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Religion and liberal democracy.

QUESTIONS ABOUT THE PROPER place of religion in a democracy and the separation of church and state remain in the news. In the United States, legal and social battles about the proper place to draw the line between religion and government are being waged around the issues of abortion, gay marriage, faith-based social services, and other well-publicized flash points of conflict between sacred beliefs and secular authority. And with the political influence of religious conservatives evidenced in the 2004 presidential election, the issue of religious influence on affairs of state is likely to remain a matter of importance and controversy for the foreseeable future. Thus the secularism and church-state separation of liberal democratic theory are under renewed attack. So reexamining the principles underlying secular government becomes not simply a matter of leisurely philosophical speculation but one of extreme political and practical urgency.

The principle of separation of church and state is essential for providing for and preserving both religious freedom and the long-term continuation of the peaceful stability of a well-ordered, liberal democracy--where human equality and human freedom are regarded as fundamental and intrinsic goods and where more human freedom is recognized as better than less. But leaders of what is commonly called the religious right have been attempting to tear down the Jeffersonian wall of separation between church and state (as did many religionists in Thomas Jefferson's own day). So it is necessary to clarify what is at stake in this struggle.

Many people don't realize that the phrase "separation of church and state" isn't found anywhere in the Constitution of the United States. The celebrated First Amendment simply places a prohibition on Congress by saying that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This language severely limits the actions of the federal government but says nothing about limitations on state governments or on religion itself. On the contrary, for many alive at the time of ratification, one intention of the restraint on Congress appears to have been to give state governments free rein in religious matters. It wasn't until 1868, when the Fourteenth Amendment applied the Bill of Rights to the states, that states were constitutionally required to be religiously neutral.

While various Supreme Court decisions have since used the language and imagery of the "wall of separation between church and state," the phrase originated in the famous letter Thomas Jefferson wrote to the Danbury, Connecticut, Baptist Association during his first term as president in 1802. In this letter he also wrote that "religion is a matter which lies solely between man & his god." This was a principled position: later in his Autobiography he made it clear that his thinking included "the Jew and the Gentile, the Christian and the Mahometan, the Hindoo, and infidel of every denomination." Jefferson had the genius to recognize that the fundamental issue of religious freedom extends beyond the simple mutual toleration of different Christian denominations for each other.

Before examining the importance of the separation of church and state in liberal democratic theory, it is necessary to clarify two important presuppositions of that theory. The first is a certain view of human nature and the second (dependent to some extent on the first) is the distinction between the private lives of citizens and the public arena in which legislation or public policy is proposed, debated, and then either approved or defeated.

Liberal democratic theory is committed to a general philosophic view of human nature that can be traced to the Enlightenment. Are human equality and human freedom intrinsic goods? Is it the role of government to protect and nurture these goods? Does the ultimate source of legitimate political authority lie in the citizens of a republic? Liberal democratic theory answers in the affirmative and views humans as rational beings capable of determining and regulating their own social, economic, and political affairs. The "liberal" aspect of liberal democratic theory takes its meaning from the philosophical rather than the political usage of the term--a meaning that is derived from "liberty." Both Immanuel Kant and Thomas Jefferson endorsed this view of human nature. Reacting against the dominant Christian theological view that human nature was fundamentally corrupt and in need of divine guidance and deliverance from itself, Kant and Jefferson endorsed the optimistic view that regarded human beings as fundamentally rational and profoundly educable. Knowledge resulting from flee, unfettered inquiry was viewed as providing not only the basis for understanding the natural world but also for humans understanding themselves, including their social and political selves. Thus human beings came to be regarded as embodying the ability to consider and value the common good and to provide for the social and political arrangements that improve the human condition. The notion of self-government had to be proceeded by the belief that human beings are capable of self-government.

Clarifying the distinction between the private lives of the citizens of a democracy and the public arena in which public policy and legislation are debated and formulated is crucial to liberal democratic theory. John Locke made clear, for example, in A Letter Concerning Toleration, that the business of the civil magistrate and the business of the church must be completely distinct. Locke maintained that "the only business of the church is the salvation of souls" and the only circumstances in which the state has an interest are those in which the commonwealth stands to suffer some prejudice or injury.

The distinction between public and private life is one Jefferson used as the crux of his justification for his wall separating church and state. Not only is religion a private matter in Jefferson's view, there are also pernicious effects due to the mingling of private matters of religion and public affairs of state. James Madison concurred, claiming that the papal system, wherein church and the state aren't separated, represents "the worst form of governments." The wall of separation was thus intended to prevent what Thomas Paine later called the "adulterous connection of church and state."

