The Downside of the State “Speaking” About Religion

As you may have gathered by now, Corey Brettschneider’s book When the State Speaks makes roughly the following argument: It is important for the state to uphold and defend the ideal of “free and equal citizenship,” which is “the most basic ideal of public equality that underlies liberal democracy.” In doing so, it should avoid coercive measures taken against groups or individuals that hold “hateful viewpoints,” but it should make full use of its “persuasive” powers, which include not only expression countering those views and publicizing “the justification for those rights protected by law,” but also the denial of tax-exempt status and state subsidies for “groups that oppose the core values of free and equal citizenship.” That’s a blunt (but fair, I hope) statement of Brettschneider’s views, although they are importantly nuanced and hedged with cautions and substantive limits.

In my previous post, I argued that Brettschneider’s views are likely to face more pressure and danger at the hands of those who support them than those who oppose them outright. Precisely because Brettschneider takes a middle-ground position between what he calls the dangers of the “Invasive Society,” which attempts to coerce citizens’ views, and the “Hateful Society,” which he claims is indifferent to hateful and discriminatory views, his argument is likely to be co-opted by those who would ignore his caveats and substantive limits and impose a much more coercive and/or unbounded version of his recommendations. In this post, I want to discuss his application of his general approach to religion, a subject he takes up in the fourth and fifth chapters of his book. Rather than offer a laundry list or go over the (several) objections I have to some of his characterizations of current law, I want to raise three or four basic points.

Brettschneider argues, in short, that religious freedom too “is an ideal that requires democratic persuasion to articulate the reasons that justify this right.” “The right of religious freedom,” he writes, “is based on the value of free and democratic citizenship.” Religious “beliefs” that “challenge the core values of democracy” should be no less subject to “democratic persuasion” than the hateful beliefs of non-religious groups. “[I]ntentional attempts to transform certain illiberal religious doctrines are an essential part of democratic persuasion. The aim of democratic persuasion, in attempting to transform hateful or discriminatory religious views, is to realize the ideal of religious freedom and its underlying values.”

Importantly, the scope of the actual uses of democratic persuasion that Brettschneider would apply to religious groups is quite limited. He recognizes that the relationship between religious views and views about free and equal citizenship contains a good deal of ambiguity: for example, although the Catholic Church insists that only men are eligible for the priesthood, it does not oppose a free and equal role for women in public and political life. Those ambiguities, in his view, count against subjecting such a group to democratic persuasion. The only clear example he cites of an instance in which “democratic persuasion” might be permissible is that of Bob Jones University and its former policy of forbidding interracial dating on campus. If Brettschneider were solely responsible for administering his program of democratic persuasion, right or wrong, most religious groups would have little to fear from it. Moreover, I think many supporters of a vigorous regime of religious liberty (including me) would agree that religious groups and beliefs are not and should not be immune from examination and criticism in the public sphere, although many of us would be much more cautious about criticism by the state, as opposed to citizens.

My first basic criticism has to do with his monistic description of religious freedom as having a single justification or value, one that he relates to free and equal citizenship. Like the unsuccessful candidates for the title of kwisatz haderach, many have tried to come up with a single-value justification for religious freedom, and failed. I understand that Brettschneider makes a longer argument for his definition of religious freedom in another book, which alas I have not read; in this book, I think his definition is insufficiently explained or justified. In any event, I am on record as questioning the value of monistic approaches in this area. It seems to me that there are a variety of justifications for religious freedom, and that many of them have to do not just with a positive justification for religious freedom as a liberty, but with negative justifications that center around the incompetence of the state, or the historical dangers of state regulation of religion, or the difficulties of the state purporting to know or declare what religious “truth” is, or in a broader sense the limits of the proper “jurisdiction” (in a loose sense) of the state in this area. The more numerous the potential justifications for religious freedom, the less certain we should be that “democratic persuasion” by the state–including the more drastic step of denying tax-exempt status or subsidies–in service of a single justification of religious freedom is appropriate. Even if Brettschneider is right to say that it is a mistake to “associate religious freedom with the preservation of existing religious beliefs,” and that those beliefs are subject to change, that does not mean there are no reasons to leave the mechanisms for those changes elsewhere than in the direct exercise of state power.

