEPHEN MACEDO: But what if those your constitution is legitimate— 54 percent of the people in California mandated Christian prayers in the public NICHOLAS WOLTERSTORFF: A le- schools? Do you think that all rights ques- gitimate constitution. I’m assuming ours tions ought to be settled by— to be legitimate. So, certain things are off the table, and it’s up to the courts then to THOMAS FARR: No, but perhaps the decide what’s on the table and what’s off question of marriage should be. the table. STEPHEN MACEDO: Okay. Well, that’s THOMAS FARR: But I’m surprised at sort of specific to the merits of that par- your answer, Nick, if I could just jump ticular issue, and I tend to agree with you in— for the moment. But some people will think that there are principled questions NICHOLAS WOLTERSTORFF: Really? there having to do with equality, and that’s what I believe as well, that discrimina- THOMAS FARR: Yes. I said you weren’t tion against gays with respect to marriage a lawyer, but you punted to the Supreme equality is invidious and, in the fullness of Court. What about the democratic activity time I believe this should be regarded as a of the people of California and what about constitutional principle. But for now, I’m the First Amendment, which guarantees happy to see it work through legislation. the free exercise of religion? At the state level, courts and legislators of-

Georgetown University student Karen Rupprecht poses a question to the participants.

60 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY ten interact more, and part of what’s go- STEPHEN MACEDO: I’m not crazy ing on will be state constitutional issues about Kennedy’s opinion, that’s for sure, as well as federal ones. So one can argue but it was a political decision in part, with about the details of these cases. I like the two important cases and a desire to take federal court ruling that limited the effect an incremental but important step in the of the California litigation to California. direction of marriage equality as a matter One thing we need to keep in mind is that of federal law. I basically agree with the the electoral process is itself flawed, and outcome. Kennedy was threading various we have never, in this country, placed our needles, but I don’t think anybody thinks complete confidence in elections or legis- it’s a particularly satisfying opinion. latures. I agree with Nicholas in thinking THOMAS FARR: Okay. Fair enough. courts play a legitimate role in our democracy. This doesn’t mean we’re always going NICHOLAS WOLTERSTORFF: But to agree with the role that they play or their Tom, you’re not saying that the result of a decisions. And with respect to marriage, referendum should always stand, are you? I there has been some real backlash: The Ha- mean, some referenda might be absolutely waii decision in ’93 drew a huge backlash horrible. with the Federal Defense of Marriage Act, and so the wisdom of a Hawaii decision THOMAS FARR: Sure. on marriage equality may be questioned even if you agree with it in principle. But TIMOTHY SHAH: I guess the question if one sees the merits as requiring that ulti- is whether Judge Walker’s reasons—and mately marriage equality is a matter of jus- let’s just say that one— tice and equal rights, then obviously one is likely to be more sympathetic to judicial NICHOLAS WOLTERSTORFF: But outcomes that nudge us in that direction. that’s getting into the details of the case. It’s very important that these things come TIMOTHY SHAH: Yes, that’s right. about democratically and with collective approval over the course of time. It sounds THOMAS FARR: Well, that’s what I’d like you agree with the role of the courts, like to do. We need to get into the details it’s just that you disagree on the merits of of the case, and if the finding is that peo- this particular issue. ple who judge marriage to be between one man and a woman are wrong because they THOMAS FARR: Well, I do disagree are religious— with the role of the courts, especially Jus- tice Kennedy’s finding on the Defense of STEPHEN MACEDO: No, that’s not— Marriage Act, a law that was passed just a decade before the finding. Those who sup- THOMAS FARR: That was precisely part ported it—who were virtually everybody of the reasoning. in both parties including the president of the United States, Bill Clinton—are now STEPHEN MACEDO: Well, the main people guilty of hatred, of animus. argument of the case was based on evidence concerning harm to children, which

