Religion, democracy, and autonomy: a political parable.

• Author: Smith, Steven D.

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.

One major reason for this doubt is that the accessibility position, taken at face value, does not faithfully serve the purposes of its own proponents. This is because, if "accessible" is taken to mean something like "intelligible" or "understandable," the constraint excludes the wrong things. Many complicated scientific and philosophical analyses will not be "accessible" in this sense to many or most of us; conversely, many of the most controversial religious rationales will be readily understandable. "God prohibits homosexual conduct" is an idea not especially difficult to understand in an ordinary sense,(6) though of course its truth, its admissibility, and its philosophical meaningfulness are all debatable. Conversely, if "accessible" is taken to mean something more like "believable" or "generally accepted," then the "accessibility" requirement would become unduly severe. Disagreements are likely to arise precisely because people differ about the believability of the premises or rationales that support different conclusions; if such differences are enough to make a premise or rationale inadmissible in democratic deliberation, then there will be precious little to deliberate about.(7)

So the argument about "accessibility," I believe, is artificial, and it has distracted us from the deeper and more far-reaching reason for resistance to the use of religion in democratic politics. And what is that deeper reason? It was hinted at by Alexander Hamilton during the Constitutional Convention.(8) At one contentious point in the proceedings, Benjamin Franklin proposed that daily sessions be opened with prayer.(9) The proposal was rejected, and Hamilton is said to have remarked that the convention had no need of "foreign aid."(10) Hamilton was no great democrat, of course, but this remark, if actually made, suggests that he was ahead of his time in anticipating the implications of a modern conception of democracy. The basic thought is that democracy means self-government, and self-government means government of and by ourselves: we should make our own decisions, without outside assistance or interference.

In this respect, modern democracy is merely an extension to the political level of what "autonomy" is thought to mean on the individual level. Theorists may associate this position with Kant. Kant, after all, was a major proponent of a highly influential view of the autonomous, rational person which holds that enlightened autonomy means "thinking for yourself,"(11) and that an "inability to make use of one's own understanding without the guidance of another" is a form of "immaturity" reflective of "[l]aziness and cowardice."(12) Autonomy entails "not submitting to groundless authorities," or to "`alien' authorities"--a contestable category, no doubt, but one that at least includes "state, church, majority, tradition, or dictator."(13) This commitment to autonomy supports a cluster of intertwined Kantian propositions that have become virtually axiomatic for much of modern liberal democratic theory: that "autonomy is the supreme good,"(14) that only obligations that we legislate for ourselves are binding on us,(15) that autonomy is the essential basis of human dignity,(16) and that "[t]here is no place for others to tell us what morality requires, nor has anyone the authority to do so--not our neighbors, not the magistrates and their laws, not even those who speak in the name of God."(1)

It is clear enough, even on the face of these assertions, that projecting this notion of individual autonomy onto the political level will raise some delicate questions. Robert Paul Wolff argues enthusiastically, for instance, that if the concept of autonomy is carefully considered, it leads us inexorably to embrace anarchism.(18) Setting aside that sort of question, though, it is not hard to see how someone with this general orientation would look with suspicion on the resort to religion in democratic decision making--not necessarily because of any singular hostility to religion per se, but because religion typically includes something like deference to God, and God (if there is a God) is an "alien authority."(19) Doing what God wants because God wants it is not the same as thinking and acting "for yourself." So deferring to God's will is a way of submitting to "foreign aid," as Hamilton put it.

At this point, professors of philosophy might eagerly launch into a discussion about what Kant really meant, or about how some of his pronouncements should be understood in light of others, or about which among modern positions that invoke the authority of Kant in opposing deference to authority correctly understand his views and which do not. Of course, the professors would disagree about those matters, as professors of philosophy always do.(20) I do not want to get into such a discussion here, however, for several sufficient reasons. In the first place, I lack the training (and probably the kind of mind) needed to contribute much to that kind of debate. More importantly, for our purposes it does not make much difference what Kant really meant, or what he would or should have said with regard to our issues. Like other great thinkers, Kant released some potent ideas into the world, and thereafter they no longer belonged to him. Others may have misapprehended these ideas--or they may have apprehended them more clearly than Kant himself did; but, in any case, what matters for practical purposes is what Kant's ideas came to mean, not what he meant. Or, probably more realistically, it may be that Kant was not so much originating new ideas as articulating (in his own idiosyncratic and ponderous way) notions that were (and are) "in the air." So for some purposes the more cogent question might ask not how well others understood Kant, but how well he understood them. (Perhaps not all that well, I suspect, in either case).

In any event, for purposes of the present discussion what matters is not what Kant...