Religion and democracy

Notre Dame Law Review

Volumn 74, Issue 5, 1999, Pages 1631-1656

  Shiffrin, Steven ^a  

^a Department of Obstetrics Gynecology   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0033433895     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (128)

1. See generally KENT GREENAWALT, PRIVATE CONSCIENCES AND PUBLIC REASONS (1995). Those who argue for restrictions (of an informal nature) typically make it clear that they do not mean to restrict remarks made in institutions such as universities and churches (except for the endorsement of candidates in churches). They have in mind statements addressed to the public for the purposes of political justification. Because I argue for the most part against such restrictions, I need not worry about what is inside and what is outside the public forum. I will use the term political or public forum or political debate to refer to remarks addressed to the public for the purposes of political justification.
2. Accordingly, I will, for the most part, ignore considerations of role, I will also, for the most part, ignore a wide variety of positions that would restrict the religious argument in political life, but in a less broad fashion than I posit in the text. For example, Kent Greenawalt maintains that neither columnists nor legislators should advance religious arguments or arguments based on comprehensive philosophical positions in the political forum, but that citizens are morally free to vote on such bases and legislators, more than judges and executive officials, should be permitted to give some weight to the comprehensive positions of their constituents in arriving at their decisions. See id. at 156-62. Robert Audi takes the position that religious arguments, at least for restricting conduct, should not be presented in the political sphere unless there is a sufficient and adequate accompanying secular rationale and motivation. See Robert Audi, The State, the Church, and the Citizen, in RELIGION AND CONTEMPORARY LIBERALISM, supra note * (author's note), at 38, 55-58. Lawrence Solum argues that religious arguments should not be presented in the political sphere unless they are accompanied by secular arguments that meet particular requirements. See Lawrence B. Solum, Constructing an Ideal of Public Reason, 30 SAN DIEGO L. REV. 729, 747-53 (1993). John Rawls has maintained that no comprehensive position, whether or not religious, should be advanced to justify "'constitutional essentials' and questions of basic justice" with certain exceptions. JOHN RAWLS, POLITICAL LIBERALISM 214 (1993) [hereinafter RAWLS, POLITICAL LIBERALISM]. In later writing, he has suggested that comprehensive doctrines may be advanced regarding constitutional essentials and questions of basic justice so long as sufficient political reasons are also provided. See JOHN RAWLS, POLITICAL LIBERALISM li-lii (paperback ed. 1996) [hereinafter RAWLS, Paperback]; John Rawls, The Idea of Public Reason Revisited, 64 U. CHI. L. REV. 765, 783-84 (1997). On the other hand, Rawls would not permit actors in the political public forum to attack the comprehensive doctrines of others except to the extent that such doctrines are "incompatible with the essentials of public reason and a democratic polity." Id. at 766. Finally, Robert Lipkin argues that there is a "conceptual antipathy" between the "American communitarian republic" and certain forms of nondeliberative religions. Robert Justin Lipkin, Religious Justification in the American Communitarian Republic, 25 CAP. U. L. REV. 765, 785 n.59 (1996). As I read his work (see infra notes 15 and 35), Lipkin argues that the deep structure of American constitutionalism and democracy make some religious arguments uncivil in political life. I think this argument is at odds with our history. On the other hand, I believe Lipkin impressively argues for the value of deliberative modes of discourse and admirably contrasts deliberative approaches to discourse with "dedicated" approaches.
3. Accordingly, I will, for the most part, ignore considerations of role, I will also, for the most part, ignore a wide variety of positions that would restrict the religious argument in political life, but in a less broad fashion than I posit in the text. For example, Kent Greenawalt maintains that neither columnists nor legislators should advance religious arguments or arguments based on comprehensive philosophical positions in the political forum, but that citizens are morally free to vote on such bases and legislators, more than judges and executive officials, should be permitted to give some weight to the comprehensive positions of their constituents in arriving at their decisions. See id. at 156-62. Robert Audi takes the position that religious arguments, at least for restricting conduct, should not be presented in the political sphere unless there is a sufficient and adequate accompanying secular rationale and motivation. See Robert Audi, The State, the Church, and the Citizen, in RELIGION AND CONTEMPORARY LIBERALISM, supra note * (author's note), at 38, 55-58. Lawrence Solum argues that religious arguments should not be presented in the political sphere unless they are accompanied by secular arguments that meet particular requirements. See Lawrence B. Solum, Constructing an Ideal of Public Reason, 30 SAN DIEGO L. REV. 729, 747-53 (1993). John Rawls has maintained that no comprehensive position, whether or not religious, should be advanced to justify "'constitutional essentials' and questions of basic justice" with certain exceptions. JOHN RAWLS, POLITICAL LIBERALISM 214 (1993) [hereinafter RAWLS, POLITICAL LIBERALISM]. In later writing, he has suggested that comprehensive doctrines may be advanced regarding constitutional essentials and questions of basic justice so long as sufficient political reasons are also provided. See JOHN RAWLS, POLITICAL LIBERALISM li-lii (paperback ed. 1996) [hereinafter RAWLS, Paperback]; John Rawls, The Idea of Public Reason Revisited, 64 U. CHI. L. REV. 765, 783-84 (1997). On the other hand, Rawls would not permit actors in the political public forum to attack the comprehensive doctrines of others except to the extent that such doctrines are "incompatible with the essentials of public reason and a democratic polity." Id. at 766. Finally, Robert Lipkin argues that there is a "conceptual antipathy" between the "American communitarian republic" and certain forms of nondeliberative religions. Robert Justin Lipkin, Religious Justification in the American Communitarian Republic, 25 CAP. U. L. REV. 765, 785 n.59 (1996). As I read his work (see infra notes 15 and 35), Lipkin argues that the deep structure of American constitutionalism and democracy make some religious arguments uncivil in political life. I think this argument is at odds with our history. On the other hand, I believe Lipkin impressively argues for the value of deliberative modes of discourse and admirably contrasts deliberative approaches to discourse with "dedicated" approaches.
4. Accordingly, I will, for the most part, ignore considerations of role, I will also, for the most part, ignore a wide variety of positions that would restrict the religious argument in political life, but in a less broad fashion than I posit in the text. For example, Kent Greenawalt maintains that neither columnists nor legislators should advance religious arguments or arguments based on comprehensive philosophical positions in the political forum, but that citizens are morally free to vote on such bases and legislators, more than judges and executive officials, should be permitted to give some weight to the comprehensive positions of their constituents in arriving at their decisions. See id. at 156-62. Robert Audi takes the position that religious arguments, at least for restricting conduct, should not be presented in the political sphere unless there is a sufficient and adequate accompanying secular rationale and motivation. See Robert Audi, The State, the Church, and the Citizen, in RELIGION AND CONTEMPORARY LIBERALISM, supra note * (author's note), at 38, 55-58. Lawrence Solum argues that religious arguments should not be presented in the political sphere unless they are accompanied by secular arguments that meet particular requirements. See Lawrence B. Solum, Constructing an Ideal of Public Reason, 30 SAN DIEGO L. REV. 729, 747-53 (1993). John Rawls has maintained that no comprehensive position, whether or not religious, should be advanced to justify "'constitutional essentials' and questions of basic justice" with certain exceptions. JOHN RAWLS, POLITICAL LIBERALISM 214 (1993) [hereinafter RAWLS, POLITICAL LIBERALISM]. In later writing, he has suggested that comprehensive doctrines may be advanced regarding constitutional essentials and questions of basic justice so long as sufficient political reasons are also provided. See JOHN RAWLS, POLITICAL LIBERALISM li-lii (paperback ed. 1996) [hereinafter RAWLS, Paperback]; John Rawls, The Idea of Public Reason Revisited, 64 U. CHI. L. REV. 765, 783-84 (1997). On the other hand, Rawls would not permit actors in the political public forum to attack the comprehensive doctrines of others except to the extent that such doctrines are "incompatible with the essentials of public reason and a democratic polity." Id. at 766. Finally, Robert Lipkin argues that there is a "conceptual antipathy" between the "American communitarian republic" and certain forms of nondeliberative religions. Robert Justin Lipkin, Religious Justification in the American Communitarian Republic, 25 CAP. U. L. REV. 765, 785 n.59 (1996). As I read his work (see infra notes 15 and 35), Lipkin argues that the deep structure of American constitutionalism and democracy make some religious arguments uncivil in political life. I think this argument is at odds with our history. On the other hand, I believe Lipkin impressively argues for the value of deliberative modes of discourse and admirably contrasts deliberative approaches to discourse with "dedicated" approaches.
5. Accordingly, I will, for the most part, ignore considerations of role, I will also, for the most part, ignore a wide variety of positions that would restrict the religious argument in political life, but in a less broad fashion than I posit in the text. For example, Kent Greenawalt maintains that neither columnists nor legislators should advance religious arguments or arguments based on comprehensive philosophical positions in the political forum, but that citizens are morally free to vote on such bases and legislators, more than judges and executive officials, should be permitted to give some weight to the comprehensive positions of their constituents in arriving at their decisions. See id. at 156-62. Robert Audi takes the position that religious arguments, at least for restricting conduct, should not be presented in the political sphere unless there is a sufficient and adequate accompanying secular rationale and motivation. See Robert Audi, The State, the Church, and the Citizen, in RELIGION AND CONTEMPORARY LIBERALISM, supra note * (author's note), at 38, 55-58. Lawrence Solum argues that religious arguments should not be presented in the political sphere unless they are accompanied by secular arguments that meet particular requirements. See Lawrence B. Solum, Constructing an Ideal of Public Reason, 30 SAN DIEGO L. REV. 729, 747-53 (1993). John Rawls has maintained that no comprehensive position, whether or not religious, should be advanced to justify "'constitutional essentials' and questions of basic justice" with certain exceptions. JOHN RAWLS, POLITICAL LIBERALISM 214 (1993) [hereinafter RAWLS, POLITICAL LIBERALISM]. In later writing, he has suggested that comprehensive doctrines may be advanced regarding constitutional essentials and questions of basic justice so long as sufficient political reasons are also provided. See JOHN RAWLS, POLITICAL LIBERALISM li-lii (paperback ed. 1996) [hereinafter RAWLS, Paperback]; John Rawls, The Idea of Public Reason Revisited, 64 U. CHI. L. REV. 765, 783-84 (1997). On the other hand, Rawls would not permit actors in the political public forum to attack the comprehensive doctrines of others except to the extent that such doctrines are "incompatible with the essentials of public reason and a democratic polity." Id. at 766. Finally, Robert Lipkin argues that there is a "conceptual antipathy" between the "American communitarian republic" and certain forms of nondeliberative religions. Robert Justin Lipkin, Religious Justification in the American Communitarian Republic, 25 CAP. U. L. REV. 765, 785 n.59 (1996). As I read his work (see infra notes 15 and 35), Lipkin argues that the deep structure of American constitutionalism and democracy make some religious arguments uncivil in political life. I think this argument is at odds with our history. On the other hand, I believe Lipkin impressively argues for the value of deliberative modes of discourse and admirably contrasts deliberative approaches to discourse with "dedicated" approaches.
