Which is why I've always based my opinion that homosexual sex should be criminalized (and I will note Scalia's dissent in Lawrence v. Texas) on secular grounds.
 

This suggests that the norm of politeness needs to be revisited. As soon as A invokes religious reasons for his political position, then it has to be OK for B to challenge those reasons. It may be acrimonious, but at least we’ll be talking about what really divides us (and we’ll avoid the strange theoretical pathologies that have plagued modern liberal theory, though that seems to be a disease mainly confined to the academy). It’s more respectful to just tell each other what we think and talk about it.

There are two related problems with this, one conceptual and one historical.

The conceptual problem is simple: religious doctrinal disputes cannot be resolved. There simply is no common religious ground, for example, between someone who believes that Jesus died for humanity's sins and someone who does NOT believe that. Even when people nominally share some beliefs (e.g., the resurrection), they might differ fundamentally on others (e.g., the priesthood of all believers). Because the fundamental assumptions cannot be resolved, disputes which derive from those assumptions cannot be resolved either. That, at bottom, is what it means to accept propositions as a matter of faith.

The historical consequence of this is well-known. People may begin by talking to each other, but they end with violence. Consider the doctrinal issues which have resulted in persecution or death among people who share the name of Christians: whether Jesus was homoousion or homoiousion (look 'em up!); whether the laity should take communion in one kind or both; what qualify as sacraments; etc.

We adopted secular discourse in order to avoid these consequences. Nor is this an entirely modern phenomenon. It's visible even in the 18th C; most of the more prominent Founders were deists and they carefully phrased their arguments in secular terms. Hume is the one who really originated this practice and made the argument I summarized above.
 

These comments are all responsive, but they leave me puzzled. Consider the following two claims:

1. Homosexual sex should be criminalized because it is an abomination before God.

2. Homosexual sex should be criminalized because if it is not, the family will collapse as an institution, leading to enormous misery for children.

Both of these arguments have the same basic problem: there is no good reason to believe either one of them. In this respect (1) is no worse than (2). The trouble with (1) is not well captured by noting that it's religious. That puts it on the same footing as the speeches of Martin Luther King, who constantly invoked religious reasons for his views. King's claim that "If we are wrong, Jesus of Nazareth was merely a utopian dreamer that never came down to Earth" seems to me entirely appropriate, in context. "Religion" is just not a useful category here. "Childish absurdities," mentioned by Garth above, is much better. It's not hard to think of childish absurdities that are entirely secular. I think that (2) is an example. But that's another conversation.
 

One might add that the reason the left found itself doing the rhetorical dance of non-offensiveness in the first place was the PC-speech movement . . . I think your argument to move away from the niceties and into the substance has much to commend it.
 

Professor Koppelman:

As soon as you start a thread about the substance of why homosexual sex should be criminalized, I'll be happy to post about all the secular rationale, short of enormous misery for every child.
 

Professor Koppelman: As soon as A invokes religious reasons for his political position, then it has to be OK for B to challenge those reasons...It’s more respectful to just tell each other what we think and talk about it.

Amen!

But bear in mind, akin to your closing point, that not all players seek to show respect. Look at the enormous sums "earned" by the likes of Coulter and O'Reilly and Limbaugh for fomenting disrespect and demonization.

For instance, on the issue of gay rights, which I know something about, the public statements of the religious right don’t generally invoke religious authority...the source of the pressure...is something far more mundane: the imperatives of persuasion in a pluralistic society.

To which a double "Amen!"

Note that the twists you refer to come from both sides. For instance, we see "Christians" arguing "life begins at conception, Science says so!" as if that were some kind of trump.

As far as I can tell that kind of twisting from the right is little more than disingenuous or unenlightened (take your pick) opportunism. In the post-Industrial era scientism is the prevailing religion (with the Rational Actor maximizing the blessings of shareholder return it's one true profit.) So we see the absurd claims of religiously based beliefs as being "scientific", much in the way Mary Baker Eddy or Ernest Holmes tried to ride the "scientism" wave with their respective flavors of Christianity.

In the end folks who rely on the teachings of one sect simply cannot afford to dialog on such open grounds...for there is not a sect known to man which does not simply take on faith vast numbers of truly arguable positions. (Except maybe the Taoists, who freely admit that if you can put It in words you've missed some part of It.)

Thank muchly for this post, Prof. Peace.
 

One of these days, a Republican politician will start advocating the position that both:

1. Homosexuality is a very serious sin; and

2. Nevertheless, it is still a private matter.

That way, everyone is happy.

There are lots of sins that we don't criminalize. Maybe sodomy (if it's a sin) should be one of them.
 

As an atheist who has never seen why there should be such differences in treatment between religious belief and nonreligious philosophy, I agree. I do, however, quibble with the claim that the proposed norm of public reason was "grounded in universal respect." It purported to be grounded in universal respect, but, as you admit, was really targeted at a particular group of people/political movement. It is hardly surprisingly that they relacted negatively to a call for unilateral disarmament on their part, especially one that adopted a self-righteous veneer of pretended neutrality.

I also disagree with those posters who say you can't argue about religion: you can always, at least, argue that someone's views are inconsistent, or that they commit them to moral views they are not willing to accept. You're not likely to convince anyone, but you're not likely to argue someone out of a deeply held nonreligious conviction either.
 

Consider the following two claims:

1. Homosexual sex should be criminalized because it is an abomination before God.

2. Homosexual sex should be criminalized because if it is not, the family will collapse as an institution, leading to enormous misery for children.

Both of these arguments have the same basic problem: there is no good reason to believe either one of them. In this respect (1) is no worse than (2). The trouble with (1) is not well captured by noting that it's religious. ... "Religion" is just not a useful category here. "Childish absurdities," mentioned by Garth above, is much better. It's not hard to think of childish absurdities that are entirely secular. I think that (2) is an example. But that's another conversation.

I guess I don't see how responding to the claim that homosexuality is an abomination before God by saying "that's a childish absurdity" advances any dialogue. Nor is it "respectful". Demanding a secular rationale at least has the merit of exposing the factual or logical absurdities of the "dreadfully unconvincing arguments".
 

Mark Field: look 'em up!

Yikes. Guess I've got my word for the day.

Here's a thought: There's only one difference of belief that really matters, to wit, does one or does one not believe they are entitled to force their will on others? Where the answer is "one does" then there are endless opportunities to kill and be killed for niggling details such as those represented by the presence or absence of a second "i" in homoousion. Where the answer is "one does not" we can indeed all agree to disagree in peace, and even to mutual benefit. This one meta-belief, about the humanity of those who differ, is the difference that makes the difference, no?
 

Both of these arguments have the same basic problem: there is no good reason to believe either one of them.

If you hope to live peacefully in a community of people who strongly believe in either of those propositions, you'd do well to either believe in them or do a fine job of giving those ideas lip service.

Whether that kind of self-interest satisfies your definition of "reason" is another matter.

An underlying problem here of course is the inherent universal morality being espoused. To take another childish absurdity, let's say there are two beliefs:

1. Necrophilia should be criminalized because it is an abomination against God.

2. Necrophilia should be criminalized because is an insult to the families of the deceased, and does injury to the memory of the deceased.

I don't see how these propositions are any less silly than the ones you propose for homosexual sex, except that, in our culture overall, homosexual sex is more acceptable than necrophilia. The first belief is impossible to contradict within its own terms, as you suggest--why should we allow someone else's religion to determine the propriety of our actions (writ large, why should a specific sect's objections form the basis for society's laws?) The logic of the second belief is not a given either; perhaps if the act took place during the funeral with the family assembled it would be, but one could make the same point about husbands having homosexual sex on their anniversary or in a schoolroom or some other nonsense.

