By Elizabeth Mensch and Alan Freeman. Durham: Duke University Press. 1993. Pp. x, 268. Cloth, $39.95; paper, $14.95.
Religious arguments and movements have been central to virtually every important public debate in American history from independence and abolition to civil rights and the nuclear freeze. Nonetheless, many legal theorists claim that this involvement of religion with politics presents a problem for our constitutional order. Recently, religious voices have played a prominent role in the controversy over abortion -- especially, though not exclusively, on the anti-abortion side. This has generated a surge of new writing about the role of religion in public life. In the most serious entry in the field, John Rawls maintains that a society may justly base its laws only on a "reasonable" political conception of justice, meaning a conception that is, or can be, "shared by citizens regarded as free and equal" and that does not presuppose any particular "comprehensive doctrine," of which religious doctrine is a prime example.(1) Applying this idea to the abortion issue, Rawls concludes (without much discussion) that "any comprehensive doctrine that leads to a balance of political values excluding" the right to an abortion by a "mature adult" woman in the first trimester "is to that extent unreasonable," because the "political value of the equality of women is overriding."(2) This means, apparently, that the contrary balance -- treating the life of the unborn as the "overriding value" -- is not just wrong but beyond the boundaries of reasonable argument, in part because it rests on a "comprehensive doctrine" (though why respect for unborn life rests on a comprehensive doctrine while respect for the equality of women does not is something of a mystery).(3)
In a more rhetorical vein, Ronald Dworkin, having concluded that opposition to abortion has "at least a quasi-religious nature," goes on to tell us that "it is no part of the proper business of government" to enforce laws based on such premises.(4) "[I]t is a terrible form of tyranny, destructive of moral responsibility, for the community to impose tenets of spiritual faith or conviction on individuals."(5) Note that this position does not depend on the character of the rules regulating abortion; judgments based on "tenets of spiritual faith" are simply excluded from public discourse. Anthony Lewis, a respected New York Times columnist, has written that the "essential truth about most antiabortion activists" is that they are "religious fanatics, who want to impose their version of God's word on the rest of US."(6) This puts them outside the bounds of "our form of democracy, which requires compromise and does not work when there are ideological certainties."(7) Again, one might ask: How willing are advocates of the opposite side to compromise? Are there not "ideological certainties" in secular political discourse? Nor are arguments of this sort confined to writers and academics. Popular pro-choice rhetoric commonly brands religious thought about abortion intolerant, extremist, and illegitimate.(8) In the language of street protests: "Keep your rosaries out of our ovaries!"
Come now Elizabeth Mensch and Alan Freeman, professors of law at SUNY-Buffalo and close students of the religious debate over abortion in the United States in the past forty years. No one will accuse Mensch and Freeman of being members of the religious right. As feminists and early enthusiasts of the critical legal studies movement, with backgrounds in left Protestantism (Mensch) and Judaism (Freeman), they would seem unlikely voices to rise in defense of religious discourse about abortion and other contentious issues of public morality and policy. The book is all the more striking for their disclosure in the introduction that each of them has had "more than one firsthand experience of abortion" (p. 3). This experience they describe as "almost perfect irresponsibility, of the kind that absolutely precludes self-righteousness" (p. 3). These authors have produced a book that is by far the most comprehensive yet concise, sympathetic yet critical, account of theological thought on the issue of abortion.
Their heterodoxical conclusion is that religious thinking about abortion -- which was interrupted by the constitutional close out of Roe v. Wade(9) -- was more nuanced, less absolutist, more tolerant of good-faith disagreement, more closely attuned to the moral perceptions of the people, and more conducive to compromise than the secular constitutional discourse that replaced it. But this conclusion is not, like most theorizing on the subject, based on a priori conceptions. The book is not really an argument at all, but simply a description of the debate as it unfolded in the churches and synagogues of America between the end of World War II and the decision in Roe. Far from being divorced from public values, this discourse, according to Mensch and Freeman, was the prime forum for deliberation about public values. The book thus transcends the specific issue of abortion and addresses the process of forming moral judgments in our pluralistic democracy. "The larger question," the authors say, "is whether we can recover a meaningful public moral vocabulary" (p. 5). The "alchemical fantasy of liberalism -- that process can turn itself into substance -- is belied by the reality of conflict" (p. 5; footnote omitted). Their book, The Politics of Virtue: Is Abortion Debatable?, poses the question: "Can a revival of theological traditions ... serve such an enterprise?" (p. 5).
