This paper seeks a better understanding of the role of public reason in alimenting or defusing religious conflicts by looking at how courts apply it in deciding cases arising out of them. Recent scholarship and judicial decisions suggest, paradoxically, that courts can be biased towards either the secular or the religious. This risks alienating both religious majorities and religious and secular minorities. Judicial public reason is uniquely equipped to protect minorities, and its costs to religious majorities may be mitigated by accepting religious morality and identity claims in the political and legislative realm. Despite the political fragilities of judicial public reason, it is not intrinsically hostile to religious claims. It ought in fact to be fully equipped to recognize the equality and religious freedom rights that religious groups and individuals might assert in pursuing exemptions from general secular laws. Judicial public reason does have the potential to defuse religious conflicts, however much it falls short in practice.
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Public reason, in the hands of judges, is subjective. Michelman (2002) writes that “[i]n Rawls’s hands, the ideal of public reason seems always to refer to the subjective state of whoever is in a position of wielding power to say what the law is. It means that person's sincere readiness to explain her decision as true to some full set of constitutional principles that she has in mind and stands ready to defend as based in the spirit of liberal reciprocity. That is how conscientious, liberal-minded citizens and officials carry out what Rawls calls their duties of ‘civility.’” Baur (2004) characterizes public reason as hollowly self-referential, because it basically equates reasonableness with “subjective sincerity,” and fails to articulate who qualifies as a reasonable person in the first place. No matter how subjectively sincere we hope to be, we actually have little way of knowing whether we are relying on a comprehensive view of autonomy in our own public reasoning, for example, or widespread cultural norms of autonomy. As long as courts think that they are following public reason, there are no grounds for criticizing the legitimacy of their decision. In this sense, public reason is a surprisingly generous, unconstrained, forgiving standard for the judges that practice it.
Greenawalt (2009, 2397-9) writes that: “judges and quasi-judicial officials often provide reasoned justifications for their decisions…[O]ne does not often find explicitly religious grounding in opinions, even when courts reach beyond standard legal sources to comment on the social benefits or harms of a possible ruling. By an explicitly religious grounding, I mean reasoning in this form: ‘Given a true religious proposition, these conclusions about social good follow.’ Some examination of religious sources might be acceptable to show the community's attitudes toward a practice or its deep moral assumptions, and judges might employ familiar religious stories to illustrate a point, but none of these is a reliance on religious grounds…Although judicial opinions are rarely completely candid about the strength of competing arguments, one expects judges to rely on arguments they believe should have force for all judges…[T]his excludes arguments based on particular religious premises.” Steven Smith (2010) criticizes this as a kind of illicit argumentative “smuggling,” calling upon liberal secularists to be more open about their underlying motivations in pursuit of Eberle’s ideal of “conscientious engagement.”
Michelman (2002, 983) writes that “…liberal legitimacy really does depend on citizens being able to know that judges are motivationally – consciously – constrained by the ideal of public reason.” Dworkin (2004, 1399) argues that if we understand judicial reasoning correctly as interpretivism, then “we do not need a separate doctrine like the doctrine of public reason. Judges may not appeal to religious convictions or goals in liberal societies because such convictions cannot figure in an overall comprehensive justification of the legal structure of a liberal and tolerant pluralistic community. This interpretive constraint cannot, however, exclude moral as distinct from religious convictions….On no conception of law - positivist or interpretivist - can judges in complex pluralistic communities acquit their institutional responsibilities without relying on controversial moral convictions.”
As the Italian Consiglio di Stato (Supreme Court for Administrative Law) seemed to do in declaring the crucifix to be a universal symbol of tolerance. See Decision No. 556 of 13 April 2006, in which it insists that the legal principle of secularism (laicità) gets its meaning from history, cultural traditions and popular customs (and not by reference to rights and principles that could be affirmed by everyone in an increasingly pluralistic society). It confidently asserts that “it is obvious” that in Italy the crucifix expresses (the religious origins of) the liberal values of tolerance, mutual respect, human rights, dignity, liberty, autonomy, freedom of conscience, human solidarity and the rejection of every form of discrimination. It thus expresses the values of laicità in the modern Italian state! Nadia Urbinati (2010) argues forcefully against a Habermasian opening of the public sphere to religious claims in a mono-religious democracy like Italy, where religious and secular minorities might need extra protection.
