Religious argument, free speech theory, and democratic dynamism

Notre Dame Law Review

Volumn 86, Issue 1, 2011, Pages 119-182

  Magarian, Gregory P ^a  

^a WASHINGTON UNIVERSITY   (United States)

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EID: 79957496533     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (463)

1. REPO MAN (Edge City 1984) (Bud (Harry Dean Stanton) to Otto (Emilio Estevez)) .
2. See Senator Barack Obama, Address at the National Constitution Center: A More Perfect Union 1, 2-6 (Mar. 18, 2008) (transcript available at http://www.c-span.org/Content/PDF/obama-031808.pdf).
3. See Mitt Romney, Address at the George Bush Presidential Library: Faith in America, American Rhetoric 1, 2 (Dec. 6, 2007) (transcript available at http://www.americanrhetoric.com/speeches/PDFFiles/Mitt%20Romney%20- %20Faith%20in%20America.pdf).
4. See infra notes 91-95 and accompanying text.
5. See infra notes 99-101 and accompanying text.
6. The 2008 American Religious Identification Survey (ARIS) reveals that 15% of U.S. residents self-identify as having no religious affiliation, up from 8.2% in 1990, while the percentage of self-identified Christians has fallen during the same period from 86.2% to 76%. See Barry A. Kosmin & Ariela Keysar, American Religious Identification Summary Survey (ARIS 2008), AM. RELIGIOUS IDENTIFICATION SURV., 1, 3 (Mar. 2009), http://www. americanreligionsurvey-aris.org/reports/ARIS-Report-2008.pdf.
7. See infra notes 16-48 and accompanying text (discussing the restrictive position).
8. See infra notes 49-71 and accompanying text (discussing the permissive position).
9. Leading restrictive theorists explicitly reject constraints on the legal right to advance religious arguments freely. See JOHN RAWLS, POLITICAL LIBERALISM 217 (expanded ed. 2005) (framing the argument in terms of "a moral, not a legal, duty" imposed by "the ideal of citizenship");
10. Robert Audi, The Place of Religious Argument in a Free and Democratic Society, 30 SAN DIEGO L. REV. 677, 700 (1993) (distinguishing "civic virtue" from "civil (or other) rights").
11. The Supreme Court has held repeatedly that the Free Speech Clause provides strong protection for religious expression. See infra notes 179-83 and accompanying text.
12. Drawing this distinction can prove difficult in practice. See KENT GREENAWALT, PRIVATE CONSCIENCES AND PUBLIC REASONS 152 (1995) (discussing difficulty in distinguishing "general cultural interplay of comprehensive views" from "narrower debates over particular political issues") ;
13. Robert Audi, The Separation of Church and State and the Obligations of Citizenship, 18 PHIL. & PUB. AFF. 259, 274-77 (1989) (arguing, as to the related matter of normative constraints on religious institutions' political activities, that restrictive norms should err on the side of classifying controversies as moral rather than political);
14. David Hollenbach, Contexts of the Political Role of Religion: Civil Society and Culture, 30 SAN DIEGO L. REV. 877, 889-90 (1993) (suggesting the difficulty in practice of shielding political debate from broader moral and ethical considerations, including religious views).
15. See John Rawls, The Idea of Public Reason Revisited, 64 U. CHI. L. REV. 765, 768 (1997) ("The idea of public reason does not apply to the background culture [of civil society]....);
16. see also GREENAWALT, supra note 10, at 152 ("[W]e need to think about any principle of self-restraint with the clear understanding that any norm that people keep their comprehensive views to themselves is wholly unacceptable.").
17. See Gregory P. Magarian, The First Amendment, the Public-Private Distinction, and Nongovernmental Suppression of Wartime Political Debate, 73 GEO. WASH. L. REV. 101, 152 (2004) [hereinafter Magarian, Public-Private] (urging First Amendment protection for "a zone of individual conscience that allows people to evaluate information, formulate ideas, and participate meaningfully in democratic processes");
18. Neil M. Richards, Intellectual Privacy, 87 TEX. L. REV. 387, 394 (2008) (conceptualizing intellectual privacy as a precondition for expressive freedom).
19. As I have noted elsewhere, "[r]eligious identity and experience can go far toward shaping a person's or group's democratic participation." Gregory P. Magarian, The Jurisprudence of Colliding First Amendment Interests: From the Dead End of Neutrality to the Open Road of Participation-Enhancing Review, 83 NOTRE DAME L. REV. 185, 257 (2007) [hereinafter Magarian, Colliding Interests].
20. See GREENAWALT, supra note 10, at 160 (endorsing a broad normative allowance for citizens to make religiously grounded judgments about political issues);
21. Michael J. Perry, Liberal Democracy and Religious Morality, 48 DEPAUL L. REV. 1, 3 (1998) (distinguishing the question of presenting religious arguments in public political debate from the question of basing political choices on religious grounds).
22. I presume an expansive view of membership in the political community that does not entail legal citizenship or the right to vote, neither of which seems to me important for determining norms (or legal protections) for participation in public political debate. Cf. Alexander Meiklejohn, The Limits of Congressional Authority: Freedom and the People, NATION, Dec. 13, 1953,
23. reprinted in ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM 101, 119 (1965) ("[U]nhindered expression must be open to noncitizens, to resident aliens, to writers and speakers of other nations, to anyone, past or present, who has something to say which may have significance for a citizen who is thinking of the welfare of this nation.").
24. 15 The question whether legislators or judges properly may act based on their religious beliefs has generated a vital literature of its own. See GREENAWALT, supra note 10, at 161-63 (contending that legislators have greater duty than ordinary citizens to avoid reliance on religious reasons);
25. Abner S. Greene, The Political Balance of the Religion Clauses, 102 YALE L.J. 1611, 1611-33 (1993) (construing the Establishment Clause as invalidating laws based on express, predominantly religious justifications);
26. Michael J. Perry, Religious Morality and Political Choice: Further Thoughts-and Second Thoughts-on Love and Power, 30 SAN DIEGO L. REV. 703, 723-26 (1993) (considering whether legislators or judges should forego reliance on religious belief in making public decisions).
27. Jeremy Waldron argues that a proper understanding of democratic self-government forecloses any effort to distinguish citizens from public officials in assessing proper grounds for arguments and decisions about political issues. See Jeremy Waldron, Religious Contributions in Public Deliberation, 30 SAN DIEGO L. REV. 817, 827-29 (1993).
28. Share Waldron's commitment to the ideal of self-government, and I reject a formalistic account of the public-private distinction. See Magarian, Public-Private, supra note 12, at 135-50 (reconceptualizing the public-private distinction to serve democratic ends).
29. Also recognize that referenda and initiatives blur the line between citizens and public officials. Even so, I cannot agree that officials lack any distinctive obligations under the Constitution. Instead, I believe normative judgments should drive our legal system's assignment of constitutional obligations and rights. See id. at 150-72 (articulating and defending a normativer/ grounded conception of the public-private distinction in the context of First Amendment free speech rights). The Establishment Clause of the First Amendment provides one substantial normative basis for holding government officials to obligations that other members of the political community do not generally share.
30. Rawls advocates the public reason principle for "constitutional essentials and questions of basic justice." RAWLS, supra note 9, at 214-15.
31. By "constitutional essentials" he means foundational questions such as the scope of the right to vote and the extent of constitutionally protected liberties. See id. at 214 (describing matters subject to the public reason principle).
32. Id. at 225.
33. Rawls, supra note 11, at 775;
34. see also GREENAWALT, supra note 10, at 72-84 (discussing problems raised by political arguments grounded in nonreligious comprehensive doctrines).
