Religious argument, free speech theory, and democratic dynamism.

AuthorMagarian, Gregory P.

I don't want no commies in my car. No Christians either. (1)

INTRODUCTION I. THE PROBLEM OF RELIGIOUS ARGUMENT IN PUBLIC POLITICAL DEBATE A. Logical Consistency in the Competing Positions 1. The Restrictive Position: From Danger to Normative Constraint 2. The Permissive Position: No Danger, No Constraint B. Religious Argument's Potential Danger for Liberal Democracy C. Permissive Theorists' Inadequate Response to the Potential Danger of Religious Argument II. NORMATIVE INSIGHTS FROM FREE SPEECH THEORY A. Communist Advocacy and the Existential Dilemma of Expressive Freedom B. The Incremental Tension Between Political Stability and Political Dynamism III. RECASTING THE NORMATIVE CASE FOR ADMITTING RELIGIOUS ARGUMENT INTO PUBLIC POLITICAL DEBATE A. Welcoming Religious Argument into Public Political Debate 1. Lessons from the Communist Speech Controversy 2. Lessons from the Stability-Dynamism Controversy. B. Welcoming Criticism of Religion into Public Political Debate CONCLUSION INTRODUCTION

What is the normatively proper role in public political debate for arguments grounded in religion or similar conscientious beliefs? Political and legal theorists continue to clash over this issue, and the 2008 national election demonstrated its practical importance and contentious nature. During the presidential campaign, Democratic candidate Barack Obama had to address concerns about the politics and theology of his pastor, Reverend Jeremiah Wright, (2) and Republican hopeful Mitt Romney had to address concerns about his membership in the Church of Jesus Christ of Latter-day Saints (LDS). (3) The LDS Church played a leading role in passing a California initiative that banned same-sex marriage, (4) and U.S. Catholic bishops urged parishioners to support candidates who embraced Catholic positions on key social issues, principally abortion. (5) Casting a long shadow over the election were the nation's two ongoing wars in the Muslim nations of Afghanistan and Iraq, which also implicated policy toward the Jewish state of Israel. All of these issues, to varying degrees, inspired arguments grounded in religious belief and/or antipathy. Such arguments, even in an era of declining religiosity in the United States, (6) implicate the normative propriety of religious argument. No normative constraint could ever bleach our political debate of all religious advocacy. Norms operate as amorphous vectors, not as precise endpoints. Even so, normative standards can exert a powerful influence over public discourse. If broadly accepted norms of public political debate urged constraints on religious argument, then opponents of a position advanced in religious terms would feel justified in decry ing the religious argument as out of bounds, rather than addressing its merits; media outlets would see less need to include overtly religious arguments in reporting on political controversies; and religious believers who wished to argue politics on religious grounds would have strong reason to doubt the ethics and efficacy of doing so.

The normative question of religious argument in public political debate has sharply divided leading political theorists. On the restrictive side of the debate stand such liberal thinkers as Robert Audi, Kent Greenawalt, and John Rawls. Each of these theorists has contended that religious argument undermines the stability and cohesiveness of liberal democracy and that liberal norms of public political debate should therefore constrain religious argument. Most restrictive theorists embrace some version of what Rawls calls the "public reason" principle, which requires religious believers to cast their religiously grounded arguments in terms accessible to the secular polity. (7) On the opposing, permissive side of the debate stand such religious liberty advocates as Stephen Carter, Michael McConnell, and Michael Perry. These theorists maintain that norms of public political debate should fully admit religious argument. To restrict religious argument, in their view, singles out religious belief for unfair and unwarranted constraint while denying believers full participation in democratic politics. (8) Despite their ultimate disagreement, most restrictive and permissive theorists share a foundational assumption: religious argument's admissibility or nonadmissibility to public political debate should depend largely on whether or not religious argument poses any serious danger to the integrity or stability of liberal democracy.

This Article contends that normative insights from free speech theory can illuminate the normative debate over religious argument and should lead us to embrace the outcome, but not the reasoning, urged by the permissive theorists. The normative question of religious argument does not implicate First Amendment free speech law. Free speech theorists, however, have thought hard about the normatively optimal shape and scope of public political debate. Two distinct but related debates in free speech theory bear on the normative question of religious argument. First, the dispute about whether religious argument existentially threatens liberal democracy closely parallels the controversy over Communist political advocacy that dominated First Amendment discourse for much of the twentieth century. Second, the appeal to political stability that animates restrictive theorists' concerns about religious argument implicates familiar questions about how free speech norms and doctrines should balance values of political stability, consensus, and cohesion against values of political dissension, diversity, and dynamism. The best insights from these two strands of free speech theory turn the familiar terms of the debate over religious argument upside down: liberal norms of political debate should welcome even the most provocative religious arguments precisely because such arguments challenge and destabilize the prevailing liberal order. The same insights also compel an important corollary: liberal norms of public political debate should freely admit substantive criticisms of religious doctrine and belief.

Part I of this Article describes and critiques the existing normative dispute over religious argument in public political debate. I first explain how both restrictive and permissive theorists predicate their arguments on hospitable premises about whether and how religious argument threatens liberal democracy. I then advance a qualified version of the restrictive premise that some forms of religious argument may, in fact, significantly threaten liberal democracy. The final subpart of Part I criticizes permissive theorists for ignoring this potential threat. The remainder of the Article critiques and ultimately rejects the restrictive theorists' move from recognizing the potential dangers of religious argument to advocating normative constraints on religious argument. Part II links the question of religious argument to two normative debates in free speech theory. The first subpart examines the last century's theoretical and legal debate over the proper treatment of Communist advocacy, finding a strong parallel between the reasons advanced for suppressing Communist speech and the reasons advanced for placing normative constraints on religious argument in public political debate. The second subpart situates the normative question of religious argument within a persistent debate about the competing demands of political stability and political dynamism in shaping public discourse. These discussions of free speech theory reflect courts' and legal scholars' cogent thinking, in the concrete domain of constitutional politics, about the same factors that animate the normative question of religious argument.

Part III contends that the best normative insights we can draw from the free speech debates over Communist advocacy and the stability-dynamism dynamic should lead us to reject normative constraints on religious argument in public political debate. These free speech insights, which the restrictive theorists have failed to appreciate, reframe the case for admitting religious argument into public political debate. Our best understanding of expressive freedom, as reflected in the First Amendment's fragile but persistent protection of Communist and other "subversive" speech, counsels against any normative constraint on religious argument. Moreover, broad normative considerations and particular characteristics of religious argument favor admitting religious argument into public political debate in order to promote democratic dynamism. The final subpart of the Article presents an important, novel corollary claim that may trouble political liberals and religious liberty advocates alike. The same insights from free speech theory that counsel against normative constraints on religious argument should also lead us to admit freely into public political debate substantive criticism of religious arguments and underlying religious beliefs.

  1. THE PROBLEM OF RELIGIOUS ARGUMENT IN PUBLIC POLITICAL DEBATE

    This Article considers what I will call the normative question of religious argument. The inquiry is normative--how should we, as ethical members of a political community, treat religious argument in democratic political debate?--and not doctrinal. (9) Following the most common practice among advocates of normative constraints, I generally use the term religion to encompass all comprehensive, conscientious belief systems, whether theistic or not. My concern extends only to political debate, particularly debate about how public officials should exercise the state's coercive authority, and not to discussions of broad moral and ethical issues that may form the backdrop for policy debates. (10) Likewise, the question concerns public political debate--the processes by which members of the political community engage with the political community at large--and does not encompass political discussions within faith communities or other nonpublic...

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