An interesting post over at The Volokh Conspiracy considers one reader’s comments on the place of religion in public deliberation:
Personally I hold the position that it’s illegitimate (from an ethical, not a constitutional standpoint) to justify one’s decisions about how society should be run based on assumptions one cannot defend reasonably. As I have yet to see any compelling defense made on evidence that for example 1) there is a god and 2) that god does not want me to be a homosexual, I find it unethical to try to legislate my choice to be or not be homosexual based on those propositions. My understanding is that a significant segment of the religious right makes their case exclusively on these grounds.
Eugene responds that while he’s sympathetic in the instance, he doesn’t see much hope for delimiting some admissible class of public justifications, because any value based argument (and any argument about policy, about what one ought to do is at some level value-based) will ultimately hit bottom, relying on some normative axiom not succeptible to “rational proof.”
While Eugene’s on to something, I think he’s unduly distracted—perhaps in part because of his interlocutor’s own phrasing—by the question of “rational proof” when what’s really at issue here is the familiar concept of public reason: The idea that when trying to justify policy to each other as citizens, we don’t appeal to (and I think this is Rawls’ phrase) “the whole truth as we see it” as holders of thick worldviews with important metaphysical or religious components. Instead, in a process analogous to what lawyers do when they limit themselves to precedent rather than skipping straight to a more untethered discourse about what an ideally fair or just outcome might be, they agree to use a more narrowly circumscribed vocabulary.
So consider cases involving suppression of speech. We do not, upon encountering some objectionable speech, begin a de novo consideration of whether that particular speech act is socially beneficial or harmful. The First Amendment has largely taken that kind of debate off the table. Instead, we consider whether the speech in question fits into one of a few relatively narrow exceptions to the default principle that speech is protected—is it likely to incite a riot, is it obscene, and so on.
It seems to me that Eugene’s objection, then, cuts not just against the incursion of religious rhetoric into public debate, but against the idea of public reason as such. And I think that has to be wrong. If it follows from an argument that there’s no general difference between “Gay marriage should be banned because the voice of God told me so” and “Gay marriage should be banned because it would undermine the family and thereby give rise to a laundry list of concrete social harms,” there’s got to be something amiss in that argument. The problem with the former one isn’t that it’s unpersuasive in the instance (neither, to my mind, is the latter) but that it’s the wrong sort of argument to offer.
As I suggested, I think the problem is Eugene’s focus on the notion of “rational” proof. Rawls himself goes out of his way to distinguish usefully between the familiar (from economics and game theory) notion of “rationality” and what he means by “reasonableness.” To be reasonable is (and the definition is recursive, though not, I think, viciously so) to be willing to offer justifications to others on terms they could reasonably accept. And this does allow for a real distinction. The mugger or murderer punished for his crime may regret being caught, but can also understand and accept the principle according to which he’s punished; the atheist charged with blasphemy cannot.
Even paradigm cases of “rational proof,” after all, hit their own bottom. One cannot non-circularly establish the validity of standard logic; it’s just not much of an issue because we all tend to accept the same set of axioms and inference rules. The normative consensus is a lot weaker, especially as you move from the general to the concrete, but there are some background ideas that people living in a moderately pluralistic society together (probably inevitably, just because they are managing to live together) do share. Basic stuff like: “people matter, and matter (in at least some sense) equally” and “happiness is better than (unchosen) suffering.” The consensus may not be universal, but then there’s something slightly odd about an imagined interlocutor who denies that people matter simultaneously demanding justification for policies that affect him.
The background consensus may be thin, but I think it’s also enough. Enough, that is, to draw a distinction between justifications available only to those who are members of some particular “thick” community, and those which, whether or not persuasive in a particular case, can be addressed to anyone who subscribes to that backbone consensus that makes coexistence in a liberal democratic society possible.
Addendum: Another possible approach occurs to me belatedly. That’s to treat the dispute, in the case of religion, as a factual rather than a normative one. There is, of course, plenty of normative disagreement between the secular and the religious, but some of those differences rest crucially on a factual premise, to wit, there exists a God who keeps tabs on our behavior, disapproves of certain kinds of actions, and will perhaps punish those who commit (or countenance?) that disfavored behavior. And seen as a factual disagreement, a demand for “proof” (in some “preponderance of the evidence” sense) starts to look more reasonable.
Imagine, after all, that someone suggests that widely used pesticide X is extraordinarily harmful (maybe over long periods of time) and should be banned (except, maybe, in some narrow circumstances where the harm to unconsenting parties through air contamination or whatever can be constrained). Presumably, there’s normative agreement: If it were true, everyone would agree it’s bad to poison people and something ought to be done. But then suppose that the person proposing the ban can’t actually produce any evidence that the chemical in question is dangerous; he merely believes it very strongly. It is, of course, logically possible that they’re right: Some unanticipated ill effects might eventually manifest themselves. But if there’s not actually any reason to think this is the case, nobody thinks that’s the sort of argument (to the extent that it counts as an argument) that should be given any weight in public deliberation.
Now, for a variety of reasons, I’d probably stick with the public reason approach (this, too, is a sort of public reason approach, come to think of it); this just struck me as an interesting alternative take.