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.