However, there aren't many necrophiliac associations doing fundraising down at the local car wash, are there?

The situation with homosexuality is different, as it is a practice that is transitioning to wide acceptance in America, but is still fought tooth and nail in some communities.

As you suggest, the "twist" in versions 2 of your hypothetical beliefs provides the cover for moving from specific sectarian or religious views to an appeal to common decency relevant in all social sectors. Everyone has a family, everyone either has a child or has been one, so they can all relate with the structure, accept that threat to that structure is bad, and potentially accept the position as truth.

You say that the pressure to engage in this kind of discourse is derived from the "imperative of persuasion in a pluralistic society," rather than a moral norm of public reason.

But you seem to overlook the very real power of cultural mores and norms when gauging the validity of the statements. You may be able to see that the stated position (whether it's #1 or the "politically correct" #2) is logically nonsensical or absurd, but if the end result (criminalization) is consistent with your subculture's mores, the particular logic of how you arrive there is less important.

So, while I agree with your conclusion that the "twist" is a calculated attempt to appeal to the common morality of a social whole to accomplish goals consistent with the morality of a subculture within that society, I have to take exception with the idea that "there is no good reason" to believe them. Promotion and reproduction of the social group is decent enough reason, even if it means accepting logical absurdity.
 

Professor Koppelman, a quick question:

Does this post about the importance of arguing with certain people about their religious prohibitions against homosexuality (and the rights, acts, practices, and lifeways of homosexual people) mean that you are retreating from (or improving on) your carefully argued thesis in your paper called You Can’t Hurry Love: Why Antidiscrimination Protections for Gay People Should Have Religious Exemptions?

Or, do you now believe that anti-discrimination protections should apply to all American citizens across the board in all public spheres?

Your article was one of the few by the law scholars featured on this website that I have read as a lay person.

I ask these questions to underscore a point:

- It is not a matter of arguing with religious people's objections or prohibitions. One sense of your essay here online was correct: rational interchange based on verifiable evidence ceases when someone says that their view is based on one religious text written by God.

- Rather, it is a matter of what these religious people do with their beliefs.

- If they practice their prohibitions and objections around themselves and do not try to establish them on American citizens at large then I have absolutely no problem with them. That is the beauty of the first amendment's free exercise clause. Religious people are, as American citizens, free to exercise their faith.

- If religious people say that the government should discriminate against a certain class of citizens based on their religious ideals then they have crossed a fundamental line of enlightened American citizenship that concerns the establishment clause of the first amendment.

- If religious people say that a certain class of citizens do not deserve access to public accommodations (be they controlled by religious groups or not) that are funded with governmental money then they are breaking the establishment clause of our first amendment and corrupting a fundamental contract of American citizenship involving the separation of church and state. The penalty is simply not to receive governmental funds.

- Homosexuals, as American citizens, should get the same rights and privileges as everyone else (nothing greater or lesser).

For example:
(a) If everyone else is entitled to fight as a person who declares their heterosexuality openly in the military, then homosexuals should receive the same basic entitlement. Furthermore, if the military supports spousal housing, for example, for openly practicing heterosexuals then the same right should be afforded homosexuals. No argument that defends the refusal of rights to one class of people makes sense in terms of enlightened American citizenry.

(a) If (controversially enough) heterosexuals receive the right to marry and gain an enormous host of government-sponsored and government-sanctioned support and money, then homosexuals deserve the same right, no more and no less.

For me, arguments about the rights and demands of American citizenry and the fundamental aims of letting religious people have their beliefs for themselves, to talk about those beliefs, but not to try to establish them on others are the arguments that matter most.

Sometimes, it is well nigh impossible to argue with someone in any other fashion when they believe that their objections and prohibitions are mandated by an abstract deity.
 

Secularists should realize that despite their occasional self congratulation, one of the most intractable problems is defining what religion is and is not. (Thank goodness we don't have judges meddling with a legal or constitutional definition.) Circa 1350, religion was probably everything in some sense -- reason, faith, art, commerce, whatever. After the enlightenment some of us pretend that we know the difference between religion and non-religion, but it's worth asking whether any definition of religion, especially a "secular" one, is in fact a type of religious conviction or at least a stand taken on the role of religions in social life as a whole. Ironically, some of our traditional notions of civility with respect to religious disagreements come directly from protestant religious convictions about the nature of a person's personal relationship with a deity, and these constitute only one form of belief. Critics of "secular humanists" routinely make this point and certainly a religious person can legitimately say "I am not a pluralist because pluralism violates my religion" (or vice versa). However, a pluralist society needs pluralists, probably a lot of them. It can tolerate non-pluralists but must actively teach otherwise. We need to live with the fact that some claims about how a society should be (e.g., pluralist) will be offensive to some on religious grounds. To form a pluralist society is to destroy alternative forms of social life. So have it. Religion is already on the table. We just have to be honest about that fact.
 

Verne: To form a pluralist society is to destroy alternative forms of social life.

Uh, like to prohibit establishment of religion is to destroy religious practice? I am not quite sold...
 

verne said: Thank goodness we don't have judges meddling with a legal or constitutional definition [of "religion"].

Of course we do. For example, religious organizations are statutorily exempt from certain taxes. What is a "religious organization" is defined by statute and subject to the interpretation of the courts. (see Scientology cases).

In any case, it is fairly easy to define what a religion is--an organized set of beliefs in the supernatural or deity or set of deities. Faith in the supernatural is a defining charateristic of all religions. Secularism, in essence the belief that public decisions should not be made or justified on the basis of supernatural guidance, is not a religion.
 

Andrew, I challenge your history: Rawls' Theory of Justice came out in 1971. It was clearly a reaction to that Quaker in the White House.--Shayana Kadidal
 

What an excellent post. Thanks for expressing yourself so openly and commonsensically. You and Prof. Tamanaha are knocking out some first-rate posts lately. Please keep going!
 

Those whose faith has overpowered their reason to the extent so publicly displayed by what is called "the religious right" can always manufacture what, to them, appear to be convincing logical arguments for their beliefs.

Having loosed the bounds of rationality, they can then go on to manufacture beliefs, and logical arguments to go with them, that the law of the land should conform to these beliefs "for the good of the country."

Far from starting conversations, religion, as practiced by the "religious right", ends conversations.
 

Professor Koppelman:

I completely agree that, when a person offers religious authority as the basis for an argument, that it is perfectly acceptable to challenge the basis for the argument and make the person defend his or her position.

I came to my faith by reason and the vast majority of common moral precepts taught by the world's faiths are easily defended with empirical evidence rather than a simple citation to authority along the lines of "God said it and I believe it."

God did not give us the gift of reason only to put it on the shelf when we exercise His moral teachings.
 

Which is why I've always based my opinion that homosexual sex should be criminalized (and I will note Scalia's dissent in Lawrence v. Texas) on secular grounds.

# posted by Charles : 4:52 PM

Except that you don't, because Scalia doesn't. Scalia is the SC's resident rant -- a Catholic who refuses to separate his private "religious" views from his judicial opinions. He is, in short, a supremacist bigot.

By contrast, there are no legitimate grounds on which to criminalize a behavior which is (1) consensual, (2) private, and (3) none of your busybody business.

