Article by Edward McGlynn Gaffney, Jr.
In his stimulating essay, Morality, Politics, and Law, Michael J. Perry explores “the proper relation of moral beliefs—including moral beliefs religious in character—to politics and law, especially constitutional law, in a morally pluralistic society.”' Starting from the premise that basic moral beliefs are “less the property of individuals than of communities,”' Perry quotes a prominent theological ethicist, Stanley Hauerwas:
“[T]he justification of our moral principles and assertions . . . cannot be done from the point of view of anyone, but rather requires a tradition of moral wisdom. Such a tradition is not a ‘deposit’ of unchanging moral ‘truth,’ but is made up of the lives of men and women who are constantly testing and changing that tradition through their own struggle to live it. The maintenance of such a tradition requires a community across time sufficient to sustain the journey from one generation to the next.”'
Perry recognizes that religious communities are among the many moral communities that function in our society to shape political discourse and the political agenda by speaking and acting corporately on matters of public concern that involve basic moral or ethical issues. Acknowledging that “basic moral/religious convictions are (partly) self-constitutive and are therefore a principal ground—indeed, the principal ground—of political deliberation and choice,”' Perry concludes:
To “bracket”' such convictions is . . . to bracket—to annihilate—essential aspects of one's very self. To participate in politics and law—in particular, to make law, to break law, or to interpret law—with such convictions bracketed is not to participate as the self one is but as some one—or, rather, some thing—else.
For Perry, the religious voice is one among other moral convictions that may be asserted and that should be given a respectful hearing in discussion of social policy. On this point Perry is in agreement with theologians who repudiate a privatized understanding of religion, according to which religion and politics do not mix because religion is confined to purely individual choice. For example, Perry's view is echoed in a Statement on Religious Freedom in America recently issued by Muslims and Roman Catholics engaged in interfaith dialogue in Los Angeles:
We are of one mind that religion is not exclusively a matter of private, inner conviction, but is also a social concern that both arises within a community of faith and obliges us to religious duties that must be exercised within our religious communities and in the social context of the world in which we find ourselves. For this reason we reject the notion that the Religion Clause of the First Amendment was meant to remove all manifestations of religion from public life in this country, and we insist that religious communities must retain the freedom to announce their message to all who would listen to them. We believe that this freedom includes the right of religious communities to participate as equal and full partners in political debate on matters of public policy, and that this freedom is guaranteed not only by the Religion Clause, but also by the Free Speech Clause, the Free Press Clause, and the Equal Protection Clause. For the same reason we reject the notion that religious freedom should be constricted to matters of personal beliefs, and we insist that conduct grounded in religious faith and flowing from it is necessarily included as well within the protection of the Religion Clause of the First Amendment.
In a similar vein, the Williamsburg Charter acknowledges that religious liberty is not only an individual right, but also a “positive social good.”' The Charter proclaims:
The role of religion in American public life is too often devalued or dismissed in public debate, as though the American people's historically vital religious traditions were at best a purely private matter and at worst essentially sectarian and divisive. Such a position betrays a failure of civil respect for the convictions of others. It also underestimates the degree to which the Framers relied on the American people's religious convictions to be what Tocqueville described as “the first of their political institutions.”' In America, this crucial public role has been played by diverse beliefs, not so much despite disestablishment as because of disestablishment.
This view of the interaction of religion and politics, however, cannot be taken for granted, even among liberals. An important distinction must be drawn between political liberals such as John Rawls, who would allow full space for the expression of religious viewpoints in the public sphere, and comprehensive liberals such as Bruce Ackerman, who advocates a rule of “Neutral discourse”' in which religion would not play a significant role in the public sphere.
For Rawls a political conception of justice is supported by an “overlapping consensus”' that “includes all the opposing philosophical and religious doctrines likely to persist and to gain adherents in a more or less just constitutional democratic society.”' A Rawlsian liberal could defend the integration of religious insights into the discussion of public policy to allow religionists to share their conception of the good with others of the same persuasion more efficiently than they could through a parish bulletin or a church newsletter. Religious speakers on matters of public concern would also be welcome in the Rawlsian universe on the ground that like other speakers, they must be allowed the freedom to try to persuade others to accept their religious perspectives and to act upon them. This integration of religious and other forms of moral discourse in public philosophy is one of the purposes of the Williamsburg Charter, which states:
Neither established nor excluded, neither preferred nor proscribed, each faith (whether transcendent or naturalistic) is brought into a relationship with the government so that each is separated from the state in terms of its institutions, but democratically related to the state in terms of individuals and its ideas. The result is neither a naked public square where all religion is excluded, nor a sacred public square with any religion established or semi-established. The result, rather, is a civil public square in which citizens of all religious faiths, or none, engage one another in the continuing democratic discourse.
