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January 04, 2005

Posner, democracy, and faith-based policy

Richard Posner caused quite a stir with his posts on democracy and faith based morality at Leiter Reports.

One of Posner's most controversial claims is that no one has any good reasons for their moral beliefs. In his opinion, all moral arguments are equally indefensible, whether they appeal to religious doctrines, philosophical principles, commonsense morality, or any other alleged source of normativity. Jeremy of Orange Philosophy wondered if he'd understood Posner's argument correctly. Was he really saying no one has any genuine moral reasons? Or that any normative claim is as well-founded as any other?

David Velleman argued persuasively against Posner's moral skepticism at Left2Right. Shortly thereafter, his co-blogger Gerald Dworkin underscored the important distinction between the causes of our moral beliefs and our reasons for holding them. As Dworkin notes, it may be true that our morals are caused by arbitrary preferences and/or rationalized after the fact. However, it doesn't follow that there are no good reasons or that any reason is as good as any other. In a similar vein, John posted a good analysis of Posner and normativity at Fake Barn Country.

Since the skepticism is already getting a lot of attention, I thought I'd address another aspect of Posner's argument, namely, his appeal to virtually unfettered majority rule in legislating morality. He argues that most "faith-based" moral policies are constitutional because they don't violate the establishment clause. He thinks it would be unconstitutional to legislate specific religious doctrines, e.g., to mandate the teaching of creationism in public schools. However, in his opinion, not all rules inspired by religion count as attempts to establish a state religion. So, for example, he thinks that religiously-motivated bans on abortion and gay marriage are constitutional because they aren't attempts to enshrine the dogma of a particular sect. I'm a little dubious about the difference between legislating a a part of a religion vs. legislating key spiritual precepts of the religion that are justified by that religion's theology (as opposed to an appeal to broader public reason). To see why Posner's distinction is problematic, imagine that some religious sect thinks it is ritually impure and therefore immoral to kill animals for food. If they sponsored compulsory vegetarianism legislation, would it be an example of establishing a religion, or democratically enforcing the popular will (which just happens to be religiously-motivated)? On a more serious note, gay marriage bans are often justified in terms of religiously specific conventions about who can marry whom. If Christian fundamentalists succeed in making state marriage conform to the standards of Christian marriage, wouldn't that be an example of establishing religion?

Posner's moral skepticism comes into play when he argues that faith-based legislation is acceptable. He thinks it's acceptable because no one has any more justification for any moral position than anyone else, so we ought to let people settle their moral differences by allowing them to vote on the issues, unless of course the proposed legislation would violate some part of the constitution. One reason why faith based morality might be unconstitutional would be if violated the establishment clause. But Posner argues for a very narrow interpretation of that clause which would leave open the possibility of religiously motivated legislation. Even if we agree with his interpretation, the fact remains that most controversial faith-based laws violate other parts of the constitution. For example, early abortion bans are unconstitutional, but not because they are motivated by religion or because they are attempts to establish a state church. Not every religiously-motivated law would be unconstitutional, of course. Many people supported the civil rights movement on religious grounds. Those of us who aren't moral relativists can side with Herzog who argues that the causes of a moral belief aren't necessarily relevant to its justification. The fact that someone cites scripture to justify a good moral idea doesn't invalidate that idea. On the other hand, if a belief is justifiable only in terms of religion, one might argue that there is not a sufficiently compelling reason to restrict the freedoms of others and give the state the power to enforce that moral edict. It seems the whole point of a constitution is to set aside basic rights that cannot be overturned by majority rule. If Posner thinks we should abide by the constitution we've got, he should oppose most of the current faith-based legislation--moral skepticism and democratic commitments notwithstanding.

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Richard Posner has been posting at Brian Leiter's blog, making a couple fairly controversial claims. One is his fairly sophisticated moral relativism. Another is that he seems to think the average person should view moral philosophers as consdescending... [Read More]

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I disagree. I didn't post on this topic on my blog merely because my opinions here would be so unpopular. =) Yet you've prompted me to respond. Damn it all. (I did interact with Posner a bit on my blog, but see Jonathan Kvanvig over at Certain Doubts for a much better critique.)