35. See RAWLS, supra note 9, at li-lii. Other restrictive theorists similarly allow for religious arguments in public political debate, so long as those arguments augment functionally adequate public or secular arguments. See GREENAWALT, supra note 10, at 161 (calling on citizens who participate in public political debate merely to "emphasize" public reasons) ;
36. Robert Audi, Religious Values, Political Action, and Civic Discourse, 75 IND. L.J. 273, 279-80 (2000) (detailing normativer/ permissible roles for religious argument in public political debate);
37. see also Lawrence B. Solum, Constructing an Ideal of Public Reason, 30 SAN DIEGO L. REV. 729, 747-53 (1993) (articulating and defending an inclusive ideal of public reason that admits nonpublic reasons "(1) if the nonpublic reason were the foundation for a public reason [or] (2) if the nonpublic reason were an additional sufficient justification for a policy that would be given an independent and sufficient justification a by public reason").
38. Rawls, supra note 11, at 799.
39. See Audi, supra note 9, at 690-91 (arguing that liberal democratic norms of public political debate should require specifically secular reasons, not merely public reasons).
40. See Audi, supra note 10, at 277-79 (describing the "principle of secular rationale," which forecloses advocacy of any governmental restriction of conduct unless the advocate can offer an adequate secular ground for the restriction (emphasis omitted)).
41. Audi's version of the restrictive position adds to his principle of secular rationale a distinctively rigorous "principle of secular motivation," which forecloses supporting or advocating governmental restrictions on human conduct unless normatively adequate secular reasons motivate one to support a given restriction. See id. at 284 (emphasis omitted).
42. See GREENAWALT, supra note 10, at 160-61.
43. See id. at 24-25 (discussing concern about inaccessible reasons).
44. Bruce Ackerman, Why Dialogue?, 86 J. PHIL. 5, 16 (1989) (advocating a principle of "conversational restraint").
45. I use the term "nonbeliever" to connote a nonadherent to a particular belief or belief system under discussion, not necessarily a person who lacks religious beliefs altogether.
46. See RAWLS, supra note 9, at 242 ("As institutions and laws are always imperfect, we may view [public reason] as imperfect and in any case as falling short of the whole truth set out by our comprehensive doctrine.").
47. See id. at 242-43.
48. See GREENAWALT, supra note 10, at 163-64 ("[N]o one takes the state positions as reflecting the true weight of grounds in the speaker's or writer's mind.").
49. Other restrictive theorists have similarly called on religious believers to translate their political arguments into secular and/or public terms. See Greene, supra note 15, at 1621 (positing that translation allows nonbelievers to participate fully in political debate);
50. Robert Justin Lipkin, Reconstructing the Public Square, 24 CARDOZO L. REV. 2025, 2090 (2003) (calling on citizens in a liberal democracy to translate religious and similarly "dedicated" arguments into "deliberative" terms);
51. Richard Rorty, Religion as Conversation-Stopper, 3 COMMON KNOWLEDGE 1, 4-5 (1994) (arguing that the translation imperative removes from political rhetoric democratically irrelevant information about the source of one's premises).
52. Bruce Ackerman, in contrast, expressly rejects the call to translate disagreements over comprehensive beliefs into public or secular terms, but his principle of "conversational restraint" calls upon liberal citizens to argue in noncomprehensive terms about issues that may implicate their comprehensive beliefs. See Ackerman, supra note 25, at 14-19.
53. See President Barack Obama, Commencement Address at the University of Notre Dame in South Bend, Indiana 1, 5 (May 17, 2009) [hereinafter Obama, Notre Dame Address] (transcript available at http://www.gpoaccess.gov/presdocs/2009/ DCPD-200900372.pdf).
54. See Dirk Johnson, Invitation to Obama Stirs Up Notre Dame, N.Y. TIMES, Apr. 6, 2009, at A12 (describing some Catholics' view that President Obama's support for legal abortion rights should have disqualified him from giving the commencement address at a Catholic university).
55. Obama, Notre Dame Address, supra note 30, at 5.
56. RAWLS, supra note 9, at 217;
57. see also THOMAS NAGEL, EQUALITY AND PARTIALITY 155 (1991) ("We must agree to refrain from limiting people's liberty by state action in the name of values that are deeply inadmissible in a certain way from their point of view.");
58. Joshua Cohen, Procedure and Substance in Deliberative Democracy, in DEMOCRACY AND DIFFERENCE 95,100 (Seyla Benhabib ed., 1996) (positing a conception of justification reflected in an ideal political procedure, under which reasonable citizens "aim to defend and criticize institutions and programs in terms of considerations that others have reason to accept");
59. Solum, supra note 19, at 742 ("[R]easons that directly rely on [religious] premises . . . will be rejected by many as unreasonable justifications for political action.").
60. Rawls, supra note 11, at 782;
61. see also GREENAWALT, supra note 10, at 23-24 (discussing unfairness, in the sense of inappropriately grounded decisions in conditions of liberal pluralism, as a basis for objecting to certain types of political argument).
62. See Audi, supra note 10, at 260-68, 274 (advancing a substantive theory of church-state separation as the basis for normative constraints on religious argument in public political debate).
63. Robert Audi, Liberal Democracy and the Place of Religion in Politics, in ROBERT AUDI & NICHOLAS WOLTERSTORFF, RELIGION IN THE PUBUC SQUARE 1, 31 (1997).
64. See Audi, supra note 9, at 690 ("[WJe give up autonomy only where ... we can be expected, given adequate rationality and sufficient information, to see that we would have so acted on our own.").
65. See Audi, supra note 19, at 274 (positing that civic virtue requires "mutual respect" on the part of citizens with different beliefs).
66. "Basing law on an express reference to an extrahuman source of value should matter for Establishment Clause analysis because such reference effectively excludes those who don't share the relevant religious faith from meaningful participation in the political process." Greene, supra note 15, at 1619;
67. see also Lipkin, supra note 29, at 2067-71 (suggesting that religious argument makes democratic debate politically inaccessible to nonbelievers).
68. RAWLS, supra note 9, at 217.
69. See GREENAWALT, supra note 10, at 24 (discussing concerns about political instability as a basis for objecting to certain types of political argument); Audi, supra note 36, at 31 (arguing that religious belief in opponents' "deficient" status can cause intolerance);
70. William P. Marshall, The Other Side of Religion, 44 HASTINGS LJ. 843, 858 (1993) (contending that fears behind religion may lead believers to disregard or even persecute political opponents).
71. Rorty, supra note 29, at 2.
72. See id. at 5 ("[T] he only test of a political proposal is its ability to gain assent from people who retain radically diverse ideas about the point and meaning of human life, about the path to private perfection.").
73. See Audi, supra note 36, at 50 (suggesting that religiously grounded political arguments may trigger religiously grounded responses, deepening political disputes);
74. Marshall, supra note 41, at 859 ("Religion, if unleashed as a political force, may also lead to a particularly acrimonious divisiveness among different religions.").
75. See Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. CHI. L. REV. 195, 197-99 (1992) (construing the First Amendment's Religion Clauses as establishing a secular public moral order in order to sustain a "religious truce").
76. See Ackerman, supra note 25, at 17 (defending the principle of "conversational restraint" in public political debate on the ground that such restraint clears the way for liberal democratic citizens to "use dialogue for pragmatically productive purposes");
77. Audi, supra note 36, at 50 (contending that framing political arguments in religious terms may cause "deadlock [to] occur where compromise would have been possible");
78. John Rawls, The Idea of an Overlapping Consensus, 7 O.J.L.S. 1, 1 (1987) (emphasizing political liberalism's goal of "help[ing] ensure stability from one generation to the next");
79. Rorty, supra note 29, at 5 (emphasizing the ability of an idea to gain "consensus" from diverse parties as the test for its admission into public debate).
