Posted by: captainfalcon | August 28, 2011

Religious Neutrality is Unworkable, but Who Needs It?

 In The Paralyzing Paradox of Religious Neutraliy (hat tip), Steven D. Smith argues that a state’s commitment to religious freedom entails a commitment to religious neutrality, and that religious neutrality is both self-undermining and incapable of consistent application.

His argument is that if a state has religious freedom then it not only tolerates different religions and irreligions – where toleration is consistent with preferring a particular kind of religion, as long as that preference does not extend to outlawing the core practices of others – but also treats them all equally. For a state to treat all religions and irreligions equally it must not favor (in word or deed) certain religions or irreligions relative to others; instead, it must be neutral toward them all. (Call this kind of religious neutrality strong religious neutrality.)

Smith argues that strong religious neutrality – a commitment flowing from a commitment to religious freedom – is undermining at the level of public reason because (1) it rules out all public justifications that presuppose religious premises (for example: the doctrine of religious voluntarism – at the heart of Locke’s Essay Concerning Toleration – according to which a state’s favoring a particular religion pressures people to believe it, thereby depriving their eventual “coerced” belief of any religious value), and (2) the remaining public justifications (Smith only surveys Consequentialist varieties) are contingent and (more troublingly) have different force depending on the religion toward which the state is supposed to be neutral.[1]

Smith also argues that strong religious neutrality cannot be consistently applied. Recall that in order for the state to be consistently neutral toward all religions and irreligions, it must not adopt policies that favor (in word or deed) some of these religions over others. But this injunction is self-undermining, as some religions require the state to adopt theologically grounded policies (or to reject certain secular ones). If a state declines to adopt such policies – indeed, affirmatively rules out the adoption of such policies – then it thwarts these religions (but not others, and not irreligions), and thereby disfavors them. (Moreover, a commitment to strong religious neutrality plausibly amounts to disparaging political religions, as a declaration that their aspirations are illegitimate is intrinsic to strong religious neutrality.) Smith identifies as instances of this problem the ban on prayer in public schools, and the teaching of evolution. Some religions regard obligatory public prayer as an affirmative requirement; they are disfavored by the prayer ban. Others (obviously) deny evolution; they are disfavored when it is taught.

Also at the level of application, Smith considers and rejects a more recherché version of a state’s commitment to religious neutrality, according to which respect for religious freedom only requires that a state be religiously neutral relative to a preexisting constitutional baseline. (Call this relativized religious neutrality.) So, if a government is secular – i.e. deals only in non-religious modes of reasoning – then it is religiously neutral as long as it does not favor any religions over each other (or, perhaps, as long as it only favors religions for secular reasons, e.g. that they are effective charities). Likewise, if a government is an Anglican-secular mixture then it is religiously neutral as long as it does not favor certain non-Anglican religions over others. Etc.

The problem Smith recognizes is that relativized religious neutrality is not the conception that a commitment to religious freedom promises. It is simply incorrect to say that a government that permits all the practices of one religion, but only some of the practices of another, fully respects freedom of religion; similarly, a government that disparages some religions, or, by word or deed, stains them with illegitimacy. In short, there is an absolute criterion of religious neutrality. Smith’s argument has the ironic implication that as society becomes more religiously diverse and sophisticated, this criterion becomes impossible to satisfy.

Here are two possible responses to Smith’s critique of religious neutrality. First, to borrow language from the Supreme Court’s racial discrimination jurisprudence, it could be argued that the kind of religious partiality that a state should avoid is not disparate impact, but, instead, disparate treatment. On this view, religious neutrality simply requires that a state not favor a particular religion or irreligion because of its religious or irreligious status.[2] (Call this weak religious neutrality.) This means it is fine if a policy ends up favoring a religion, just so long as that isn’t the policy’s goal. So, if the goal of teaching evolution is teaching what (according to scientific norms) is the best evidenced theory – as opposed to promoting a secular worldview – then teaching it is compatible with religious neutrality. Likewise, if the goal of banning school prayer is ensuring that atheists do not feel uncomfortable in school – as opposed to disparaging the value of prayer – then the prayer-ban is kosher.

