One would prefer not to think of Justice Anthony Kennedy as a Keynesian "[m]adm[a]n in authority who hear[s] voices in the air" and who "distill[s] [his] frenzy from some academic scribbler of a few years back." (1) Still, in at least one passage, Obergefell v. Hodges (2) confirms that "the ideas which civil servants and politicians ... apply to current events are not likely to be the newest." (3) Consider:
Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. (4) According to Justice Kennedy, "decent and honorable religious or philosophical premises" may ground "sincere, personal opposition" to same-sex marriage--apparently reasonably so--but those same premises, if they would be enacted in law and public policy, become unacceptable. (5) This idea is not "the newest." It is, in fact, the liberalism that venerable academic scribblers such as John Rawls and Robert Audi have long espoused. (6) Unfortunately, that liberalism has also long been unsatisfactory, and it remains so, not least because it unduly restricts religious liberty.
This Article advocates the realization of a more robust, and indeed a more neutral, liberty, particularly in the realm of political discourse. Part I shows that Rawls and Audi, as exemplars of liberalism, enticingly claim that religious freedom and non-establishment are separate principles and that the implementation of these principles leads to a neutral public square. Part II attempts to show that a public square so ordered, while appearing to be even-handed, is actually secularist, or not "truly" neutral. Instead, non-establishment leads to a public square where non-religion predominates over religion in political discourse. Finally, Part III articulates and defends the broader view of religious freedom. Ultimately, only the full inclusion of all religious and non-religious perspectives in a pluralistic debate will promote the neutrality, freedom, and equality that liberal theorists rightly and ardently desire.
THE LIBERAL ACCOUNT OF RELIGIOUS FREEDOM: FREEDOM, NEUTRALITY, AND EQUALITY
Separation of Religions Freedom from Non-Establishment
The traditional and prevailing liberal view is that religious freedom and non-establishment are separate principles. Religious freedom is about individuals being free to believe and practice as they choose without interference by the state, and non-establishment is about preventing government from endorsing or coercing the practice of a particular religion. (7) In the liberal framework, the separation of these principles is supposed to preserve religious freedom. Rawls and Audi are exemplary exponents of this entrenched separationist perspective in which distinguishing religious freedom from non-establishment and balancing them appropriately results in genuine neutrality, freedom, and equality. (8)
Under Rawls's theory of liberalism, all coercive laws must be justified by "public reason." (9) Coercive laws may not be based on "comprehensive doctrines." (10) For Rawls, any comprehensive doctrine, reasonable or unreasonable, religious or secular, cannot be a public reason without translation into "proper political reasons," (11) and so is an inadequate basis for coercive law. The liberal principle of non-establishment, in particular, prohibits coercive laws based on religious comprehensive doctrines. This non-establishment principle is distinct from the Rawlsian principle of religious freedom, which forbids the use of state power to repress religious reasonable comprehensive doctrines.
At first glance, the distinction between Rawls's non-establishment and religious freedom principles might seem artificial. Could it not be that a religious reasonable comprehensive doctrine might form the basis for a coercive law (breaching the non-establishment principle) which represses other incommensurable religious reasonable comprehensive doctrines (breaching the religious freedom principle at the same time)? This is certainly possible, even probable. But that kind of situation does not exhaust the permutations of reasonable comprehensive doctrines in relation to the two principles. A religious reasonable comprehensive doctrine might form the basis for a secular law, which does not repress another reasonable religious comprehensive doctrine (for example, a law requiring that creation be taught alongside evolution in public schools). Here the non-establishment principle would be violated but the religious freedom principle would not. Conversely, a secular reasonable comprehensive doctrine might form the basis for a law that represses a religious reasonable comprehensive doctrine (for example, a Marxist regime might prohibit the publication of Christian literature). Here the religious freedom principle would be violated but the non-establishment principle would not be (though the general Rawlsian prohibition on laws based on comprehensive doctrines would). Thus, notwithstanding the overlap between the two principles, they are nonetheless independent in the Rawlsian framework. (12)
Audi's views are similar in this respect. The assumption underlying his view of the role of religious arguments in liberal democracies is that they are free societies "committed to preserving freedom, especially in religion." (13) This commitment to preserving freedom in the sense of preventing "unjustified" coercion against religion is the typical liberal idea of religious freedom. As distinct from coercion against religion (contrary to the religious freedom principle), Audi supports the non-establishment idea that religion should not be invoked as the basis for political laws, for this could lead to division and dominance of one religion over others in a pluralistic society, which is incompatible with liberal ideas of freedom and equality. (14)
Balancing Religious Freedom and Non-Establishment
Rawls addresses this question of pluralism as follows:
[T]he basic structure of such a society is effectively regulated by a political conception of justice that is the focus of an overlapping consensus of at least the reasonable comprehensive doctrines affirmed by its citizens. This enables that shared political conception to serve as the basis of public reason in debates about political questions when constitutional essentials and matters of basic justice are at stake. (15) A reasonable approach sees "society as a system of fair cooperation" between reasonable comprehensive doctrines. (16) When doctrines that are reasonably acceptable to all people (regardless of their own reasonable comprehensive doctrines) are used to promulgate laws, those laws provide fair terms for all individuals in the society. The Rawlsian approach, in a sense, is a system of equality based on the universal acceptance of minimum terms. (17)
Reasonable persons may not accept, or indeed may deny, reasonable comprehensive doctrines. Nevertheless, they should not want the state apparatus to repress reasonable comprehensive doctrines to which they do not adhere because they would not desire repression of their own reasonable comprehensive doctrines. (18) This is the condition of reciprocity. To preserve "unity and stability," Rawls introduces the idea of an "overlapping consensus of reasonable comprehensive doctrines," which "endorse the political conception, each from its own point of view." (19) To the extent that there is a consensus, there is a certain unity, and "stability is possible when the doctrines making up the consensus are affirmed by society's politically active citizens." (20) For Rawls, all this "leads to a form of toleration and supports the idea of public reason." (21)
Rawls states that:
Public reason is characteristic of a democratic people: it is the reason of its citizens, of those sharing the status of equal citizenship. The subject of their reason is the good of the public: what the political conception of justice requires of society's basic structure of institutions, and of the purposes and ends they are to serve. (22) The citizens, "as a collective body, exercise final political and coercive power over one another in enacting laws" on fundamental issues, such as equality of opportunity and which religions to tolerate. (23) Fundamentally, therefore, political power may only be exercised on the basis of public reason as a matter of liberal legitimacy:
[O]ur exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational [in accordance with non-establishment] ... consistent with their freedom and equality [preserving religious freedom]. (24) Audi takes up the Rawlsian line of thought, albeit with explicitly "secular" reason rather than the more ostensibly neutral "public" reason. He presents a theory of how "religious arguments may be properly used in a free and democratic society [without] mask[ing] their religious character [or] undermining]" the separation of church and state, which he distinguishes from secularization. (25) Audi focuses specifically on the "role of religious arguments and the explicit use of, or tacit reliance on, religious considerations as grounds for laws or public policies." (26) His theory has a similar framework to Rawls's: "[L]iberal democracy is properly so called because of its two fundamental commitments: to the freedom of citizens and to their basic political equality, symbolized above all in the practice of according one person one vote." (27) Audi...