80. Marshall, supra note 41, at 859.
81. Rorty, supra note 29, at 3.
82. See STEPHEN L. CARTER, GOD'S NAME IN VAIN 83-112 (2000) (discussing religious advocacy's role in controversies over slavery and economic regulation);
83. RICHARD JOHN NEUHAUS, THE NAKED PUBUC SQUARE 145 (2d ed. 1986) (claiming intellectual kinship with "Adams, Tocqueville, Lincoln, and a host of others who understood religiously based values as the points of reference for public moral discourse");
84. Michael W. McConnell, Five Reasons to Reject the Claim that Religious Arguments Should Be Excluded from Democratic Deliberation, 1999 UTAH L. REV. 639, 644-48 (summarizing historical contributions of religion to U.S. political discourse).
85. See Hollenbach, supra note 10, at 894-95 (noting efforts in Catholic and Protestant religious traditions to derive rational and civil arguments from religious beliefs);
86. Perry, supra note 15, at 714 (conceding that "some styles of religious politics . . . that embody religious intolerance, religious triumphalism, or the like" can deny equal respect to some citizens but denying "that every style of religious politics necessarily does so");
87. see also McConnell, supra note 49, at 648-49 (assailing over- and under-inclusiveness of distinctions between supposed characteristics of religious and secular political arguments).
88. See Frederick Mark Gedicks & Roger Hendrix, Democracy, Autonomy, and Values: Some Thoughts on Religion and Law in Modern America, 60 S. CAL. L. REV. 1579, 1600 (1987) (extolling communitarian aspects of organized religion, which "help the emergence and retention of personality and individuality");
89. Hollenbach, supra note 10, at 891-96 (describing an "intellectual solidarity" approach to political engagement by religious believers);
90. McConnell, supra note 49, at 649 (noting that "much religiously motivated political action is loving, gracious, and humble");
91. Michael J. Perry, Why Political Reliance on Religiously Grounded Morality Is Not Illegitimate in a Liberal Democracy, 36 WAKE FOREST L. REV. 217, 233-34 (2001) (summarizing instances of religion's constructive ethical contributions throughout U.S. history).
92. Hollenbach, supra note 10, at 883.
93. Perry, supra note 15, at 715.
94. Maimon Schwarzschild admits the possibility that "religion may be uniquely inimical to liberalism at some times and in some places." Maimon Schwarzschild, Religion and Public Debate in a Liberal Society: Always Oil and Water or Sometimes More Like Rum and Coca-Cola?, 30 SAN DIEGO L. REV. 903, 904 (1993). He maintains, however, that religion poses no threat to modern, developed liberal societies.
95. See id. at 913-14;
96. see also Nicholas Wolterstorff, The Role of Religion in Decision and Discussion of Political Issues, in AUDI & WOLTERSTORFF, supra note 36, 79-80 (arguing that religious arguments pose no threat to social peace in the contemporary United States).
97. Stephen Carter puts some descriptive stock in this account of religion's place in contemporary U.S. politics while lamenting it normatively. See CARTER, supra note 49, at 52-58 (arguing that the Christian Coalition has diminished its force as a challenger to liberalism by compromising its religious principles).
98. See CARTER, supra note 49, at 21-22 (denying that religious faith is either more destructive or more dogmatic than secular ideas);
99. Perry, supra note 15, at 721-22 (arguing that religious and secular discourses in public culture are monologic, divisive, and sectarian in comparable measures);
100. Schwarzschild, supra note 53, at 914 (suggesting that "many secular movements and ideas" rely on convictions "rooted in empirically or logically unprovable premises" to a similar or greater extent than religion).
101. See NEUHAUS, supra note 49, at 8 (positing "militant secularism" of totalitarian regimes in order to characterize the secularized public square as "a dangerous place");
102. Schwarzschild, supra note 53, at 911 (asserting that "[f]or most of the twentieth century, at least outside the Islamic world, illiberal politics have overwhelmingly been Communist politics, or the politics of essentially secular forms of fascism, nationalism, or Third World socialism");
103. Wolterstorff, supra note 53, at 79-80 (contrasting religion's role in the development of liberal democracy with the violent consequences of secular ideologies in the twentieth century).
104. See McConnell, supra note 49, at 649 (" [N] ot a little secular political activism-especially in this day of identity politics-is as divisive, intolerant, and uncompromising as anything seen on the religious side of the line.").
105. See NEUHAUS, supra note 49, at 82 ("[T] he notion of the secular state can become the prelude to totalitarianism.");
106. see also id. at 164 ("The triumph of the secularist option would ... do grave, perhaps fatal, damage to the American experiment in democratic governance.").
107. See supra notes 33-40 and accompanying text.
108. See Larry Alexander, Liberalism, Religion, and the Unity of Epistemobgy, 30 SAN DIEGO L. REV. 763, 775-76 (1993) (explaining and rejecting "unfairness" as a basis for excluding religious arguments from public political debate);
109. Ruti Teitel, A Critique of Religion as Politics in the Public Sphere, 78 CORNELL L. REV. 747, 786-87 (1993) (criticizing a conception of political dialogue that requires participants to "be willing to change even their most fundamental religious commitments" and specifically to acknowledge the fallibility of their beliefs);
110. Wolterstorff, supra note 53, at 76-78 (arguing that liberal democracy should not limit the grounds of justification that citizens may offer);
111. see also Steven Shiffrin, Religion and Democracy, 74 NOTRE DAME L. REV. 1631, 1634-35 (1999) (criticizing the positions that religious arguments are unfair in public discourse and that tolerance requires openness to compromise).
112. See Jason Carter, Toward a Genuine Debate About Morals, Religion, Politics, and Law: Why America Needs a Christian Response to the "Christian"Right, 41 GA. L. REV. 69, 82 (2006) (rejecting as unfair to religious believers the idea of excluding religious arguments because they might alienate nonbelievers);
113. Perry, supra note 15, at 714 (denying that any special characteristic of religious arguments makes them more likely than secular arguments to deny citizens equal respect and regard);
114. Perry, supra note 51, at 245 (rejecting the idea that offering religious reasons for state coercion denies nonbelievers equal respect and regard);
115. Wolterstorff, supra note 53, at 109-11 (arguing that Rawlsian insistence on generality as a precondition of equal respect and regard improperly ignores the importance of respect and regard for religious particularity).
116. Waldron, supra note 15, at 841.
117. See supra notes 26-32 and accompanying text.
118. See NEUHAUS, supra note 49, at 19 ("Christian truth, if it is true, is public truth. It is accessible to public reason.");
119. McConnell, supra note 49, at 653 (characterizing most religious traditions as based on exegesis of sources that nonbelievers can study, such as natural law for Catholics and the Bible for fundamentalist Protestants);
120. Shiffrin, supra note 59, at 1639-40 (arguing that nonbelievers can access any source of religious knowledge, including claims of divine inspiration);
121. Waldron, supra note 15, at 835-37 (discussing the comprehensibility of unfamiliar grounds for argument under an Aristotelian conception of public discourse).
122. See McConnell, supra note 49, at 652.
123. See Hollenbach, supra note 10, at 897 ("Persons or groups should not face political disability or disenfranchisement simply because their political views are rooted in religious traditions and beliefs.");
124. McConnell, supra note 49, at 655-56 (arguing that the restrictive position denies religious believers equal citizenship);
125. Perry, supra note 13, at 18 (arguing that the morality and ethics of liberal democracy do not require religious believers to forego reliance on religious arguments in making political decisions);
126. Wolterstorff, supra note 53, at 77 (arguing that liberal calls to exclude religious argument from public political debate violate the fundamental liberal commitment to equal freedom).
127. See CARTER, supra note 49, at 25-26 (emphasizing, in a permissive argument, the unbounded salience of religious doctrine to believers) ;
128. Gedicks & Hendrix, supra note 51, at 1599 ("When religious morality is excluded from politics, the religious individual is alienated from public life.");
129. Hollenbach, supra note 10, at 882-85 (discussing inconsistency between the Catholic tradition and the goal of relegating religious belief to the private sphere);
130. McConnell, supra note 49, at 654-55 (decrying the premise that religious truth only applies within a separable private sphere);
131. Wolterstorff, supra note 53, at 105 (positing that religious belief, for many believers, "is not, for them, about something other than their social and political existence; it is also about their social and political existence").
