The Yale Political Union invited me and the Christian writer/scholar Elizabeth Stoker Bruenig to debate this topic: Resolved: Religion Should Have No Place in Government.
In addressing this topic, we were also invited to discuss the meaning of religious liberty and to address controversies such as the disputes over the Pledge of Allegiance. Below is the text of my talk more or less as delivered on Tuesday evening, November 15 (I did some ad-libbing).
Religion has no place in government. There are a few different implications of that statement. Let me start off by focusing on the two that may be the most important.
Our laws and regulations, our public policy, should not be based on religion or attempt to promote religion. This prohibition is set forth in the First Amendment to our Constitution. As the Supreme Court has ruled, laws and regulations must have a secular purpose. There are good reasons for this limitation. First, painful historical experience has proven that this limitation is necessary to preserve the peace. We want to avoid the sanguinary conflicts that have too often accompanied religious disputes. Second—and this is connected to the reason why religious disputes have so often ended in violence—there is no way to resolve religious disputes by appeals to generally accessible evidence. Ultimately, religious beliefs are based on faith. In other words, they are insulated from ordinary standards of evidence and rational justification.
So we have the constitutional restriction on the role religion can play in government, but there is another limitation that, strictly speaking, isn’t found in the letter of the Constitution although it is certainly consistent with the spirit of the Constitution. This limitation derives from the obligations of being a citizen in a democracy, which includes respect for one’s fellow citizens. And that limitation on religion is this: Discourse about public policy should be framed entirely in secular terms, and decisions about public policy should be based entirely on secular considerations. Put another way: religious doctrine should never be offered as a justification for a public policy position.
Why is that? In a democracy, citizens are encouraged to discuss and debate public policy and the government is expected to justify its public policy to its citizens. Legitimacy of government policy depends on public justification. There is one clear prerequisite for this democratic discourse to be successful: the participants in that discussion must be able to understand, evaluate, and debate the reasons that others offer for their views. That is not possible if religious doctrine is offered as a justification for public policy positions.
Put another way, you can’t have citizens discussing public policy unless they are using a common language. Use of a private language is not compatible with meaningful discourse about public policy. If, for example, some of our citizens insisted on using mathematical equations or Basque to express their public policy views, it’s safe to say many of us would feel shut out of the discussion. Use of religious precepts as a means of justifying public policy is even worse because at least with math or Basque all of us in principle could learn those languages, but religious discourse is, and will remain, meaningful only to the members of a particular religion, and a public policy position based on religious precepts cannot be justified – to use that term loosely – except by reference to the teachings and scripture of a particular religion.
This is what makes discussing policy with those who are committed to having religious principles guide our public policy so frustrating. There can be no meaningful discussion with such persons. If some people claim that you must oppose same-sex marriage because there are verses in the Tanakh or Old Testament which state that homosexual conduct is an abomination, that’s the end of the discussion isn’t it? There’s really nothing more to say. What can you say? These persons have indicated they are not willing to consider relevant empirical evidence, for example, evidence regarding the stability of gay relationships or the fitness of gay parents. That would be evidence that’s accessible to everyone and could be the basis of a meaningful discussion about the wisdom of legalizing same-sex marriage. No, instead these persons are relying on some sacred text that’s meaningful only to those who share their religious commitments.
That example, of course, is based on an argument from the Religious Right. They certainly constitute an important part of the religious constituency in this country. Indeed, they had a significant influence on the results of the last election—81% of white evangelical Christians voted for Trump (apparently because the President-Elect is a considered a fine example of a Christian statesman.) But there are left-wing Christians as well. My learned opponent this evening identifies as a member of the Christian Left. However, the same problem of short-circuiting democratic discourse occurs whether the arguments come from the Right or the Left. Some of us may find the liberal policy positions more congenial to our own views, but how those conclusions are reached matters. Method matters.
To take a couple of examples, some liberal Christians, as well as the Catholic Church, are opposed to death penalty. Now there may be sound secular reasons for opposing the death penalty, but if you’re adamantly opposed to the death penalty because all human life is a gift from God and, therefore, the state has no right to carry out executions because it violates God’s commandment not to kill, that also puts a stop to any discussion. At this stage, there’s effectively no way for someone who differs from you to persuade you otherwise.