6. Accordingly, I will, for the most part, ignore considerations of role, I will also, for the most part, ignore a wide variety of positions that would restrict the religious argument in political life, but in a less broad fashion than I posit in the text. For example, Kent Greenawalt maintains that neither columnists nor legislators should advance religious arguments or arguments based on comprehensive philosophical positions in the political forum, but that citizens are morally free to vote on such bases and legislators, more than judges and executive officials, should be permitted to give some weight to the comprehensive positions of their constituents in arriving at their decisions. See id. at 156-62. Robert Audi takes the position that religious arguments, at least for restricting conduct, should not be presented in the political sphere unless there is a sufficient and adequate accompanying secular rationale and motivation. See Robert Audi, The State, the Church, and the Citizen, in RELIGION AND CONTEMPORARY LIBERALISM, supra note * (author's note), at 38, 55-58. Lawrence Solum argues that religious arguments should not be presented in the political sphere unless they are accompanied by secular arguments that meet particular requirements. See Lawrence B. Solum, Constructing an Ideal of Public Reason, 30 SAN DIEGO L. REV. 729, 747-53 (1993). John Rawls has maintained that no comprehensive position, whether or not religious, should be advanced to justify "'constitutional essentials' and questions of basic justice" with certain exceptions. JOHN RAWLS, POLITICAL LIBERALISM 214 (1993) [hereinafter RAWLS, POLITICAL LIBERALISM]. In later writing, he has suggested that comprehensive doctrines may be advanced regarding constitutional essentials and questions of basic justice so long as sufficient political reasons are also provided. See JOHN RAWLS, POLITICAL LIBERALISM li-lii (paperback ed. 1996) [hereinafter RAWLS, Paperback]; John Rawls, The Idea of Public Reason Revisited, 64 U. CHI. L. REV. 765, 783-84 (1997). On the other hand, Rawls would not permit actors in the political public forum to attack the comprehensive doctrines of others except to the extent that such doctrines are "incompatible with the essentials of public reason and a democratic polity." Id. at 766. Finally, Robert Lipkin argues that there is a "conceptual antipathy" between the "American communitarian republic" and certain forms of nondeliberative religions. Robert Justin Lipkin, Religious Justification in the American Communitarian Republic, 25 CAP. U. L. REV. 765, 785 n.59 (1996). As I read his work (see infra notes 15 and 35), Lipkin argues that the deep structure of American constitutionalism and democracy make some religious arguments uncivil in political life. I think this argument is at odds with our history. On the other hand, I believe Lipkin impressively argues for the value of deliberative modes of discourse and admirably contrasts deliberative approaches to discourse with "dedicated" approaches.
7. Accordingly, I will, for the most part, ignore considerations of role, I will also, for the most part, ignore a wide variety of positions that would restrict the religious argument in political life, but in a less broad fashion than I posit in the text. For example, Kent Greenawalt maintains that neither columnists nor legislators should advance religious arguments or arguments based on comprehensive philosophical positions in the political forum, but that citizens are morally free to vote on such bases and legislators, more than judges and executive officials, should be permitted to give some weight to the comprehensive positions of their constituents in arriving at their decisions. See id. at 156-62. Robert Audi takes the position that religious arguments, at least for restricting conduct, should not be presented in the political sphere unless there is a sufficient and adequate accompanying secular rationale and motivation. See Robert Audi, The State, the Church, and the Citizen, in RELIGION AND CONTEMPORARY LIBERALISM, supra note * (author's note), at 38, 55-58. Lawrence Solum argues that religious arguments should not be presented in the political sphere unless they are accompanied by secular arguments that meet particular requirements. See Lawrence B. Solum, Constructing an Ideal of Public Reason, 30 SAN DIEGO L. REV. 729, 747-53 (1993). John Rawls has maintained that no comprehensive position, whether or not religious, should be advanced to justify "'constitutional essentials' and questions of basic justice" with certain exceptions. JOHN RAWLS, POLITICAL LIBERALISM 214 (1993) [hereinafter RAWLS, POLITICAL LIBERALISM]. In later writing, he has suggested that comprehensive doctrines may be advanced regarding constitutional essentials and questions of basic justice so long as sufficient political reasons are also provided. See JOHN RAWLS, POLITICAL LIBERALISM li-lii (paperback ed. 1996) [hereinafter RAWLS, Paperback]; John Rawls, The Idea of Public Reason Revisited, 64 U. CHI. L. REV. 765, 783-84 (1997). On the other hand, Rawls would not permit actors in the political public forum to attack the comprehensive doctrines of others except to the extent that such doctrines are "incompatible with the essentials of public reason and a democratic polity." Id. at 766. Finally, Robert Lipkin argues that there is a "conceptual antipathy" between the "American communitarian republic" and certain forms of nondeliberative religions. Robert Justin Lipkin, Religious Justification in the American Communitarian Republic, 25 CAP. U. L. REV. 765, 785 n.59 (1996). As I read his work (see infra notes 15 and 35), Lipkin argues that the deep structure of American constitutionalism and democracy make some religious arguments uncivil in political life. I think this argument is at odds with our history. On the other hand, I believe Lipkin impressively argues for the value of deliberative modes of discourse and admirably contrasts deliberative approaches to discourse with "dedicated" approaches.
8. Accordingly, I will, for the most part, ignore considerations of role, I will also, for the most part, ignore a wide variety of positions that would restrict the religious argument in political life, but in a less broad fashion than I posit in the text. For example, Kent Greenawalt maintains that neither columnists nor legislators should advance religious arguments or arguments based on comprehensive philosophical positions in the political forum, but that citizens are morally free to vote on such bases and legislators, more than judges and executive officials, should be permitted to give some weight to the comprehensive positions of their constituents in arriving at their decisions. See id. at 156-62. Robert Audi takes the position that religious arguments, at least for restricting conduct, should not be presented in the political sphere unless there is a sufficient and adequate accompanying secular rationale and motivation. See Robert Audi, The State, the Church, and the Citizen, in RELIGION AND CONTEMPORARY LIBERALISM, supra note * (author's note), at 38, 55-58. Lawrence Solum argues that religious arguments should not be presented in the political sphere unless they are accompanied by secular arguments that meet particular requirements. See Lawrence B. Solum, Constructing an Ideal of Public Reason, 30 SAN DIEGO L. REV. 729, 747-53 (1993). John Rawls has maintained that no comprehensive position, whether or not religious, should be advanced to justify "'constitutional essentials' and questions of basic justice" with certain exceptions. JOHN RAWLS, POLITICAL LIBERALISM 214 (1993) [hereinafter RAWLS, POLITICAL LIBERALISM]. In later writing, he has suggested that comprehensive doctrines may be advanced regarding constitutional essentials and questions of basic justice so long as sufficient political reasons are also provided. See JOHN RAWLS, POLITICAL LIBERALISM li-lii (paperback ed. 1996) [hereinafter RAWLS, Paperback]; John Rawls, The Idea of Public Reason Revisited, 64 U. CHI. L. REV. 765, 783-84 (1997). On the other hand, Rawls would not permit actors in the political public forum to attack the comprehensive doctrines of others except to the extent that such doctrines are "incompatible with the essentials of public reason and a democratic polity." Id. at 766. Finally, Robert Lipkin argues that there is a "conceptual antipathy" between the "American communitarian republic" and certain forms of nondeliberative religions. Robert Justin Lipkin, Religious Justification in the American Communitarian Republic, 25 CAP. U. L. REV. 765, 785 n.59 (1996). As I read his work (see infra notes 15 and 35), Lipkin argues that the deep structure of American constitutionalism and democracy make some religious arguments uncivil in political life. I think this argument is at odds with our history. On the other hand, I believe Lipkin impressively argues for the value of deliberative modes of discourse and admirably contrasts deliberative approaches to discourse with "dedicated" approaches.
9. Some of the writing would extend beyond religious arguments to arguments that entertain particular conceptions of the good life. See, e.g., BRUCE ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980); CHARLES LARMORE, PATTERNS OF MORAL COMPLEXITY (1987); THOMAS NAGEL, EQUALITY AND PARTIALITY 154-68 (1991); JOHN RAWLS, A THEORY OF JUSTICE (1971); Ronald Dworkin, Liberalism, in PUBLIC AND PRIVATE MORALITY 113-43 (Stuart Hampshire ed., 1978). These scholars believe that the state should not promote particular conceptions of the good life. I assume that they would also maintain that it would be uncivil for a citizen to advocate that the state do so, but they are not all explicit on the point.
10. Some of the writing would extend beyond religious arguments to arguments that entertain particular conceptions of the good life. See, e.g., BRUCE ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980); CHARLES LARMORE, PATTERNS OF MORAL COMPLEXITY (1987); THOMAS NAGEL, EQUALITY AND PARTIALITY 154-68 (1991); JOHN RAWLS, A THEORY OF JUSTICE (1971); Ronald Dworkin, Liberalism, in PUBLIC AND PRIVATE MORALITY 113-43 (Stuart Hampshire ed., 1978). These scholars believe that the state should not promote particular conceptions of the good life. I assume that they would also maintain that it would be uncivil for a citizen to advocate that the state do so, but they are not all explicit on the point.
11. Some of the writing would extend beyond religious arguments to arguments that entertain particular conceptions of the good life. See, e.g., BRUCE ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980); CHARLES LARMORE, PATTERNS OF MORAL COMPLEXITY (1987); THOMAS NAGEL, EQUALITY AND PARTIALITY 154-68 (1991); JOHN RAWLS, A THEORY OF JUSTICE (1971); Ronald Dworkin, Liberalism, in PUBLIC AND PRIVATE MORALITY 113-43 (Stuart Hampshire ed., 1978). These scholars believe that the state should not promote particular conceptions of the good life. I assume that they would also maintain that it would be uncivil for a citizen to advocate that the state do so, but they are not all explicit on the point.