132. See CARTER, supra note 49, at 3 ("[I]f we build too high the walls that are intended to keep religion out of politics, we will face religious people who will storm the barricades and declare the government no longer legitimate ....");
133. NEUHAUS, supra note 49, at 180 (defining "morally legitimate" government "by reference to the religiously based values of the people");
134. Gedicks & Hendrix, supra note 51, at 1600 ("If the religious people who constitute the majority of Americans come to believe, as many already do, that the law making process does not respect their religious beliefs . . ., then they themselves will respect neither the process nor the laws that it generates.");
135. McConnell, supra note 49, at 650 (positing that restrictions on religious political argument "will deepen the anger and hostility that [religious] citizens feel toward the hegemonic and exclusionary practices of the secular power structure");
136. Shiffrin, supra note 59, at 1638 ("[F]or many, a society that is not responsive to their comprehensive views is illegitimate.").
137. See, e.g., Gedicks & Hendrix, supra note 51, at 1602 ("[H]ostility toward or ignorance of religious communities risks diminishing or altogether eliminating a critical context by which individuals choose their values and define the meaning of their existence.").
138. See Carter, supra note 60, at 83-84 (positing religious communities' value for civil society);
139. Gedicks & Hendrix, supra note 51, at 1602 (emphasizing religion's important contribution to self-definition for many members of the political community);
140. Hollenbach, supra note 10, at 887-88 (discussing a survey showing "that people's spiritual concerns translate into active efforts to respond to the needs of their neighbors only when these concerns are lived out in the context of a publicly visible and active religious community").
141. See STEPHEN L. CARTER, THE CULTURE OF DISBELIEF 232 (1993) (positing "th[e] ability of the religions to fire the human imagination, and often the conscience, even of nonbelievers");
142. Gedicks & Hendrix, supra note 51, at 1611 (noting approvingly "the first amendment intuition . . . that society is better served by more exposure to diverse information, ideas, and expression than by less");
143. Hollenbach, supra note 10, at 891-92 (discussing the potential value of religiously grounded arguments in broadly framed public debate);
144. Michael W. McConnell, Secular Reason and the Misguided Attempt to Exclude Religious Argument from Democratic Deliberation, 1 J.L. PHIL. & CULTURE 159, 168 (2007) (arguing that excluding religious argument from political debate would "prevent secular Americans from learning about the beliefs, ideas, and motivations of large numbers of their fellow citizens");
145. Perry, supra note 13, at 11-12 (advocating admission of religious arguments into public political debate so that participants can be tested by religious arguments);
146. Shiffrin, supra note 59, at 1640 (stating that persuasion by religious arguments "is always a possibility");
147. Waldron, supra note 15, at 841-42 (arguing that admission of religious ideas can broaden both public debate and nonbelievers' worldviews);
148. Sanford Levinson, Religious Language and the Public Square, 105 HARV. L. REV. 2061, 2077 (1992) (book review) (calling the restrictive position "gratuitously censorial");
149. see also Mark W. Cordes, Politics, Religion, and the First Amendment, 50 DEPAUL L. REV. III, 159-67 (2000) (arguing, as a matter of First Amendment doctrine, that excluding religious arguments from public debate would amount to a viewpoint-based restriction that would undermine various free speech interests, including democratic interests);
150. Franklin I. Gamwell, Religion and Reason in American Politics, 2 J.L. & RELIGION 325, 338-39 (1984) (arguing that religious believers may and should attempt to advance their religious commitments in public political debate).
151. See Gamwell, supra note 70, at 339-41 (suggesting that reasonable participation in public debate entails religious believers' openness to being proved wrong);
152. Hollenbach, supra note 10, at 895 (urging religious believers to risk changes to their beliefs in political debate);
153. Perry, supra note 13, at 5 (advocating admission of religious arguments into public political debate so that debate can test religious arguments);
154. Waldron, supra note 15, at 839 (suggesting that consideration of "even . . . clearly wrong" religious arguments may benefit public debate);
155. Michael Walzer, Drawing the Line: Religion and Politics, 1999 UTAH L. REV. 619, 637 (advocating admission of absolutist religious views into public political debate out of "hope that the pressure of democratic argument will ensure that absolutism is not the last word").
156. See supra notes 33-40 and accompanying text (discussing restrictive theorists' concern that religious argument leads to democratically illegitimate justifications for coercive laws).
157. See supra notes 41-48 and accompanying text (discussing restrictive theorists' concern that religious argument can destabilize liberal democratic politics).
158. See Alexander, supra note 59, at 774-75 (arguing that political liberalism's normative character forecloses any liberal ground for excluding religious arguments from public political debate based on religion's supposed nonempirical character or resistance to critical assessment).
159. See ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT (1948),
160. reprinted in, MEIKLEJOHN supra note 14, at 1, 27 (describing expressive freedom as "a deduction from the basic American agreement that public issues shall be decided by universal suffrage").
161. Stanley Fish, Why We Can't All Just Can't Get Along, FIRST THINGS, Feb. 1996, at 18, 21.
162. See Audi, supra note 36, at 31 (contending that religious arguments that rest on claims of divine authority foreclose any actual debate);
163. Fish, supra note 76, at 21 ("The trouble with Christianity, and with any religion grounded in unshakable convictions, is that it lacks the generosity necessary to the marketplace's full functioning.").
164. See Fish, supra note 76, at 20 ("[T]he belief whose prior assumption determines what will be heard as reasonable is not itself subject to the test of reasonableness.").
165. See Perry, supra note 13, at 25-35 (praising self-critical rationality as an element of religious belief and public argument);
166. Rorty, supra note 29, at 1, 6 (characterizing Enlightenment rationality as encouraging open public debate);
167. Fish, supra note 76, at 20 ("[A]n open mind, a mind ready at any moment to jettison even its most cherished convictions, is the very definition of 'reasonable' in a post-Enlightenment liberal culture . . . .").
168. Walzer, supra note 71, at 637.
169. See, e.g., Gedicks & Hendrix, supra note 51, at 1603 ("The bias of modern liberalism ... is that God, if he exists at all, does not talk to us and never did.").
170. My claim differs from Abner Greene's warning that arguments based on "an extrahuman source of value" improperly foreclose political participation by nonbelievers. See Greene, supra note 15, at 1619. I fear not that arguments based on claims of divine revelation will disempower nonbelievers but that such arguments will fail utterly to engage them.
171. See Meiklejohn, supra note 14, at 115-18 (describing the necessity of free public discourse for effective self-government).
172. Diminution of an argument's informative function in public debate does not undermine other interests the argument might serve, such as self-expression or religious witness. See Shiffrin, supra note 59, at 1640 (criticizing the view that speech in a democracy primarily serves interests related to persuasive interpersonal engagement).
173. See Audi, supra note 9, at 691 (suggesting that "when people believe that extreme measures, such as bravely fighting a holy war, carry an eternal reward ... they may find it much easier to kill");
174. Marshall, supra note 41, at 859 ("Fervent beliefs fueled by suppressed fear are easily transformed into movements of intolerance, repression, hate, and persecution.").
175. See Gedicks & Hendrix, supra note 51, at 1592 (explaining the distinctive capacity of religion to influence behavior).
176. Walzer, supra note 71, at 621;
177. see also Gedicks & Hendrix, supra note 51, at 1592 (positing that disapproval of a secularist's peers carries a weaker sanction than disapproval of a believer's God).
178. Walzer's quoted statement appears in a section of his article that aims to articulate elements of the restrictive position, with which he later expresses significant disagreement. Nothing in the position he ultimately advocates, however, undermines or amends his distinction between political and religious allegiances. See Walzer, supra note 71, at 631-38 (setting forth Walzer's own views on religion and politics). Citations to Walzer reflect my understanding that the cited statements express his own views.