Another example: you may have heard about the nuns on the bus. This is a group of Catholic nuns who tour the country to advocate for their interpretation of Christian doctrine on social justice issues. Generally, they are in favor of expanded assistance and social services for the poor. They took to the bus for the first time in 2012 in reaction to Paul Ryan’s proposed budget that would have cut funding for various programs, including food stamps. Interestingly, Ryan justified his proposed cuts by appeal to his interpretation of Catholic teaching. But whatever the ultimate merits of either the nuns’ position or Ryan’s position, appealing to Catholic Christian doctrine isn’t going to advance the discussion. Effectively, it ends the discussion. As others have observed, in the forum of public policy, appeals to religion are a conversation stopper.
(The contradictory positions of the nuns and Ryan underscore another problem of relying on religion to inform public policy – religious texts can be, and have been, interpreted to justify contradictory positions. Scriptures are infinitely malleable; one can always read into them what one wants. A prime example of this problem are the debates about slavery that took place before the Civil War. Yes, some abolitionists relied on the Bible to argue that slavery was unjustified, but the pro-slavery forces relied on the same Bible to argue in favor of slavery.)
In a democracy, we need to reason together. We’re not going to be able to do that unless we use language and reasoning that’s accessible to all, which is the language of this-worldly facts, not other-worldly revelations.
The position I’m advocating here is not novel, and beca
use it’s not novel, it has been challenged. Perhaps the most forceful challenge came from here in New Haven. Stephen Carter, a professor at Yale Law School, wrote a book in the 1990s called The Culture of Disbelief. Carter maintained that a practice of keeping religious doctrines out of policy discussion would work a hardship on believers. Such a practice would marginalize the religious. We would be forcing them to be silent, or, at the very least, we would be requiring them to restructure and rephrase their views in nonreligious terms before they participate in democratic discourse.
As to the first charge, that’s just nonsense. Democratic discourse should be as inclusive as possible. Of course, religious people should be involved in policy discussions. As to the second charge, namely that my understanding of democratic discourse requires the religious to express their views in nonreligious terms – I say, yes … and? What is wrong with that? If a person truly wants to engage her fellow citizens in a discussion about the correct course of action to take, she should restructure her arguments in secular terms. There is nothing onerous about that requirement. In fact, it operates as a much-needed check on the soundness of one’s reasoning. If one cannot reformulate a religiously based moral belief in terms that a nonbeliever might find persuasive, one should pause to consider whether one’s views are correct. Perhaps you have misinterpreted God’s commandments. After all, why would God ask you to follow a rule that does not make any sense when you try to explain it to someone else?
Moreover, formulating one’s argument in secular terms is necessary to show respect for one’s fellow citizens who may not share your religious beliefs. If all you’re doing in a discussion on public policy is preaching your own religious doctrines, you might as well shut up and just use your Bible, Qur’an, or Book of Mormon as a weapon to beat people over the head with. Your message is: accept my religious doctrines; accept my religious doctrine; accept my religious doctrine. And that, of course, gets us nowhere because either your God isn’t speaking to us or he’s telling us something different.
Another challenge to the view I have advocated here is that some public policies have moral dimensions and because, in the eyes of some, religion is indispensable for reasoning about moral issues we cannot shut out religion from all public policy discussions. The short and correct answer to that objection is that morality is not and cannot be based on religion, in the sense of being dependent on revelations from some deities. For the sake of time, I refer you to Plato’s dialogue Euthyphro. The gist of the argument in that dialogue is that we cannot tell what is a true revelation from the gods unless we have our own sense of right and wrong—and, if we have our own sense of right and wrong, then there is no need to rely on commands from the gods. Historically, religion has played a role in inculcating moral beliefs and attitudes, but that’s different from saying that morality is logically based on religion.
I’ve talked so far about keeping religion out of government but I want to talk for a moment about keeping government out of religion. This is another important part of the framework for constitutional democracy. The Framers set up a secular state, a state that recognizes the importance and right of each individual to come to their own conclusions about religious matters without compulsion, oversight, or prodding by the state. People can believe what they want; say what they want about their beliefs; and express their beliefs through prayer or worship, or by declining to pray or worship, with the only limitation on the exercise of religion being that the exercise can’t burden or harm others.