And I've never been shy about calling out those who claim with their mouths to be "religious" -- "Christian" -- while constantly acting at odds with the rules required of and professed by the "religious" -- "Christian".

And, having studied a substantial amount of theology, over many decades, have never been shy about pointing to the incessant intellectual dishonesty of such hypocrites. Being politely silent in the face of hypocrisy and lying only invites more of the same.
 

We adopted secular discourse in order to avoid these consequences. Nor is this an entirely modern phenomenon. It's visible even in the 18th C; most of the more prominent Founders were deists and they carefully phrased their arguments in secular terms. Hume is the one who really originated this practice and made the argument I summarized above.

# posted by Mark Field : 4:56 PM

It's visible also in the 17th, beginning on this continent with the dissenters called "Pilgrims," and individual examples being Roger Williams (banished from MA-Bay Colony for preaching freedom of conscience; founded state of Rhode Island on that principle) and Anne Hutchinson (banished from MA-Bay Colony for discussing freedom of conscience).

In the 18th, as law, it is incorporated in all of the first constitutions -- variously adopted in 1776-77, and 1780 -- of the Original Thirteen states. Aside from their direct experiences with "religious" intolerance, the Founders and Framers were very much aware of the "religious" wars in England and the roots and consequences thereof.
 

One might add that the reason the left found itself doing the rhetorical dance of non-offensiveness in the first place was the PC-speech movement . . . I think your argument to move away from the niceties and into the substance has much to commend it.

# posted by Calvin TerBeek : 5:51 PM

"PC-speech" -- until malcharacterized by its enemies -- was based upon and concerned with that we call "civility". Another word for which: "manners". Thus one didn't, as example, call people of color "niggers," or rationalize that there is a "right" to be racist, which predictably leads to racist actions based upon the rationalization. Or deliberately calling people names or designations one knew the target thereof did not approve.

In short, the opposition was to gratuitous insult and bullying. The extreme right-wing, beginning especially with Reagan, insisted there is a "right" to deliberately insult others -- "free speech" -- and bully them, based upon the premise that those offended thereby are the problem, rather than those who promote/d the anti-social attack upon "PC-speech". Based, that is, on the premise of blaming the victim of such sociopathy.
 

Professor Koppelman:

As soon as you start a thread about the substance of why homosexual sex should be criminalized, I'll be happy to post about all the secular rationale, short of enormous misery for every child.

# posted by Charles : 5:54 PM

All of which are both false, and an intellectually dishonest effort to deceitfully hide the fact that your actual objection is "religious" poppycock which cannot withstand critical scrutiny.

The Commandment (not "Request") with which avowed Christians are to comply is: "Thou shalt not lie."

And there are two forms of lying:

1. Commission: Telling a known falsehood.

2. Omission: Withholding a known truth.

You constantly do both in your effort to prop up your religiopoppycock/bigotry with law, even when you must misrepresent the law, and vitiate reason, in that effort.
 

Sometimes, it is well nigh impossible to argue with someone in any other fashion when they believe that their objections and prohibitions are mandated by an abstract deity.

# posted by Bloodbelter : 6:45 PM

Only because they are fundamentally dishonest. Or mentally challenged. I've had theological discussions with priests of various "religions" which were reasoned -- except for the portions which required faith in an unevidenced and unprovable notion that was held as being "truth".

Note: "faith" and "doctrine" are not the same thing; "faith" is the "courage" which animates the doctrine. Thus the phrase "faith-based" is a substitute for "religion," and as such is a blatant deceit (or, less likely, the assertion of the ignorant on the point), as "faith" is that one exercises when one gets out of bed in the morning, instead of giving that action a pass.
 

Verne: To form a pluralist society is to destroy alternative forms of social life.

Uh, like to prohibit establishment of religion is to destroy religious practice? I am not quite sold...

# posted by Robert Link : 7:20 PM

Neither am I: "religious" orders are not pluralist (except perhaps to some degree Universalist Unitarian). And the fundamental principle of freedom of conscience, as expressed by some "religious" sects, is inherently tolerant of alternative views, therefore is the foundation of pluralism.

The enemies of pluralism are those who have little or no faith, because they don't "get" that faith isn't faith if it does not include (honest) doubt, the awareness of ever-present risk; the possibility that one's faith might be invested in the false. It is those who endeavor to suppress all views not their own, usually in efforts to impose their view on others, especially the unwilling.
 

God did not give us the gift of reason only to put it on the shelf when we exercise His moral teachings.

# posted by Bart DePalma : 12:02 AM

You're only halfway there: you overlook the fact that you are ascribing those teachings to a supernatural source, when it is sufficient to note that a society of humans gets along better with itself if it agrees on the basic rules; no "God" or "His" is necessary.

But, of course, you don't believe any of that, else you wouldn't constantly contradict those moral teachings by intellectually dishonest means. Perhaps someday you'll actually take those teachings seriously, and put them into behavioral practice, at which point you may achieve sufficient psychological maturity -- which manifests as ethicality -- to handle Buddhism, which doesn't posit a "God" onto which to slip one's individual responsibility, and from which to purloin excuses.
 

In any case, it is fairly easy to define what a religion is--an organized set of beliefs in the supernatural or deity or set of deities. Faith in the supernatural is a defining charateristic of all religions. Secularism, in essence the belief that public decisions should not be made or justified on the basis of supernatural guidance, is not a religion.

# posted by Adam : 8:20 PM

Which is why it is difficult to define Buddhism as a "religion" in those terms, as it doesn't bother with a "supernatural"; it is too busy being individually responsible, instead of seeking excuses and evasions from that responsibility.
 

Professor Koppelman,

Rawls did not banish religious argument from political discourse. He said that religious arguments eventually require reformulation (at a point he left deliberately open) in terms of the commonly acceptable type you mention. (He called this requirement the proviso.) Moreover he did not single out religion in this respect. He said the same about arguments premised on atheism, and he stressed that liberal society depends on essentially religious sentiments from many quarters for its sustenance and advancement.

Rawls fully appreciated the religious arguments for the civil rights and abolition movements. He pored over and hearkened continually to the roots of political liberalism in the detente that put an end to Europe's religious wars and led to religion clauses of the first amendment. He even cited a detailed analysis of Islamic law by a Muslim scholar on which something akin to a liberal society could be premised.

I would also point out that his pivotal move in the 1980's was not, as you say, to turn on religious politics but to put comprehensive moral doctrines -- whether religious or secular -- on the same footing, one step removed from political argument as such. They were all (in his phrase) "metaphysical not political" and a part of the background to political argument in a liberal society. In fact he counted as metaphysical the view he developed in A Theory of Justice as well as its secular rivals such as utilitarianism.

What Rawls realized was that on the one hand theological and other metaphysical views were necessary to constitute a moral perspective inclusive of liberal norms but that on the other hand none could be conclusively enforced by political means absent oppression. He referred to this view as the reasonableness of pluralism. He visualized liberal society as held together by an overlapping consensus among comprehensive moral doctrines, each of which supports the society's political norms in its own way and between which there can be no political adjudication without oppression (which of course would defeat the purpose of liberalism).

This position echoes an argument Madison makes in Federalist Paper #10 (which is worth reading with both religious and nonreligious doctrines in mind).

Based on these ideas, Rawls concluded that no liberal society can mandate subscription to a single metaphysical viewpoint, be it theological or atheistic. Behind this is a view of the scope and limits of human reason steeped in the failures of 20th century philosophy and the legacy it rests on, dating back at least to the 17th century.

