Geof Stone and I Discuss Religious Reasons for Lawmaking,

on the Huffington Post; Geof's post is here and mine is here. An excerpt from Geof:

George Bush appears to have no idea whatever of the difference between faith and morality. He acts arrogantly on the premise that cell-stem research, gay marriage and abortion are immoral, when in fact his views are based entirely on his own sectarian religious beliefs. His opposition to cell-stem research is no different, and no more legitimate, than a Muslim's opposition to Bush eating pork. Such a policy is merely faith masquerading as morality. As such, it is profoundly, blindly, and disturbingly incompatible with a basic premise of a well-functioning democratic society.

And one from me:

[I]t shouldn't matter whether someone supports [laws banning -- or allowing -- abortion, infanticide, the destruction of embryos or chimpanzees for medical purposes, or the killing of members of endangered species might be sound or unsound] because of his belief that laws should turn on the greatest good for the greatest number, his belief that we are all sons and daughters of Gaea and must thus protect our environment, or his belief in the Bible. For most, quite possibly all, of us, our moral beliefs ultimately rest on unproven and unprovable moral axioms. The Constitution doesn't consign those whose moral beliefs rest on unproven and unprovable religious axioms to a lesser citizenship, under which they may not enact their views into law, while others with the same views that rest on unproven and unprovable secular axioms are free to do so.

Religion, Forcing Moral Views on Others, and Abortion:

People often complain that others -- often others who oppose abortion or destruction of embryos in the lab -- are just trying to implement their own religious views into law, and how they are trying to force their moral views on others. The argument isn't that the particular view about when life begins, or about whether abortion is proper, is mistaken; I can respect such arguments, and I even agree with some of them. Rather, instead of confronting the pro-life position on the controversial and difficult to debate merits, the arguer claims that this position is somehow procedurally improper, because it rests on religious reasons or forces moral views on others.

But all judgments about when human beings acquire certain rights rest on unproven and unprovable moral calls. (I have made this argument more broadly before, but I think it's even clearer as to abortion.) Moreover, they all force one's moral views on others. If you think people acquire a right to life at birth, and you thus support infanticide bans, then you're forcing your moral view on others who want to kill babies. If you think that ninth-month abortions are wrong, because the baby acquires rights at viability, then you're forcing your moral view on others who want to abort fetuses that are eight months old.

Now of course these judgments may be informed by medical observations -- for instance, when the brain develops to a certain level, or when something will end up naturally growing into a born human without any further intervention -- or by pragmatic considerations, gut feel, opinion polls, tradition, views about how precise and clear legal lines should be, or whatever else. But ultimately these judgments rest not on the scientific or social facts as such, but on moral judgment calls about how one evaluates these facts.

Likewise with libertarian arguments about the rights of the woman; the scope of the woman's rights, the existence or not of the fetus's or baby's rights, and how one reconciles those rights ultimately rests on one's own axioms about morality. And whether one supports a law against all abortion, against late-term abortions, against infanticide, or against killing babies who are one year or older, one is forcing one's moral views on others.

Ah, but at least you're forcing moral views on others, not forcing religious views on them, some say. So what? How is (1) someone's gut feeling that an eight-month old fetus is so much like a baby that surely it shouldn't be killed a more legitimate basis to write laws than (2) someone's deduction from the Bible that any fetus can't be killed? For that matter, how is a secular moral axiom that born babies are as entitled to live as we are a more legitimate basis to write laws than a religious moral axiom to the same effect?

All of us draw lines in this field, whether at conception, viability, birth, or whenever else. None of us can prove the validity of those lines through science or through abstract logic.

Those of us (like me) who draw secular lines shouldn't feel superior to those who draw religious lines here -- and we certainly shouldn't think that the Constitution or political morality somehow makes our linedrawing more proper. We can and should debate, as best we can, where the lines should be drawn, but we should recognize that at some point it comes down to the unproven and unprovable, for the secular among us as well as for the religious. And we should realize that no attempt to protect children from killing -- wherever you draw the line about what constitutes a "child" -- can operate without forcing one's moral views on others.

