Thursday, December 30, 2004

Religion, Morality, and Posner

By now, most people who might read this blog have probably already read Richard Posner's post titled Faith-Based Morality and Public Policy over at Brian Leiter's blog. Everyone and his or her brother has commented on it somewhere, so it is probably frivolous for me to do so. Yet, frivolity is a hobby of mine, so bear with me. As Clark noted in the comments, Posner's post touches on the issues that I addressed in this post on voting one's values. While my main concern there was to make the point that it is perfectly OK to criticize someone for "voting his/her conscience," or "voting his/her values," because a.) we shouldn't always vote according to all of our values, and b.) the "voting our values" refrain is really pretty empty when it comes to addressing criticism. However, in the course of doing so, I made some points about religious values, and referenced two issues in particular: abortion and gay marriage. A few days later, Posner wrote his post, using six real or hypothetical scenarios to illustrate his point about religious values affecting public policy. Here are his scenarios:
  1. The peyote case—an Indian tribe uses peyote in its religious ceremonies; the state outlaws peyote.
  2. The Amish case—the Amish don’t want their kids to attend high school, in violation of the state’s compulsory schooling law.
  3. The Ten Commandments case—is it lawful to post the Ten Commandments in a courthouse or other public building?
  4. May a state ban the teaching of evolution, or require teaching of “creation science,” in its public schools.
  5. Should the fact that most opposition to abortion is based on belief in ensoulment invalidate laws restricting abortion on demand?
  6. Should the fact that much of the opposition to gay marriage rests on religious belief invalidate laws refusing to recognize such marriages?
I couldn't help but noticing that his 5th and 6th cases happened to be my examples at well. However, his perspective on those two issues was different from mine. Here is what he had to say about all six cases, with his comments on 5 and 6 in bold:
In the first two cases, religion is seeking an exemption from secularly motivated laws of general applicability. In the next pair of cases, the state is being asked to enact, in effect, a religious dogma. The last two cases are the interesting ones. A law prohibiting abortion or gay marriage is not an enactment of religion in the same sense as posting the Ten Commandments or teaching divine creation, because those prohibitions do not mention religion or contain a religious message; they are merely inspired by religion. It would be a leap to regard them as “establishing” religion. And, in my view, a leap too far.

The leap would imply that the only morality that should guide public policy in today’s United States is a secular morality.
I think Posner's view of 5 and 6 is an oversimplification, and not simply because his description of it is so short. I think the difference between cases 3 and 4 and cases 5 and 6 is much more difficult to define. I think the fact that the primary (and perhaps the only sound) justifications for outlawing abortion and gay marriage are religious means that, in effect, such laws do contain a religious message. That the religious message is not made explicit in the wording of the relevant laws does not mean it is not there. If the religious message defines the laws, then whether or not we acknowledge this in the wording is irrelevant. In a sense then, and contrary to Posner's assertion, such laws do amount to the establishment of religion.

To see why I think this is the case, let's look again at the other case I used in my original post: laws requiring that women wear burkhas. I suspect that if such laws were passed, Posner and many others would argue that they amounted to the establishment of religion, because the wearing of burkhas is prescribed entirely on religious grounds. Yet, if we adopted Posner's justification for his views on the abortion and gay marriage cases, we would have to accept that, if Muslims constituted a majority of American voters, it would be constitutionally permissable for them to vote for laws that required women to wear burkhas. Here is Posner's statement justifying his view:
If morality, or at least a large part of the moral domain, lives below reason as it were, isn’t the practical consequence that morality is simply dominant public opinion? And so if the population is religious, religion will influence morality, which in turn will influence law, subject to constitutional limitations narrowly interpreted to protect the handful of rights that ought not to be at the mercy of the majority.
If, under this view, the majority of Americans were Muslim, and held strict Islamic views of sexual morality and gender, then there religion would and should influence law. Yet I think most of us, even those Christians who feel that abortion and gay marriage should be outlawed for strictly religious reasons, are likely to feel that if non-Muslim women are forced to wear burkhas based on the moral views of a religion to which they do not adhere, this would amount to government endoresement of a particular religion. The constitutional limitations that Posner mentions are designed to protect individual religious (and non-religious) liberties from the majority's religious beliefs. Why, if they should protect us against the Muslim belief that women should wear burkhas in public, should they not protect us from the Christian and Jewish belief that abortion is murder because we are endowed with souls from conception, or the belief that gay marriage should be outlawed because homosexuality is strictly prohibited in Christian and Jewish scriptures (under some interpretations)? Do not these laws also restrict the liberties of those who do not share these religious beliefs?