The only religious person who would object to this conclusion is one with an ecclesiastical agenda. Such a person is illiberal. But the same could be said of a person who tried to turn TJ into a catechism and ram it down the throats of children at "Rawls Camp."

As for discussions about theology of the sort you invite, Rawls appreciated the importance of fostering tolerance wherever intolerance threatens. I believe he might however say -- but at any rate I would say -- that unless they are directed at getting the ecclesiast to rephrase a particular position in terms of the proviso, such discussions are not strictly in the nature of political argument but are rather part of what he called the background culture. And I would see as the goal of such discussions with would-be ecclesiasts (with the noted exception) not the formulation of a political argument that binds all of society's members but conclusions motivating a retreat from ecclesiastic ambitions. Such considerations would include: that God has not made it equally clear to all of his creatures that such and such should be the case; that some matters are in God's hands and not ours; that liberty presents the best medium in which to persuade people to adopt the proper way of life; that those who see the way should lead by example. Things of that sort.

And of course I omit the many particulars of particular faiths that culminate in such ideas. (Because of such particulars and for other reasons, such discussions are richer and more empathetic among kindred spirits, or at least among people who bear each other no ill will and have a feel for the ins and outs of doctrine, practice, and history.) I myself have taken part in such discussions. They are vital for us to have. But they are attempts to acquaint (or reacquaint ) people with ecclesiastical leanings with the norms of liberal society by showing how to reconcile those norms with their leanings.

As just implied, all faiths offer religious reasons for tolerance and did so well before the religious wars of Europe and without assuming constitutional democracy. People would do well to learn the details, which are easily forgotten given what is held out as "real religion" these days.

At any rate we will make little sensible headway with fundamentalists until we rid ourselves of the idea that we have to beat "secularism" into their heads and cure them of "their religion." Militant atheists may win converts, and it's their freedom to try, but such efforts are not political argument, and if they are all that fundamentalists hear (or are given to hear by their preachers), they are likely to persist in the idea that they've no choice but to strike back ... politically.

Whether our political culture can understand this difference -- as it once did -- is anyone's guess. But, as they say, one website at a time.
 

Prof. Koppelman [from the post]:

A noteworthy development in liberal political theory [...] has been the claim [...] that in a liberal democracy, political discourse must rely on arguments that are not sectarian and can be assessed in terms of commitments that all citizens can share.

There's a difference between
"coctail party arguments" and "legitimate legal bases for legislation". Just to make that clear in the points below.

This claim has elicited a bitter response from religious thinkers, who have argued that this deprives politics of important moral resources and denies them the right to state what they believe....

Oh, they can come across their "theories" of law from mythical stone tablets from Gawd, hallucinations of Illinois farmers or young girls in France, or whatever, but if they can't provide a secular basis and purpose for the laws they come up with, along with at least a semi-plausible showing of such secular intent and the effectiveness of such, then plain sense says that they're trying to pass laws to implement their religious beliefs, and that's illegal. Note that such illegality has nothing to do with any "insult" to anyone's religious opinions; all such beliefs are treated equally.

And another FYI: Sure, you can believe something is a sin all day long if you want (oh, you know, like witchcraft?), but you have no right to make that into a law (and make it illegal as well as a sin) or insist the gummint (in the form of laws) follow your beliefs.

... This response, which has not slowed the production of these liberal theories of public discourse, gives rise to a puzzle: why did the liberals converge on and keep producing new articulations of a proposal, in the name of social unity and comity, that was so widely received as an insult? How could so many brilliant people have been so rhetorically clumsy?

Ummm, I can't speak for others, but: because I really don't care much about whether people are "insulted" if I disagree with their religious beliefs. And I don't see why Prof. Koppelman here as switched from talking about an attempt to reach laws by consensus as a means of avoiding disagreement (which is an admirablle goal if not always possible) to avoiding insult when there is disagreement. Hate to say it, but there will always be some bruised feelings and "insult" when people don't agree. We're supposedly big boys.

I suspect that the answer has something to do with norms of civility that developed in the United States throughout the twentieth century. It is now well settled that it is impolite to challenge someone else’s religious beliefs....

No. Just generally pointless ... around the hors d'oeuvres table. In a physics lab, though, different rules pertain. And I'd argue that the some goes for the hallowed halls of gummint.

... Religion is private. Even if you think your neighbor believes really stupid stuff, it’s not nice to say so. He can go to his church; you go to yours; don’t bother each other.

This formula works only so long as neither of you offers a religious argument that is supposed to govern something that will affect both of you. Suppose, for example, that you propose that homosexual sex be criminalized because it’s an abomination before God. How am I to respond? If I disagree, my obvious answer is to say that your religious beliefs are wrong....

Here's where Prof. Koppelman gets it wrong. NO!!! Religiously "wrong", "right", or whatever, this is not a valid basis for law. It would be just as much an infringement for the law to say that homosexuality is right. But laws generally don't work that way; laws act to prohibit a certain range of possible acts rather than allowing some. Stating that such a law can't and shouldn't) be passed says nothing on the merits; it just says that our constitution prohibits such laws.

... By hypothesis, that is what I really think. But it’s impolite to say that. So I have to twist around to find some way to say that your views ought not to govern political decisions, without having to say that they’re false.

This is not hard, Prof. Koppelman. Really. See, I just did it above.

... These political theorists have been doing the twist.

Can't speak for them or their motivations, but I think you're wrong in my case here, Prof. Koppelman.

Cheers,
 

Charles:

Which is why I've always based my opinion that homosexual sex should be criminalized (and I will note Scalia's dissent in Lawrence v. Texas) on secular grounds.

Oh, really? Tell it to the penguins. We can tell a bamboozle from a mile away, and Paul Cameron et al. are full'o'crap.

Cheers,
 

Prof. Koppelman:

These comments are all responsive, but they leave me puzzled. Consider the following two claims:

1. Homosexual sex should be criminalized because it is an abomination before God.

2. Homosexual sex should be criminalized because if it is not, the family will collapse as an institution, leading to enormous misery for children.

Both of these arguments have the same basic problem: there is no good reason to believe either one of them. In this respect (1) is no worse than (2). The trouble with (1) is not well captured by noting that it's religious.

But both suffer the same defect of having no valid secular purpose and/or effect. Which is why this formulation snuck in to the Lemon test.

Needless to say, the first formulation is (historically) the greater motivator for laws, and the second one tends to arise from those people that allow religious beliefs to guide (and interfere with) their objective evaluation of fact. People can be wrong about objective and measurable facts, but religious beliefs don't just give them a nudge but a great push. However, we're seeing similar stuff with political beliefs today, as the Kool-Aid drinkers come to the defence of Dubya's Iraq policy in the face of the obvious disaster that is occuring there....

Cheers,
 

brendon:

There are lots of sins that we don't criminalize.

Why should we? Doesn't Gawd take care of those kinds of things?

Cheers,
 

I agree with arne here.

It is not man's duty to judge other men for sins against God. Rather, it is man's duty to conform his life to God's instructions. God and not man will judge whether each man has succeeded.

People should restrict their laws to stopping one person from harming another and leave personal sins which do not harm another to God.
 

Those engaged in this discussion might be interested in an articulate statement of position regarding the role religion should play in political discourse: "Forming an emphatic Christian center: a call to political responsibility" by Kyle A. Pasewark and Garrett E. Paul, Christian Century, August 24, 1994. (They later expanded it to book length, if you find the article leaves you wanting more.) Disclaimer: Kyle and Garrett are colleagues of mine (formerly, in Kyle's case), but that doesn't explain why I am promoting their work, nor does it mean I'm completely aligned with them.
 