12. Some of the writing would extend beyond religious arguments to arguments that entertain particular conceptions of the good life. See, e.g., BRUCE ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980); CHARLES LARMORE, PATTERNS OF MORAL COMPLEXITY (1987); THOMAS NAGEL, EQUALITY AND PARTIALITY 154-68 (1991); JOHN RAWLS, A THEORY OF JUSTICE (1971); Ronald Dworkin, Liberalism, in PUBLIC AND PRIVATE MORALITY 113-43 (Stuart Hampshire ed., 1978). These scholars believe that the state should not promote particular conceptions of the good life. I assume that they would also maintain that it would be uncivil for a citizen to advocate that the state do so, but they are not all explicit on the point.
13. Some of the writing would extend beyond religious arguments to arguments that entertain particular conceptions of the good life. See, e.g., BRUCE ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980); CHARLES LARMORE, PATTERNS OF MORAL COMPLEXITY (1987); THOMAS NAGEL, EQUALITY AND PARTIALITY 154-68 (1991); JOHN RAWLS, A THEORY OF JUSTICE (1971); Ronald Dworkin, Liberalism, in PUBLIC AND PRIVATE MORALITY 113-43 (Stuart Hampshire ed., 1978). These scholars believe that the state should not promote particular conceptions of the good life. I assume that they would also maintain that it would be uncivil for a citizen to advocate that the state do so, but they are not all explicit on the point.
14. I will ignore the contention that a religious perspective is false. The bulk of the literature does not rely on that contention in any event. But see, e.g., Brian Barry, How Not to Defend Liberal Institutions, in LIBERALISM AND THE GOOD 44-45 (R. Bruce Douglass et al. eds., 1990); Suzanna Sherry, Enlightening The Religion Clauses, 7 J. CONTEMP. LEGAL ISSUES 473 (1996) (charging most of the major religions in the United States with irrationality). No one in the literature goes quite as far as Sigmund Freud who, in referring to traditional views of the afterlife and prayer, remarked, "The whole thing is so patently infantile, so foreign to reality, that to anyone with a friendly attitude to humanity it is painful to think that the great majority of mortals will never be able to rise above this view of life. It is still more humiliating to discover how large a number of people living today, who cannot but see that this religion is not tenable, nevertheless try to defend it piece by piece in a series of pitiful rearguard actions." SIGMUND FREUD, CIVILIZATION AND ITS DISCONTENTS 22 (1961). He thinks that religion has some benefit, however: "[B]y forcibly fixing [people] in a state of psychical infantilism and by drawing them into a mass-delusion, religion succeeds in sparing many people an individual neurosis." Id.
15. I will ignore the contention that a religious perspective is false. The bulk of the literature does not rely on that contention in any event. But see, e.g., Brian Barry, How Not to Defend Liberal Institutions, in LIBERALISM AND THE GOOD 44-45 (R. Bruce Douglass et al. eds., 1990); Suzanna Sherry, Enlightening The Religion Clauses, 7 J. CONTEMP. LEGAL ISSUES 473 (1996) (charging most of the major religions in the United States with irrationality). No one in the literature goes quite as far as Sigmund Freud who, in referring to traditional views of the afterlife and prayer, remarked, "The whole thing is so patently infantile, so foreign to reality, that to anyone with a friendly attitude to humanity it is painful to think that the great majority of mortals will never be able to rise above this view of life. It is still more humiliating to discover how large a number of people living today, who cannot but see that this religion is not tenable, nevertheless try to defend it piece by piece in a series of pitiful rearguard actions." SIGMUND FREUD, CIVILIZATION AND ITS DISCONTENTS 22 (1961). He thinks that religion has some benefit, however: "[B]y forcibly fixing [people] in a state of psychical infantilism and by drawing them into a mass-delusion, religion succeeds in sparing many people an individual neurosis." Id.
16. I will ignore the contention that a religious perspective is false. The bulk of the literature does not rely on that contention in any event. But see, e.g., Brian Barry, How Not to Defend Liberal Institutions, in LIBERALISM AND THE GOOD 44-45 (R. Bruce Douglass et al. eds., 1990); Suzanna Sherry, Enlightening The Religion Clauses, 7 J. CONTEMP. LEGAL ISSUES 473 (1996) (charging most of the major religions in the United States with irrationality). No one in the literature goes quite as far as Sigmund Freud who, in referring to traditional views of the afterlife and prayer, remarked, "The whole thing is so patently infantile, so foreign to reality, that to anyone with a friendly attitude to humanity it is painful to think that the great majority of mortals will never be able to rise above this view of life. It is still more humiliating to discover how large a number of people living today, who cannot but see that this religion is not tenable, nevertheless try to defend it piece by piece in a series of pitiful rearguard actions." SIGMUND FREUD, CIVILIZATION AND ITS DISCONTENTS 22 (1961). He thinks that religion has some benefit, however: "[B]y forcibly fixing [people] in a state of psychical infantilism and by drawing them into a mass-delusion, religion succeeds in sparing many people an individual neurosis." Id.
17. I will ignore the contention that a religious perspective is false. The bulk of the literature does not rely on that contention in any event. But see, e.g., Brian Barry, How Not to Defend Liberal Institutions, in LIBERALISM AND THE GOOD 44-45 (R. Bruce Douglass et al. eds., 1990); Suzanna Sherry, Enlightening The Religion Clauses, 7 J. CONTEMP. LEGAL ISSUES 473 (1996) (charging most of the major religions in the United States with irrationality). No one in the literature goes quite as far as Sigmund Freud who, in referring to traditional views of the afterlife and prayer, remarked, "The whole thing is so patently infantile, so foreign to reality, that to anyone with a friendly attitude to humanity it is painful to think that the great majority of mortals will never be able to rise above this view of life. It is still more humiliating to discover how large a number of people living today, who cannot but see that this religion is not tenable, nevertheless try to defend it piece by piece in a series of pitiful rearguard actions." SIGMUND FREUD, CIVILIZATION AND ITS DISCONTENTS 22 (1961). He thinks that religion has some benefit, however: "[B]y forcibly fixing [people] in a state of psychical infantilism and by drawing them into a mass-delusion, religion succeeds in sparing many people an individual neurosis." Id.
18. The same conclusion should follow (though it is a closer case) if a legislator's comments are formally part of the legislative history. By contrast, religious arguments by government officials or columnists (to mention a strong and specific disagreement I have with Professor Greenawalt) are appropriately introduced into political debate.
19. This criticism does not apply to Greenawalt's work. He argues that most of his prescriptive conclusions comport with the current traditions of discourse. Although I disagree with many of his conclusions, it would simply be wrong to suggest that he is focusing on a utopian ideal.
20. In this respect, I am a considerable distance away from the concerns of John Rawls. Rawls's move away from RAWLS, A THEORY OF JUSTICE, supra note 3, to RAWLS, POLITICAL LIBERALISM, supra note 2, was motivated by the concern that the just society he proposed would be unstable. See RAWLS, Paperback, supra note 2, at xv-xvii. He seems to be concerned that the threat to stability might come from those who hold reasonable comprehensive doctrines, for example, followers of John Stuart Mill. See id. I find this implausible. It is true that believers in other reasonable comprehensive doctrines, for example, followers of John Stuart Mill, liberal utilitarians, and the like might disagree with the Kantian foundations of the regime, but the basic structure of the political regime would be well within the range of the reasonable for them. Any fights over what comprehensive doctrine to unite behind would be ideological struggles leading to the same basic structure. This is not an instability to worry about. To the extent stability might genuinely be threatened, the sources would likely be those who hold doctrines that Rawls would regard as unreasonable, particularly those who desire unreasonably unequal distributions of wealth. Of course, Rawls is working in the area of ideal theory. He recognizes that the issue of how to get to a just society is a "long-term political reform . . . project to be carried out." RAWLS, Paperback, supra note 2, at 398. But he thinks a necessary step in that analysis is to know the ideal society that you would like to steer society towards. I think such theorizing can be helpful, though not always necessary, to guide political action. On the other hand, as I subsequently argue, such theorizing can also get in the way. See CATHARINE MACKINNON, FEMINISM UNMODIFIED 219 (1987).
21. In this respect, I am a considerable distance away from the concerns of John Rawls. Rawls's move away from RAWLS, A THEORY OF JUSTICE, supra note 3, to RAWLS, POLITICAL LIBERALISM, supra note 2, was motivated by the concern that the just society he proposed would be unstable. See RAWLS, Paperback, supra note 2, at xv-xvii. He seems to be concerned that the threat to stability might come from those who hold reasonable comprehensive doctrines, for example, followers of John Stuart Mill. See id. I find this implausible. It is true that believers in other reasonable comprehensive doctrines, for example, followers of John Stuart Mill, liberal utilitarians, and the like might disagree with the Kantian foundations of the regime, but the basic structure of the political regime would be well within the range of the reasonable for them. Any fights over what comprehensive doctrine to unite behind would be ideological struggles leading to the same basic structure. This is not an instability to worry about. To the extent stability might genuinely be threatened, the sources would likely be those who hold doctrines that Rawls would regard as unreasonable, particularly those who desire unreasonably unequal distributions of wealth. Of course, Rawls is working in the area of ideal theory. He recognizes that the issue of how to get to a just society is a "long-term political reform . . . project to be carried out." RAWLS, Paperback, supra note 2, at 398. But he thinks a necessary step in that analysis is to know the ideal society that you would like to steer society towards. I think such theorizing can be helpful, though not always necessary, to guide political action. On the other hand, as I subsequently argue, such theorizing can also get in the way. See CATHARINE MACKINNON, FEMINISM UNMODIFIED 219 (1987).
