Citizens, Not Outlaws

National Review, August 11, 2003 by Richard W. Garnett

Under God? Religious Faith and Liberal Democracy, by Michael J. Perry (Cambridge, 216 pp., $22)

'The vast majority of Americans," Pope John Paul II once observed, "are convinced that religious conviction and religiously informed moral argument have a vital role in public life." In this new book, legal scholar Michael Perry argues persuasively and precisely that this American consensus is correct: that there is, in fact, a place in our public square for "political reliance on religiously grounded morality," and that "neither the American constitutional ideal of nonestablishment nor the morality of liberal democracy calls for marginalizing the role of religious faith in, much less excluding it from, American politics."

In some of his earlier writings, Perry defended an exclusionist position on religion in politics. He no longer finds that view convincing, and now asserts that "there is even a sense in which [it] is-dare I say it?-un-American." Reflecting on Lincoln's Second Inaugural Address, Perry remarks: "How strange that the citizens of a nation whose rebirth was rooted in belief in a God whose 'judgments . . . are true and righteous altogether' should now be told that it is uncivil or impolite, if not constitutionally or morally illegitimate, to bring their religion to bear as they participate in politics."

Perry's argument in this book opens with a tightly reasoned exposition of the First Amendment's "nonestablishment norm": "Government may not take any action that favors a church in relation to another church, or in relation to no church at all, on the basis of the view that the favored church is, as a church . . . better along one or another dimension of value." The Constitution does not, however, prevent governments from acting in ways that happen to benefit religious believers and institutions (and so, school-choice programs are constitutional), nor does it regulate private conduct, expression, and worship.

Law professor Kathleen Sullivan's claim that the Establishment Clause necessarily implies "the affirmative 'establishment' of a civil order"- an entirely secular order-"for the resolution of public moral disputes" is, Perry demonstrates, quite mistaken. The Constitution "deprives government of jurisdiction" to endorse and enforce religious truth claims as such, but it does not require government to maintain what Richard John Neuhaus has called a "naked public square," nor does it impose on devout religious believers a special duty to sterilize their political speech.

Expressing one's faith, and acting on it in political life, do not make one a constitutional outlaw; could they nonetheless make one a bad liberal, or a bad citizen? If, for example, a citizen or legislator votes, for religious reasons, to outlaw or disfavor conduct, does he thereby deny nonbelieving citizens the "equal respect" to which they are entitled? Perry explains that, while our commitment to "equal respect for persons" should prompt us to discern, and explain, the reasons for our political choices, it does not require us to pretend we do not have the religious beliefs we in fact have. As Stephen Carter has put it, religious people should not be "forced," in the name of "equal respect," "to disguise or remake themselves before they can legitimately be involved in secular argument." Along the same lines, Notre Dame philosophy professor Paul Weithman has argued that to demand, as the price of admission to the public square, a concession that "religious reasons are not good reasons for political action" would be to deny religious believers "full membership" in the community.

In Perry's view, religiously grounded moral belief is not only a "legitimate" but a "most fitting" basis for political decisions, because religious believers are best equipped to explain and defend liberalism's core moral commitment: "Every person is a subject of justice [and] every person is inviolable." Religious believers-unlike "contemporary secular moral philosophy"-can provide a coherent account of what it is about the human person that provides the foundation for this axiom. "The essence of all morality," historian R. H. Tawney said, is "to believe that every human being is of infinite importance, and therefore that no consideration of expediency can justify the oppression of one by another. But to believe this it is necessary to believe in God."

Having established that nothing in our Constitution or political morality requires religious believers to censor their public arguments, Perry considers whether the believers might still have good reasons- religious reasons-for avoiding certain kinds of religious arguments about such controversial issues as same-sex marriage. In his view, because "contemporary human experience" reveals that same-sex unions can be "truly, deeply fulfilling for some persons," Christians who believe what the Bible teaches about human well-being have good, explicitly Christian reasons to a) doubt that the Bible really condemns all homosexual conduct and b) avoid Biblically based arguments against such conduct. Speaking more particularly to Catholics, Perry contends that on such "widely controversial" questions, it is "important for a Catholic to work out her own position on the moral issue," to "judge whether . . . official Church doctrine . . . is in conformity with the Gospel, [and then] to make a political choice on the basis of her own position." The author concludes that Catholics have good reasons- Catholic reasons-to dissent from papal teachings on the morality of same-sex relations, and to construct their public arguments accordingly.