One potential way around this is to argue that there are, in fact, secular moral reasons for outlawing abortion and gay marriage (or forcing women to wear burkhas). This is the argument that Jeremy Pierce made in some good comments to my previous post. Is it in fact the case that there are non-religious moral reasons for opposing abortion and gay marriage? There have been some non-religious arguments offered against both, but two problems arise when we consider them. Does this mean that outlawing them is not, in fact, the establishment of religion? I don't think it's so straightforward. Putting aside for a moment that I have yet to hear any valid or sound arguments against either that are based entirely on non-religious premises, the existence of such arguments, perhaps even under Posner's view, is insufficient to demonstrate that the laws have not been enacted for religious reasons. For the majority of Americans who oppose gay marriage or abortion, their primary moral reasons for doing so are in fact religious (even the arguments criticized in the pro-choice essay cited by Jeremy are all religious ones, put forward primarily by the Catholic church), and thus their influence on public policy still amounts to the legal adoption of a particular religious view.

Now that I've gotten all that out of the way, I should say that I think even my view is an oversimplification, though one that is less internally inconsistent than Posner's. As I said in the previous post, voting one's values, or morality, or conscience, really just means voting for particular reasons, be they religious or secular. The point I'm ultimately trying to get across is that I feel completely justified in criticizing anti-choice and anti-gay voters for voting on religious grounds. However, I also don't think it's practical to attempt to prevent them from doing so. My only real hope is that such criticisms will be allowed, and taken seriously, in the public debates over these issues, and that lawmakers will take into consideration the religious nature of such laws.


Anonymous said...

Just to make my view clear, I was arguing that there are good secular arguments that abortion is usually wrong. I didn't get to whether it should be legal, though I think a libertarian view on such matters if you think abortion is wrong is basically moral spinelessness akin to believing slavery is wrong but allowing it, as Jefferson did.

With gay marriage, I don't think there are good secular arguments against civil unions that have all the benefits and penalties of heterosexual unions. I think there are arguments that are purely secular that sound plausible to many people, but I don't think they're good arguments. On the use of the term 'marriage', I consider that term religious and thus not the business of the government to regulate one way or the other. 

Posted by Jeremy Pierce

Anonymous said...

Your post of Dec 30, 2004 confuses the establishment of religion, prohibited by the constitution, with favoring laws that are consonant with one's personal religious beliefs. To establish a religion, as it was intended by the founders of the republic, was to set up a state religion, as England had done with Anglicanism. Court decisions have expanded the clause's scope to prohibit any overt use of state power to support a religion or a particular religious viewpoint or belief. It never has expanded the clause to prohibit a law merely because it was consonant with personal religious beliefs of individual citizens, even when a majority of the citizens held such beliefs.

In my view, in your post you would substitute 'overt' support with 'implied' support of a particular religion, for religion in general, or for a particular religious belief. By doing so, you expand the reach of the 'separation' clause to any law that is, impliedly consonant with the religious views of its citizenry. You would re-write the constituion by your own 'separation' clause, separating state and morality, rather than state and religion. You don't limit your idea of religion to organized, social entities. Rather, it includes any moral viewpoint consonant with an established religion.

Your example of a country having a predominantly muslim population passing laws requiring women to wear burkahs is contrived, but even so, if the basis is a rational one, i.e., that any less clothing would incite a male population to an aggressive and promiscuous breach of the peace, it is not at cross purposes with the 'separation' clause.

Posner's views take into consideration the fact that individuals all possess at least a moral instinct, which in each reacts approvingly, disapprovingly, or indifferently to the enforcement of laws. Laws, to be perceived as 'fair and just,' must garner validation ultimately from the public morality, a pluralistic approval from the moral instincts of individuals. The moral instincts of some are embellished and refined through a religious education, so that those instincts become expressed as religion. It was never imagined by the Founders that these United States would be anything but a nation of christians, of diverse doctrinal orientation. It was never intended that the laws of this country ought be at odds with the prevailing christian ethic. In other words, the operation of 'morality' in the public is always assumed. Your elimination of it through the 'separation' clause is mistaken.  

Posted by Leonard Antal

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TSlater said...

First I want to say I really appreciate this discussion.

I recognize that this comment is coming years after the original post and the topic is mildly peripheral but it is important. I want to clarify the statement: "Christian and Jewish belief that abortion is murder because we are endowed with souls from conception."

In Judaism there are many reasons for a woman to have an abortion. It is certainly not taken lightly, but the fetus is not given the same status as the mother. These questions are much more nuanced than the political debate often portrays them as.