Similarly, there are many reasons besides the single principle of “free and equal citizenship” why we might want to grant some liberty to religious groups and individuals, and why we might want to support those groups with (equally distributed) subsidies or tax-exempt status, while erecting some Establishment Clause-based limits on state statements or certain kinds of subsidies that enshrine a particular vision of religious “truth” or diminish competition in the religious marketplace. Religion, and religious groups, serve a number of values besides announcing, in a straightforward way, their support for the liberal paradise of free and equal citizenship. They provide important social services. They provide social cohesion and a sense of belonging to many people, and offer a shelter against the state and the wider society from atomization, anonymity, and unanimity. They safeguard pluralism. They may provide access to truths that are not easily available from within liberal reasoning itself and may challenge the “truths” pronounced by liberalism. In assessing the costs and benefits of providing some subsidy or tax-exempt status to religious groups, including those few that Brettschneider worries are hateful and discriminatory in some aspects, we should not be too ready to take “free and equal citizenship” as the only yardstick.

This perhaps leads to two broader points. Even if we adopt Brettschneider’s approach, what is gained? Not much, it seems to me. It is easy to overestimate the power and permanence of religious (and other) groups that might be described as holding hateful and discriminatory, or just illiberal, views. The Moral Majority is dead; so are the Black Panthers. When the Memphis City Council recently renamed several parks named for key Confederate figures, a whopping 75 Klansmen showed up to protest (unavailingly). Bob Jones changed its policies; the Boy Scouts may yet change its policies; the Jaycees, even as the freedom of association case involving its membership policies wended its way through the courts, was close to changing those policies; attitudes toward gay rights have changed significantly in just a generation; the post-Vatican II Catholic Church is dramatically altered in many respects from its views in the nineteenth and early twentieth centuries. We need not be utopian about it, or even agree with all of those changes, to see that there have been dramatic changes in public views, and in the views and policies of many religious and other groups, and that they have had as much or more to do with civic engagement, competition, and changing social norms and demographics than with “expressive,” let alone financial, “persuasion” by the state. Nor do many people seriously think the state is “complicit” with those groups’ views when it refuses to deny them all access to otherwise available public funding. And remember, in any event, that Brettschneider is highly limited in his description of the proper occasions for “democratic persuasion” with respect to religious groups. His caution is commendable, but given the limited application of his policy recommendations, we can fairly ask whether the game is worth the candle.

On the other side, what might be lost if we adopted his position? Again, if Brettschneider were administering his recommendations, probably not much. If others, including some ostensible supporters of his views, were administering those recommendations, however, the risks would be considerably greater. I suspect quite a few of them would disagree with him that, say, the Catholic Church ought not be denied tax-exempt status on the basis that it does not believe women can be priests. Brettschneider may understand that there is a tremendous difference between, in a very casual and loaded use of the word, the “discrimination” that applies to service in the Church hierarchy, and the Church’s general views on equal citizenship; others will deny that this is so. (As it is, Brettschneider argues that “the more the Church engages in public debate opposing gay rights, the weaker the argument on behalf of their retaining tax privileges would become,” no matter what other beliefs the Church advocates–say, a strong advocacy of international human rights–and what other services it provides.) He may believe that the view that “all non-Christians are condemned to hell . . . says nothing about which beliefs should be imposed on others,” and thus is “not publicly relevant,” but others will conclude otherwise. Their version of the “persuasive” state will take on a much broader set of groups and beliefs, and in a much more coercive manner, than Brettschneider’s. And, by questioning–rightly, in my view–the clear distinction between public and private, and arguing that ostensibly private views may often affect the broader state of free and equal citizenship, Brettschneider will have given them the ammunition to do so.

