Religious Conviction in Liberal Politics (part 6): Restraint and Religious Liberty

Up to this point in this series I have done my best to represent Eberle's perspective on the role of religious conviction in liberal politics. I am now at the point when I begin to lay out my own take on Eberle's argument. These posts have been lengthy, so I'll reiterate Eberle's argument in brief. Eberle affirms:

[A] citizen has an obligation sincerely and conscientiously to pursue a widely convincing secular rationale for her favored coercive laws, but she doesn't have an obligation to withhold support from a coercive law for which she lacks a widely convincing secular rationale. (10)

In relating his thesis to the claims of justificatory liberalism, Eberle wants to affirm the ideal of conscientious engagement-- all citizens have a moral duty to pursue reasons behind these policies that they can reasonably expect other citizens to accept--while denying the doctrine of restraint--citizens should restrain themselves from supporting coercive laws for which secular (or, in some accounts, public) reasons are unavailable.

Eberle's book is characterized by a remarkable depth of insight and organization. Especially important is his discussion of differing accounts of public reason, a topic that deserves more attention than I can give it here. There is a lot that one can commend in his book, but his conclusion still strikes me as flawed. To pinpoint my main concern, it will help to clarify a two more basic questions that informs the distinction Eberle rightly draws between conscientious engagement and restraint. The ideal of conscientious engagement bears upon the question of how we should engage other citizens when discussing public policy. Does respect entail anything as to how we engage other citizens? Eberle says yes; we should do so with openness and generosity. We should be honest about the principle reasons for our support of a policy. We should pursue reasons that other citizens, especially those with whom we disagree about matters like religion, can accept. We should listen to the counterclaims of our compatriots. Eberle's account of conscientious engagement is commendable; there is little to disagree with here.

The doctrine of restraint, however, bears upon a very different question, a question that Eberle doesn't directly address in his book: Does respect entail anything about the kinds of policies that citizens support? Are there some policies that are by their very nature disrespectful toward those who are unwillingly coerced? Advocates of restraint believe that liberal democratic respect places limits on the range of policies that citizens can justifiably support (i.e. any policy that lacks public justification falls outside the limits of what citizens ought to support). Eberle, however, places no limit on the range of policies that citizens may support--i.e. what citizens actually support is inconsequential to the question of respect--as long as how citizens support these policies lives up to the ideal of conscientious engagement. Respect, in short, only pertains to the manner by which we engage citizens, not the content of the policies that we advocate.

I may well be overstating Eberle's position here. A plausible alternative might be to say that respect does entail limits on policies that can be supported in a liberal democracy but that public justification is irrelevant to these limits. Eberle seems to move in this direction early in his book when he says,

"I believe and will assume throughout this book, that a responsible citizen in a liberal democracy adhere to characteristic liberal institutions and practices. Of particular importance, I believe, and will assume throughout this book, that a responsible citizen will affirm the right to religious freedom. But from the fact that a responsible citizen will adhere to liberal commitments, nothing at all follows about his reasons for those commitments and, in particular, whether he has, or needs a public justification for those commitments" (59).

Eberle's comment delimits the range of policies that reasonable (and, one might add, respectful) citizens may advocate. Policies that are inherently discriminatory, that reject characteristic liberal institutions and practices, or that deny religious freedom, are out of bounds. What is not out of bounds, however, are policies that simply lack public justification.

But here is where I see the principle problem that Eberle's argument faces. On the one hand he wants to affirm that all reasonable citizens will affirm distinctively liberal commitments such as the right to religious freedom. At the same time he also wants to affirm that reasonable citizens may advocate policies premised solely on distinctive religious beliefs not shared by other citizens. But it seems to me quite possible to frame the doctrine of restraint as a natural outgrowth of a liberal conception of religious freedom. My argument proceeds as follows:

(Premise 1) Respect entails that responsible citizens affirm the right to religious freedom;
(Premise 2) Policies premised solely on the religious convictions of some citizens--that is, policies for which there is no compelling secular or public justification--infringe on the right to religious freedom of dissenting citizens.
(Conclusion) Therefore respect requires that responsible citizens not support policies premised solely on the religious convictions of some citizens.