When it comes to constitutional interpretation, I think that Posner's narrow reading of the Establishment Clause is accurate. And while I think that Posner's moral skepticism is abominable, I think it's his commitment to democracy - not his commitment to moral skepticism! - that gives him the leeway to admit faith-based legislation. If the fundamentalist religious majority believed that it was impermissible to eat animals (which they manifestly do not), faith-based vegetarian legislation would most definitely not have anything to do with the establishment of religion.

One could consistently hold that democratic commitments permit - and often cause - the majority to impose moral principles on the dissenting minority even though those moral principles are both irrational and unjustifiable on any generally acceptable (read: secular?) basis. Since that alone is enough to give Posner his faith-based legislation, I take it that his moral skepticism is, for the most part, irrelevant to this issue. (It isn't entirely irrelevant, however. Not only should one not be a moral skeptic, but one has a moral obligation not to legislate irrational and unjustifiable moral laws. Posner's moral skepticism gets him out of this problem, though at the price of incoherence.)

(In response to Hagaman)

But under that argument, the Establishment Clause becomes meaningless. Mandatory prayer in schools? Oh, that's really just a moral thing. Banning creationism? Obviously a moral judgment! Requiring all politicians to be Southern Baptists? Definitely a moral judgment!

The most sensible reading of the Estbalishment Clause, given the writing in other segments of the Constitution (such as not requiring politicians to adhere to any specific religion), is that Congress cannot pass laws based /only/ in religion. Sure, personal religion can guide lawmakers. Fine. I've got no problem with that. But if the only reason they're passing a law is because their religion says "Thou shalt not X", then that law violates the Establishment Clause, especially if another religion says "Thou must X", where X is something that doesn't infringe on the rights of other persons. Remember that the reasons why are just as important as the actual laws themselves. (I believe that Supreme Courts have ruled laws unconsitutional because they judged the intent behind them to be an end-run around the constitution.)

I'm a little dubious about the difference between legislating a religion vs. legislating key spiritual precepts of the religion that are justified by that religion's theology (as opposed to an appeal to broader public reason).

Yeah. Because there is no difference. The whole point of the establishment clause is to prevent the majority from making their religious beliefs into law.

If I understand Posner correctly, he thinks it acceptable for the majority to make their religion into law--not because it's their religion, but because they are the majority. In other words, the majority can enact any laws it feels like, and their justification is irrelevant--it can be religious or even simply a whim.

Which, to be blunt, is total bullshit. The whole reason for having a Constitution in the first place is to prevent the tyranny of the majority.

How is it that the establishment of religious rituals and practices don't constitute the beginning of the establishment of a state religion? I wish life were so black and white, but there is this thing called a slippery slope which reality imposes on us.

Besides, the 19th century tactic to impose religious practices (another form of politics) was the imposition of a state religion. That isn't necessary now to come to the same political ends.

Imposing religious practices via majority rule (which is an entirely different thing from democracy) is exactly what the Establishment Clause intended to prevent.

"I'm a little dubious about the difference between legislating a religion vs. legislating key spiritual precepts of the religion that are justified by that religion's theology (as opposed to an appeal to broader public reason)."

One of the basic teachings of the Baha'i religion is the full equality of women and men.
http://www.bahai.org/article-1-7-0-6.html
Suppose that Baha'i immigrants to Wymondaho -- a small nation established by predominantly secular, patriarchal refugees from creeping socialism -- eventually become the majority and legislate the equality of the sexes. Is this legislated precept of religion to be appealed to some "broader public reason" (i.e., reason founded on patriarchal beliefs)?


Taylor,

I believe it depends. (I love that phrase)

Let's assume that Wymondaho has mandated separation of Church and State in their constitution, but has merely mandated their patriarchalism in law. Let's also assume that they have not discovered some empirical evidence that men are superior to women - IE, their laws are based totally on their logically derived non-religious ethical/philosophical beliefs and biases - and that they still embrace the concept of individual rights. (Ignoring, for the purposes of this thought experiment, the cognitive dissonance required to both believe that women are inferior and that all persons have equal rights. I think history's proved that that's, unfortunately, all too easy to justify.) Let us also assume that Baha'i minority do not attempt to force their religion on others, IE, do not attempt to force others to regard women as equal.