22. In this respect, I am a considerable distance away from the concerns of John Rawls. Rawls's move away from RAWLS, A THEORY OF JUSTICE, supra note 3, to RAWLS, POLITICAL LIBERALISM, supra note 2, was motivated by the concern that the just society he proposed would be unstable. See RAWLS, Paperback, supra note 2, at xv-xvii. He seems to be concerned that the threat to stability might come from those who hold reasonable comprehensive doctrines, for example, followers of John Stuart Mill. See id. I find this implausible. It is true that believers in other reasonable comprehensive doctrines, for example, followers of John Stuart Mill, liberal utilitarians, and the like might disagree with the Kantian foundations of the regime, but the basic structure of the political regime would be well within the range of the reasonable for them. Any fights over what comprehensive doctrine to unite behind would be ideological struggles leading to the same basic structure. This is not an instability to worry about. To the extent stability might genuinely be threatened, the sources would likely be those who hold doctrines that Rawls would regard as unreasonable, particularly those who desire unreasonably unequal distributions of wealth. Of course, Rawls is working in the area of ideal theory. He recognizes that the issue of how to get to a just society is a "long-term political reform . . . project to be carried out." RAWLS, Paperback, supra note 2, at 398. But he thinks a necessary step in that analysis is to know the ideal society that you would like to steer society towards. I think such theorizing can be helpful, though not always necessary, to guide political action. On the other hand, as I subsequently argue, such theorizing can also get in the way. See CATHARINE MACKINNON, FEMINISM UNMODIFIED 219 (1987).
23. In this respect, I am a considerable distance away from the concerns of John Rawls. Rawls's move away from RAWLS, A THEORY OF JUSTICE, supra note 3, to RAWLS, POLITICAL LIBERALISM, supra note 2, was motivated by the concern that the just society he proposed would be unstable. See RAWLS, Paperback, supra note 2, at xv-xvii. He seems to be concerned that the threat to stability might come from those who hold reasonable comprehensive doctrines, for example, followers of John Stuart Mill. See id. I find this implausible. It is true that believers in other reasonable comprehensive doctrines, for example, followers of John Stuart Mill, liberal utilitarians, and the like might disagree with the Kantian foundations of the regime, but the basic structure of the political regime would be well within the range of the reasonable for them. Any fights over what comprehensive doctrine to unite behind would be ideological struggles leading to the same basic structure. This is not an instability to worry about. To the extent stability might genuinely be threatened, the sources would likely be those who hold doctrines that Rawls would regard as unreasonable, particularly those who desire unreasonably unequal distributions of wealth. Of course, Rawls is working in the area of ideal theory. He recognizes that the issue of how to get to a just society is a "long-term political reform . . . project to be carried out." RAWLS, Paperback, supra note 2, at 398. But he thinks a necessary step in that analysis is to know the ideal society that you would like to steer society towards. I think such theorizing can be helpful, though not always necessary, to guide political action. On the other hand, as I subsequently argue, such theorizing can also get in the way. See CATHARINE MACKINNON, FEMINISM UNMODIFIED 219 (1987).
24. For support of this contention, see IAN SHAPIRO, DEMOCRACY'S PLACE 234-42 (1996); STEVEN SHIFFRIN, DISSENT, INJUSTICE, AND THE MEANINGS OF AMERICA ch. 4 (1999).
25. For support of this contention, see IAN SHAPIRO, DEMOCRACY'S PLACE 234-42 (1996); STEVEN SHIFFRIN, DISSENT, INJUSTICE, AND THE MEANINGS OF AMERICA ch. 4 (1999).
26. Some go further and argue that limits on liberty are not justified unless the person burdened could not reasonably reject the reasons given, as opposed to the orientation buttressing the reasons, for the limitation. This approach produces a hefty libertarian bias. It blinks either at the ordinary unavailability of such reasons in a pluralistic society or at the liberty denying effects of the market or both. Alternatively, it necessitates a rather robust conception of reason. Others would argue that limits on certain liberties are indefensible in the absence of a basic structure of society that no one could reasonably reject. This is either anarchistic or necessitates building the theory into the concept of reason.
27. Of course, in some sense, any position on the civility of religious intervention in political life would have discriminatory effects, if followed. See Michael McConnell, Christ, Culture, and Courts: A Neibuhrian Examination of First Amendment Jurisprudence, 42 DEPAUL L. REV. 191 (1992) (exploring different stances taken by churches on the church-state relationship and the implications of the case law regarding those positions).
28. See RAWLS, POLICTICAL LIBERALISM, supra note 2, at 157.
29. See Joshua Cohen, A More Democratic Liberalism, 92 MICH. L. REV. 1503, 1539 (1993) ("[W]e regard it as unreasonable to impose political power on others in the name of values that they reasonably reject - even if those values are correct."); see also NAGEL, supra note 3, at 157-58. Although Nagel does not address the question, Cohen and Rawls have applied this principle to the abortion example. See infra note 13; see also Larry Alexander, Liberalism, Religion, and the Unity of Epistemology, SAN DIEGO L. REV. 763, 771 n.26 (1993). Larry Alexander forcefully argues that liberals cannot make good on this general principle. If Alexander is correct, liberals would need to argue that anti-abortionists are wrong, not that their range of arguments should be restricted in the public forum. See id.
30. See Joshua Cohen, A More Democratic Liberalism, 92 MICH. L. REV. 1503, 1539 (1993) ("[W]e regard it as unreasonable to impose political power on others in the name of values that they reasonably reject - even if those values are correct."); see also NAGEL, supra note 3, at 157-58. Although Nagel does not address the question, Cohen and Rawls have applied this principle to the abortion example. See infra note 13; see also Larry Alexander, Liberalism, Religion, and the Unity of Epistemology, SAN DIEGO L. REV. 763, 771 n.26 (1993). Larry Alexander forcefully argues that liberals cannot make good on this general principle. If Alexander is correct, liberals would need to argue that anti-abortionists are wrong, not that their range of arguments should be restricted in the public forum. See id.
31. See Joshua Cohen, A More Democratic Liberalism, 92 MICH. L. REV. 1503, 1539 (1993) ("[W]e regard it as unreasonable to impose political power on others in the name of values that they reasonably reject - even if those values are correct."); see also NAGEL, supra note 3, at 157-58. Although Nagel does not address the question, Cohen and Rawls have applied this principle to the abortion example. See infra note 13; see also Larry Alexander, Liberalism, Religion, and the Unity of Epistemology, SAN DIEGO L. REV. 763, 771 n.26 (1993). Larry Alexander forcefully argues that liberals cannot make good on this general principle. If Alexander is correct, liberals would need to argue that anti-abortionists are wrong, not that their range of arguments should be restricted in the public forum. See id.
32. I think John Rawls was guilty of this. See RAWLS, POLITICAL LIBERALISM, supra note 2, at 243 n.32 (discussing abortion). But see RAWLS, Paperback, supra note 2, at lv-lvii (modifying his position, but suggesting any Catholic who would revolt, as opposed to merely protesting, against a failure to criminalize abortion would be unreasonable). In defending Rawls's initial position, Joshua Cohen writes, Given the complexities of the question of the status of the fetus, the conscientious rejection by many citizens of die claim that due respect for human life requires that we treat the fetus as a human person in the first trimester, the weight of the equality of women as a political value, and the importance of justification to others when such weighty values are at stake, how could it be reasonable to urge the state to endorse and to enforce the view that due respect for human life bars first-trimester abortions? Someone who rejects first-trimester abortions may reply that when it comes to preventing the murder of innocent babies, right is more important than being reasonable. But that reply concedes the point about reasonableness, which is the only issue I am now addressing. Cohen, supra note 12, at 1539. Of course, that reply does concede the reasonableness point. But a Catholic might deny the complexities of the status of the fetus and argue that the other factors, though admittedly weighty, are not weighty enough to justify the denial of respect for human life. This may be wrong, but it is a large step to say it is unreasonable except on a definition of reasonableness that requires accommodation in controversial situations (the going halfway theory). That definition of reasonableness may be necessary to have a working theory of political liberalism, but it trades on an underinclusive conception of reason.
33. Abortion is perhaps the most difficult case for this variety of liberalism, but the objection applies to more garden variety conservative positions as well. To take another similar example, suppose John believes for religious reasons that the consumption of obscene material is immoral and that its public distribution debases our public morality. John may also feel that to compromise these views is itself immoral. To characterize John's view as "unreasonable" for its unwillingness to compromise is altogether too fast. This is not to endorse either of the hypothesized views; it is rather to say that toleration may look "reasonable" from the perspective of the liberal state and "unreasonable" from the perspective of many millions of people whose views, albeit controversial, should not automatically be deemed beyond the pale. "That there are views that reject one or more democratic freedoms is itself a permanent fact of life, or seems so. This gives us the practical task of containing them - like war and disease - so that they do not overturn political justice." RAWLS, POLITICAL LIBERALISM, supra note 2, at 64 n.19. Despite the harshness of this language, Rawls cannot be fairly read to recommend the combating of conservative undermining of democratic freedoms by restricting their free speech or by any other undemocratic means.
34. The argument is sometimes made that the United States has a firm cultural commitment to the principle that people are owed equal concern and respect or are free and equal. Rawls in particular must make an argument like this because his political liberalism does not permit him to argue from any comprehensive doctrine. But the truth is that persons are regarded as free and equal in this culture except to the extent that they are not because of racism, sexism, homophobia, classism, or what have you. See Robert Justin Lipkin, In Defense of Outlaws: Liberalism and the Role of Reasonableness, Public Reason, and Tolerance in Multicultural Constitutionalism, 45 DEPAUL L. REV. 263, 291 n.117 (1996); Steven Shiffrin, Liberal Theory and the Need for Politics, 89 MICH. L REV. 1281, 1286-87 (1991). Never mind that the cultural basis (for better or for worse) for regarding people as free and equal is quite arguably religious. For the contention that the defense of human rights depends upon a religious perspective, see MICHAEL J. PERRY, LOVE AND POWER 36-41 (1991). See Thomas Nagel's argument, supra note 3, for a limited public sphere of argument and that the legitimacy of coercion depends upon an allegiance to Kantian political principles. His argument might appeal to those who accept those principles, but conservatives, not to mention many liberals, do not. His description of many who disagree with him as fanatics appears substantially overinclusive. See NAGEL, supra note 3, at 168.
35. The argument is sometimes made that the United States has a firm cultural commitment to the principle that people are owed equal concern and respect or are free and equal. Rawls in particular must make an argument like this because his political liberalism does not permit him to argue from any comprehensive doctrine. But the truth is that persons are regarded as free and equal in this culture except to the extent that they are not because of racism, sexism, homophobia, classism, or what have you. See Robert Justin Lipkin, In Defense of Outlaws: Liberalism and the Role of Reasonableness, Public Reason, and Tolerance in Multicultural Constitutionalism, 45 DEPAUL L. REV. 263, 291 n.117 (1996); Steven Shiffrin, Liberal Theory and the Need for Politics, 89 MICH. L REV. 1281, 1286-87 (1991). Never mind that the cultural basis (for better or for worse) for regarding people as free and equal is quite arguably religious. For the contention that the defense of human rights depends upon a religious perspective, see MICHAEL J. PERRY, LOVE AND POWER 36-41 (1991). See Thomas Nagel's argument, supra note 3, for a limited public sphere of argument and that the legitimacy of coercion depends upon an allegiance to Kantian political principles. His argument might appeal to those who accept those principles, but conservatives, not to mention many liberals, do not. His description of many who disagree with him as fanatics appears substantially overinclusive. See NAGEL, supra note 3, at 168.