The word solely is important in (2) and (3), above. My point here is not that respect requires that religious citizens bracket religious convictions. I believe that religious citizens, like their nonreligious compatriots, should be free to bring any reasons that inform their support for a coercive public policy. My concern is to rule out support for policies that are lacking any sort of public/secular justification (note: I am aware that I keep blurring the important distinction between "secular" and "public," which I hope to come back to in a future post). Along with other public reason liberals, I believe religious citizens are free to support public policies on the basis of their deeply held religious beliefs. Like other public reason liberals, however, I believe that religious citizens ought not to support coercive policies on the basis of religious beliefs alone. My argument, in short, is that policies premised solely on religious beliefs infringe on the religious liberty of those dissenting from these beliefs.

So what might Eberle say in reply to my defense of restraint as an outgrowth of the liberal commitment to religious liberty? It is clear to me that Eberle affirms premise (1), above, so the real point of difference resides in premise (2). While I believe that any policy premised solely on religious conviction infringes on the religious liberty of those who do not share this conviction Eberle simple denies this claim. Having affirmed the presumptive value of religious liberty, Eberle touches only briefly on the meaning of religious liberty, and his discussion is confined to an endnote (#28, pg. 353):

"I take no stand on the understanding of religious freedom a citizen ought to adopt: I take there to be reasonable differences of opinion among good liberal citizens both on what constitutes religious freedom and about the implications of that right for specific issues. Of course, I am committed to the claim that a citizen who supports his favored coercive laws solely on the basis of his religious commitments doesn't violate his compatriots' right to religious freedom--he isn't imposing his religious commitments on them in a way that violates their religious freedom. And I take it to be clear that he doesn't: that a citizen (or a majority of citizens) supports, say, a flat tax solely on religious grounds does not transmute the flat tax into a religious imposition. Given that, on any reasonable understanding of the matter, the state appropriately taxes its citizens--given that taxation falls under the legitimate jurisdiction of the state--support for a flat tax solely on religious grounds doesn't count as a violation of religious freedom."

From my perspective the flat tax example falls flat, but I'm almost out of time today, so rather than continuing down this path I'll pick up with my argument in my next post. Currently I've got my graduate assistant helping me pull together resources that discuss philosophical, historical, and theological conceptions of religious liberty, which will hopefully inform my own argument in which the concept figures heavily.

Religious Conviction in Liberal Politics (part 5): Why Restraint?

It's been a few weeks since I've written anything, in large part because teaching and grading have consumed a lot of my work time. In my last post I described some plausible reasons to reject the doctrine of restraint (see my earlier posts for a description of the doctrine). In this post I intend to lay out two arguments for the doctrine of restraint. While justificatory liberals share a common commitment to public justification and the doctrine of restraint, there is no consensus about what these commitments entail. Some arguments for restraint are more plausible than others, or so I would argue--admittedly, Eberle finds all arguments for restraint unconvincing. The two I present today, while not exhaustive, illustrate the reasons why liberal scholars intuit restraint as an outgrowth of the commitment to public justification as well as Eberle's response.

Let's start with Lawrence Solum's argument, from his 1990 article in the Depaul Law Review entitled "Faith and Justice." Eberle presents the logic of Solum's argument as follows:

Premise 1: "Society should respect the freedom and equality of citizens."
Premise 2: "Respecting the freedom and equality of citizens requires the giving of reasons that allow one's fellows to accept the government action as reasonable."
Conclusion: "Each citizen ought to articulate publicly accessible reasons in support of her favored coercive laws."

The implication of premise 2 is that when a citizen fails to offer public reasons (i.e. reasons that other citizens actually accept as reasonable) to her compatriots she demonstrates disrespect. Respect entails that we actually give reasons that other citizens can accept. Thus, if we cannot offer reasons that other citizens find reasonable we should restrain ourselves for supporting a coercive policy.