Now, there are two things to observe here:

1) They may not, within the bounds of their own constitution, /prevent/ the Baha'i minority from treating women as equal. Doing so would violate their own constitution's requirement that church and state be separate, as the state was interfering in a church whose doctrines are not illegal (assuming that Wymondaho's laws do not /demand/ that men treat women as equal, as, based on the individual rights assumption, such laws would be illegal) or unconstitutional.

2) Provided the Baha'i had other philosophical/moral reasons for demanding female equality apart from the fact that it was a requirement of their religion, there would be no consitutional problem with their eventual majority legislating it than there was with the original patriarchal majority legislating the superiority of men.

Now, if Wymondaho had explicitly enshrined their patriarchalism in their constitution, the Baha'i majority would be unable to constitutionally pass said legislation without changing the consitution. But then we move into the question of what basis for a system of laws (IE, what constitution) is just, which is a much harder question.

The issue in my eyes is when a law is proposed based on purely religious beliefs, or on religious beliefs thinly veiled in science or philosophy. (IE, laws requiring creationism/intelligent design to be taught in schools) Using an establishment clause to rule a law unconstitutional merely because it matches a belief espoused by some religion is obviously unsupportable, as religious beliefs are (from a purely external perspective) completely arbitrary.

One of the basic teachings of the Baha'i religion is the full equality of women and men.

That "teaching" is bollocks: women cannot serve in their highest offices.

('scuse the offtopic kneejerk there; nothing to do with Taylor's actual argument)

(In reply to Egarwaen)

I don't think my argument entails that the EC is meaningless, although I have argued that the EC won't do the work you want it to. (I argued that insofar as I pointed out that Posner's position was defensible first and foremost by his appeal to democratic principles as opposed to moral skepticism.)

You mention that other portions of the Constitution support your reading of the EC as banning any legislation that is founded *solely* upon religious principles. While I suppose that's *an* interpretation I think it's too far-fetched, and you don't lend it any support by pointing out that the Constitution forbids placing a religious requirement on holding public office. I take the requirements for holding public office and the sort of justification that must underly moral legislation to be two completely different issues. At first glance, the first appears permissive while the second looks prohibitive.

Historically, I think it's obvious that the EC was not *intended* to prohibit the passing of legislation that had a straightforwardly religious grounding. Furthermore, while you give examples (such as prayer in schools) that must, almost definitionally, have a religious grounding, most plausible moral principles could, in Posner-speak, be given both a religious and secular grounding.

Finally, depending on your theory of interpretation, you might want to say that the originalist reading is irrelevant. So long as the author's intent is not known, I lean towards a theory of interpretation that disgregards it, but I don't think, for example, that a philosophy student should (ideally) receive credit for an idea he wasn't aware of that becomes interesting when you parse his sentence in a way he neither intended nor recognized. The principle of charity gives him the better reading, but I think that just can't be helped.

Grrrr. I meant to preserve the Posner-speak and say "both a religious and secular *rationalization*".

Hagaman - So tell me, what is the purpose of the Establishment Clause under your reading? Because I can't see that it prevents the government from doing anything. After all, if the majority can prohibit the eating of animals EVEN IF there are other religions that demand it, or dictate who may and may not marry regardless of the beliefs of other creeds, based solely on their religion, why can they not pass other laws based solely on their religion? What, exactly, differentiates one fundamentally religious activity (not eating animals because of your religion) from another (organizing prayer groups)?

I don't believe there is any meaningful distinciton there - thus why the establishment clause is either meaningless or prohibits the creation of laws on the basis of religious doctrine alone.

My thought is that maybe the difference between legislating religion and legislating religion-based morality is that religion-based morality can be turned into more general moral principles. Take prohibition of meat consumption or abortion, for instance.

Religionist: My religion says that eating meat/having an abortion is wrong.

Secularist: Well, that can't be the basis public laws: we have seperation of church and state.

Religionist: Gosh, you're right. Well, leaving my religious views aside, wouldn't you say that killing people is wrong, based on normal, non-religious morality?

Secularist: Of course.

Religionist: Well, then people shouldn't be allowed to kill animals/fetuses!

Secularist: Animals and fetuses aren't people!

Religionist: Let's talk about that, then.

Then they can both cite philosophical and scientific reasons to support their view.