36. The argument is sometimes made that the United States has a firm cultural commitment to the principle that people are owed equal concern and respect or are free and equal. Rawls in particular must make an argument like this because his political liberalism does not permit him to argue from any comprehensive doctrine. But the truth is that persons are regarded as free and equal in this culture except to the extent that they are not because of racism, sexism, homophobia, classism, or what have you. See Robert Justin Lipkin, In Defense of Outlaws: Liberalism and the Role of Reasonableness, Public Reason, and Tolerance in Multicultural Constitutionalism, 45 DEPAUL L. REV. 263, 291 n.117 (1996); Steven Shiffrin, Liberal Theory and the Need for Politics, 89 MICH. L REV. 1281, 1286-87 (1991). Never mind that the cultural basis (for better or for worse) for regarding people as free and equal is quite arguably religious. For the contention that the defense of human rights depends upon a religious perspective, see MICHAEL J. PERRY, LOVE AND POWER 36-41 (1991). See Thomas Nagel's argument, supra note 3, for a limited public sphere of argument and that the legitimacy of coercion depends upon an allegiance to Kantian political principles. His argument might appeal to those who accept those principles, but conservatives, not to mention many liberals, do not. His description of many who disagree with him as fanatics appears substantially overinclusive. See NAGEL, supra note 3, at 168.
37. For commentary on the contention that respect demands that the state may impose sanctions based on differing conceptions of what the right is, but not based on differing conceptions of what is the good life, see Steven Shiffrin, Liberalism, Radicalism, and Legal Scholarship, 30 UCLA L. REV. 1103 (1983). Of course, the state may not impose sanctions in the name of religion, but as is discussed in text accompanying notes 44-64, that does not rule out much religiously motivated legislation.
38. See MICHAEL J. PERRY, RELIGION IN POLITICS 59, 64-65 (1997); Michael Sandel, Political Liberalism, 107 HARV. L. REV. 1765, 1794 (1994) (book review). The same problem plagued earlier attempts to suggest that fairness demands that citizens not take their conception of the good into account in arguing for the basic structure of the society. See RAWLS, supra note 3. The idea was that fairness was justice. This approach, however, presupposed that it was necessary to be fair to everyone's conception of the good, which was the very point in dispute. The question, however, could not reasonably be begged or avoided by being smuggled into the original position or saved for later imaginary conversations with Bruce Ackerman. See Kai Nielsen, The Choice Between Perfectionism and Rawlsian Contractarianism, 6 INTERPRETATION 132 (1977); Shiffrin, supra note 16, at 1169. For Ackerman's argument, see ACKERMAN, supra note 3, at 255-61.
39. See MICHAEL J. PERRY, RELIGION IN POLITICS 59, 64-65 (1997); Michael Sandel, Political Liberalism, 107 HARV. L. REV. 1765, 1794 (1994) (book review). The same problem plagued earlier attempts to suggest that fairness demands that citizens not take their conception of the good into account in arguing for the basic structure of the society. See RAWLS, supra note 3. The idea was that fairness was justice. This approach, however, presupposed that it was necessary to be fair to everyone's conception of the good, which was the very point in dispute. The question, however, could not reasonably be begged or avoided by being smuggled into the original position or saved for later imaginary conversations with Bruce Ackerman. See Kai Nielsen, The Choice Between Perfectionism and Rawlsian Contractarianism, 6 INTERPRETATION 132 (1977); Shiffrin, supra note 16, at 1169. For Ackerman's argument, see ACKERMAN, supra note 3, at 255-61.
40. See MICHAEL J. PERRY, RELIGION IN POLITICS 59, 64-65 (1997); Michael Sandel, Political Liberalism, 107 HARV. L. REV. 1765, 1794 (1994) (book review). The same problem plagued earlier attempts to suggest that fairness demands that citizens not take their conception of the good into account in arguing for the basic structure of the society. See RAWLS, supra note 3. The idea was that fairness was justice. This approach, however, presupposed that it was necessary to be fair to everyone's conception of the good, which was the very point in dispute. The question, however, could not reasonably be begged or avoided by being smuggled into the original position or saved for later imaginary conversations with Bruce Ackerman. See Kai Nielsen, The Choice Between Perfectionism and Rawlsian Contractarianism, 6 INTERPRETATION 132 (1977); Shiffrin, supra note 16, at 1169. For Ackerman's argument, see ACKERMAN, supra note 3, at 255-61.
41. In Part III, infra, I discuss and reject the contention that religiously motivated legislation should be considered a violation of the Establishment Clause.
42. See generally PERRY, supra note 15.
43. For example, much writing by Thomas Aquinas relies on secular reason.
44. Abner Greene argues that reliance on inaccessible arguments "splits the citizenry into those who (by the believers' own terms) have current access to the truth and those who do not." Abner S. Greene, Is Religion Special?, 1994 U. ILL. L. REV. 535, 539. It is not clear why the believer's perspective is relevant. The nonbelievers do not believe that the believers really have access to a nonhuman source. If they did, they would be believers. Thus, the nonbelievers think the believers are wrong, not that they have a specially privileged position. Greene also inveighs against the possibility that people might be forced to "accept [religious] revelations uncritically," (which, of course, would violate the Free Exercise Clause), and that laws based expressly on theistic authority would deny the nonbeliever "any real ability to affirm the source of value under which she is being told to live." Id. at 541. For reasons I will explain later, I too would be concerned about laws expressly based on theistic authority, but persons might still make arguments for laws in the political sphere that are based on theistic authority without the laws themselves being expressly based on theistic authority. In any event, even if a law were expressly based on theistic authority, I do not believe its flaw would lie in the lack of ability of the nonbeliever to affirm the source of authority under which she is told to live unless the law itself required her to affirm the source of authority upon which it was based. Finally, I do not believe that the justification for a strong Free Exercise Clause depends upon banishing religious arguments from the public square. But see Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. CHI. L. REV. 195, 222 (1992).
45. Abner Greene argues that reliance on inaccessible arguments "splits the citizenry into those who (by the believers' own terms) have current access to the truth and those who do not." Abner S. Greene, Is Religion Special?, 1994 U. ILL. L. REV. 535, 539. It is not clear why the believer's perspective is relevant. The nonbelievers do not believe that the believers really have access to a nonhuman source. If they did, they would be believers. Thus, the nonbelievers think the believers are wrong, not that they have a specially privileged position. Greene also inveighs against the possibility that people might be forced to "accept [religious] revelations uncritically," (which, of course, would violate the Free Exercise Clause), and that laws based expressly on theistic authority would deny the nonbeliever "any real ability to affirm the source of value under which she is being told to live." Id. at 541. For reasons I will explain later, I too would be concerned about laws expressly based on theistic authority, but persons might still make arguments for laws in the political sphere that are based on theistic authority without the laws themselves being expressly based on theistic authority. In any event, even if a law were expressly based on theistic authority, I do not believe its flaw would lie in the lack of ability of the nonbeliever to affirm the source of authority under which she is told to live unless the law itself required her to affirm the source of authority upon which it was based. Finally, I do not believe that the justification for a strong Free Exercise Clause depends upon banishing religious arguments from the public square. But see Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. CHI. L. REV. 195, 222 (1992).
46. For a forceful presentation of this contention, compare Jeremy Waldron, Religious Contributions in Public Deliberation, 30 SAN DIEGO L. REV. 817, 834-42 (1993) (arguing in support of this contention), with David Hollenbach, S.J., Contexts of the Political Role of Religion: Civil Society and Culture, 30 SAN DIEGO L. REV. 877, 890-96 (1993) (arguing for the benefits of religious dialogue in public culture).
47. For a forceful presentation of this contention, compare Jeremy Waldron, Religious Contributions in Public Deliberation, 30 SAN DIEGO L. REV. 817, 834-42 (1993) (arguing in support of this contention), with David Hollenbach, S.J., Contexts of the Political Role of Religion: Civil Society and Culture, 30 SAN DIEGO L. REV. 877, 890-96 (1993) (arguing for the benefits of religious dialogue in public culture).
48. Sometimes the suggestion is made that arguments based on physics are, at least in principle, accessible to all. It is not a meaningful use of the word principle so far as I am concerned. I speak only for myself about the sciences, but I believe that many arguments from physics are beyond me and would be no matter how hard I worked at it. With the exception of those religions that would hold us not to be among the elect, I would argue that we may disagree with particular or all religions, but we are in principle capable of being persuaded.
49. As Rawls perceives it, a well-ordered society, among other things, is one in which "everyone accepts, and knows that everyone else accepts, the very same principles of justice . . . ." RAWLS, POLITICAL LIBERALISM, supra note 2, at 35. This, he recognizes, is a highly idealized concept. See id.; see also RAWLS, Paperback, supra note 2, at 384 n.16. On the other hand, Rawls's requirements for an "enduring and secure democratic regime . . . must be willingly and freely supported by at least a substantial majority of its politically active citizens." RAWLS, POLITICAL LIBERALISM, supra note 2, at 38. Rawls recognizes our present society (however much it might be willingly and freely backed by citizens - a matter about which Rawls is silent) departs from the requirements of justice and the needs of a basic structure as a system of social cooperation. See RAWLS, Paperback, supra note 2, at 407.
50. As Rawls perceives it, a well-ordered society, among other things, is one in which "everyone accepts, and knows that everyone else accepts, the very same principles of justice . . . ." RAWLS, POLITICAL LIBERALISM, supra note 2, at 35. This, he recognizes, is a highly idealized concept. See id.; see also RAWLS, Paperback, supra note 2, at 384 n.16. On the other hand, Rawls's requirements for an "enduring and secure democratic regime . . . must be willingly and freely supported by at least a substantial majority of its politically active citizens." RAWLS, POLITICAL LIBERALISM, supra note 2, at 38. Rawls recognizes our present society (however much it might be willingly and freely backed by citizens - a matter about which Rawls is silent) departs from the requirements of justice and the needs of a basic structure as a system of social cooperation. See RAWLS, Paperback, supra note 2, at 407.