179. See supra note 56 and accompanying text.
180. Walzer, supra note 71, at 624;
181. see also Audi, supra note 36, at 32 (condemning arguments based on the dictates of religious leaders as contradicting "the minimal autonomy that citizens in a liberal democracy may hope for in one another").
182. Audi focuses his concern on authoritarian as distinct from "moderate" or "fallibilist" modes of religious argument, whatever the source of religious inspiration behind the argument. See Audi, supra note 19, at 288-91.
183. Marshall, supra note 41, at 855.
184. See id. at 857-59 (contending that religious doctrine and ritual, particularly in the context of organized religious structures, can cause believers to resist or attack competing belief systems).
185. Cf. supra notes 77-83 and accompanying text (discussing these same harms in the context of arguments based on a subjective epistemology of revealed truth).
186. Frederick Mark Gedicks, Truth and Consequences: Mitt Romney, Proposition 8, and Public Reason, 61 ALA. L. REV. 337, 366 (2010).
187. Letter from the First Presidency of The Church of Jesus Christ of Latter-day Saints to Church Leaders in California (June 29, 2008),
188. reproduced at California and Same-Sex Marriage, THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS NEWSROOM (June 30, 2008), http://newsroom.lds.org/ ldsnewsroom/eng/commentary/califor-nia-and-same-sex-marriage.
189. See Gedicks, supra note 91, at 364-68 (discussing LDS members' role in the campaign for Proposition 8);
190. Jesse McKinley & Kirk Johnson, Mormons Tipped Scale in Ban on Gay Marriage, N.Y. TIMES, NOV. 15, 2008, at Al (portraying LDS efforts to pass Proposition 8 as decisive).
191. See McKinley & Johnson, supra note 93;
192. see also Gedicks, supra note 91, at 367 (describing heavy LDS reliance in Proposition 8 campaign on "sectarian arguments drawn from LDS theology").
193. Gedicks, supra note 91, at 368.
194. See, e.g., TIMOTHY A. BYRNES, CATHOLIC BISHOPS IN AMERICAN POLITICS 13-16 (1991) (discussing anti-Catholic sentiments and actions in the nineteenth century United States based on doubts about Catholic citizens' loyalty and patriotism).
195. See John H. Garvey, The Pope's Submarine, 30 SAN DIEGO L. REV. 849, 858 (1993).
196. Garvey explains that the Church asserts its strongest authority only in the domain of "faith and morals," which excludes many important political questions. See id. at 861.
197. Although Catholic bishops may take independently infallible or authoritative actions, their authority always remains subordinate to that of the Pope. See BYRNES, supra note 96, at 54.
198. See Garvey, supra note 97, at 862 (describing Catholic doctrine's requirement that believers submit their wills and minds to authoritative moral teachings of the Pope and bishops).
199. See Conference of Catholic Bishops, Resolution on Abortion, (Nov. 7, 1989),
200. reprinted in 19 ORIGINS 395 (1989), available at http://www.usccb.org/ prolife/tdocs/resabort89.shtml;
201. Sacred Congregation for the Doctrine of the Faith, Declaration on Procured Abortion, U.S. CONF. CATH. BISHOPS (Nov. 18, 1974), http://www.usccb.org/prolife/issues/abortion/DeclarationonProcuredAbortion.pdf; Nat'l;
202. see also BYRNES, supra note 96, at 55 ("[B]y 1967 the popes and the church had unequivocally condemned all direct abortions for over a century.");
203. Garvey, supra note 97, at 867-68 (summarizing authoritative Catholic teachings on abortion since the 1960s).
204. See BYRNES, supra note 96, at 139-40 (describing individual bishops' denials of communion and warnings about damnation to pro-choice politicians);
205. Garvey, supra note 97, at 851 (noting a 1990 statement of New York's Cardinal John O'Connor that Catholic politicians who make public funds available for abortions risk excommunication);
206. Peter Steinfels, Catholics and Choice (in the Voting Booth), N.Y. TIMES, NOV. 8, 2008, at A21 (reporting some bishops' threats to deny communion to pro-choice candidates and voters during the 2004 and 2008 presidential elections).
207. U.S. Catholic voters favored pro-choice candidate Barack Obama over pro-life candidate John McCain in the 2008 presidential election by a margin of fifty-two to forty-five percent, despite the Catholic bishops' vigorous admonitions to pro-life voting. See Steinfels, supra note 100 (numbering the U.S. bishops among the 2008 election's "big losers").
208. See supra notes 84-86 and accompanying text (discussing the distinctive character of threats to liberal democracy from arguments grounded in a subjective epistemology of divine inspiration).
209. See infra notes 118-26 and accompanying text.
210. See supra notes 49-64 and accompanying text.
211. See supra notes 33-40 and accompanying text.
212. Perry, supra note 15, at 716.
213. Perry, supra note 13, at 30.
214. See id. at 29 (arguing that nonbelievers, and even some coreligionists, will reject a claim of divine revelation behind a political argument as "little more than a prideful and self-serving stratagem");
215. see also Gamwell, supra note 70, at 339-40 (broadly dismissing the possibility that religious believers will reject fallibilism);
216. Walzer, supra note 71, at 622 (suggesting the argument that religious believers should "politicize" their views by "surrendering] their absolutism" and should be open to political compromise).
217. Perry, supra note 13, at 31;
218. see also Gedicks & Hendrix, supra note 51, at 1616 ("Religious as much as secular individuals must translate their personal beliefs into a language that is accessible to all.");
219. Perry, supra note 13, at 34 (urging at least partial reliance on secular arguments in public political debate in order to "help[ ] American politics to maintain a relatively ecumenical character rather than a sectarian one").
220. Perry exempts religious arguments about human worth, as distinct from human well-being, from his call for partial reliance on secular arguments. See id. at 20-24, 37.
221. Perry disavows arguing "that a commitment to liberal democracy somehow entails or otherwise supports the principle of self-restraint that I have recommended here." Perry, supra note 13, at 46. That disavowal, however, seems at odds with his recognition that meaningful participation in democracy requires self-critical rationality.
222. See Garvey, supra note 97, at 876. In particular, Garvey refers to decisions based on what he calls "the service conception of authority."
223. For a discussion of this conception, see id. at 854-55.
224. Garvey first discusses the obligations that Catholic leaders' policy pronouncements impose on ordinary Catholic citizens. See id. at 859-65. In turning to public officials' obligations, he notes several constraints on fealty to religious authority claims that do not apply to ordinary citizens. See id. at 865-67. His overall analysis deals with justification rather than public argument, but the logic he employs in defending justifications based on religious authority claims applies, on its own terms, to public political arguments based on religious authority claims.
225. Id. at 876.
226. See Schwarzschild, supra note 53, at 914 ("[T]here is scarcely much practical mileage to be had for such religious groups to argue from authority on public questions. . . . [I]f anything, that sort of argument is likely to sow doubts among the faithful.").
227. See supra notes 49-57 and accompanying text.
228. See CARTER, supra note 49, at 5 (equating religion with morality);
229. NEUHAUS, supra note 49, at 8-9 (arguing that the exclusion of religion from public life leaves a "naked public square" defenseless against "seven demons aspiring to transcendent authority");
230. Perry, supra note 13, at 22 (raising "the possibility that there is no plausible or even intelligible secular argument that every human being is sacred");
231. see also Waldron, supra note 15, at 846-47 (arguing that secular thinkers are in the process of constructing distinctively secular conceptions of religiously grounded moral ideas central to liberalism).
232. See supra notes 65-68 and accompanying text.
233. See CARTER, supra note 49, at 21 (asserting that only "bias" can explain any argument "that religionists are, by the nature of their beliefs, significantly more dogmatic than anybody else").