Pork and Horsemeat:

I've gotten a bunch of responses to my post about "Religion, Forcing Moral Views on Others, and Abortion"; and quite a few give as hypotheticals bans on eating pork, backed by devout Jews or Muslims, or bans on eating cow meat, backed by devout Hindus. Surely those laws are unconstitutional (that was actually Geof Stone's argument in the post that prompted by original response). In the words of one correspondent of mine, "A Christian should not be prohibited from eating meat because the Hindu gods that the Christian does not believe exist have decreed the cow sacred."

It turns out, though, that California voters in 1998 banned the sale of horsemeat for human consumption. (Georgia law bans the sale of dogmeat for human consumption; I'm sure some other states have similar laws.) I have no reason to think that this law was motivated by religion. Rather, I suspect that most voters supported it because of their gut feel that eating horse or dog is disgusting or, in the words of one critic, "morally perverse," "a perversion of the human-animal bond." The people probably didn't even think that horses had a right to life, or a right not to be eaten; the law banned only the sale of horsemeat for human consumption — the sale of horsemeat for animal consumption is, to my knowledge, still permitted.

Both the religiously motivated pork/cow bans and the gut-feel-motivated horsemeat bans burden people's liberty to eat what they please. Both of them do so because of the unproven and unprovable views of the majority. One can say that both are permissible, on democratic grounds; or that both are impermissible, on libertarian grounds. But it doesn't seem to me sound to say that (1) the pork/cow (religiously motivated) ban is impermissible, (2) the horsemeat (disgust-motivated) ban is permissible, and (3) if it turned out that in some state the supporters of the horsemeat ban were actually motivated by a belief that it was sacrilegious to eat horse, that horsemeat ban would become impermissible. In any event, supporters of such a distinction have some explaining to do, it seems to me.

More on Religious Arguments:

A correspondent proposes to distinguish religious reasons for decisionmaking and secular reasons this way:

The difference between religious justifications and purely moral justifications is that moral questions are debatable. For instance, any person of any philosophical or religious persuasion can debate both the philosophical question of what duty we have to protect the earth to future generations, and the more specific question of whether protecting the snail darter is necessary to discharge any such duty. These questions cannot be resolved, but they can be debated with reasoned argument.

Similarly, one can debate whether aesthetic justifications are sufficient to prohibit the eating of a certain sort of meat, whether horses have a "higher consciousness" sufficient to justify a ban, to what extent customary practices should be considered, whether meat should be eaten at all, whether horses who are slaughtered feel pain, and all sorts of other questions.

But once someone says "a little man in the sky whom you don't think exists ordered humans not to do something", that ends the debate. I realize that I am being sarcastic, but to the nonbeliever, that is exactly what it means to say that God ordered something. To the nonbeliever, saying God ordered something is no different than someone saying that he was visited by an apparition who ordered him to do something, or that his palm or tarot card reader told him that the spirits have ordered it. To the nonbeliever, the justification that "God" ordered something is nothing more than a hallucination, a completely irrational justification to restrict his conduct. And even to the believer, the justification that someone else's God, that he doesn't believe in, ordered something, is precisely the same. To anyone other than an adherent of a religion, an argument that a religious text says something is simply not a reasoned argument and therefore does not provide any justification to bind the non-adherent. A contested moral claim, in contrast, is still a reasoned argument.

It seems to me that this misses the mark. One can make reasoned arguments, in the sense of an argument that adduces reasons for action, about religious beliefs as well as secular beliefs. People argue all the time about how to interpret contested provisions of religious texts, or how to resolve seeming tensions in the text, or whether there are implied exceptions to the text, or for that matter whether a religious commandment — even one that both parties to the argument agree is religiously binding — ought to be turned into secular law. They give reasons, they use syllogisms, they argue by suggesting counterexamples, they engage in all the hallmarks of reasoned argument.