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 61 was very poorly presented by those defend- TIMOTHY SHAH: I don’t think there’s ing Prop 8. David Blankenhorn, who’s ac- any disagreement on that. tually quite good on these issues, was not very good as an expert witness. NICHOLAS WOLTERSTORFF: Unless this form of expression threatens public THOMAS F. FARR: Right, I agree. But order, safety, and security, it should be pro- I’m speaking of the ruling of the judge, tected. Religious people and anti-religious and that wasn’t the only basis of the rul- people should have the right to annoy each ing. The ruling of the judge proposed that other. because those who supported traditional marriage did so for religious reasons, this STEPHEN MACEDO: Here, here. finding was unconstitutional. TIMOTHY SHAH: I think there was a NICHOLAS WOLTERSTORFF: That question in front. Professor Alon? just seems to me preposterous. I mean, just gross error on the part of the court. ILAN ALON: Ilan Alon from Rollins Col- lege. I think I’ve heard the term “liberal de- TIMOTHY SHAH: Any other questions, mocracy” used, at least 20 times during the comments? Yes, sir? speeches, and it seems to me that a great number of people in the world are actu- AL MILLIKAN: I’m Al Millikan with AM ally not living in liberal democracy. This Media. You brought up the arts and com- debate centered around, on the one hand, mon good. I’m wondering if you had a a common good and, on the other hand, conflict in the past, for example with the individual rights, inalienable rights for the art of Piss Christ, where you saw conflicts individual to practice religion. How does between artist freedom and religious free- this debate apply to places where common dom. Also is our government’s claiming a goods are not determined by the common film challenging Islam reason for tremen- on the one hand, and, on the other hand, dous violent outbreak? We can go back to where collective rights or the rights of the the Reformation times when Martin Lu- collective are more important than the ther was challenging indulgences, suppos- rights of the individual? edly getting people time off in purgatory. I remember Sister Mary Ignatius Explains TIMOTHY SHAH: Thank you. It All For You. It seems like there’s always going to be people offended, particularly NICHOLAS WOLTERSTORFF: Well, when you’re dealing with truth, eternal religious freedom comes in degrees and truth, and artists have a right and responsi- different configurations. So, you can have bility to do that. I mean, people in religion religious freedom of a sort in non-demo- do that. But if it is offensive, why can’t cratic situations. As I understand, in the those offended challenge it peacefully? ancient Ottoman millet system, Christians Why does the right of someone to speak and Jews had freedom to practice their re- the truth or even attempting to speak truth ligion and to conduct family affairs and in error, why shouldn’t that be protected? so forth on their own. To my mind, what

62 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY structurally made this system profoundly STEPHEN MACEDO: Well, I mean, different is that there was establishment the extension of this tradition of rights of Islam. It’s the blend of a guarantee of that Nick was talking about is human religious freedom and no establishment rights. And so, what do we want to say of religion that gives a special character in criticism of regimes that rate certain to religious freedom in the modern West. collective interests higher than individual But you don’t need democracy for a mil- human rights? Well, one could argue let system, for example. And as I say, the that there hopefully isn’t any conflict be- Christians and the Jews and certainly the tween the two. I mean, in certain very Muslims enjoyed a substantial amount of difficult circumstances, it can be hard freedom there. But to apply rights there were positions in the same way they could not hold “So, each society has to carve that we do, but in government if out its own particular contour the human rights they were Jews or of the civil right to religion. It tradition stands Christians, and for the idea that they had to pay ex- seems to me that religion for legitimate gov- tra taxes, as I recall. religious people and a-religion ernments ought So, it was establish- for people like Dawkins and to respect certain ment combined Dennett is such a deep part basic rights that with some degree of of who they are as human individuals have, free exercise. and it’s a crite- persons that one violates them rion of legitima- TIMOTHY very deeply if one says, “You cy. And if they SHAH: But prob- may not practice it, we’re don’t, the inter- ably not equal free going to put you under pres- national com- exercise at some sure to renounce it.” That’s a munity should level? be concerned. deep violation of the human Exactly what NICHOLAS person, deeper than not letting you do depends WOLTER- them assemble” on the particu- STORFF: No, but lars of the case. substantial free ex- Nicholas Wolterstorff Sanctions? Criti- ercise on the parts cism? Dealing of Christians and with countries Jews. And they like China is were, by and large, as I understand, not very tricky. I wouldn’t necessarily want to terribly restless under that arrangement, equate human rights with natural rights but historians know that better than I do. because they also have to get refracted through international organizations and TIMOTHY SHAH: Steve, how would what we think of the role and capacities you tackle the question? of international organizations, but human rights are a hugely important devel-