At the time the U.S. Constitution was framed there was considerable debate amongst the various states concerning whether government should establish recognized connections between religion (i.e., Protestant Christianity) and the state or whether it should explicitly disestablish such connections. Some delegates, insisting that the United States was a Christian nation, tried but failed in an attempt to include such recognition in the Constitution. Given the pressure from various religious groups and clergy, and given their own deeply held religious beliefs, it is an often-overlooked act of statesmanship of enormous proportion that the delegates to the Constitutional Congress were able to set aside their own particular beliefs in the framing of the document. The de facto separation of church and state created in the Constitution by this absence of references to Christianity or other religions was widely and strongly criticized by many religious leaders at the time. Debates in state legislatures concerning adoption of the Constitution were often heated, with much concern expressed about religious freedom and with several states insisting that a guarantee of religious freedom be included in a bill of rights. This debate led to the First Amendment in 1789. The movement toward complete disestablishment of religion in all of the states was a slow, gradual, multifaceted process that involved Congress, the Office of the President, the Supreme Court, and state legislatures and continued until the mid-twentieth century. Indeed, some might say it still continues today.

But if a democratic government is to nurture and maximize human freedom then it must provide constitutional protections for a diversity of beliefs across a wide spectrum--including religious beliefs. In order to do this, a constitutional democracy needs to provide constitutional guarantees that prohibit civil penalties, denial of civil privileges, or granting of special civil privileges on the basis of religious beliefs (or lack thereof) on the part of any citizen.

Locke's words are still directly on point in this regard: his claim that "it is above all things necessary to distinguish exactly the business of civil government from that of religion" provides a mechanism to put an end to the otherwise endless religious controversies in a pluralistic society that prevent the peaceful and smooth functioning of a well-ordered society. The fundamental claims that are to be incorporated into the constitution must be justifiable to all citizens, and this cannot be done if the justification appeals to one set of religious beliefs rather than another. In order to construct a constitution on principles that all citizens will agree to, one must appeal only to human reason. This is the lesson that is preserved in philosopher John Rawls' Principle of Political Legitimacy (Political Liberalism, 1993), which considers such matters as "who has the right to vote, or what religions are to be tolerated, or who is to be assured equality of opportunity, or to hold property."

However, not everyone agrees that the fundamental constitutional issues should be debated and decided by appeal only to reason. For example, Nicholas Wolterstorff maintains that the separation of public civic life from private religious life discriminates against religious believers by requiring them to act politically while denying or ignoring their religious beliefs, and that setting their religious beliefs aside in such circumstances might very well be contrary to or a violation of those religious beliefs. This situation generates a paradox for liberal democratic theory, according to Wolterstorff, since liberal democratic theory is based upon the fundamental commitment to equality and freedom; however, for the religious person, such a commitment might be based upon religious belief. In his view, by denying the religious person the right to appeal to religious belief to justify the most fundamental principles of democracy, liberal democratic theory would presumably be denied the support of the religious person, and the religious person would presumably be denied the freedom to act upon his or her religious belief.

To respond to Wolterstorff's criticism of the separation of public civic reason and private religious belief, it is necessary to be clear about exactly what his complaint is. In order to generate the apparent paradox, it appears that Wolterstorff must be claiming that the religious person's commitment to equality and freedom is based solely and exclusively upon religious belief. Ought a person be allowed to appeal to religious belief as the exclusive justification for valuing equality and individual freedom on the constitutional level and would the failure to allow such an appeal be paradoxical to liberal democratic theory? The answers to these questions become apparent when the questions are generalized.

Of course a person might hold a belief p on religious grounds, but p might also be justified to others on nonreligious grounds in a manner that appeals to reason. The Principle of Political Legitimacy would require the religious person in such a situation to translate the basis of the epistemic justification for p into a civic, public reason in order to justify p to others. If p is a claim that can be justified only by an appeal to some religious authority or tradition, which does not play the same justificatory role for others, then according to the Principle of Political Legitimacy the religious person has no right to expect the adoption of p on the constitutional level. If p is some belief supportive of liberal democratic theory, then it initially appears that the part of liberal democratic theory that endorses individual freedom would be undermined since the religious person would be denied the freedom to promote (and perhaps establish) p on the basis of religious belief alone. However, if there is no general prohibition against the introduction of p solely on religious grounds and p is a belief that is contrary to or incompatible with the fundamental values of equality and freedom, then it would be impossible to provide constitutional guarantees for those fundamental values. Different people might come to the public table of constitutional debate with different religious agendas, based solely on religious beliefs, and there would be no way to overcome the hurdle of the same kind of intractable disagreements that had plagued Western Europe for centuries during its religious wars.