It is true, as Brettschneider says, that the possibility of abuse is not a sufficient argument against a particular set of policies. But if, as I have argued, there is unlikely to be much real positive benefit from such policies, even (or especially) if they are cautiously applied, then the possibility–I would say inevitability–of abuse ought to weigh much more heavily against giving the state new tools in this area. Brettschneider argues that one possible gain is that the state, by “speaking” more forcefully in favor of free and equal citizenship, will gain greater legitimacy in the eyes of its citizens. I must admit that I doubt that the question of perceived legitimacy presents a serious problem in the United States, one that makes a wider denial of equal access to public funding warranted. Even if it were, however, I think Brettschneider should take a page from his fellow theorist Lucas Swaine here, and worry that his “persuasive” state might end up creating more renegade religious and other groups, who will be more inclined to deny the legitimacy of the state altogether, instead of enhancing the perceived legitimacy of the state and its ability to engage with such groups.

I do very much appreciate that in his chapter on religion, much more so than elsewhere in his book, Brettschneider acknowledges the two-way nature of communication, arguing that just as the state expression of public values can influence religious beliefs, so “religious perspectives themselves can generate and clarify public values.” (Compare this to my earlier post, in which I argued that Brettschneider elsewhere in the book seems to place the burden of “reflective revision” largely on others rather than on the state or those who confidently hold his own views about the meaning of “free and equal citizenship.”) But I think that a state organized along his lines will be more in the habit of lecturing to such groups than of listening to them and allowing its own views about “free and equal citizenship” to be challenged–particularly if the state is administered by people who (unlike Brettschneider) take a much broader view about what constitutes “discriminatory” views, and so end up arousing resistance from such groups rather than dialogue.

In sum, I see the cost-benefit calculus differently than Brettschneider does, and I suspect that the social costs are likely to be greater if his approach is adopted and enforced by Brettschneider’s “friends” than if we simply remain with the status quo, imperfect and sometimes incoherent as it may be. I have more to say; I am particularly worried about his focus in the chapter on religious freedom on acting on “beliefs” by religious groups (or legislators themselves) rather than actions. But I’ll leave it at that, with thanks to him for allowing me to engage with his well-stated arguments.

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4 Responses

  1. As a lifelong student of religious worldviews, I largely agree (although I’ve not read the book) with this reply to Brettschneider.

    However, regarding “The Moral Majority is dead; so are the Black Panthers:”

    The Black Panthers are Dead. Long Live the Black Panthers!—Joshua Bloom and Waldo E. Martin, Jr., Black Against Empire: The History and Politics of the Black Panther Party (University of California Press, 2013)

  2. Jimbino says:

    No atheist could agree with this post.

    Atheists are hunted in Muslim countries and disparaged in Amerika. We scientists—almost all atheists===fortunately control the WMDs need to secure our futures, as did Nazi von Braun. But we are assailed on all fronts.

    Marriage is a religious exercise, even a sacrament among Roman Catholics. Scientists, humanists, rationalists and others do not care to participate in marriage and other silly religious rituals except to gain those immigration, inheritance and tax benefits conditioned upon such superstitious exercises.

    Moments of prayer are an abomination, being nothing more than religion by other means. Religion and superstition, whether in the form of RC ritual or yoga, needs to be identified and combated as the enemy of liberty that they are.

    Tax deductions and PPACA deference to religious superstition needs to be denounced as kowtowing to superstition. Better to eliminate PPACA, of course, as an affront to freedom of everyone, but in the meantime the RC church and others deserve no special deference.

  3. Joe says:

    I have read/heard from time to time that ‘marriage’ is some sort of ‘religious’ exercise.

    Marriage has various components, including those dear to the individual couples, and one does not need to believe in God to think so. It is not a “religious exercise.” It is something that some carry out in a religious way.

    Many a ‘humanist’ or ‘scientist’ have had marriage ceremonies, special events not inherently religious. I put aside the more open-ended meaning that is expressed by some, including Ronald Dworkin in a work that hopefully will be published posthumously.

  4. Nancy D. says:

    Professor Horwitz, I suppose if it was the intention of our Founding Fathers to establish a secular State, they would not have held that our inherent, unalienable Rights have been endowed to us from God, and thus desire to protect our Religious Liberty, for one cannot separate the spirit of the Law, from the body of the Law, without changing the very essence of the Law, to begin with.