Some scholars and jurists maintain there’s a fundamental tension between the (no) establishment clause of the First Amendment and the free exercise clause. No, there is not. There are close cases, of course, where the respective rights guaranteed by these clauses are not crystal clear, but in reality these clauses are two sides of the same coin. Religion stays out of government; government doesn’t interfere with religion.
There’s been a fair amount of discussion over the last few years about supposed threats to religious liberty. In fact, this was a rallying cry for some of the evangelicals in the last election. They claimed we needed to elect Trump to protect religious liberty. (A survey has shown that 60% of Trump voters were motivated to vote for him because of their opposition to abortion and concerns about religious liberty.) I maintain that for the most part this supposed threat is more shadow than substance. Most of the complaints about infringements of religious liberty arise out of arguments that individuals should be accommodated in certain ways, including being exempt from certain government obligations because of their religious beliefs. These arguments are based not just on the free exercise clause of the First Amendment but also on the federal Religious Freedom Restoration Act (RFRA) and state versions of that statute. Without going into a lot of details, both the federal and the state RFRA provide, in my view, more than generous protection for religious beliefs and practices. But these statutes, as well as the free exercise clause, need to be interpreted sensibly, so as not to impose burdens on third-parties. To comment on one notorious example, respect for religious beliefs means the government cannot force you into a same-sex marriage, nor can the government force you to endorse same-sex marriage, nor can the government require you to become a county clerk. However, if you choose to become a county clerk, you do not have the right to decide which marriage licenses you issue based on your religious beliefs. That’s not an exercise of freedom of conscience. That’s imposing your beliefs on others.
It’s ironic that religious right squeals so shrilly about threats to religious liberty and freedom of conscience when many of them embrace wholeheartedly a gross violation of the freedom of conscience of nontheists – one that occurs on a daily basis in many parts of the country. As I’ve indicated, the core of the protections provided by the First Amendment is that the government cannot compel belief or compel expression of belief. The government cannot force you to say you believe in Jesus or that you accept Mohammed as the prophet of God.
Or can they? Because the peculiar and repugnant thing is that every day in school rooms across this country children are required to make a solemn affirmation of belief in God, through the Pledge of Allegiance. Oh, I know, children can ask be excused from saying the Pledge—they can be excused so they can enjoy the privilege of being subjected to the taunts and harassment of their peers and their teachers. If one reads the legislative history of the 1954 bill that amended the Pledge to add the affirmation “one nation under God” there is absolutely no doubt that the Pledge was amended for a religious purpose, that is to promote belief in God—in part to distinguish the United States from its godless enemy, the Soviet Union.
But not only is the Pledge indefensible insofar as it works to compel expressions of belief in God, but it also has the pernicious effect of reinforcing the prejudice that all too many people still have that morality is based on belief in God and therefore atheists are immoral or untrustworthy. Surveys confirm that over 40% of the US population would not vote for an otherwise qua
lified person for president if that person were an atheist. The only other group that ranks near to that figure are Muslims. The Pledge should be restored to its original wording.
To sum up, what I have argued for this evening is a robust secularism. I recognize for some “secularism” is a scare word. For some people, secularism is menacing: if secularism triumphs, prayer will be made illegal, religious people will be herded into camps, and white bread will be outlawed. The reality, of course, is quite different. Secularism is the best guarantee we have of true religious liberty. Secularism respects each person’s right to come to their own conclusions about religious matters without any interference from the government and to express those beliefs peacefully. Furthermore, secularism encourages us to work together, to reason with each other. If we are to live together in peace, we need to talk to each other. And if we are to talk to each other, we need to understand each other. To understand each other, to engage each other, we need to use a common language, and that is the language of secularism. Secularism is not only a good thing; it’s a necessary thing.
The vote on the resolution was 26-26-5 (that is 5 abstentions). Because I had the burden of establishing the affirmative, and the resolution did not carry, technically I lost (sorry).
After Ms. Bruenig and I spoke, the debate was carried on by the students, and their debate was illuminating, vigorous, and insightful. The discussion was an intellectual feast. I had a thoroughly enjoyable evening and I thank the YPU for inviting me.