Occasional Observer: At any rate we will make little sensible headway with fundamentalists until we rid ourselves of the idea that we have to beat "secularism" into their heads and cure them of "their religion."

Indeed. Similarly it strikes me as naive or disingenuous (again, take your pick) to try to separate law from notions of morality. Nor does it serve to say "morality is such a swamp that we'll just pretend it's not there."

I could go on, but it would detract from the more important message of how much I enjoyed your post.

Peace.
 

Arne: We're supposedly big boys.

Heh. Sexist pig. ;)

[challenging someone's relgious beliefs] generally pointless ... around the hors d'oeuvres table. In a physics lab, though, different rules pertain. And I'd argue that the some goes for the hallowed halls of gummint.

I agree, but only if we include the caveat that politics, and thus Law, is more akin to the hors d'oevres table than the physics lab. Always was, always will be, Enlightenment era idealism notwithstanding.

Religiously "wrong", "right", or whatever, this is not a valid basis for law.

Not entirely accurate. It is an article of faith from the currents of Enlightenment thought enshrined in our Constitution that law "should" be separate from "religion." Whether or not that's even possible is open to question, whether or not it's "good" even more so. (For me the answers are 'barely' and 'absolutely,' respectively.) But there's a good deal of undeniable and unavoidable overlap between religion and law, including the strains of ecclesiastical law which continue to inform our "secular" laws. For example, from a 1l post I wrote on Adams v. Lindsell:

Professor Goodrich views Adams v. Lindsell as having transformed contract law from a period of focus on unilateral promise to a period of mutual assent and exchange; in the process the Adams court borrowed concepts from ecclesiastical law governing marriage proposals, and it is from this borrowing that we today inherit issues such as concern for the relative weakness of the offeree's bargaining position. The borrowing from ecclesiastical law is also where we get terms such as proposal of offer, engagement of parties, and consummation of agreement.

Arne: But both suffer the same defect of having no valid secular purpose and/or effect.

Uh, Arne, isn't preventing "enormous misery of children" at least arguably a compelling state interest? Hence possibly allowing relevant laws under strict scrutiny, &c? Meanwhile, the single most valuable chapter I've yet read in my legal studies is the second chapter of LeFave's criminal law casebook, which is a survey of sodomy laws and rulings. Like nothing else I've encountered this chapter rubs one's nose in the socio-political realities of my hoped for profession. Some would put all hope of legalizing consensual sex of all kinds on the vagueness of "the abominable and detestable crime against nature, not to be named among christians" which may or may not include Onanism...how can we tell, since it can't be named? Others would put their hope for keeping good clean fun legal on "right to privacy" grounds. Still others, of course, have a political axe to grind and will twist any prevailing rule to their ends if at all possible. But to invoke your "cocktail party/physics lab" distinction, some claims are subject to verification, and claims that "legalizing homosexuality destroys families and causes children to suffer" is demonstrably false. Wherever we can show an upstream premise to be false that would seem to be the best place to attack. (For the record, what destroys families is industrialism, but that's another drum to beat on another day...)

And in a final observation for now, isn't it sweet to see our troll trying to feign a desire to be treated as a bona fide community member by claiming to agree with you...while at the same time trying to pass off a set of premises you never suggested and which I suspect you find a perhaps less than accurate depiction of your views?
 

Robert Link said...

And in a final observation for now, isn't it sweet to see our troll trying to feign a desire to be treated as a bona fide community member by claiming to agree with you...

:::heh:::

Robert, I thought I was complimenting arne for agreeing with my viewpoint.

You take yourselves too seriously if you think I need your approval for self validation. I am here to offer arguments to offer a counterpoint and prevent this blog from becoming a Greek Chorus of one viewpoint.
 

I am here to offer arguments to offer a counterpoint and prevent this blog from becoming a Greek Chorus of one viewpoint.

# posted by Bart DePalma : 10:39 AM

I give kudos to Baghdad Bart for keeping everyone up to date on the raving lunatic viewpoint.
 

max said...

Those engaged in this discussion might be interested in an articulate statement of position regarding the role religion should play in political discourse: "Forming an emphatic Christian center: a call to political responsibility" by Kyle A. Pasewark and Garrett E. Paul, Christian Century, August 24, 1994

Thank you for this very interesting article.

The authors appear to be arguing for a middle ground between the left's calls for nearly absolute personal license and the right's calls for laws coercing personal responsibility by recognizing the right's point about the necessity of personal responsibility but declining to use the law to enforce this responsibility. Rather, a religious center would use the power of persuasion rather than the law to sway the citizenry to adopt personal responsibility.

Apart from situations like abortion where one person is harming another, I would fit very comfortably in this religious center.
 

THere is a gaping ambiguity running through all these debates and comments about the content of the religious views that one is socially expected to tolerate. Most of the contents of most of the religions are quite tolerable because they simply form part of a set of one's beliefs and enable us to predict or understand that person in the sense described by George Lakoff in his "Metaphors we live by" and his other books. But what about a religion that prescribes the killing or enslavement of non-believers? If you're talking with someone who believes THAT, then he or she may not be listening to your aguments but rather going over what you say in order to spot your vulnerabilities to physical attack some day. I suggest that the key book to read is THE END OF FAITH by Sam Harris. It's text is so readable that you might think it's a popularization, but if you look at the 40 pages of endnotes, indeed if you just read the endnotes and skip the text, you'll see how seminal this book is. (I don't know Harris and I thought his other book was trivial.) For me, it has shaken the Kantian foundations of toleration.

-- Anthony D'Amato
A colleague of Koppelman
 

Anthony D'Amato: But what about a religion that prescribes the killing or enslavement of non-believers?

Uh, you mean Jews? Or Christians? Hindus following the standard apologist text supporting fratricide, the Bhagavad Gita? Either way, I covered this already, here, but without recourse to that bigoted hack, Harris, about whom I've written, "we very much need to fear extremist atheists like Harris who would use their sophistries to support 'just a little' religious persecution, 'because this religious group is different.'". (By Harris's reasoning our concerns should focus on nuclear Israel since we know they've got the bomb and their scriptures are as blood soaked as any.)

Sorry to pounce so passionately, but this neuro-science student passing himself off as a credible political science and global policy commentator really gets under my skin. His "success" is truly exemplary of much of what's wrong with discourse in our nation, including worship of scientism and celebrity.
 

Bart: :::heh:::

As I said, it's not like anyone here could really think much less of you than we already do. Troll on, lad, troll on.
 

I’ve received the following in an email from the distinguished Harvard philosopher T.M. Scanlon, who asked that it be posted to this conversation. I will try to respond shortly, but I didn’t want to delay adding his post.


I think that occasional observer basically gets it right. But here are three quick points.

1. At least as far as Rawls in concerned, it is a mistake to think that this move was an attempt to keep religion out of politics. The shift to Political Liberalism was prompted by Rawls’s belief that the argument for stability in A Theory of Justice privileged his own comprehensive view in an unacceptable way, by supposing that in a free society everyone would come to accept the basically Kantian argument that he offered for affirming a liberal sense of justice.