For Ackerman, by contrast, the liberal goal of autonomy is a per se good that is virtually comprehensive. Refining Vince Lombardi's view of winning, Ackerman, in his seminal essay, Social Justice in the Liberal State, asserts programatically the conviction that autonomy is not the only good thing, just the “best thing that there is.”' Ackerman's claim that autonomy is the best thing is supported by the Neutrality principle cited above. Because Ackerman is not simply a political liberal in the Rawlsian sense, but the leading exponent of what may be described as comprehensive liberalism, it is helpful to explore the implications of his Neutrality principle for the use of religious language in American politics before turning to Perry.
Ackerman asks the right questions about autonomy:
What could be better for a person than his own development of a plan of life that seems to him good? Of course, if God had set down a contrary law in clear and unambiguous terms, His view would be entitled to respectful attention. But has He done so? How do you know this?
Regrettably, however, Ackerman's unfamiliarity with the pluralism of religious discourse apparently leads him to conclude that most theologians think univocally on this and other matters. His unfamiliarity with the centrality of humanistic anthropology in theological ethics apparently leads him to conclude that theology is not an ally with legal philosophy in the defense of personal dignity. His unfamiliarity with the focus on interiority in religion apparently leads him to imagine that most theologians still pursue a Cartesian goal of an outsider God pronouncing clear and distinct ideas. His unfamiliarity with the focus on the cultural context of religious experience apparently leads him to believe that theological discourse is removed from any social setting. Perhaps these fundamental misperceptions of the contemporary theological enterprise lead him not only to espouse the Neutrality principle, but also to be dismissive of religious discourse rather than to probe it with the seriousness his thoughtful questions demand.
On one hand, Ackerman recognizes that “any group of like-minded citizens have [sic] the right to worship God in any way they see fit.”' In firmly opposing governmental attempts to interfere with acts of worship at the core of religious experience, Ackerman might even sound like Rawls. Unlike Rawls, however, Ackerman apparently does not understand that some religious believers see fit to worship God in part by active engagement in the political order. If Ackerman were to grant this premise, he would presumably acknowledge that this activity enjoys the protection of the first amendment, and that religiously grounded political discourse may not be inhibited merely on the ground that its motivation is religious.
On the other hand, Ackerman's preference for “Neutral dialogue”' leads him to oppose any “public declaration that the elite's theology is intrinsically superior to other ways of defining the meaning of life. Every activity must vindicate its value through the free choices of a morally autonomous citizenry.”' He recognizes that religiously grounded political dialogue might have a place within the confines of the church, but is less prepared to afford this discourse a hearing in the public forum. Once again, the reason for Ackerman's disdain for this mode of discourse in the public forum is that it seems to him ineluctably grounded in a pretense that this form of privileged, spiritual communication is superior to other forms, a cardinal violation of the Neutrality principle.
Given the broad scope of the a priori principle Ackerman relies upon to prejudge all uses of religious discourse, it is small wonder that he finds “‘[t]he particular details of the divination procedure . . . of little interest; it may be as simple as flipping a coin or as complex as reading entrails.”’ He “permit s ”' the justification of such discourse by “appeal to any transcendent principle whatever,”' such as the justification of “a random coin flip by glorifying the role of fortune in human affairs or com ing up with a complex theology in defense of entrail reading.”' Perhaps because he has not encountered complex theological attempts to address the American political scene in a way that is respectful of the “considered judgments on social issues rendered by particular members of the liberal community,”' Ackerman assumes that the outcome of what he terms the “divination procedure”' must be “completely independent”' of those judgments. Nearly every religious body in the United States has issued a statement on the death penalty that attempts to take into account the considered judgments of noncommunicants on this issue. It is dismissive and reductionist to exclude from consideration the usual form of argumentation that religious groups in America have normally employed.
Morality, Politics, and Law is a welcome contribution to American jurisprudence, partly because of Perry's willingness to take religious discourse seriously, in a way that Ackerman apparently is not interested in doing. Like Ackerman on autonomy, Perry does not maintain that religious discourse was or is the only good thing about American politics. Unlike Ackerman on autonomy, he does not even maintain that religious discourse is “‘the best thing that there is.”’ He merely suggests that the religious mode of participating in debate about public policy is surely permissible in our republic. The religious mode is especially important when it consists of reflections by sincere believers in open dialogue with their fellow citizens on the adequacy of the law to secure the justice owed to all persons, whether citizens or aliens, in a republic in which they are still allowed to trust in God for guidance on complex social issues.
It would require another essay to discuss the myriad ways in which religion has functioned in America to sustain what Robert Drinan calls the “first imperative”' of obedience to law. Although religious bodies in America have for the most part been pillars of support for the law and its institutions, they have on important occasions urged defiance of law. Perry deals with disobedience of the law in a brief chapter in which he makes clear that there cannot be an absolute obligation to obey all laws, or even some laws. My review of his essay focuses on his treatment of the crucial theme of civil disobedience.
About the Author
Edward McGlynn Gaffney, Jr. Dean, Valparaiso University School of Law.
Citation
64 Tul. L. Rev. 1143 (1990)