234. See id. at 20 (dismissing as "clunkers" any suggestions that entry of religious voices into politics are undemocratic, based on religion's historical role in U.S. politics).
235. See id. at 171-75 (asserting the subversive value of public religious resistance to secular norms);
236. see also NEUHAUS, supra note 49, at 18 (attributing to fundamentalist religion "a welcome claim to authoritative truth" and urging nonfundamentalist religions to adopt "dogma that can provide authoritative communal referents");
237. David M. Smolin, Regulating Religious and Cultural Conflict in a Postmodern America: A Response to Professor Perry, 76 IOWA L. REV. 1067, 1094 (1991)
238. (reviewing MICHAEL J. PERRY, LOVE AND POWER (1991)) ("The natural tendency of [traditionalist theism and modernist liberalism] is to destroy the other.").
239. See CARTER, supra note 49, at 152-53. David Hollenbach offers a milder variation on the same point, expressing doubt whether deep moral and theological questions "are best dealt with in arguments about quite precise issues that are up for decision in the spheres of law and public policy."
240. Hollenbach, supra note 10, at 899.
241. See CARTER, supra note 49, at 71-79 (criticizing separationist constitutional doctrine for stifling religious institutions' ability to resist secular political norms).
242. See Shiffrin, supra note 59, at 1642.
243. See id.;
244. see also Walzer, supra note 71, at 627 (suggesting, in a critique of separationist doctrine, that religion brings to politics "a sense of radical hope, the belief that large-scale transformations and reversals are possible").
245. Shiffrin's hope for progressive outcomes from religious arguments depends on his view that "religious perspectives frequently buck the egoistic tide . . . [and] are a necessary counterpoint to the corporate state." See Shiffrin, supra note 59, at 1651.
246. See CARTER, supra note 49, at 185-86 (questioning the efficacy of religion as a distinctive voice in efforts to influence public policy);
247. see also McConnell, supra note 49, at 650 ("When groups identifying themselves with the gospel of Christ enter the political arena, and come to make political alliances and compromises, it is inevitable that they will blunt their religious witness.").
248. Shiffrin, supra note 59, at 1651.
249. See, e.g., MEIKLEJOHN, supra note 75, at 42 (contending that the First Amendment "was written to clear the way for thinking which serves the general welfare").
250. But cf. FREDERICK SCHAUER, FREE SPEECH 86 (1982) (arguing that constitutional protection for expressive freedom finds its soundest justification not in any affirmative principle but rather in concerns about the government's incompetence as a regulator of speech).
251. See supra notes 84-86, 102 and accompanying text.
252. See Lipkin, supra note 29, at 2069 & n.165 (comparing the futility of arguing with religious believers and Marxists);
253. Marshall, supra note 41, at 859 n.80 (noting similarly "non-dialogic" characteristics of religion and Communism but distinguishing religion's special volatility);
254. McConnell, supra note 49, at 642 (analogizing present suspicion that defenders of religious political argument sympathize with the "religious right" to past suspicion that defenders of Communist advocacy were "fellow travelers");
255. Schwarzschild, supra note 53, at 911-12 (comparing Communism and religion as objects of censorship in liberal democracies);
256. Walzer, supra note 71, at 626 (suggesting a comparison of religious community with "the political messianism of the Marxists");
257. Fish, supra note 76, at 25 (suggesting that neither religion nor Communism "will . . . pledge allegiance to the mimicry of tolerance").
258. 249 U.S. 47 (1919).
259. Id. at 52.
260. 250 U.S. 616 (1919).
261. Id. at 630 (Holmes, J., dissenting).
262. Id. at 628.
263. Id.
264. 274 U.S. 357 (1927).
265. Id. at 377 (Brandeis, J., concurring).
266. 268 U.S. 652 (1925).
267. Id. at 673 (Holmes, J., dissenting).
268. 341 U.S. 494 (1951).
269. Smith Act of 1940, 54 Stat. 670 (codified as amended at 18 U.S.C. §§2385, 2387 (2006)).
270. Dennis, 341 U.S. at 579 (Black, J., dissenting).
271. Id. at 498 (plurality opinion).
272. Id. at 565 (Jackson, J., concurring).
273. Id. at 547 (Frankfurter, J., concurring in the judgment).
274. Id. at 510 (plurality opinion).
275. Id. (alteration in original)
276. (quoting United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950)) (internal quotation marks omitted).
277. Id. at 510-11.
278. "Obviously, the words [of the test] cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. . . . We must therefore reject the contention that success or probability of success is the criterion." Id. at 509-10.
279. Id. at 568-69 (Jackson, J., concurring).
280. Id. at 546 (Frankfurter, J., concurring in the judgment).
281. See id. at 525.
282. Id. at 587-88 (Douglas, J., dissenting). Justice Douglas, however, also emphasized the U.S. Communist Party's weakness in arguing that the First Amendment should protect it.
283. See id. at 589 ("[I]n America [Communists] are miserable merchants of unwanted ideas; their wares remain unsold. The fact that their ideas are abhorrent does not make them powerful.").
284. 354 U.S. 298 (1957).
285. Id. at 345 (Clark, J., dissenting).
286. See id. at 327-34 (majority opinion) (reviewing the evidence). "In its long history," objected dissenting Justice Clark, "I find no case in which an acquittal has been ordered by this Court solely on the facts. It is somewhat late to start in now usurping the function of the jury, especially where new trials are to be held covering the same charges."
287. Id. at 346 (Clark, J., dissenting).
288. Id. at 321 (majority opinion).
289. 367 U.S. 290 (1961).
290. See id. at 294-95 (describing plans for infiltration of unions). The Court found the evidence of these plans insufficient to establish that the defendants had actually advocated violent overthrow of the government within the meaning of the Smith Act.
291. See id. at 298-99.
292. Id. at 297-98. The Court, on the same day it decided Noto, upheld another conviction under the membership provision of the Smith Act where substantial record evidence indicated that the defendant had worked actively toward overthrowing the government.
293. See Scales v. United States, 367 U.S. 203, 206 (1961).
294. 395 U.S. 444 (1969) (per curiam).
295. Id. at 447.
296. See id. at 447 n.2.
297. The defendant participated in a cross burning on a farm and made a speech in which he railed against African Americans and Jews, discussed the Klan's organizing efforts in vague terms, and suggested that the white race might at some future time take "revengeance" on the government. See id. at 445-47.
298. See MEIKLEJOHN, supra note 75, at 4-8.
299. See supra notes 138-139 and accompanying text. Meiklejohn quoted Holmes'
300. See MEIKLEJOHN, supra note 75, at 41-43.
301. MEIKLEJOHN, supra note 75, at 42.
302. Robert Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 30 (1971)
303. (quoting Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring)) (internal quotation marks omitted).
304. Id.
305. Id. at 31. Unlike even the Dennis Court, Bork insisted that Holmes and Brandeis had been wrong to claim First Amendment protection for any sort of subversive advocacy.
306. See id. at 31-35 (defending the results in Gitlow and Whitney).
307. See, e.g., Christina E. Wells, Fear and loathing in Constitutional Decision-Making, 2005 Wis. L. REV. 115, 194-201 (tying the Supreme Court's Dennis analysis to cognitive biases related to risk assessment and prejudice against undesirable groups).
308. See, e.g., Carl A. Auerbach, The Communist Control Act of 1954: A Proposed LegalPolitical Theory of Free Speech, 23 U. CHI. L. REV. 173, 195 (1956) ("No democratic or constitutional principle is violated ... when a democracy acts to exclude those groups from entering the struggle for political power which, if victorious, will not permit that struggle to continue in accordance with the democratic way.").
309. See, e.g., David E. Bernstein, The Red Menace, Revisited, 100 Nw. U. L. REV. 1295, 1305-09 (2006)
310. (reviewing MARTIN H. REDISH, THE LOGIC OF PERSECUTION (2005)) (arguing that the Smith Act convictions upheld in Dennis had strong justifications and that Dennis did negligible harm to First Amendment interests).