In Dahlab v. Switzerland (2001) the Court rejected a Muslim elementary school teacher’s religious liberty claim to wear a headscarf in the classroom, in favor of the state’s right to protect the religious beliefs of students and parents from the alleged threat posed by “powerful external symbols”; in Leyla Sahin v. Turkey (2005) it rejected a Turkish medical student’s religious liberty claim to wear the headscarf at university, in favor of the state’s expressed goal of pursuing gender equality and public order; in Dogru v. France (2008) and Kervanci v. France (2008) the court rejected French Muslim secondary school students’ religious liberty claim to wear a headscarf in physical education class, in favor of the state’s alleged interest in protecting students’ health and safety.
Hirschl asserts that “proportionality epitomizes moderation and conciliation, and favors middle-of-the-road, balanced, or pragmatic solutions to contested issues” (80).
This is consistent with the orthodox use of public reason. Rawls displaces questions of distributive justice, which are to be considered at a prior phase of justice as fairness. Public reason is not supposed to address conflicts over the principles of justice once recognized as reasonable, and reasonably believed by reasonable persons to be satisfied by our political and social institutions (1999, § 7.1). Constitutional judges are thus justified in bypassing the social and distributive issues animating religious or religious-identity claims.
Hirschl’s conception of constitutionalism as metaphysical mirrors criticisms of public reason as a comprehensive conception. Greenawalt (1994) argues that, as a comprehensive conception, public reason is just as rooted in faith and inaccessible moral views as is religious morality. Berkowitz (2002, 67) underlines the paradox of Rawls’s conception of public reason as political rather than metaphysical. Though Rawls defines “political” as undetermined by controversial beliefs about human nature and comprehensive moral, philosophical, and religious conceptions, this cannot actually be said of the metaphysically-rooted equal rights underpinning political liberalism. The ideal of public reason presupposes that consent, fairness, equality and rights are objectively compelling values. Berkowitz thus diagnoses in Rawls’s consistent confusions a need “to hide his universalism while extending it to cover all peoples.”
According to Renato Mannheimer (2009), 84% of Italians favor keeping the crucifix in public schools. Of the self-identified “secularists” that were surveyed, less than 30% objected to the presence of the crucifix (and of those whose identified with the political left, only 22% objected).
Article 14 of the European Convention on Human Rights provides that the enjoyment of Convention rights and freedoms “shall be secured without discrimination on any ground such as…religion.” This line of argument would track Nussbaum’s interpretation (2008) of the U.S. constitution’s prohibition against the establishment of a national (or state) religion as a protection of the equal civil status of religious minorities.
Susanna Mancini (2011) criticizes the Court’s “catastrophic” reduction of the right to religious liberty, so that religious minorities must tolerate any religious manifestation of the majority that stops short of effective indoctrination. She also highlights the European Court’s benevolence towards Christian majorities, which it does not extend to religious and ideological minorities.
Muirhead and Rosenblum (2006), for example, recognize that those of us who feel “the strains of commitment excessive…may be sullen and resentful and see ourselves as oppressed…More often, we grow distant from political society and retreat into our social world. We feel left out…” (105).
Greene (2004) faults Rawlsian public reason for failing to acknowledge that its “rules of exclusion delegitimate the government’s claim to the obedience of its citizens. Although theories of the good that some people hold at the core of their being have been barred from justifying law…these people nonetheless must obey law just as if they had participated fully in the political process” (2098).
On the growing importance of religious claims in the widening public spheres in Turkey, Libya, Egypt and Tunisia, Shadid and Kirkpatrick (2011) report that “‘The real struggle of the future will be about who is capable of fulfilling the desires of a devout public. It’s going to be about who is Islamist and who is more Islamist, rather than about the secularists and the Islamists…Is democracy the voice of the majority?’ asked Mohammed Nadi, a 26-year-old student at a recent Salafist protest in Cairo. ‘We as Islamists are the majority. Why do they want to impose on us the views of the minorities — the liberals and the secularists?’”
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Infinite thanks to Alberto Vespaziani, for tuning me in to Hirschl and so much else, and to Tom Bailey, for encouraging me to write this in the first place, and for his incisive review of many previous drafts.
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Harris, P.B. The Politics of Judicial Public Reason: Secular Interests and Religious Rights. Philosophia 40, 271–283 (2012). https://doi.org/10.1007/s11406-011-9348-z