Academic journal article William and Mary Law Review

Religion, Democracy, and Autonomy: A Political Parable

Academic journal article William and Mary Law Review

Religion, Democracy, and Autonomy: A Political Parable

Article excerpt

Should legislators feel free to rely on their religious beliefs in deciding how to vote on, say, an abortion regulation, or a same-sex marriage bill? Should citizens be encouraged to resort to their religious faith as they vote in an election? Should judges consult their religious convictions in deciding how to rule in a difficult case? Or does such reliance on religion in public decision making somehow violate, if not the Constitution itself, at least the meaning or spirit of democracy?

Debate focusing explicitly on these questions--or what one might call the "religion-and-democracy" debate--has raged in the academy for about a decade and a half by now,(1) and the contours of the debate have become familiar. For me, the debate continues to be interesting in part because it is a sort of pale reflection of other debates that might have been common in less civilized times but that, in the freedom of the modern enlightened academy, we are no longer able to have. So I want very quickly to make several observations about the character of the current debate, to identify what I think is a "red herring," and to describe what seems to me to be the real, underlying issue. I will then use the bulk of this Essay to explore--in an oblique, law professor's way--this underlying issue that is crucial, I think, not only to this particular debate, but to a good deal of our modern self-understanding.

Let me start by observing something obvious: In the contemporary academic debate about religion in politics, democracy provides the axiom from which virtually everyone argues. Some professors will contend that citizens, or perhaps legislators, have a right to invoke the Bible or appeal to theology in debating and deciding political issues, but the professors themselves typically do not exercise any such right in debating these issues. They would not think to approach the question, for instance, by asking whether God would want people to rely on faith in making their political decisions. And even if this question does occur to the professors, the conventions of academic discourse prevent it from being raised and considered, at least in any straightforward manner. So instead, law professors and political theorists argue about whether it is more consistent with democracy for people to debate and vote on public matters on whatever grounds (religious or secular) appeal to them or, conversely, to check their faith at the door before entering the public domain. In effect, academics treat the issue they are arguing about with respect to the broader political culture (is it permissible to rely upon religious grounds?) as an issue that has already been resolved, in the negative, for purposes of the academy itself. This treatment, to say the least, gives the debate a somewhat peculiar quality.

Even framed in this way, though, the debate does not necessarily imply a negative answer to the, issue for the broader culture. On the contrary, when the debate is understood as one about the implications of democracy, perhaps the more obvious answer is an affirmative one: Wouldn't democracy imply that "the people" can act on any grounds they see fit to act on?(2) The puzzlement is reflected in Sanford Levinson's question: "Why doesn't liberal democracy give everyone an equal right, without engaging in any version of epistemic abstinence, to make his or her arguments, subject, obviously, to the prerogative of listeners to reject the arguments should they be unpersuasive ...?"(3) There is an important, even portentous answer to that question, I think, but it is not the most familiar answer, which I believe to be a "red herring." The familiar answer suggests that democratic deliberation, or perhaps even democratic legitimacy, requires that public decisions should be made on the basis of reasons "accessible" to all citizens.(4) This position has been effectively criticized,(5) however, and I doubt that it fully captures democracy-based resistance to religion in public discourse. …

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