If Mensch and Freeman were to engage Rawls in conversation, I think they would agree with his first criterion of reasonableness (that public debate must be based on conceptions that are, or can be, "shared by citizens regarded as free and equal"(10)), but they would maintain that one is most, not least, likely to find such discussion in theological circles. The various communities of faith have been engaged in discourse about morality and public justice for centuries and have produced most of the bedrock of modern ethics -- even ethics that appears, on the surface, strictly secular. As the authors point out, the secular systems of Hume and Kant presupposed the survival of Calvinist (Hume) or Lutheran (Kant) substantive ethics, even as they undermined the epistemological basis of the religious world view (p. 153). Moreover, there is something odd about Rawls's argument in a nation in which religion is so important to so many people. Three-fourths of American women and a lesser proportion of American men, the authors point out, "report that they consider religious faith the most important influence on their lives" (p. 4). Can we honestly regard our fellow citizens as "free and equal" if we rule out-of-bounds the reasons they conscientiously adopt as a ground for their thinking about public issues?
The moral teachings of the major religions of America are starting points for serious deliberation in which any person -- believer and nonbeliever alike -- can engage. By contrast, the authors observe, most secular discussion of abortion since Roe has been strident, acrimonious, and largely unilluminating. Rawls's own dismissal of the pro-life position as "unreasonable" and not requiring further discussion is a sobering example of a secular "close out" -- not different, in principle, from those who say, "The Bible says it, I believe it, and that resolves it."
I think, however, that Mensch and Freeman would disagree with Rawls's second criterion (that positions in the debate must not presuppose a particular comprehensive doctrine). It is only the traditions built on comprehensive doctrine -- secular as well as religious -- that have anything useful to say about ultimate questions such as life and death, freedom and obligation, and the proper reaches of justice and compassion. If we do not include comprehensive doctrines in our discussions, we will be left with nothing but sterile proceduralism and moral assertions uprooted from their source and foundation.
Perhaps the most distinctive virtue of religious participation in public life, according to the authors, is that religion places the concerns and the powers of this world in proper perspective -- they are important, but not controlling:
Religion in the United States provides both an incentive to act responsibly
in the world, and it also offers that "pause" which makes complete
allegiance to any political order impossible. This is why religion provides
a counterforce to totalizing secular ideologies, whether of the right
or left -- so long, that is, as churches resist the temptation to identify
themselves too fully with the state. [p. 140]
This book should be required reading for anyone who wishes to contend that religious participation in resolving issues of public concern is inconsistent with our national commitment to free, openminded debate and inquiry.
Quite apart from their analysis of the abortion question, Mensch and Freeman have provided an insightful primer into the intellectual history of political theology in postwar America. The authors discuss the natural law tradition that flourished in the aftermath of the Holocaust and Nuremberg but floundered in the conflicts of the 1960s; the ecumenical spirit of the 1950s, with its tendency toward complacency in the public sphere; the profound, but profoundly misunderstood, theology of Barth and Bonhoeffer, which inspired Martin Luther King and led to the social activism of mainstream Protestant churches in the civil rights era; the emergence of fundamentalist Christianity from its pietistic cocoon into a powerful public voice; the secularization of mainstream Protestantism; and the growing division between conservative and liberal theological movements in the years before and after Roe. To anyone unfamiliar with these developments, the book serves as an excellent introduction; but even to those well versed in the...