51. I do not mean to demean ideal theory as an academic pursuit; nor do I mean to suggest that it is without practical uses. To some extent, a notion of injustice requires a notion of what a just society might look like (though as a practical matter, that notion might be well short of a blueprint to be satisfactory). I do mean to suggest that the issues of ideal theory do not necessarily track today's political issues. Of course, the general question (beyond the ones discussed in this essay) of how we speak to one another in this society with its mix of just and unjust elements is a live issue. See, e.g., AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT (1996). Gutmann and Thompson rightly recognize (though in my view they could and should have gone further) that: "Even extreme nondeliberative methods may be justified as necessary steps to deliberation . . . . [W]hen reasonable perspectives are neglected, there is a strong argument from the premises of deliberative democracy itself to use any legal means necessary to get those views taken seriously." Id. at 136. In my view, however, they do not adequately focus
52. I do not mean to demean ideal theory as an academic pursuit; nor do I mean to suggest that it is without practical uses. To some extent, a notion of injustice requires a notion of what a just society might look like (though as a practical matter, that notion might be well short of a blueprint to be satisfactory). I do mean to suggest that the issues of ideal theory do not necessarily track today's political issues. Of course, the general question (beyond the ones discussed in this essay) of how we speak to one another in this society with its mix of just and unjust elements is a live issue. See, e.g., AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT (1996). Gutmann and Thompson rightly recognize (though in my view they could and should have gone further) that: "Even extreme nondeliberative methods may be justified as necessary steps to deliberation . . . . [W]hen reasonable perspectives are neglected, there is a strong argument from the premises of deliberative democracy itself to use any legal means necessary to get those views taken seriously." Id. at 136. In my view, however, they do not adequately focus on the extent of injustice in society, although it is understandable given the character of their project. If they had focused more on the extent of injustice, they might have placed more emphasis on the importance in civic education of promoting a citizenry prepared to dissent against injustice. See generally SHIFFRIN, supra note 8, at ch. 4 (1999). On the perils associated with ideal theory in the race area, see Amy Gutmann, Responding to Racial Injustice, in K. ANTHONY APPIAH & AMY GUTMANN, COLOR CONSCIOUS: THE POLITICAL MORALITY OF RACE 106, 109 (1996).
53. See Judith N. Shklar, The Liberalism of Fear, in LIBERALISM AND THE MORAL LIFE 27 (Nancy L. Rosenblum ed., 1989) ("For . . . liberalism the basic units of political life are not discursive and reflecting persons, nor friends and enemies, nor patriotic soldier-citizens, nor energetic litigants, but the weak and the powerful."). Regrettably, the weak in some important dimensions, given the power of money in American governments, include the majority of the American people.
54. An unjust society may induce compliance with its regime for prudential reasons, but not because it deserves to be respected.
55. I am thinking primarily of the role of money in politics and the failure to provide proportional representation.
56. To his credit, John Rawls recognizes this. Indeed, he maintains in a much undiscussed footnote that "prior historical conditions may require that comprehensive reasons be invoked to strengthen [just political] values." RAWLS, POLITICAL LIBERALISM, supra note 2, at 251 n.41.
57. That many governments are worse does not legitimize this one.
58. I discuss the role of religious arguments infra Part III.
59. Arguments from the comprehensive view of utilitarianism are sometimes seen as a regular staple of political life. Although it is commonly argued that utilitarianism is wrong, it is less commonly argued that such argumentation does not appropriately belong in political debate, and when it is, the ferocity seems less than with similar claims about religious argument. See Philip L. Quinn, Political Liberalisms and Their Exclusions of the Religious, in RELIGION AND CONTEMPORARY LIBERALISM, supra note * (author's note), at 138, 144. On the other hand, it might be argued that most arguments from consequences are not clearly advanced from a general comprehensive position, and could, therefore, comfortably fit within the doctrine of public reason. Nonetheless, the hostility directed against the appropriateness of utilitarianism in political debate (as opposed to its political sagacity) seems less fervid than that directed against religion.
60. John Rawls, for example, states that "[t]he idea of public reason with its duty of civility has not yet been expressed in the public culture and remains unknown." RAWLS, POLITICAL LIBERALISM, supra note 2, at 251 n.41.
61. Although John Rawls's theory is primarily designed for a well-ordered society, he would carry the principle of public reason to a society riddled with injustice. See RAWLS, Paperback, supra note 2, at lii (applying the principle of public reason requiring secular reasons to accompany religious reasons to the abolitionists and to Martin Luther King). In earlier work, he applied the principle to an unjust society in a modified way. See Rawls, supra note 2, at 765 (noting that abolitionists and Martin Luther King did not go against the ideal of public reason "provided they thought, or on reflection would have thought (as they certainly could have thought), that the comprehensive reasons they appealed to were required to give sufficient strength to the political conception to be subsequently realized").
62. See Alexander, supra note 12, at 771 n.26; Quinn, supra note 32, at 159. Rawls is confusing to me on this point. He mentions that his theory of political liberalism does not engage those who reject his conception of constitutional democracy. See Rawls, supra note 2, at 767. Among other things, to Rawls this includes a conception of reciprocity that conservatives reject and a conception of the individual's moral power to form and maintain a conception of the good without governmental direction and control that is also opposed by conservatives. So conceived, Rawls's political liberalism is a political theory addressed to liberals holding different, comprehensive doctrines. But Rawls also writes that his theory is designed to cover reasonable non-liberal and religious doctrines. See RAWLS, Paperback, supra note 2, at xl-xli. My conclusion, which could well be wrong, is that Rawls's case for coverage of these doctrines works to the extent that those doctrines are not conservative. For a provocative perspective on the difficulties of building a case for the liberal toleration of nonliberal cultures beyond a modus vivendi, see Robert Justin Lipkin, Can Liberalism Justify Multiculturalism, 45 BUFFALO L. REV. 1 (1997); Lipkin, supra note 15, at 291 n.117.
63. This argument applies to a strict form of public reason, such as in Rawls's early work or in Greenawalt's work. Rawls's current willingness to permit liberals to criticize "unreasonable" comprehensive views and to introduce their own subject to limitations compliance of which seems fairly easy trades an ability to handle objections like these for a somewhat emaciated doctrine of public reason. See supra note 2.
64. It bears emphasis that the concern is about religious arguments in the public forum. Those who think it is uncivil to present religious arguments in political life do not think it is uncivil for religious arguments to be presented outside the political sphere.
65. Whether religion is or is not divisive in particular societies is obviously a contingent matter. That understood, many scholars believe that concerns that religious argument will cause civil strife in the United States are misplaced. See, e.g., PERRY, supra note 17, at 53; Quinn, supra note 32, at 138, 144; Paul J. Weithman, Introduction: Religion and the Liberalism of Reasoned Respect, in RELIGION AND CONTEMPORARY LIBERALISM, supra note * (author's note), at 5;
66. cf. Maimon Schwarzchild, Religion and Public Debate in a Liberal Society: Always Oil and Water or Sometimes Like Rum and Coca-Cola, 30 SAN DIEGO L. REV. 903, 911 (noting that it is odd to consider religion as a prime threat to tolerance). But see Sullivan, supra note 21, at 198, 222.
67. 376 U.S. 254 (1964).
68. Id. at 270.
69. See William P. Marshall, The Other Side of Religion, 44 HASTINGS L.J. 843 (1993).
70. For a well-developed argument along these lines, see Robert Merrihew Adams, Religious Ethics in a Pluralistic Society, in PROSPECTS FOR A COMMON MORALITY 93, 102-07 (Gene Outka & John P. Reeder, Jr. eds., 1993). For examples of stable societies based on a modus vivendi, see MICHAEL WALZER, ON TOLERATION (1997).
71. For a well-developed argument along these lines, see Robert Merrihew Adams, Religious Ethics in a Pluralistic Society, in PROSPECTS FOR A COMMON MORALITY 93, 102-07 (Gene Outka & John P. Reeder, Jr. eds., 1993). For examples of stable societies based on a modus vivendi, see MICHAEL WALZER, ON TOLERATION (1997).
72. The Civil War is not a counterexample that helps political liberalism. If the South had had no slavery, it would not have seceded, and we would not have had a civil war. Opposition to slavery does not require a commitment to political liberalism.
73. Compare Douglas Laycock, Freedom of Speech that is Both Religious and Political, 29 U.C. DAVIS L. REV. 793, 800 (1996) ("The right to make religious arguments does not depend on what conclusions those arguments would support, but assumptions about the tendency of religious arguments seem to underlie much of the debate. The secularists seem to be too driven by particular issues and too prone to associate religious arguments with a small range of political positions they reject."), with STEPHEN CARTER, THE CULTURE OF DISBELIEF 48, 99, 265-74 (1993) (asserting that the problem with the religious right is its politics, not that it brings religion into the public square).
74. Compare Douglas Laycock, Freedom of Speech that is Both Religious and Political, 29 U.C. DAVIS L. REV. 793, 800 (1996) ("The right to make religious arguments does not depend on what conclusions those arguments would support, but assumptions about the tendency of religious arguments seem to underlie much of the debate. The secularists seem to be too driven by particular issues and too prone to associate religious arguments with a small range of political positions they reject."), with STEPHEN CARTER, THE CULTURE OF DISBELIEF 48, 99, 265-74 (1993) (asserting that the problem with the religious right is its politics, not that it brings religion into the public square).
75. Apart from the political tilt of religion, most liberals would welcome the cultivation of moral behavior and civic virtue that religion and religious associations tend to promote.
76. Nonetheless, understandably, the literature focuses on the latter rather than the former. To suggest that nonliberal religions lack civility just because they are not liberal is not a concern that specially attaches to religion.
77. Until the 1970s, the main religious lobbies in Washington were liberal. See MICHAEL CORBETT & JULIA MICHAEL CORBETT, POLITICS AND RELIGION IN THE UNITED STATES 97 (1999).
78. When I use the term "church," I mean to include members as well, unless otherwise specified. Greenawalt believes it civil for churches to participate in political life giving religious reasons in ways that might be uncivil for believers in some roles, for example, as columnists and vice versa. See GREENAWALT, supra note 1, at 174-75 (stating that it is permissible for churches to support moral judgments for religious reasons despite straightforward political implications, but observing that churches should approach making complex policy judgments with caution and should not recommend candidates).