311. See supra notes 72-102 and accompanying text.
312. See GREENAWALT, supra note 10, at 56 (conceptualizing, in a discussion of religious argument in public political debate, a duty of citizens in a "relatively stable" liberal democracy "not to undermine the basic requisites of that system");
313. Stanley Fish, Mission Impossible: Settling the Just Bounds Between Church and State, 97 COLUM. L. REV. 2255, 2285-86 (1997) (characterizing intolerant religious beliefs as "inimical to [the liberal state] and threatening to its survival");
314. Schwarzschild, supra note 53, at 912-13 (discussing tension between a liberal norm of tolerance and substantive value systems such as religion).
315. Dennis v. United States, 183 F.2d 201, 212 (2d Cir. 1950), aff'd, 341 U.S. 494 (1951).
316. Id.
317. see also GERALD GUNTHER, LEARNED HAND 603 (1994) (quoting Hand as criticizing the Dennis prosecutions on the ground that "[t]he blood of the martyrs is the seed of the church").
318. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-74 (1942) (affirming, based on the "fighting words" principle, the conviction of a Jehovah's Witness under a statute that prohibited offensive insults in public places);
319. Cantwell v. Connecticut, 310 U.S. 296, 309-10 (1940) (emphasizing the nonthreatening character of the speech at issue in reversing the conviction of a Jehovah's Witness for disturbing the peace).
320. 319 U.S. 624 (1943).
321. See id. at 642 ("If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.").
322. 403 U.S. 15 (1971).
323. Id. at 20.
324. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 120 (2001) (striking down a school district's denial of access to school property after hours for meetings of a religious children's group);
325. Rosenberger v. Rector of the Univ. of Va., 515 U.S. 819, 845-46 (1995) (striking down a university's withholding of student activity funds from a religious publication);
326. Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 387, 396-97 (1993) (striking down a school district's refusal to let a church group use school property after hours to show a film);
327. Widmar v. Vincent, 454 U.S. 263, 276-77 (1981) (striking down a university's denial of meeting space to a religious student group).
328. Emp't Div. v. Smith, 494 U.S. 872, 890 (1990),
329. superseded by statute, Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488,
330. invalidated by City of Boerne v. Flores, 521 U.S. 507 (1997).
331. The Smith Court endorsed a Free Exercise Clause regime that "will place at a relative disadvantage those religious practices that are not widely engaged in." Id.
332. Whitney v. California, 274 U.S. 357, 375 (1927)
333. (Brandeis, J., concurring), overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam).
334. Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALE L.J. 877, 884 (1963).
335. Id. at 885.
336. ROBERT C. POST, CONSTITUTIONAL DOMAINS 145 (1995).
337. Id. at 144.
338. See id.
339. Id. at 146.
340. See id. at 176.
341. See id. at 150-63
342. (discussing Post's public discourse analysis in light of Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)).
343. Id. at 147.
344. Id. at 177.
345. See C. EDWIN BAKER, MEDIA, MARKETS, AND DEMOCRACY 125-213 (2002).
346. See, e.g., Jürgen Habermas, Three Normative Models of Democracy, in DEMOCRACY AND DIFFERENCE, supra note 33, at 21.
347. See BAKER, supra note 196, at 138-43 (conceptualizing republican democracy).
348. See id. at 135-38 (conceptualizing liberal pluralist democracy).
349. Id. at 143-47 (conceptualizing complex democracy).
350. See id. at 212-13 (discussing complex democracy's implications for First Amendment law).
351. See POST, supra note 186, at 147-77.
352. See BAKER, supra note 194, at 135-47.
353. I discuss these cases in greater detail in Gregory P. Magarian, Regulating Political Parties Under a "Public Rights" First Amendment, 44 WM. & MARY L. REV. 1939, 2011-24, 2031-37 (2003).
354. 520 U.S. 351 (1997).
355. See id. at 353-54.
356. See id.
357. Id. at 366-67.
358. 530 U.S. 567 (2000).
359. See id. at 569-70.
360. See id. at 586.
361. See id. at 579-80.
362. See id. at 583.
363. Id. at 584.
364. See Sullivan, supra note 45, at 197-98 (maintaining that "[r]eligious grounds for resolving public moral disputes would rekindle inter-denominational strife");
365. Walzer, supra note 71, at 632 ("In the United States, we have so far avoided [highly destructive politics], and the separation of religion from politics has been a critically important means of avoidance.").
366. See supra notes 41-48 and accompanying text.
367. See Rawls, supra note 11, at 769 (reaffirming the centrality of a moral duty of civility to the ideal of public reason while acknowledging that a legal duty of civility would undermine the freedom of speech).
368. See joseph Raz, Facing Diversity: The Case of Epistemic Abstinence, 19 PHIL. & PUB. AFF. 3, 14-15 (1990) (arguing that Rawls's emphasis on the value of political stability properly commits him to a substantive ideal of justice).
369. Shiffrin, supra note 59, at 1641.
370. Id. at 1645.
371. Id. at 1646.
372. McConnell, supra note 49, at 653;
373. see also Teitel, supra note 59, at 780-87 (arguing that conceiving of politics as a discursive process, including civility norms, masks a covert goal of forcing religious and moral consensus).
374. See Waldron, supra note 15, at 838-40 (arguing that the destabilizing effects of religious argument may provide a desirable check on Rawls's preference for political consensus).
375. Id. at 842.
376. See supra notes 33-40 and accompanying text.
377. See RAWLS, supra note 9, at 218.
378. For a summary of Rawls's theory of public reason, see supra notes 16-20 and accompanying text.
379. Larry Solum similarly limits the value of arguments in public debate to their capacity to resolve political questions. See Solum, supra note 19, at 742 (discussing limits on public debate under actual conditions of finite time and imperfect reason).
380. In particular, Solum posits that pub-lic political debate loses nothing by adopting norms that restrict the range of rhetoric permissible in public political arguments, so long as public political arguments may permissibly state novel conclusions. See Lawrence B. Solum, Novel Public Reasons, 29 LOY. LA. L. REV. 1459, 1478-81 (1996) (contesting Waldron's argument that Rawls's idea of public reason forecloses development of novel public reasons).
381. 341 U.S. 494 (1951).
382. See id. at 550-51 (Frankfurter, J., concurring).
383. See id.
384. See id. at 514-15 (plurality opinion).
385. See supra note 218 and accompanying text.
386. I do not mean here to endorse, and in fact I reject, the Supreme Court's present view that legal restraints on religious expression necessarily constitute viewpointbased discrimination under the Free Speech Clause.
387. See Rosenberger v. Rector of Univ. of Va., 515 U.S. 819, 831-32 (1995). The restrictive position on the normative question of religious argument, however, manifestly addresses religious viewpoints, as distinct from mere religious content.
388. See Miller v. California, 413 U.S. 15, 24 (1973) (permitting states to punish "patently offensive" speech that violates "contemporary community standards").
389. The Court has treated certain expression by minors differently. See Morse v. Frederick, 551 U.S. 393, 410 (2007) (holding that "[t]he First Amendment does not require the school to tolerate . . . student expression that contributes to [the] dangers" of illegal drug use by promoting such activity).
390. Cf. Texas v. Johnson, 491 U.S. 397,419-20 (1989) (describing normative benefits of extending First Amendment protection to flag burning).
391. On the importance of considering religious expression's instrumental value for democracy as a factor in analyzing legal constraints on religious speakers, see Magarian, Colliding Interests, supra note 12, at 262-63.
392. Rawls acknowledges in passing that the value of arguments offered in public political debate may transcend their ultimate persuasive force: "Citizens learn and profit from conflict and argument, and when their arguments follow public reason, they instruct and deepen society's public culture." RAWLS, supra note 9, at lvii. He does not explain, however, how or why only arguments framed in terms of public reason can bring the posited benefits. Elsewhere he suggests that participants in public debate may benefit from knowing about their political opponents' comprehensive commitments.