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 63 opment and extension of the rights tradi- between the natural right as such and what tion that Nicholas was talking about. I call the particular contour. I made it clear in my talk that the civil right to religious TIMOTHY SHAH: It leads me to ask freedom has a certain contour in the West about the challenge of trying to promote by virtue of many factors, by virtue of the religious freedom abroad. I mean, to the character of the religions that we’ve had to extent that religious freedom is a univer- deal with in the West, in particular in their sal human right, whether we call it natu- plurality, and so forth. So, each society has ral or universal, it actually is part of U.S. to carve out its own particular contour of policy to promote religious freedom, as the civil right to religion. It seems to me you mentioned, Nick. In fact, today is that religion for religious people and a- the fifteenth anniversary of the passage of religion for people like Dawkins and Den- the International Religious Freedom Act nett is such a deep part of who they are as passed unanimously by Congress. How human persons that one violates them very much of a priority should this be for the deeply if one says, “You may not practice United States, its standard of legitimacy? it, we’re going to put you under pressure Steve, you’ve written a bit about universal to renounce it.” That’s a deep violation of jurisdiction and these kinds of issues; how the human person, deeper than not letting important should it be and what are the them assemble. I mean the right to prac- challenges of promoting this right abroad? tice religion and the right to assemble are, of course, very closely connected to each STEPHEN MACEDO: Well, I think it other. So, I think it’s hugely important. should be very important. But I won’t haz- When the Copts are put under severe pres- ard to give any kind of clear answer about sure in Egypt, that’s a violation. what the challenges are, and I haven’t stud- ied this particular rights question enough STEPHEN MACEDO: I’m not familiar to do so. But I’m in favor of the human with the Foucauldians you’re talking about, rights dimension to our foreign policy in- but there are people that always worry that sofar as we can do things to actually ad- certain standards emanating across nation- vance it. al lines or other group lines stand for some sort of homogenization. Well, I’m person- TIMOTHY SHAH: And what do you say? ally in favor of homogenization when it I mean, there are a lot of fashionable critics comes to respecting basic human rights, of this policy, some that Nick mentioned, the ones that are well thought through via people who say that imposing religious representative institutions and legitimate freedom really is a kind of instrument of government. If we all become more alike domination. There’s a sort of Foucauldian with respect to our support for basic hu- critique of these Western notions of free- man rights, that’s certainly no loss. dom. How do we respond to these kinds of concerns and criticisms? Steve and Nick? TIMOTHY SHAH: Yes.

NICHOLAS WOLTERSTORFF: Well, DAVID HOLLENBACH: I’m David my response would be to try to distinguish Hollenbach. One of the interesting ques-

64 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY tions for both of you, I think, is how do STEPHEN MACEDO: That was one of you conceive limits to the right to religious the problems: a constitution that man- freedom and on what ground? I mean, dates or permits apartheid cannot be legit- Nick Wolterstorff has got his Barthian. At imate. Remind him of what Lincoln said what point, if ever, does that person’s right not just about slavery, but it would apply to religious freedom get limited? Because I to apartheid too. Certain fundamental don’t think the right to religious freedom is principles make a constitution legitimate, an absolute unlimited right. There are re- including the basic equality and dignity strictions at some point. A case in point: A of all persons. Lincoln would have said Barthian South African who thinks apart- that the US constitution was legitimate heid is demanded by the interpretation of because it stood for the wrongness and ul- the Bible. It’s clear that you don’t agree with timate extinction of slavery, a great moral that, and you think that person’s right to evil. The general question of the limits of religious freedom should be limited. Why? religious liberty is a large and tough one. The first thing to be said about basic rights NICHOLAS WOLTERSTORFF: I’m go- is that they should be understood as ways ing to do my best to prove him wrong. of securing the equal freedom and dignity of all, and so an advocate of apartheid can DAVID HOLLENBACH: Okay. But, I never complain of his rights being violat- mean, apart from persuading him, what if ed when we prevent him from practicing he isn’t persuaded, then what do you do? apartheid, because we oppose apartheid in the name of equal rights. When we move NICHOLAS WOLTERSTORFF: I’ll do to the American context, we need to ad- my best to get my fellow citizens to vote dress particular cases as they arise. The against him. HHS mandate thing for contraceptive services is a current controversy: It seems DAVID HOLLENBACH: But I thought to me a considerable stretch for for-profit you said he should be able to exercise his businesses to claim a serious free exercise right in public? infringement for being required along with other for-profit businesses to provide NICHOLAS WOLTERSTORFF: Equal these contraceptive services. Exemptions rights. for religious non-profits and religious organizations have been provided for in the DAVID HOLLENBACH: All right. But healthcare law and that seems more or less all I’m trying to see is where and how the permissible. But I do not think that the limits— owners of large for-profit businesses can claim that their free exercise rights are be- NICHOLAS WOLTERSTORFF: Under ing seriously burdened by the requirement the limits of a legitimate constitution. to subsidize their employees health insur- ance: no one is requiring the owners to DAVID HOLLENBACH: He had a con- endorse contraceptives or even to supply stitution in South Africa that said that them directly. apartheid was legitimate.