To jumpstart the process of framing a democratic constitution, the private religious beliefs of those doing the framing must be set aside. And this is exactly what the framers of the Constitution of the United States were able to do.

Now compare this to the current situation in Iraq. In the latter case we have a modern-day laboratory experiment of an attempt to develop a democratic government and frame a constitution. What is to be the role of Islam in the resulting structure? The Shiites and the Sunnis each want a piece of the pie, as do the non-Arab Kurds, while members of the Baath Socialist Party have been denied participation. The situation is strikingly similar to the one that faced those responsible for drafting the U.S. Constitution.

There are, of course, other important issues to be resolved in Iraq. But in order to provide for a peaceful, stable, well-ordered society, there is no more crucial issue to be settled than the relationship between religion and whatever kind of state emerges from the process. If the expectation is to arrive at a result that is comparable to the liberal democracy of the United States, then the answer to the question of what the relationship should be between religion and the state must be the same. The only general and permanent guarantee of religious freedom and protection of religious minorities is a constitutional separation of religion and government. Thus the shadow of Thomas Jefferson looms large over the process of drafting the constitution for a democratic Iraq. If the eventual result is to be a democratic government that values and protects individual liberty and equality, then the answer to the question of what governmental role Islam is to have is clear: none.

There are two differences between Christianity and Islam that are worth explaining, since they are directly related to the two philosophical preconditions of liberal democratic theory. First, as a result of the Protestant Reformation, Protestantism recognized and adopted the view of human nature discussed above, according to which human beings are viewed as creatures capable of self-government. In contrast to Roman Catholicism, Protestantism became non-hierarchical and, one might say, more democratic. Second, much of Protestant Christianity (although certainly not all of Protestantism, such as the Puritans) came also to separate theology from politics and religion from the everyday civic lives of individuals. This is why the distinction between the private, individual religious life and the public, civic secular life, which is crucial for Jefferson's separation of church and state, became possible.

This crucial separation isn't a part of early Islam, nor is it to be found in Orthodox Judaism or Confucianism (nor, one might add, in Roman Catholicism, early Protestantism, and many forms of American Christian fundamentalism). Moreover, there is little optimism that the distinction can be drawn for Islam in a way that separates religion from political or civic life, since Muhammad gave laws that explicitly connect theology with politics. The significance of the lack of this distinction for the prospects of a peaceful, well-ordered liberal democracy in Iraq cannot be overestimated. Some fundamentalist Muslims now insist that Iraq must be an Islamic country just as many fundamentalist Christians now insist that the United States must be a Christian country.

Indeed, the separation of religion and state, the separation of the spiritual and the secular, which is essential to liberal democratic theory, is the very source of what some Muslims take to be the corruption of Western democracies. Such a separation is not only unacceptable to them but is regarded as complete anathema to Islamic thought. Thus the separation of religion and state is not only regarded as a political mistake, it is regarded as a theological mistake as well. In this regard, perhaps ironically, fundamentalist Islam, Orthodox Judaism, and fundamentalist Christianity have much in common.

On the constitutional level, there can no more be an Islamic democracy than there can be a Christian or Orthodox Jewish democracy. A religious liberal democracy is an oxymoron. A liberal democracy designed to protect and maximize human freedom and to provide for equality of opportunity and treatment must not only be secular, it must be devoutly secular. It is this prospect of secularization that most threatens some fundamentalist Muslims, since secularization is seen as posing a direct threat to their religion.

Because one of the most basic philosophical preconditions for a liberal democracy is establishing the wall of separation between religion and state, the future in this respect doesn't look promising. To date, Turkey is the only previously Islamic country that is now a democracy. And recently, devout religious believers have forced some concessions and compromises from the state that raise questions about the long-term viability of Turkey's democracy. Although Israel is often blithely referred to as a democracy, it isn't a liberal democracy but a very limited one--a closed democracy--in which democratic guarantees are prescribed for a limited subset of citizens. For example, the state of Israel doesn't recognize any civil ceremony for marriage. Only the Orthodox Jewish ceremony is recognized as legal, and no inter-religious marriages are allowed.

To best ensure that a society is secure, stable, and peacefully well ordered for the long term, a liberal democracy must be protected from the incursion of religion in all forms and on all levels. It doesn't take a religious jihad to threaten a liberal democracy; it only takes allowing the "the first experiment on our liberties," as Madison writes--the first wedge of religion into the structure of the state.