Of course, at some point the capacity of reasoned argument to drive our judgment runs out, as people come up against their axioms. But that's true whether the people are religious or not. Secular people who want to ban others from eating horse don't say "a little man in the sky who you don't think exists ordered humans not to do something." Rather, if they're candid, they say "a little feeling in my belly that you don't think is morally obligatory ordered humans not to do something."

To those who don't agree with California voters' view about eating horsemeat, "the justification that [the majority's morality] ordered something is nothing more than a hallucination, a completely irrational justification to restrict [our] conduct." Yet in a democracy, the objectors aren't allowed to buy horsemeat, even though this means they're being governed by others' nonrational preferences (not irrational preferences, but nonrational preferences in the sense of being the axioms on which rational arguments rest rather than statements that can be proven rationally).

The same applies to abortion. I suspect that many secular people (or religious people who do not make this decision on religious grounds) believe that the right to life starts some time before birth — perhaps at viability, perhaps at the second trimester, perhaps when some specific developmental milestone is reached. They can adduce reasons for their decision, just as religious pro-life people can adduce reasons for theirs. But ultimately, when you get to the core of the argument, you have people's moral intuitions, gut feelings, axioms, or whatever else you want to call them. No logical argument can provide "proof" that one place and not another is where the right to life attaches.

These positions then get enacted into law; to the best of my knowledge, in most states abortions are not allowed very late in pregnancy, precisely because of these concerns. Whether the backers of such prohibitions support the prohibitions for religious reasons or secular moral reasons, the prohibitions interfere with some women's decision to abort a fetus late in the pregnancy. (We can say the same about infanticide, but I wanted to use a case that was somewhat more controversial.) "To the nonbeliever [in the secular life-begins-some-time-before-birth argument], the justification that [the fetus's right to life mandates] something is nothing more than a hallucination, a completely irrational justification to restrict [her] conduct." Yet such justifications do restrict our conduct. I don't see why religious people's justifications, based on their religious axioms, should be condemned as illegitimate, while nonreligious people's nonreligiously based justifications, based on their secular axioms, are somehow proper.

Religious Arguments and the Possibility of Changing Minds:

A reader writes:

The key step in explaining the difference between religiously and secularly-motivated moral claims is almost reached in the excerpt from your most recent correspondent, but he’s not quite there. After your counterpoint about, “My gut feeling says X” being on no firmer grounds than “My deity whom you don’t believe exists says X,” there is another point open to the side endorsing the principled difference between the religious and secular claims. This point is that Rawlsian (or another variety, but I think most are familiar with it from Rawls) reflective equilibrium is possible between the gut feeling and an overarching ethical principle, and may lead to the gut feeling changing (or to the principle being dismissed). Reflective equilibrium is not, as far as I can tell, possible between a deific decree and an overarching ethical principle, because the deific decree cannot be reconsidered.

It seems to me that there are two problems here.

1. I don't see why people's arguments for laws somehow become illegitimate -- or the laws enacted based on those arguments become unconstitutional, as some argue -- simply because the people refuse to reconsider their arguments. Many people are quite unwilling to reconsider certain fundamental moral principles, for instance their rejection of infanticide, slavery, rape, and the like.

Perhaps one can fault these people for not being sufficiently reflective; perhaps all of us should be willing to challenge even our deepest beliefs. But it seems to me that in a democracy, the obstinate and unreflective are just as much entitled to enact their views into law as those who are constantly reexamining their moral commitments (even if the unreflective people, religious or secular, may be properly faulted at times for being too self-confident about matters on which they should have more humility.)

2. As best I can tell many people's religious beliefs are indeed subject to reconsideration. Quite a few people change their religions, or at least their denominations. Many others drift from more literalist readings of their sacred texts to less literalist. Many change their understandings of divine decrees, which in many instances are quite ambiguous or incomplete. (As I understand it, Christian views on abortion come from interpretation and inference, since the Bible doesn't explicit focus on this.)