2. The constraints of public reason, which preclude appeal the tenets of one particular comprehensive view, do not apply to all political argument, but only to the justification of the basic political institutions of society and the principles of justice supporting them¬what Rawls calls “constitutional essentials and questions of basic justice.” (This is stated clearly in the Introduction to the paperback edition of Political Liberalism.) The idea is that because these basic institutions provide the framework within which policy disagreements between people with different comprehensive views are to be settled, these institutions themselves need to be justifiable on a basis that is not sectarian. Once those institutions are in place and assuming the are justified, one can offer whatever arguments one wants in an attempt to persuade one’s fellow citizens to support the policy one favors. In arguing whether to build a road or keep a wilderness, for example, people can appeal to what seem to them the deepest arguments about the value of nature, and of economic efficiency and so on. The same is true of debates about embryonic stem cell research. The parties will probably not convince one another, but after debate they vote, and if the basic institutions are just they should accept the result.

3. The basic institutions themselves, Rawls holds, need to be supported by an “overlapping consensus.” That is, the holders of each reasonable comprehensive view must have good reasons, grounded in their own religious or non-religious view, for accepting these institutions as a framework for living with others in political society, including those with whom they disagree about certain fundamental matters. I do not se how the idea that those who hold a religious view must be given reasons, grounded in their own view, for accepting basic social institutions can be fairly described as “hostile to religion,” or how Rawls’s view as a whole could be seen as an attempt to deprive religious people of access to the public forum.

Tim Scanlon
 

As soon as you start a thread about the substance of why homosexual sex should be criminalized, I'll be happy to post about all the secular rationale, short of enormous misery for every child.
# posted by Charles : 5:54 PM

This would be the harm caused to homosexual children when they grow up in a world which has criminalised their sexuality, would it? Or am I misreading you?
 

That would, of course, be one alleged harm, Phil. Look, I'm really trying to stick to the topic, so I apologize to everyone else for not getting into the substance on any specific criminal statute. Allow me respond to Anthony D'Amato as it directly deals with "Religion as conversation-starter." If you think Sam Harris wrote the key book in this regard, have you read the following debate between Mr. Harris and Pastor Rick Warren?

http://www.msnbc.msn.com/id/17889148/site/newsweek/

No need to ask Robert Link about his opinion on Harris, obviously. Is there some other atheist you would nominate for such a debate?
 

Charles: Is there some other atheist you would nominate for such a debate?

Not sure to whom your inquiry is addressed....
 

Charles: Look, I'm really trying to stick to the topic, so I apologize to everyone else for not getting into the substance on any specific criminal statute.

Uh, like, dude, are you the same Charles who poked at Professor Koppelman with "As soon as you start a thread about the substance of why homosexual sex should be criminalized, I'll be happy to post about all the secular rationale, short of enormous misery for every child"? Or are there two of you posting under the name "Charles"? If it's just the one of you, then the inline quote puts the lie to your cowardly evasion at the top. I thought I could let it go, but, well, no, behavior like that really ought to be derided as thoroughly as possible.
 

Robert Link:

I am indeed the same person. Since you already derided Sam Harris, I was asking YOU if there was some other atheist you would nominate for such a debate -- again, I think my example of the Harris-Warren debate fits in perfectly with the topic (as I understand it) of "Religion As Conversation-Starter" set forth above -- the substance of anyone's rationale for, or against, any specific statute is NOT the topic, as I read the thread. So, I fail to see where there is any discrepancy between "I'm really trying to stick to the topic, so I apologize to everyone else for not getting into the substance on any specific criminal statute" and "As soon as you start a [DIFFERENT] thread about the substance of why homosexual sex should be criminalized, I'll be happy to post about all the secular rationale, short of enormous misery for every child." Whether you think that sticking to the topic is a "cowardly evasion" or not, is (alas) also not the topic of this thread.
 

I agree with Professor Scanlon's refinements save (perhaps) one, which I'll come to in a moment.

First however let me say that I deliberately sketched Rawls in bold strokes because it is so easy to miss the forest for the trees with Rawls. He had an intricate set of ideas; yet their essentials are not as hard to grasp as many Rawlsians in my experience seem to think. Anyone steeped in the American constitution (whether with a big or a little "c") can do so. And the proof of this is in this very thread, which touches in a variety of ways on themes in or behind his thinking.

I fear that our big "c" Constitution is under a wide range of assaults (of which the matter of religion is just one example) and will not fare too well unless the public's grasp of its principles reconstitutes itself (pun intended). Our politicians do not appear up to the task, certainly not in the immediate area, which qualifies as one of the "third rails" of politics. And our familiar Beltway pundits are doing positive harm. I very much wish that public intellectuals would bring the ideals Rawls did so much to ground back into the active part of the brains of thinking Americans. I continue to hope they will.

The point Professor Scanlon made on which I want to differ, or at least wish to qualify, is the following:

The constraints of public reason, which preclude appeal the tenets of one particular comprehensive view, do not apply to all political argument, but only to the justification of the basic political institutions of society and the principles of justice supporting them what Rawls calls “constitutional essentials and questions of basic justice.”

I do not get this impression from "The Idea of Public Reason Revisited," Rawls's 1997 paper (which appeared in the U of Chi Law Review, and is also in his Collected Papers). The proviso seems to apply throughout the public political forum. That said, Rawls saves his best word of thanks in the reprint for Professor Scanlon, so I may be missing something.

However, let me offer a plainspoken recasting or adaptation in terms I would have pressed on Rawls.

My understanding is that Rawls saw a sliding scale for public reason. It applies most forcefully at one end and decreasingly so as one moves along the scale. Thus, the framing of a constitution calls for it in full force; with judges (particularly supreme court justices), maybe a tad less so; with the chief executive and legislators, less still; and with candidates for public office, least of all.

I believe this scale is all well and good as an ideal, but in practice there is no telling where trouble will strike and where it is most vital to press the ideal. Let me give a real life example.

Back in 2004 I urged the Kerry campaign to have him deliver a speech like the one that John Kennedy delivered in Houston in 1960, renouncing loyalty to the Pope, updated to speak to current conditions, which were biting at his bid for the presidency from, as it were, the opposite direction. It would not have been a no-brainer to write, but I could probably have written a first draft in my sleep.

Kerry had religion-and-politics consultants who thought he'd said more than enough on the subject. But they were kidding themselves. He didn't. He said a few things about James on faith without works, which got no uptake, and he led with his chin on abortion. I would guess -- and it's just a guess, but the most charitable I can devise -- that his third rail monitors kept a lid on the specialists' advice.

However this may be, our current state and (I believe) the election results attest to the shortcoming. And yet the deficit registered at the far end of Rawls's scale.

To put it differently, Rawls's system, understood as an ideal, suggests a practical application that is not true to life. Consider the ideal repositories of public reason sitting in black robes at the near end of the scale. Does anyone think it optimal to try and convince Antonin Scalia, Clarence Thomas or the new appointees that they must hew to public reason more than others in our society? Would it not be better to insist that Senators sitting on Senate Judiciary grill future candidates on the religion issue, which they could well do?

In short, we are well outside the bounds of Rawls's ideal. Would that this were not the case, but the situation is what it is. We face, to be frank, a republic en route to becoming something else, and the repositories of public reason designated in the ideal either are actively advancing the process or have fallen down on the job. Given the analogy, a quote from Cicero is apt: Quis custodiet ipsos custodes? (Who will watch the watchers?) If only by default, I pin my hopes on the general public, the ultimate repository of sovereignty in our constitutional democracy. In such a society, which we still profess to be, our first order of business should be to animate elected officials. If this seems to be standing Rawls on his head, I am not sure how much he would mind, but to my way of thinking it beats spinning in your grave.
 