393. See Rawls, supra note 11, at 784-86. Again, however, he accounts for this benefit only within the confines of public reason.
394. See Auerbach, supra note 172, at 183-84 (describing Congressional findings that warned against the U.S. Communist Party's propaganda techniques of feigning loyalty to the U.S. Constitution and behaving like an ordinary political party).
395. See supra notes 26-32 and accompanying text (discussing the translation imperative).
396. See, e.g., Jeffrey Stout, Religious Reasons in Political Argument, in RELIGION IN THE LIBERAL POUTY 157,159 (Terence Cuneo ed., 2005) ("In a religiously plural society, it will often be rhetorically ineffective to argue from religious premises to political conclusions.").
397. See supra note 9 and accompanying text (discussing the restrictive position's limitation to normative rather than legal constraint).
398. See supra note 19 and accompanying text (discussing restrictive theorists' allowances for supplementary religious arguments).
399. See Walzer, supra note 71, at 624 ("[W] hen we require [religious] believers to adhere to the rules of the political arena, we are requiring them to speak and act in unfamiliar ways.");
400. Fish, supra note 76, at 21 ("If you persuade liberalism that its dismissive marginalizing of religious discourse is a violation of its own chief principle,... it will still be liberalism's table that you are sitting at. . . .").
401. "In reaction to the apparent failure of mankind to identify the one truly meaningful thing around which life might be organized, liberalism sets out to identify the set of truly nonmeaningful things-things that no one will want to die or kill for-around which life might be organized." Stanley Fish, Stanley Fish Replies to Richard John Neuhaus, FIRST THINGS, Feb. 1996, at 35-38.
402. Walzer, supra note 71, at 638.
403. See supra notes 41-48 and accompanying text.
404. See supra notes 88-89 and accompanying text.
405. See supra notes 65-68 and accompanying text.
406. See supra notes 49-64 and accompanying text.
407. See supra notes 118-26 and accompanying text.
408. See supra note 67 and accompanying text.
409. See supra notes 185-87 and accompanying text (discussing social safety valve arguments).
410. See supra notes 204-14 and accompanying text.
411. See supra note 243 and accompanying text.
412. See supra note 237 and accompanying text.
413. See supra notes 219-24 and accompanying text.
414. See supra notes 41-48 and accompanying text.
415. See supra notes 172-82 and accompanying text.
416. See supra notes 234-40 and accompanying text.
417. See Schwarzschild, supra note 53, at 913 n.18 (suggesting that '"[p]olitical correctness' in American academic circles" derives from the same tendency in liberalism that would exclude religious arguments from public political debate);
418. Walzer, supra note 71, at 628-29 (suggesting that the tendency to restrict religious political arguments represents "a kind of antiseptic liberalism" that fears both advocacy and criticism of religious positions).
419. See Rawls, supra note 11, at 782-83 (explaining the essential role of religious toleration in a "reasonable democratic society");
420. Sullivan, supra note 45, at 197 (positing a secular civic order as "the price of ending the war of all sects against all").
421. But see Stout, supra note 240, at 166 (advocating the normative propriety and practical workability in democratic political debate of "immanent criticism" of religious grounds for political argument).
422. Gedicks & Hendrix, supra note 51, at 1581.
423. Id. at 1581 n.13;
424. see also Frederick Mark Gedicks, Public Life and Hostility to Religion, 78 VA. L. REV. 671, 695 (1992) (positing a liberal "hostility to religion" that "entails epistemological and political preferences for secularism that have no ideologically neutral justification").
425. CARTER, supra note 49, at 187.
426. This diagnosis tracks Ed Baker's account of "elitist" democracy, which "accepts religious freedom but largely ignores the religious world view."
427. BAKER, supra note 196, at 137;
428. see also NEUHAUS, supra note 49, at 99 (bemoaning "the widespread exclusion of religiously grounded values and beliefs" from the mass media);
429. Fish, supra note 175, at 2269 ("There is a very fine line, and sometimes no line at all, between removing religion from the public battlefield and retiring it to the sidelines ....");
430. Gedicks & Hendrix, supra note 51, at 1580-81 (complaining that public education and popular culture largely ignore religion).
431. See Gedicks, supra note 91, at 369-71 (advocating removal from political debate of religious truth claims and criticisms of such claims).
432. See, e.g., Gedicks, supra note 264, at 674, 693-96 (arguing that "American public life is hostile to religion" and that the best defense of this hostility cannot succeed).
433. See Gedicks, supra note 91, at 360-70 (discussing the Romney campaign's attempts to allay conservative concerns about his LDS beliefs and the LDS Church's role in the Proposition 8 campaign).
434. Seegenerally supra note 3 and accompanying text (noting Governor Romney's religious controversy);
435. supra notes 91-95 and accompanying text (discussing the LDS Church and Proposition 8).
436. See Gedicks, supra note 91, at 360, 369.
437. See id. at 346-52 (describing elements of contemporary spirituality that resist religious truth claims).
438. See id. at 353 (arguing that reliance on religious truth claims in public political debate implies "discourtesy").
439. See id. at 354 ("Strong thought also enables violent action.").
440. See id. at 357-58 (contrasting Mormons' and Jews' approaches to the political vulnerability of religious minority status). Gedicks portrays religious truth claims as antithetical to a condition of religious pluralism, which he calls "[f]or religious minorities . . . the guarantee of space for religious liberty."
441. Id. at 370.
442. Kenneth Karst has expressed the same sort of concern. See Kenneth L. Karst, The First Amendment, the Politics of Religion and the Symbols of Government, 27 HARV. C.R.-C.L. L. REV. 503, 504 (1992) (maintaining that "religious minorities" bear disproportionate costs of "the stimulation of a politics focused on religion").
443. See Gedicks, supra note 91, at 358-60 (favorably assessing public reason limitations on public political debate);
444. see also id. at 355 (arguing that democracy requires of religious believers "a certain humility about enacting [religious belief] into law and forcibly imposing it on those who do not share it").
445. See Emp't Div. v. Smith, 494 U.S. 872, 890 (1990), superseded by statute,
446. Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488,
447. invalidated by City of Boerne v. Flores, 521 U.S. 507 (1997);
448. see also supra note 184 and accompanying text (noting the Smith Court's dismissive attitude toward minority religions).
449. See Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring),
450. overruled by Brandenberg v. Ohio, 395 U.S. 444 (1969).
451. 250 U.S. 616, 624-31 (1919) (Holmes, J., dissenting);
452. see supra notes 132-135 and accompanying text.
453. Abrams, 250 U.S. at 630 (Holmes, J., dissenting)
454. (quoted in Gedicks, supra note 91, at 354 & n.78).
455. See Marshall, supra note 41, at 862 n.94.
456. Abrams, 250 U.S. at 630 (Holmes, J., dissenting).
457. See Gedicks, supra note 91, at 369 ("[A]n important qualification to the conclusion that attacks on the truth-claims of candidate religions are out of place in contemporary politics .. . must be that such religions must not themselves be intervening in politics on the basis of their truth-claims.") .
458. See supra notes 238-40 and accompanying text.
459. See Brown v. Socialist Workers '74 Campaign Comm. (Ohio), 459 U.S. 87, 101-02 (1982).
460. See Am. Booksellers Ass'n v. Hudnut, 771 F.2d 323, 324-25 (7th Cir. 1985),
461. affd mem., 475 U.S. 1001 (1986) (striking down an antipornography ordinance that rested on pornography's denigration of women);
462. Collin v. Smith, 578 F.2d 1197, 1204 (7th Cir. 1978)
463. (suggesting the invalidity of the decision upholding a ban on group libel in Beauharnais v. Illinois, 343 U.S. 250 (1952)).