Is Solum's argument convincing? Eberle points to a basic flaw in the argument. The implication of the argument seems to be that if a religious citizen pursues public justification but fails to find adequate reasons that other citizens actually accept then he should restrain himself. This is surely inadequate. There are circumstances where even public reasons won't convince other citizens of the rightness of a public policy. Eberle agrees with Solum that religious citizens should pursue public justification, but pursuit doesn't entail that I will be successful in convincing other citizens. There is a difference between a vision of respect that requires citizens to pursue public justification and one that requires us to be successful in publicly justifying a policy. The later vision seems too strong; sometimes even public reasons don't offer a basis for consensus.

More plausible in my view is Robert Audi's defense of restraint. Audi argues for the principle of secular rationale: a citizen "has a prima facie obligation not to advocate or support any law or public policy that restricts human conduct, unless [she] has, and is willing to offer, adequate secular reason for this advocacy or support (say for [her] vote)" (quote in Eberle, 134). Audi uses a role-reversal argument to defend his version of restraint. For us to treat other citizens as equally valuable we should be willing to reverse roles with them. We should be willing to subject ourselves to the same constraints to which we would subject other citizens. The role-reversal argument applies directly to the idea of restraint: "If the only reasons that move me are religious, and if I would not want to be coerced on the basis of religious reasons playing a like role in someone with a conflicting religious perspective, I would want to abstain from coercion" (Eberle, 135). Eberle presents as an example this hypothetical case to religiously-minded citizens who wish to impose coercive public policies solely on the basis of their religious beliefs:

"[O]ne might ask the religious voters in question whether they would accept comparable restrictions of their conduct . . . on the basis of coercive legislation protecting the dandelion as a sacred species or prohibiting miniskirts and brief bathing suits as irreverent" (Eberle, 136).

If we can imagine for a moment a religious group pressing for a public policy prohibiting the mowing of lawns when dandelions are in bloom, Audi's point should be clear. Citizens who do not believe dandelions to be sacred would feel justifiably upset at the imposition of a law premised solely on this religious belief. Role reversal thus entails that we not impose coercive policies premised solely on our own religious beliefs not shared by other citizens.

I find Audi's argument more plausible than Solum's. In reply, Eberle agrees that as a citizen he would be unhappy about a coercive law that prohibited him from mowing his lawn. He argues that some of his resentment would stem from the lack of rationale justification for the belief in the sacredness of dandelions, but setting aside the question about the rationality of such a belief, Eberle rejects the idea that his resentment of the law has anything to do with the religious foundations used to justify it, and he denies that Audi offers a convincing case for the doctrine of restraint:

"The fact that I'm forcibly inhibited from achieving my aims is a natural source of frustration, anger, and perhaps even resentment. . . . Does this provide the advocate of restraint with the opening necessary to drive home the essential point? I don't believe it does. The frustration, anger, and resentment I'd feel if subject to a law that forbids me to kill dandelions seems to me a consequence not of the fact that my compatriots support that law on the basis of their religious convictions alone, but of the content of that law (as well as of the coercion employed to secure my obedience to that law). It's the coercive law itself that frustrates and infuriates me, not my compatriots' reasons for supporting that law. The imposition of that law inhibits me from attaining ends I very much want to pursue; as a consequence, it's entirely natural and appropriate for me to feel frustration and anger at being so constrained. But I don't see that my reaction has anything in particular to do with my compatriots' willingness to support that law on religious grounds" (138-139).

This post is already getting long, so let me leave readers with a question: is Eberle right that the resentment that we experience when subject to a law with which we disagree is no different when based on exclusively religious grounds? My sense is that there is some difference between a law with which I disagree that can be justified publicly (e.g. a law establishing a flat consumption tax) and one with which I disagree for which public grounds are unavailable (e.g. a law that hinders me on the basis of religious premises that I do not share). While I may object to both laws, my objections are not synonymous. I would object to the flat consumption tax on the basis of other public reasons that I find more convincing. It's difficult to see how one could even begin arguing against a public policy premised solely on religious grounds that I do not share, especially when those grounds are the sole evidentiary basis for the policy. My resentment is heightened by the lack of recourse.

In my next post I intend to lay out in brief my own contribution to this debate, an alternative argument for the doctrine of restraint that draws from the ideal of religious liberty.