Contrast this with the argument for school prayer:

Religionist: My religion says that people must pray to the lord.

Secularist: Well, that can't be the basis public laws: we have seperation of church and state.

Religionist: But prayer in schools is grounded in more universal, secular moral principles, in addition to being prescribed by my religion!

Secularist: Uh... no, no it isn't.

My thought is that maybe the difference between legislating religion and legislating religion-based morality is that religion-based morality can be turned into more general moral principles. Take prohibition of meat consumption or abortion, for instance.

Religionist: My religion says that eating meat/having an abortion is wrong.

Secularist: Well, that can't be the basis public laws: we have seperation of church and state.

Religionist: Gosh, you're right. Well, leaving my religious views aside, wouldn't you say that killing people is wrong, based on normal, non-religious morality?

Secularist: Of course.

Religionist: Well, then people shouldn't be allowed to kill animals/fetuses!

Secularist: Animals and fetuses aren't people!

Religionist: Let's talk about that, then.

Then they can both cite philosophical and scientific reasons to support their view.

Contrast this with the argument for school prayer:

Religionist: My religion says that people must pray to the lord.

Secularist: Well, that can't be the basis public laws: we have seperation of church and state.

Religionist: But prayer in schools is grounded in more universal, secular moral principles, in addition to being prescribed by my religion!

Secularist: Uh... no, no it isn't.

Note: I'm not saying that I think that religiously justified morality is worth passing just 'cuz you can cook up a secular argument for it (I think both abortions and eating meat should be legal). I just think that you can interpret the establishment clause sensibly without proscribing all relgiously-motivated moral views from law.

Note: I'm not saying that I think that religiously justified morality is worth passing just 'cuz you can cook up a secular argument for it (I think both abortions and eating meat should be legal). I just think that you can interpret the establishment clause sensibly without proscribing all relgiously-motivated moral views from law.

Majikthise,

Have you read "Rights from Wrongs: The Origins of Human Rights in the Experiences of Injustice" by Dershowitz? I don't read books anymore so I keep waiting for NYRB to review it, but so far nothing. Maybe you could do me a favor and read it :)

Thanks


Does anyone more knowledgeable than I know why the framers decided NOT to include language from the Dec. of Independence in the Constitution? I think Julian makes a nice distinction there, but it would have been nice to actually have lanuage like

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness"

IN the Constitution?


Did the Framers assume that since these were self-evident, it was unnecessary to include them in the bill of rights? And, if so, then should we not make additional appeals to the DOI as a *legal* document, rather than just a PR notice?

Russ,

I seem to remember that Jefferson, Franklin, etc. wanted to include such language in the Constitution... However, they faced such intense opposition from the political leaders of the colonies that they concluded that such a document would never, ever be accepted. So instead, they took the more subtle and, in the long run, effective route of producing a document whose primary intention was not to enumerate the rights of the people, but to enumerate the powers of government.

Which is why I read the Establishment Clause the way I do. It, in my view, was intended to prevent the government from passing laws based solely on religious morality, to prevent it from mandating religion or a specific set of religious beliefs. (Such as requiring monotheism, or organized prayer in schools, or banning marriage of certain persons because a religion believes that it's wrong.)

I think the example of blue laws (requiring stores to be closed on Sunday) is useful here. Despite the fact that blue laws are undoubtedly based on Scripture, the Supreme Court upheld them, because the justices rationalized that a uniform day of rest would be beneficial for our society. I believe that is a good standard; if there is any secular rationalization for the law that five independent justices can buy, let the law stand. If there is no secular basis for the law, then it seems to be an establishment of law based solely on religion, and it doesn't require a stretched reading of the First Amendment to believe that is prohibited.

I haven't heard any valid secular reason why same-sex couples should not enjoy the same benefits as different-sex couples. Abuse of the system? I don't know any evidence that same-sex couples would abuse it more frequently than different-sex couples.

Also, I think democracy does a better job of separating church and state than many of us want to believe. The issue of blue laws wasn't raised in this discussion because it doesn't matter any more that the Supreme Court found them constitutional - they've become unpopular enough that they have been democratically struck down. Similarly, after the Supreme Court found that Washington's drug laws regarding peyote did not violate some Native Americans' free exercise rights, the legislature created an exception for those Native Americans.

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