RELIGIOUS FREEDOM PROJECT - OCTOBER 2013 65 NICHOLAS WOLTERSTORFF: So, TIMOTHY SHAH: Let’s take one more David, I would say that when we’ve got question. Karen Rupprecht. a constitution, which we didn’t have in South Africa at that point, but within the NICHOLAS WOLTERSTORFF: I framework of a constitution, then indeed know that Tim wanted to find points of the right to religious freedom, free speech, disagreement. and assembly is not an absolute but what I called a prima facie right. And from there KAREN RUPPRECHT: Thank you. I’m on, I guess we’ve just got to argue the cases. Karen Rupprecht. I’m a graduate student here. I actually had a question related to DAVID HOLLENBACH: Right. I guess the gentleman’s question here about lib- what I’m really pushing for here is that eral democracy, and don’t misunderstand reaching the agreement about the consti- me, I wouldn’t argue against it. Neverthe- tution is going to require a kind of com- less, it does seem a bit parallel to natural mon ground among the people to get law in the sense that, as you said, Profes- that constitution going, so that in order sor Macedo, it’s internally persuasive or to do that, the limits on this Barthian that something akin to that, but it’s not clear you’ve been referring to, he or she already why you must accept that particular sys- has to have agreed to some kind of com- tem. mon ground in order to maintain your position, as I understand you to be put- STEPHEN MACEDO: Accept what? ting it forward. It’s a both/and rather than Liberal democracy? an either/or purely religious argument or a public reason argument, I think is the KAREN RUPPRECHT: Yes, speaking way I’m interpreting what you’re saying. about natural law, and I’m arguing it Is that correct? seems a bit parallel—liberal democracy does—if you live in a country that has NICHOLAS WOLTERSTORFF: Right. no experience with liberal democracy nor So, I think it’s providential that the kind necessarily desires it, but is perhaps very of constitution that we do in have in fact religiously convicted. Religious freedom emerged in the 1780s. I’m not sure that it is a very different thing. would emerge today. STEPHEN MACEDO: Because we were STEPHEN MACEDO: You could say arguing about, I think, the United States that again! and within the American constitutional framework, I was referring to liberal de- NICHOLAS WOLTERSTORFF: But if mocracy because that’s how I would char- some private employer is opposed on reli- acterize that, and I think Nicholas would gious grounds to all surgery, to all cutting agree. But it’s a separate question of what into the sacred body of a human being, are the requirements of legitimacy on the would we say that he can exempt, in his global stage for a regime to be a perfectly healthcare policy, all surgery? I doubt it. respectable regime in the family of nations. There I would refer to another book

66 BERKLEY CENTER FOR RELIGION, PEACE & WORLD AFFAIRS AT GEORGETOWN UNIVERSITY of John Rawls, which is quite vague and are quite a lot of differences between Japa- schematic, called The Law of Peoples. I nese political and constitutional traditions think it’s actually a pretty good book. He and those of other countries, but many says it’s possible to have a perfectly legiti- of those differences are legitimate and re- mate state with an established church. And spectable. he uses the example of an idealized—it’s quite idealized, but it’s still recognizable— KAREN RUPPRECHT: So, then in those Islamic Republic. contexts, will public reason actually in a sense be a form of religious reason, given TIMOTHY SHAH: Kazanistan. that that’s the majority?

STEPHEN MACEDO: Kazanistan. He STEPHEN MACEDO: It could very well makes it up. Michael Doyle thinks that be religiously inflected. And I think in a some of the Gulf states qualify. But, you sense societies have their own public rea- know, you could favor the established faith son when it comes to having their own in certain institutions, certain offices, but conversations in light of their own tradi- you’d respect minority rights and have tions about their own standards of justice, representative institutions so that the law their own constitutional traditions. There that’s made reflects everyone’s interest and are certain commonalities, and the hu- so on, so that religious minorities are treat- man rights agenda and standards of global ed very fairly. In fact, you have to bend over legitimacy are supposed to be those com- backwards to be fair to religious minorities mon global standards. They don’t coincide so they feel included in the regime. But if with the standards of good governance you did that, you could have a legitimate and democratic justice that we would, or constitution that favored or established should, endorse domestically. I think it’s a one particular religion. So I don’t think very important point that there is a mar- societies have to be liberal democracies to gin of discretion, but it’s not an unlimited be legitimate and respectable. It’s a sepa- margin of discretion, and the human rights rate question in a way. How we think our agenda is meant to mark that. So, we need politics should be within our constitution a global public reason, which is going to be will reflect our own traditions and our own distinct from the particular public reasons best judgments. But other people within of particular societies. other traditions have some discretion to TIMOTHY SHAH: Well, thanks to both be different, but within the bounds of le- of you very much. This is just the begin- gitimacy, which need to be defined; they ning of a conversation. We’re just getting would include respect for basic human started here. You’ve done a marvelous job, rights and some reliable system of repre- both of you, in helping us launch our con- sentative government. And China, hope- versation today about religious freedom. fully, someday, will be a legitimate regime, but it will be somewhere hopefully within that margin of discretion, perhaps reflecting some Confucian traditions. There’ll be some differences. Think about Japan; there

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