79. On the religious grounding of the abolitionists, see LAWRENCE J. FRIEDMAN, GREGARIOUS SAINTS: SELFAND COMMUNITY IN AMERICAN ABOLITIONISM 1830-70 (1982); Elizabeth B. Clark, "The Sacred Rights of the Weak": Pain, Sympathy, and the Culture of Individual Rights in Antebellum America, 82 J. AM. HIST. 463 (1995).
80. On the religious grounding of the abolitionists, see LAWRENCE J. FRIEDMAN, GREGARIOUS SAINTS: SELFAND COMMUNITY IN AMERICAN ABOLITIONISM 1830-70 (1982); Elizabeth B. Clark, "The Sacred Rights of the Weak": Pain, Sympathy, and the Culture of Individual Rights in Antebellum America, 82 J. AM. HIST. 463 (1995).
81. See CHARLES DUNN, AMERICAN POLITICAL THEOLOGY: HISTORICAL PERSPECTIVE AND THEORETICAL ANALYSIS 31-34 (1984). Conservative religious groups were involved in the crusade against alcohol that led to prohibition (though progressive groups dominated), but after the repeal of prohibition religious conservatives retreated from politics. See ROBERT BOOTH FOWLER & ALLEN D. HERTZKE, RELIGION AND POLITICS IN AMERICA 23 (1995). The belief in an afterlife and the yearning for salvation unquestionably has dulled participation in politics by many churches. At the same time, church organizations have been a major training ground for political action. See SIDNEY VERBA ET AL., VOICE AND EQUALITY: CIVIC VOLUNTARISM IN AMERICAN POLITICS (1995). Indeed, churches play a significant role in providing civic skills to those who otherwise would lack the resources. It is a vital counterbalance to a system that otherwise tends to produce political participation by the advantaged. See id. at 18, 519.
82. See CHARLES DUNN, AMERICAN POLITICAL THEOLOGY: HISTORICAL PERSPECTIVE AND THEORETICAL ANALYSIS 31-34 (1984). Conservative religious groups were involved in the crusade against alcohol that led to prohibition (though progressive groups dominated), but after the repeal of prohibition religious conservatives retreated from politics. See ROBERT BOOTH FOWLER & ALLEN D. HERTZKE, RELIGION AND POLITICS IN AMERICA 23 (1995). The belief in an afterlife and the yearning for salvation unquestionably has dulled participation in politics by many churches. At the same time, church organizations have been a major training ground for political action. See SIDNEY VERBA ET AL., VOICE AND EQUALITY: CIVIC VOLUNTARISM IN AMERICAN POLITICS (1995). Indeed, churches play a significant role in providing civic skills to those who otherwise would lack the resources. It is a vital counterbalance to a system that otherwise tends to produce political participation by the advantaged. See id. at 18, 519.
83. See CHARLES DUNN, AMERICAN POLITICAL THEOLOGY: HISTORICAL PERSPECTIVE AND THEORETICAL ANALYSIS 31-34 (1984). Conservative religious groups were involved in the crusade against alcohol that led to prohibition (though progressive groups dominated), but after the repeal of prohibition religious conservatives retreated from politics. See ROBERT BOOTH FOWLER & ALLEN D. HERTZKE, RELIGION AND POLITICS IN AMERICA 23 (1995). The belief in an afterlife and the yearning for salvation unquestionably has dulled participation in politics by many churches. At the same time, church organizations have been a major training ground for political action. See SIDNEY VERBA ET AL., VOICE AND EQUALITY: CIVIC VOLUNTARISM IN AMERICAN POLITICS (1995). Indeed, churches play a significant role in providing civic skills to those who otherwise would lack the resources. It is a vital counterbalance to a system that otherwise tends to produce political participation by the advantaged. See id. at 18, 519.
84. For an international perspective on the role of religion in violating the rights of women, see Martha Nussbaum, Religion and Women's Human Rights, in RELIGION AND CONTEMPORARY LIBERALISM, supra note * (author's note), at 93 . For a rich study of feminist protest with the Catholic Church, see MARY FAINSOD KATZENSTEIN, FAITHFUL AND FEARLESS: MOVING FEMINIST PROTEST INSIDE THE CHURCH AND MILITARY 105-76 (1998).
85. For an international perspective on the role of religion in violating the rights of women, see Martha Nussbaum, Religion and Women's Human Rights, in RELIGION AND CONTEMPORARY LIBERALISM, supra note * (author's note), at 93 . For a rich study of feminist protest with the Catholic Church, see MARY FAINSOD KATZENSTEIN, FAITHFUL AND FEARLESS: MOVING FEMINIST PROTEST INSIDE THE CHURCH AND MILITARY 105-76 (1998).
86. Gerda Lerner, The Meaning of Seneca Falls. 1848-1898, DISSENT, Fall 1998, at 35.
87. See FOWLER & HERTZKE, supra note 50, at 22.
88. Id. at 21.
89. See id. at 20-21; CORBETT & CORBETT, supra note 47, at 100.
90. See Levinson, supra note * (author's note), at 82 (citing Al Gore's linking of his environmental views to God and Christ); Nicholas Wolterstorff, Why We Should Reject What Liberalism Tells Us About Speaking and Acting in Public for Religions Reasons, in RELIGION AND CONTEMPORARY LIBERALISM, surpa note * (author's note), at 162, 180 (referring to views of the Christian Environment Council).
91. See Levinson, supra note * (author's note), at 98.
92. For commentary on its relative importance, see R.H. TAWNEY, RELIGION AND THE RISE OF CAPITALISM (1998); MAX WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM (1938). See also REINHOLD NIEBUHR, DOES CIVILIZATION NEED RELIGION 67, 95-97, 103 (1927).
93. For commentary on its relative importance, see R.H. TAWNEY, RELIGION AND THE RISE OF CAPITALISM (1998); MAX WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM (1938). See also REINHOLD NIEBUHR, DOES CIVILIZATION NEED RELIGION 67, 95-97, 103 (1927).
94. For commentary on its relative importance, see R.H. TAWNEY, RELIGION AND THE RISE OF CAPITALISM (1998); MAX WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM (1938). See also REINHOLD NIEBUHR, DOES CIVILIZATION NEED RELIGION 67, 95-97, 103 (1927).
95. For a fascinating argument in support of this contention, see SEYMOUR MARTIN LIPSET, AMERICAN EXCEPTIONALISM: A DOUBLE EDGED SWORD 53-76 (1996).
96. See FOWLER & HERTZKE, supra note 50, at 7; ALAN RYAN, LIBERAL ANXIETIES AND LIBERAL EDUCATION 74, 78-79 (1998).
97. I do think that liberal intellectuals have generally been slow to credit the role of religion in liberal movements. Consider Wolterstorff's statement: Many of the movements in the modern world which have resulted in reforms and revolutions that the liberal admires have been deeply religious in their orientation: the abolitionist movement in nineteenth-century America, the civil rights movement in twentieth-century America, the resistance movements in fascist Germany, in communist Eastern Europe, and in apartheid South Africa. These movements are regularly analyzed by Western academics and intellectuals as if religion were nowhere in the picture. Wolterstorff, supra note 56, at 162. As to the strength of the religious right, "only 11% of a national sample admitted to knowing much about the movement and just 9 percent of respondents claimed to think of themselves as members." KENNETH D. WALD, RELIGION AND POLITICS IN THE UNITED STATES 245-46 (1997). On the other hand, the religious right has strength beyond its numbers in the Republican party. I believe that constituency was a "but for cause" of the impeachment hearings of President Clinton. I also believe, however, that this action will significantly damage the Republican party.
98. Surely, this was the case in the South on the slavery issue.
99. See VERBA ET AL., supra note 50, at 521 (arguing that "the center of gravity of the religious agenda in politics is a conservative concern with a particular focus on advocacy of pro-life views on abortions"); see also id. at 19. But there are some indications that this conclusion may have been influenced by their methods of gathering data. As they suggest, when activist participants indicated a concern with welfare or housing, they did not ask whether they wanted more or less governmental involvement and, therefore, could not tell whether the correlation on these issues was liberal or conservative. On the other hand, they did ask for activists' points of view on the abortion question. See id. at 470.
100. See Wolterstorff, supra note 56, at 177-79.
101. My colleague Gary Simson has argued that laws should be invalidated if they "would not have been adopted if a nonsecular purpose had not been considered." Gary J. Simson, The Establishment Clause in the Supreme Court: Rethinking the Court's Approach, 72 CORNELL L. REV. 905, 910 (1987). See also Daniel O. Conkle, Religious Purpose, Inerrancy, and the Establishment Clause, 67 INDIANA L.J. 1 (1991) (asserting that religious purpose is sometimes unco nstitutional, and sometimes not).
102. My colleague Gary Simson has argued that laws should be invalidated if they "would not have been adopted if a nonsecular purpose had not been considered." Gary J. Simson, The Establishment Clause in the Supreme Court: Rethinking the Court's Approach, 72 CORNELL L. REV. 905, 910 (1987). See also Daniel O. Conkle, Religious Purpose, Inerrancy, and the Establishment Clause, 67 INDIANA L.J. 1 (1991) (asserting that religious purpose is sometimes unco nstitutional, and sometimes not).
103. I will bracket difficult questions about pretextual purposes for later writing.
104. I recognize that the determination of what counts as religious content or religious symbolism can be difficult. See, e.g., William P. Marshall, "We Know it "When We See It": The Supreme Court Establishment, 59 S. CAL. L. REV. 495 (1986). I certainly would not take the Supreme Court decisions on these issues as my normative guide. In my view, for example, Lynch v. Donnelly, 465 U.S. 668 (1984), which held that inclusion of a creche in a city display with secular symbols does not violate the Establishment Clause, is an unqualified outrage. See also William Van Alstyne, Trends in the Supreme Court: Mr. Jefferson's Crumbling Wall, 1984 DUKE L.J. 770.
105. I recognize that the determination of what counts as religious content or religious symbolism can be difficult. See, e.g., William P. Marshall, "We Know it "When We See It": The Supreme Court Establishment, 59 S. CAL. L. REV. 495 (1986). I certainly would not take the Supreme Court decisions on these issues as my normative guide. In my view, for example, Lynch v. Donnelly, 465 U.S. 668 (1984), which held that inclusion of a creche in a city display with secular symbols does not violate the Establishment Clause, is an unqualified outrage. See also William Van Alstyne, Trends in the Supreme Court: Mr. Jefferson's Crumbling Wall, 1984 DUKE L.J. 770.