Many change their views about how much of their religious law should be enacted into secular law. They sometimes change these views as a result of deliberate reconsideration; and sometimes, as with secular people, they change them because their intuitions and outlooks are changed over time by new experiences. The process of reflective equilibrium that my correspondent describes -- the process of one's overarching philosophies affecting one's intuitions and vice versa -- psychologically operates for those religious people as well as for secular ones. And, conversely, there are many secularists who are quite rigid in their worldviews, uninterested in considering the possibility that their understanding may be mistaken or incomplete, and psychologically inclined to resist revising their views.

So this again reinforces my view that religious people are as entitled to enact their religious views into law as secular people are entitled to enact their secular moral views into law.

Willingness to Reconsider Religious Arguments:

Reader Cathy Fasano put the point so colorfully that I thought I'd quote it:

You can certainly disagree with . . . [any] conclusion[s] that moral theologians of whatever faith come up with in gazillions of particular cases. But . . . [f]orests worth of trees have been felled, herds of sheep slaughtered, great pits of clay have been quarried, all so that several millenia of humans can write down their reconsiderations of deific decrees. Up until a few hundred years ago, theology was more or less the only intellectual discipline out there. . . .

I'm not terribly interested in most theological arguments myself; they don't speak to me and my concerns. But I imagine that many deeply religious people feel the same way about utilitarianism or objectivism or a wide range of other secular moral philosophies. (Naturally, not all -- there are surely religious thinkers who are intellectually interested in secular philosophies, and vice versa, whether out of intellectual curiosity, a desire to borrow from other philosophies, or just a desire to better understand others' views.) One doesn't have to agree with theological debates, though, to recognize that religious people spend a lot of time trying to get others, both within their traditions and outside thos traditions, to reconsider their understandings of divine decrees -- and in many instances succeed.

President Bush's Stem Cell Veto and Separation of Chruch and State:

Chicago lawprof Geof Stone criticizes the veto on church-state grounds, saying that it shows "a reckless disregard for the fundamental American aspiration to keep church and state separate." Paul Horwitz (PrawfsBlawg) responds. Larry Solum (Legal Theory) passes along his own view.

My view is very close to Paul Horwitz's, for the reasons I expressed in my 2005 debate with Geof Stone on the subject of religious reasons for government decisionmaking:

Geof Stone makes a forceful argument, but it seems to me that there are two quite different strands to it — strands that need to be separated.

At times, Geof is asking whether a "law [is] based on faith," whether a "law [is] based solely on sectarian religious belief," whether it "serves no legitimate public purpose." This category, he suggests, does not include laws that are "perfectly sensible law without regard to anyone's religious faith" or that have "a religious as well as a secular purpose," which would include a "moral-based reason" as well a "faith-based reason." Note that so far we're talking about the law. [EV: I should add here that the ban on stem-cell research funding can have obvious "moral-based" justifications, albeit ones I disagree with, just as a ban on experimentation on animals or a ban on killing endangered species would have "moral-based" justifications, even if some may disagree with them.]

At other times, though, he asks whether a person (including a political leader) backs a law "based entirely on his own sectarian religious beliefs," whether a person is "imposing [his] faith on others." That is a very different inquiry, an inquiry into the subjective motivations of a law's backers rather than whether the law in fact serves some public or moral purpose. For instance, I take it that all of us would agree that abolition of slavery, prohibition of alcohol, opposition to war, or support for civil rights are laws that have "moral-based reason[s]" as well as potentially "faith-based reason[s]." But all these laws were backed by some people — perhaps many people — for reasons that flowed from their own sectarian religious beliefs. (I chose these movements precisely because so many of their backers were deeply religious.)

In fact, I suspect that for many deeply religious people, all their moral beliefs are faith-based, because they believe morality only comes from God. I'd wager that many religious pacifists, abolitionists, and others would take precisely this view. Yet I think that we surely shouldn't condemn either their cause or them for this.