Charles: So, I fail to see where there is any discrepancy...

Can't say what would trouble me more, if you mean it or if you're just lying to save face. Both are pretty ugly for you. But not really my problem.

I was asking YOU if there was some other atheist you would nominate for such a debate

Why on God's green Earth would I be the person to choose an atheist for any debate? Are you reasoning from some unsubstantiated premises perhaps?

I think my example of the Harris-Warren debate fits in perfectly with the topic (as I understand it) of "Religion As Conversation-Starter"

I confess to having only looked at the top of your link. Harris and some evangelical were going to debate the existence of God, the first question was something about evidence for the existence of the God of Abraham. What that micro-debate has to do with the larger issues of how such discourse can/should/might/must/must-not be engaged in polite society was not apparent from my quick view, nor am I inclined to suspect for a moment that it reaches the topic of Professor Koppelman's post. If I'm wrong I think you bear the burden of so establishing, and in order to be heard you might start with a competent recitation of just what Professor Koppelman's thesis in this post actually was. At the moment you've a credibility gap, to put it mildly.
 

Occasional Observer: If this seems to be standing Rawls on his head, I am not sure how much he would mind, but to my way of thinking it beats spinning in your grave.

Y'know, I just bet you could have drafted a credible start of that speech in your sleep. Quite a pleasure to read you.

In support of your contention let me offer an analogy from the world of psychological theory. Maslow's "ladder" is famous, but the man himself disclaimed any belief that the various "levels" could only be achieved in linear order, merely that "self-actualized people" tended to have all these ducks in a row. I look forward to reading Rawls, but will go in assuming a similar flexibility for what a less mature mind might insist on seeing as a permanently fixed set of linear relationships.

Peace.
 

@oo: I can only wish your blogger profile included off-blog contact info. If you're willing, drop me a line at beau ( a t ) oblios-cap ( d o t ) com. Nothing urgent, just impertinent questions ill suited to this venue.

Peace.
 

Robert Link:

Since I am not lying, and you apparently have declined to point out any such discrepancy, we'll have to leave it at that. Not really my problem either.
 

Input

Output

Just goes to show that gigo is a "best case scenario", and that a lousy program can make garbage out of good input.

I take it, then, that you have nothing to offer with regards to concerns that you might be unable to competently articulate Professor Koppelman's thesis? Pity. I actually hoped this once you'd prove me wrong.
 

Are you kidding me, Robert Link? I assumed (perhaps wrongly it seems) that you could use the scroll bar to the right of your screen. Here is Professor's "thesis" (or "topic" for this thread):

"A noteworthy development in liberal political theory over the past 30 years or so has been the claim, by such distinguished thinkers as John Rawls, Bruce Ackerman, Ronald Dworkin, Thomas Nagel, Amy Gutmann, Dennis Thompson, Stephen Macedo, David Richards, Charles Larmore, Samuel Freeman, Richard Rorty, and Robert Audi, that in a liberal democracy, political discourse must rely on arguments that are not sectarian and can be assessed in terms of commitments that all citizens can share. The obvious target is religiously based political movements, and it is no accident that most of this theorizing was done after the Presidential election of 1980, when the religious right first became a potent force in American politics.

This claim has elicited a bitter response from religious thinkers, who have argued that this deprives politics of important moral resources and denies them the right to state what they believe. This response, which has not slowed the production of these liberal theories of public discourse, gives rise to a puzzle: why did the liberals converge on and keep producing new articulations of a proposal, in the name of social unity and comity, that was so widely received as an insult? How could so many brilliant people have been so rhetorically clumsy?

I suspect that the answer has something to do with norms of civility that developed in the United States throughout the twentieth century. It is now well settled that it is impolite to challenge someone else’s religious beliefs. Religion is private. Even if you think your neighbor believes really stupid stuff, it’s not nice to say so. He can go to his church; you go to yours; don’t bother each other.

This formula works only so long as neither of you offers a religious argument that is supposed to govern something that will affect both of you. Suppose, for example, that you propose that homosexual sex be criminalized because it’s an abomination before God. How am I to respond? If I disagree, my obvious answer is to say that your religious beliefs are wrong. By hypothesis, that is what I really think. But it’s impolite to say that. So I have to twist around to find some way to say that your views ought not to govern political decisions, without having to say that they’re false. These political theorists have been doing the twist.

Their strategy has been a disaster, because it has produced the opposite of what they have hoped. A doctrine grounded in universal respect has left a lot of actual citizens feeling profoundly insulted. This suggests that the norm of politeness needs to be revisited. As soon as A invokes religious reasons for his political position, then it has to be OK for B to challenge those reasons. It may be acrimonious, but at least we’ll be talking about what really divides us (and we’ll avoid the strange theoretical pathologies that have plagued modern liberal theory, though that seems to be a disease mainly confined to the academy). It’s more respectful to just tell each other what we think and talk about it.

There is a norm of public reason in modern America, but its foundation is less moral than rhetorical. For instance, on the issue of gay rights, which I know something about, the public statements of the religious right don’t generally invoke religious authority; they try to translate their arguments into secular terms. And they wouldn’t do this if they didn’t feel they had to, since the translation generally produces dreadfully unconvincing arguments. But the source of the pressure isn’t any moral norm of public reason. It is something far more mundane: the imperatives of persuasion in a pluralistic society."
 

Charles: Here is Professor's "thesis"

Uh, dude, cutting-and-pasting the post isn't the same as articulating the thesis. I'd like to think you knew as much going in and thought you'd get away with a little straight faced stonewalling. The alternative, that you are just dumb as a stump, is too distressing a notion to bear.

@Balkinites, all: Wife's home. Y'all have a good weekend out there!
 

Wouldn't want you "too distressed" to bear any such notion on my account. See you later.
 

Is there some other atheist you would nominate for such a debate?

Sure, I'll do it. Or you can talk to my friend Vanessa, but she's a bit busy, probably.

I wasn't really aware that we had to nominate a sole prophet to speak to all of religion on behalf of all of atheism, though. I hope it comes with a good benefits package.
 

Occasional Observer: You are correct that Rawls was not always entirely clear about whether the constraints of public reason applied to all political arguments or only to arguments about "constitutional essentials and questions of basic justice," and that this has been a matter of disagreement among his interpreters. But I believe that the narrower account was indeed his considered view, as he made clear in the place I cited (the introduction to the paperback edition of Political Liberalism.) Sorry I can't give you a more definite citation as I am away from home and do not have a copy of the book.

Tim scanlon
 

Tim Scanlon is right that the scope of the constraint of public reason has been a matter of disagreement among Rawls interpreters. Thus, for example, Samuel Freeman, editor of Rawls’s Collected Papers and the Cambridge Companion to Rawls, thinks that public reason excludes all comprehensive conceptions from public and even private deliberations about coercive laws, and that this is why “[a]ppeals to Christian doctrine simply do not count as good public reasons in our political culture.” Samuel Freeman, Justice and the Social Contract, p. 201; see also ibid., pp. 200, 220, 224. The matter is made more difficult by Rawls’s ambiguity about the scope of “constitutional essentials.” Even if public reason is confined to these, that isn’t a lot of help if we’re not sure what “constitutional essentials” are.

On the other hand, it would be rash for me to take issue here with Tim, who was Rawls’s friend and colleague. It is unquestionably the case that (as Occasional Observer points out) the comprehensive view that Rawls was most concerned to separate from his political philosophy was not the intolerance of the religious right, but the view that he himself had stated in Part III of A Theory of Justice, which he had become persuaded could not become the object of overlapping consensus.