106. With possible exceptions I will slide past here, I believe that religious reasons should not be an official basis for government action. State declarations of religious reasons should be deemed to be a violation of the Establishment Clause whether they be whereas clauses in legislation or a passage in a majority court opinion. The question of remedy in the latter situation may be difficult, but I would contend that judges take an oath to defend the Constitution and take an oath not to rely on religious reasons in opinions of the court. A requirement of official secular defense, however, need not entail a requirement of secular motivation. It is, of course, arguable that judges should not be relying on their own moral views, but should instead be interpreting, when relevant, the morality of the society, but I shall not enter that thicket here. See Richard H. Fallon, Jr., Of Speakable Ethics and Constitutional Law: A Review Essay, 56 U. CHI. L. REV. 1523 (1989). Whether legislators should be able to express religious motivation may depend upon the context. Clearly, if there is a tangible risk that their expression will be seen as evidencing religious purpose for the legislation with secular purpose as a pretext, they should not express religious motivation. In the absence of such a risk (imagine the expression of religious motivation for a murder statute), they should feel free to do so. Of course, most will not do so except in the most general way because of the relative political risks and benefits. Apart from the political tilt of religion, most liberals would welcome the cultivation of moral behavior and of civic virtue that religion and religious associations tend to promote. As Rawls perceives it, a well-ordered society, among other things, is one in which "everyone accepts, and knows that everyone else accepts, the very same principles of justice . . . ." RAWLS, POLITICAL LIBERALISM, supra note 2, at 35.
107. For example, a statute mandating a moment of silence in public schools at the outset of the day might be defended on secular grounds, but such a statute ordinarily would not be passed without religious instigation and support. Under the perspective which I follow, such a statute would be constitutional. See Bown v. Gwinnett County Sch. Dist., 112 F.3d 1464 (11th Cir. 1997). On the other hand, the statute in Wallace v. Jaffree, 472 U.S. 38 (1985), where a moment of silence statute requiring one minute for meditation at the outset of the day was amended to provide for meditation or voluntary prayer, was properly declared unconstitutional, in my view. I will not, however, dwell upon the extent to which my views track those held by the Supreme Court. Compare Simson, supra note 65, at 909 ("[I]t seems clear that, unless a law is proven to be predicated entirely or almost entirely on nonsecular purposes," no establishment clause objection based on purpose will prevail.), and Laycock, supra note 44, at 811 ("[The] legislature [must] have some actual secular purpose; it may also have religious purposes, and the religious purposes might even be dominant, so long as there is some secular purpose."), with Sanford Levinson, Religious Language and the Public Square, 105 HARV. L. REV. 2061, 2071 (1992) (book review) ("In light of existing Supreme Court precedent, it is doubtful that a law motivated in fact by religious considerations could withstand Establishment Clause scrutiny simply because it arguably furthers an articulable secular public purpose."). Some of the relevant cases include Edwards v. Aguilard, 482 U.S. 578 (1987) (invalidating law forbidding the teaching of evolution in public school without also teaching "creation science"); Wallace, 472 U.S. at 38 (invalidating law authorizing a period of silence in public schools specifically for meditation and voluntary prayer); Stone v. Graham, 449 U.S. 39 (1980) (invalidating required posting of Ten Commandments on public school walls); Epperson v. Arkansas, 393 U.S. 97 (1968) (invalidating law prohibiting the teaching of evolution in public schools).
108. This aspect of the Establishment Clause is emphasized in JESSE H. CHOPER, SECURING RELIGIOUS LIBERTY (1995) and Michael W. McConnell, Coercion: The Lost Element of Establishment, 27 WM. & MARY L. REV. 933 (1985-1986).
109. This aspect of the Establishment Clause is emphasized in JESSE H. CHOPER, SECURING RELIGIOUS LIBERTY (1995) and Michael W. McConnell, Coercion: The Lost Element of Establishment, 27 WM. & MARY L. REV. 933 (1985-1986).
110. This follows from the position articulated by Justice O'Connor that any endorsement of religion is invalid because it "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O'Connor, J., concurring); County of Allegheny v. ACLU, 492 U.S. 573 (1989) (Blackmun, O'Connor, & Stevens, JJJ.); see also William W. Van Alstyne, What is "an Establishment of Religion"?, 65 N.C. L. REV. 909, 914 (1987); cf. Christopher L. Eisbgruber & Lawrence G. Sager, The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct, 61 U. CHI. L. REV. 1245 (1994) (applying an equality analysis to free exercise issues).
111. This follows from the position articulated by Justice O'Connor that any endorsement of religion is invalid because it "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O'Connor, J., concurring); County of Allegheny v. ACLU, 492 U.S. 573 (1989) (Blackmun, O'Connor, & Stevens, JJJ.); see also William W. Van Alstyne, What is "an Establishment of Religion"?, 65 N.C. L. REV. 909, 914 (1987); cf. Christopher L. Eisbgruber & Lawrence G. Sager, The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct, 61 U. CHI. L. REV. 1245 (1994) (applying an equality analysis to free exercise issues).
112. This was the special concern of Roger Williams. See ISSAC KRAMNICK & R. LAURENCE MOORE, THE GODLESS CONSTITUTION: THE CASE AGAINST RELIGIOUS CORRECTNESS 46-66 (1996); EDMUND S. MORGAN, ROGER WILLIAMS: THE CHURCH AND THE STATE (1967); see also Daniel O. Conkle, Toward a General Theory of the Establishment Clause, 82 NW. U. L. REV. 1113, 1181-82 (1988); Van Alstyne, supra note 71, at 914-15.
113. This was the special concern of Roger Williams. See ISSAC KRAMNICK & R. LAURENCE MOORE, THE GODLESS CONSTITUTION: THE CASE AGAINST RELIGIOUS CORRECTNESS 46-66 (1996); EDMUND S. MORGAN, ROGER WILLIAMS: THE CHURCH AND THE STATE (1967); see also Daniel O. Conkle, Toward a General Theory of the Establishment Clause, 82 NW. U. L. REV. 1113, 1181-82 (1988); Van Alstyne, supra note 71, at 914-15.
114. This was the special concern of Roger Williams. See ISSAC KRAMNICK & R. LAURENCE MOORE, THE GODLESS CONSTITUTION: THE CASE AGAINST RELIGIOUS CORRECTNESS 46-66 (1996); EDMUND S. MORGAN, ROGER WILLIAMS: THE CHURCH AND THE STATE (1967); see also Daniel O. Conkle, Toward a General Theory of the Establishment Clause, 82 NW. U. L. REV. 1113, 1181-82 (1988); Van Alstyne, supra note 71, at 914-15.
115. See Lemon v. Kurtzman, 403 U.S. 602, 623 (1971).
116. See LEONARD LEVY, THE ESTABLISHMENT CLAUSE (1994); Douglas Laycock, The Benefits of the Establishment Clause, 42 DEPAUL. L. Rev. 373, 373-74 (1992).
117. See LEONARD LEVY, THE ESTABLISHMENT CLAUSE (1994); Douglas Laycock, The Benefits of the Establishment Clause, 42 DEPAUL. L. Rev. 373, 373-74 (1992).
118. This has been an effect of the clause, see FOWLER & HERTZKE, supra note 50, at 10-11, but I doubt the workings of this aspect were foreseen even though there is substantial reason to believe the framers would have welcomed it. See also JOHN H. GARVEY, WHAT ARE FREEDOMS FOR? (1996) (asserting that religious freedom is protected because religion is a good thing); Steven D. Smith, The Rise and Fall of Religious Freedom in Constitutional Discourse, 140 U. PA. L. REV. 149, 153-66 (1991).
119. This has been an effect of the clause, see FOWLER & HERTZKE, supra note 50, at 10-11, but I doubt the workings of this aspect were foreseen even though there is substantial reason to believe the framers would have welcomed it. See also JOHN H. GARVEY, WHAT ARE FREEDOMS FOR? (1996) (asserting that religious freedom is protected because religion is a good thing); Steven D. Smith, The Rise and Fall of Religious Freedom in Constitutional Discourse, 140 U. PA. L. REV. 149, 153-66 (1991).
120. See Lemon, 403 U.S. at 622-24 (1970); Ira C. Lupu, To Control Faction and Protect Liberty: A General Theory of the Religion Clauses, 7 J. CONTEMP. LEGAL ISSUES 357, 360 (1996); Sullivan, supra note 21.
121. Of the seven states establishing religion at the time of the adoption of the Bill of Rights, none of them established a single church. They all, in one way or another, provided for multiple establishments. See LEONARD W. LEVY, THE ESTABLISHMENT CLAUSE xxii (1993).
122. One might think the non-Mormons in Utah already think of themselves as second class citizens because of the dominant place of the Mormon Church in the culture of Utah. In a sense, however, such an observation would miss the central point of this section. It is one thing to live in a culture in which one perceives oneself as an outsider (as do non-Mormons in Utah or Jews in the United States at large). It would be quite another for Utah to formally proclaim the Mormon Church as the established church or for the United States to formally declare itself to be a Christian nation. Second class citizenship would then be official government policy.
123. The assumption is not unreasonable. Both opponents and supporters of the legislation agreed that the churches' involvement was crucial to its passage. See A. JAMES RECHLEY, RELIGION IN AMERICAN PUBLIC LIFE 248 (1985).
124. Suppose it turned out that most provisions of a state's quite ordinary penal code were thought by citizens to be primarily justified for religious reasons. Would such a code violate the Establishment Clause?
125. I would invalidate such a statute on due process or equal protection grounds, but not on religion clause grounds.
126. My colleague Gary Simson suggests the appropriate focus is the cumulative effect of such statutes rather the effects in specific instances. The same kind of argument was put forth to authorize the regulation of commerce in Wickard v. Filburn, 317 U.S. 111 (1942). I think the force of Professor Simson's concern, however, is dulled by the fact that I am discussing government actions without religious content and by the pluralistic character of religions in American society.
127. At the same time we should not fool ourselves, for this culture regularly reminds non-Christians that they are not equal citizens. See, e.g., STEPHEN FELDMAN, PLEASE DON'T WISH ME A MERRY CHRISTMAS: A CRITICAL HISTORY OF THE SEPARATION OF CHURCH AND STATE (1997).
128. See Abner S. Greene, The Political Balance of the Religious Clauses, 102 YALE L.J. 1611, 1628. (1993).