Certainly not all fanatics are religious, but the ones who are tend to operate on the same principle: that some religious belief or claim must be placed in the position of ultimate authority. The religious fanatic who opposes abortion by bombing abortion clinics acts on the same principle as the religious fanatic who burns an embassy in protest of so-called blasphemous cartoons published in the embassy's home country. Both are resorting to violence to damage the state in order to prompt a change in its laws or policies on the basis of some religious belief. Both are religious fanatics acting upon religious beliefs that are immune to reason. The only difference is in the magnitude of the attacks and the number of victims. Both are religious terrorists to a peaceful, well-ordered liberal democracy.

Among those who at present debate the relationship between church and state, there would undoubtedly be more agreement about the necessity for the separation on the constitutional level than there would be about the necessity for the separation (and the meaning of separation) within a constitutional democracy. Once a democratic constitution is in place, as the long history of conflicts and court decisions in the United States makes clear, fixing the boundaries between religion and the state becomes trickier. On the legislative level, where individual laws and public policies are determined, what is the proper role of religious beliefs? There must be additional restraints operative that establish a prima facie obligation upon citizens to refrain from appealing to privately held religious beliefs in the public forum in which the affairs of state are conducted. The difficulty will be in justifying restraints upon appeals to religious beliefs given the constitutional guarantees of the disestablishment of religion (that is now taken as prohibiting any governmental endorsement of religion) and the free exercise of religion (that is now taken as prohibiting any governmental interference with religion).

According to Robert Audi in his book Religious Commitment and Secular Reason, a citizen in a liberal democracy has a prima facie obligation to appeal only to secular reason or to be sufficiently motivated only by secular reason to support or oppose legislation or policy in the public arena. If a person is originally motivated solely by religious belief or has a religious belief as the sole reason for advocating or opposing a particular action by the state, then that belief or that reason needs to be reformulated into a rationale or an argument that appeals to human reason.

Perhaps the most significant feature of religious reason, and perhaps the feature from which all the other differences between religious reason and secular reason derive, is the oft-touted claim by believers that religious reasons carry an infallible supreme authority that guarantees the truth of such claims against all potential epistemic defeaters. However, allowing appeals to such religious reasons, held to be infallible, in the public arena where laws and public policies are made, would result in what Audi calls a "clash of Gods" and a "battle to the death," that is, an epistemic dead end from which there is no retreat or escape. This would obviously threaten the peaceful and well-ordered stability of a liberal democracy.

But, is not disagreement and conflict simply one of the prices to be paid for a liberal democracy? There are numerous cases where the free exercise of religion and privately held religious beliefs have apparently come into conflict with public reason. The followers of Christian Science, for example, often refuse conventional medical treatment for their minor children on the basis of religious beliefs. Some fundamentalist Muslim parents force female circumcision upon their minor daughters on the basis of religious beliefs. Gay marriage and abortion are opposed by many on the basis of religious beliefs. And some support the public display of the Ten Commandments on government property on the basis of religious beliefs.

In each of these cases, the proper approach is to separate the religious interest from the civic interest and to require, in those cases where the religious interest is said to overlap with the civic interest, that the matter of civic concern be put in nonreligious terms. Most importantly, in a pluralistic, liberal democracy this must be done in a way that guarantees equal protection, in this case religious parity, for all.

How might equilibrium amongst competing religious beliefs and equal protection ever be achieved unless a wall of separation between church and state is maintained? The simple, straightforward answer is that it cannot. Equal treatment and the establishment of religion are inversely proportional. To the extent that one religion is given preferential or privileged treatment, others are denied equal treatment.

Locke maintained that citizens should be allowed free exercise of religion except in cases where such exercise harms society or poses the possibility of social harm. It is certainly permissible for people to believe whatever they prefer on whatever grounds they choose in their private lives. However, if those same beliefs are used as the basis for legislation or public policy, it is easy to see that a line has been crossed where the introduction of private religious beliefs into the public forum becomes damaging to society. Extending the free exercise of religion to the public arena threatens to destroy the underlying theoretical framework of the very democratic guarantee of the free exercise of religion itself. In a liberal democracy the exclusion of religion from the government arena is the only way to provide for the peaceful stability of a well-ordered society that protects the free expression of religion in the private lives of citizens.

James F. Harris is Haserot Professor of Philosophy at the College of William and Mary. He is the author of numerous articles in both domestic and foreign journals and the books Against Relativism: A Philosophical Defense of Method and Analytic Philosophy of Religion.
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Author:Harris, James F.
Publication:The Humanist
Date:May 1, 2006
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