Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, December 9, 2009

Religiously grounded morality in our politics and law

In his most recent response to Chip Lupu, Robby George wrote:

"The final paragraph of Chip's most recent comment presents liberalism's "old time religion" on the role of religion and religiously informed moral judgment in public life and the formation of public policy.  It rehearses various implausible liberal dogmas, including the one that claims that deviations from liberal beliefs about sexual morality and marriage represent sectarian views that cannot be rationally defended apart from appeals to revelation and religious authority.  The truth is that there is a serious rational debate among intelligent and intellectually sophisticated people of goodwill about the morality of various forms of sexual conduct and the nature of marriage.  Religions have something to say on the subject; and religious people have every right to enter the public square and make their arguments in the languages of their traditions--just as they have done on everything from gladiatorial contests, to feuding, to slavery and civil rights.  Not just conservatives, but also liberals who recognize the flaws of their tradition's "old time religion"--I have in mind scholars such as Michael Sandel and Bill Galston--recognize that liberal views about sex and marriage have no right to prevail in the domain of policy or anywhere else by the dubious expedient of ruling competing views out of bounds.  Liberals, no less than conservatives, have an obligation to make their arguments about sex and marriage and answer the counterarguments advanced against them."

There are several issues that need disaggregating:

 1.  What is the distinction between a religiously grounded moral argument and one that is not religiously grounded?  What is the distinction, that is, in the relevant context, namely, the context  of disputes about the implications of our constitutional commitments to the right to freedom of religious practice (in the U.S., a.k.a the right to “free exercise” of religion) and to the nonestablishment of religion?

 In that context, a moral argument is not religiously grounded if the argument neither asserts not presupposes either an affirmative or a negative position on these questions (or on variations of these questions):  Does God exist?  Assuming that God exists, what is the nature of God?  the will of God?  the activity of God?

 2.   Does the best understanding of our constitutional commitment to the nonestablishment of religion rule out coercive and/or discriminatory laws and policies that are based on a religiously grounded moral argument?  By a law (or policy) “based on” an argument, I mean a law that would not have been enacted (or that would not be maintained on the books) but for the lawmakers’ acceptance of the argument.

3.  Does the best understanding of our constitutional commitment to the right to religious freedom rule out coercive and/or discriminatory laws and policies that are based on a religiously grounded moral argument?  The right to religious freedom subsumes not just the right to practice one’s own religion, but also the right not to be coerced into practicing, and not to be penalized for not practicing, someone else’s religion.

4.  Are laws banning abortion typically based on a religiously grounded moral argument?  They are not, in my judgment:  There is a plausible secular moral argument fully adequate to support such laws—that is, a plausible secular argument that we can realistically imagine the lawmakers accepting in enacting laws banning abortion.

5.  Is government’s refusal to extend the benefit of law to same-sex unions based on a religiously grounded moral argument?  In the United States, many who oppose extending the benefit of law to same-sex unions undeniably invoke religiously grounded—indeed, biblically grounded—moral arguments.  Still, the question remains:  Is government’s refusal to extend the benefit of law to same-sex unions based on a religiously grounded moral argument?  In order to answer that question, we need to answer this question:  Is there a plausible secular argument for not extending the benefit of law to same-sex unions—that is, a plausible secular argument that we can realistically imagine the lawmakers accepting in opposing efforts to extend the benefit of law to same-sex unions?  The magisterial argument about the immorality of “inherently nonprocreative” sexual conduct (intentional, deliberate conduct) is a secular moral argument.  Let’s assume for the sake of discussion what some would deny:  that it is also a plausible secular argument.  But is it a plausible secular argument that we can realistically imagine the lawmakers accepting in opposing efforts to extend the benefit of law to same-sex unions?  Certainly not in my home state of Georgia, where most citizens do not entertain any doubts about the morality, say, of using condoms, etc., as a contraceptive.  In my home state of Georgia, and in many other places I assume, the determinative argument for refusing to extend the benefit of law to same-sex unions is religiously—in Georgia, biblically—grounded.

These are contested questions—questions that cannot be done justice in a brisk blog post.  I discuss them at length in my new book, The Political Morality of Liberal Democracy (Cambridge University Press, 2010).  Alas, the book is too expensive ($80.00), but MOJ readers who are interested can see the table of contents and the introduction to the book (and a few other things) here.

A final comment.  In his post Robby mentioned the names and invoked the positions of Michael Sandel and William Galston.  So it bears mention that both Sandel and Galston were criticizing, in the passages I suspect Robby had in mind, mainly the misguided conception of “liberalism-as-neutrality” (moral neutrality), a conception defended over the years by Ronald Dworkin, Bruce Ackerman, and others—a conception attacked by me in the 1980s, in my book, Morality, Politics, and Law (Oxford University Press, 1988).  In a blurb he kindly wrote for that book, John Noonan said that my critique of (what I then called) “the liberal political-philosophical project” was compelling.

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