Your moral views may come from your understanding of human dignity; another's view may come from utilitarianism; another's may come from libertarianism; another's may come from fundamentalist Christianity. None of these bases are somehow provable; none is constitutionally superior to the others. (In fact, many of the arguments for religious freedom itself came from the "sectarian religious beliefs" of deeply religious people; I suspect that they supported religious freedom for religious reasons since religious reasons were the only moral reasons that counted to them.)

Any other approach is itself deeply discriminatory — it suggests that atheists, agnostics, utilitarians, and the like are entitled to enact their moral views into law (because they don't rest on religion) while devout Catholics, Protestants, Jews, Muslims, and others are forbidden from enacting their moral views into law (because they do rest on religion). That's not mandated by the Constitution, it's not in my view compatible with our national traditions, and it's not right.

Hence my claim: It is certainly quite proper to ask whether a law is morally or constitutionally sound. A law banning the eating of pork may be quite unsound. Likewise, laws banning — or allowing — abortion, infanticide, the destruction of embryos or chimpanzees for medical purposes, or the killing of members of endangered species might be sound or unsound.

But it shouldn't matter whether someone supports them because of his belief that laws should turn on the greatest good for the greatest number, his belief that we are all sons and daughters of Gaea and must thus protect our environment, or his belief in the Bible. For most, quite possibly all, of us, our moral beliefs ultimately rest on unproven and unprovable moral axioms. The Constitution doesn't consign those whose moral beliefs rest on unproven and unprovable religious axioms to a lesser citizenship, under which they may not enact their views into law, while others with the same views that rest on unproven and unprovable secular axioms are free to do so.

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Pigs, Horses, Religion, and Morality:

Geof Stone, who argues that it's improper for a government official to make a decision based on "his own, sectarian religious belief" (see this post for more), gives this example, which I've also seen others give (emphasis added):

[I]n what sense is it “ethical” for Mr. Bush -– acting as President of the United States -- to place his own sectarian, religious belief [about stem cell research] above the convictions of a majority of the American people and a substantial majority of both the House of Representatives and the Senate? In my judgment, this is no different from the President vetoing a law providing a subsidy to pork producers because eating pork offends his religious faith. Such a veto is an unethical and illegitimate usurpation of state authority designed to impose on all of society a particular religious faith.

But, as I noted last year, it turns out that many laws do ban the eating of various animal products, for reasons quite unrelated to "objective" matters such as human health. California voters in 1998, for instance, banned the sale of horsemeat for human consumption. Georgia law bans the sale of dogmeat for human consumption; I'm sure some other states have similar laws.

I have no reason to think that this law was motivated by religion. Rather, I suspect that most voters supported it because of their gut feel that eating horse or dog is disgusting or, in the words of one critic of eating horsemeat, "morally perverse," "a perversion of the human-animal bond." Many of the laws' backers probably didn't even think that horses had a right to life, or a right not to be eaten; the law banned only the sale of horsemeat for human consumption -- the sale of horsemeat for animal consumption is, to my knowledge, still allowed.

Both religiously motivated pork bans and the gut-feel-motivated horsemeat bans burden people's liberty to eat what they please. (Geof Stone's exact hypo, which is the denial of a subsidy to pork producers, doesn't even suffer from that problem, but I'll happily use the more troubling case of a total pork sales ban.) Both of them do so because of the unproven and unprovable views of the majority.

One can say that both are permissible, on democratic grounds. One can say that both are impermissible, on libertarian grounds. But it doesn't seem to me sound to say that (1) the pork (religiously motivated) ban is impermissible, (2) the horsemeat (disgust-motivated) ban is permissible, and (3) if it turned out that in some state the supporters of the horsemeat ban were actually motivated by a belief that it was sacrilegious to eat horse, then the horsemeat ban would become impermissible. In any event, supporters of such a distinction have some explaining to do, it seems to me.

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