The lesson I will take from this exchange is that if I republish these paragraphs in a more formal scholarly venue, Rawls will appear on the list only with a long footnote elaborating the reasons why it is uncertain whether he belongs on it at all. And he won’t be the first one on the list. It was a mistake for me to put him there. The presence of others on the list, notably Freeman himself, is less doubtful. And the whole puzzle is tangential to my main point, which is about a broad tendency in modern political theory that Rawls himself may or may not instantiate, though he has frequently been taken to do so.
 

Andrew--

Rawls interpretation aside, I think that the position I ascribed to him in my first comment has a coherent rationale, and is thus a good position on the issue you raised in his post. Although it might be a good idea to qualify any reference to Rawls in a formal version of that post, I agree that this is tangential to your main point. Going further, I would urge you to focus on the substantive question of what position on this issue makes the best sense rather than on what has or has not been a broad tendency in contemporary political thought. The latter question also seems to me to be somewhat tangential, and to distract from the main issue.

Tim Scanlon
 

Prof. Koppelman:

I'm not sure if you saw it yet, but your post was the subject of discussion at Volokh. See here.
 

A few points to tie up loose ends and clarify what I've said.

My aim was to distinguish Rawls from the others Professor Koppelman mentioned and to say where I think he stood on religion in politics. I did not speak to Professor Koppelman's view, which I look forward to reading.

I now see Professor Scanlon's point: public reason is confined to "constitutional essentials and matters of basic justice." This in turn defines a safe harbor of political decisionmaking in which one can act on one's comprehensive moral doctrine (CMD) tout court. I stand corrected, but I also see two reasons why I ignored the safe harbor.

The first reason is that I was speaking about religion, and it's hard to come up with a case in which a religious doctrine can fall under the safe harbor. Would a blue law qualify if frankly enacted because the majority deems its designated day the real sabbath (on the understanding that things will change with a demographics shift)? To make it easy, suppose all can get by on a five day work week taking their own sabbaths off. However one comes out, it's not easy to generate many such cases.

The second reason is that it seems to me the safe harbor is if anything shrinking. Professor Scanlon's example of a choice between a road and a forest is a good one. It may be leaving the safe harbor. To see why, let me first explain the extent of the harbor.

Notice that the safe harbor is defined negatively. It equals the realm of political decisionmaking minus that which concerns what is constitutionally essential and a matter of basic justice. The minuend may be small, but it is the controlling element. This is because of Rawls's requirement that public reason be complete, that is, rich enough to answer our questions about constitutional essentials and matters of basic justice. One index of completeness is something he calls the breadth of a society's overlapping consensus, that is, how much of the basic structure it covers. In this regard it needs not just to establish rights and equal opportunity but see to essential needs.

Whereas the road/forest choice once seemed to turn on lifestyles and aesthetics, the issue of climate change has, to many minds, made it a matter of basic justice, especially if we highlight Rawls's idea that a political scheme is a system of cooperation over generations.

Notice, too, that religious views bear on climate change and that running them through the proviso serves at least two purposes. One is that it hammers it home that political action must take its cues from scientific consensus. Fundamentalist CMDs resist this idea, taking the Bible as the ideal action guide and distrusting science, even on the subject at hand. For instance, religious beliefs about the age of the earth conflict with how scientists read ice core samples. In practice such conflicts are resolved treating scientific claims on an "as if" basis ("God created the earth to look old") or recasting them in the way that ID claims to do with evolution. The proviso induces fundamentalists to see the evidence for climate change in some such way.

A second purpose the proviso serves is to surface the need to take future generations into account, which millenarian readers of the Left Behind series are wont to discount. Here, too, there are means of accommodation. The evangelical Joel Hunter, who is conservative but who broke with the religious right, bills concerns about climate change as "Creation Care," invoking the religious idea of stewardship.

In describing the transition from a modus vivendi (in which religious rivals put up with one another but share little or no political conception) to a constitutional consensus, Rawls notes that political ideas shape CMDs. Such adaptations also occur, however, within working political societies (whether or not they slip back in some respects into a modus vivendi, as ours seems at times to have done). A caricature of fundamentalism sees this as impossible, but it misunderstands how religion works, as the previous illustrations show. One can see moreover that no evangelical movement can hope to spread its word if it seems indifferent to widely held beliefs outside its confines. This alone prompts accommodation.

Our current militarism on steroids is another such issue. It implicates basic needs because of the sheer size of its budget (which precludes the meeting of basic needs and piles on debt for future generations). To this add the advent of openly endorsed torture and consequences of a perpetual state of war that even now are playing out. Here, too, religious CMDs are implicated because of the view that Islam is satanic, mandates and prophecies centered on the Middle East, and a deep-rooted religious version of American exceptionalism. Here, too, there is sufficient flex in religious doctrine to allow for accommodation. (Whether there is the political will to instill public reason is another matter.)

The proviso comes into play in another way. It relates to Rawls's idea of a well-ordered society. This is a society that shares a conception of justice. The idea admits of a more or less. (In fact Sam Freeman suggests Rawls's doctrine of the reasonableness of pluralism may mean the ideal is unattainable.) According to Rawls, citizens in a well-ordered society keep their CMDs out of politics. The confidence in a shared conception of justice adequate to resolve fundamental issues is so great, and so prized, that the citizenry's mutual wish to uphold the ideal of public reason prompts all to keep their CMDs to themselves.

This gives the political realm an "end of ideology" aspect, though the appearance is deceptive given all the CMDs humming quietly in the background. The old American ideal of religious politicians who keep their theologies to themselves better reflects the picture. In such a state, the proviso does not come into play because CMDs remain in the background culture.

In a society that is less well-ordered, however, common political conceptions fall short of the mark, and fundamental issues can no longer be resolved in plain political terms. Aggrieved citizens find it necessary to inject CMDs to uphold public reason. For Rawls, these citizens are in the right if they satisfied, or could have satisfied, the proviso. He offers abolitionism and the civil rights movement as cases in point. In each instance the society was not well-ordered. I am inclined to think the cases of climate change and militarism on steroids could be fit into the same category.

Rawls also gives an intermediate case in which the society is well-ordered but its citizens of various faiths are uncertain about one another's allegiance to the conception of justice. Rawls says it may be wise here for religious leaders to hold a forum showing how their allegiance flows from their CMDs. He could also have cited Kennedy's 1960 Houston address, delivered to an audience of Protestant clerics. In my dream 2004 campaign Kerry did something similar, though the audience would have had mostly Catholics. I'm still waiting for someone to do what he should have done. Such speeches contrast, of course, with professions of religiosity that serve to undermine public reason, of which there are a good many nowadays. The right speech takes the form "Such and such are my religious tenets, but my political position is thus and so and holds sway." The second half follows the logic of the proviso in substance if not form.

I believe I could add to these examples. But I trust the gist is clear enough: we can expect occasions giving point to public reason, to adjustments in religious CMDs, and to declarations of allegiance to political norms despite CMDs to increase.
 

Prof. Koppelman: "Homosexual sex ... is an abomination before God. ...[T]here is no good reason to believe [this]."

If that's right, then you're committed to thinking there's no good reason to believe that, for instance, Paul was an apostle, and that he said so. And that's a pretty dismissive attitude to have toward Christianity--not just that you think its claims are false, but that its adherents don't even have any good reason to believe its claims.