This version of religious neutrality fares better than strong religious neutrality at the level of public justification. While it still rules out support by appeals to religious reasoning – for then the state would endorse weak religious neutrality because of its status as a religiously authorized political doctrine – it is probably more susceptible of consequentialist justification. (Favoring a given religion qua religion – as opposed to qua its contribution to the good – can only accidentally be in sync with consequentialism’s demands. Strong religious neutrality rules out any favoring of a particular sect; weak religious neutrality only rules out the kind that is essentially unpegged to consequentialist considerations).

However, like strong religious neutrality, weak religious neutrality is incapable of consistent application. To see this, consider again the example of teaching evolution. The argument that state schools’ teaching evolution is consistent with weak religious neutrality depends on a distinction between (inadvertently) favoring a secular worldview because that’s the way to teach the best-evidenced theory, and (intentionally) favoring a secular worldview because it is superior to various other religious and irreligious worldviews. But it is not clear that this distinction can be maintained. After all, teaching evolution is only a means of teaching the best-evidenced theory if the secular worldview according to which evolution is the best-evidenced theory is superior to the alternatives. Indeed, “evolution is the best-evidenced theory” actually means that evolution accords with the (secular-scientific) standards that make this so. The judgment that state schools should teach evolution because that’s the way to teach the best-evidenced theory thus amounts to the judgment that evolution should be taught because secular-scientific norms are superior to contradictory religious and irreligious ones.[3] Therefore, the goals of (i) teaching the best-evidenced scientific theory and (ii) promoting the worldview according to which it is the best-evidenced theory are inseparable. Moreover, this point generalizes: whenever a goal only makes sense against an elaborate normative backdrop, pursuing that goal amounts to endorsing and promoting that normative backdrop. Thus, as long as there are policies the pursuit of which only makes sense relative to a sectarian worldview, weak religious neutrality is offended.

A second, more promising, response is to recognize that “religious neutrality” is now – perhaps always has been – unmoored from a concern for religious freedom as such. We want the state to be neutral among religions not because we think religious freedom is a particularly important kind of freedom, but because, in the circumstances in which we find ourselves, the state’s declining in certain ways and contexts to favor some religions or irreligions over others happens to be conducive to a peaceful, well-ordered society. The doctrine we embrace is religious pseudo-neutrality, and its justification lies in a particular form of sectarian reasoning (to wit, a vaguely unsavory chain of consequentialist inferences).

As Smith recognizes, it is likely that the doctrine of religious pseudo-neutrality will be applied only through “the method of equivocation and evasion,” according to which:

We . . . continue to profess a commitment to religious neutrality; when dissenting citizens protest that some decision or policy contradicts their religious belief, we can try not to notice, or else insist through clenched teeth that they are mistaken . . . The malleability of the notion of neutrality will permit such explanations, if artfully devised, to carry a thin plausibility – enough, perhaps, to satisfy those who are determined that government must be neutral, some way, somehow. That is because there are sense of neutrality, as we have seen, in which the controversial policies can be said to be “neutral”; in saying so we can try to avoid noticing that we are using the term “neutrality” in senses that do not fulfill the promises of equality and impartial inclusiveness that typically accompany our prescriptions of neutrality and that make that ideal seem so imperative.

Smith denigrates the method of equivocation and evasion, but it seems to me a good way of applying the desirable doctrine of religious pseudo-neutrality. Religious psuedo-neutrality is admittedly rooted in a particular sectarian conception of the good, but, as any non-sectarian grounding for politics is a liberal pipe-dream, this fact can at best be a source of existential malaise, not a consideration against the doctrine (and in favor of some other).

~~~

[1] There is actually a more robust problem with strong religious neutrality at the level of public justification. If strong religious neutrality cannot be supported by theological reasoning, on the grounds that its adoption would then be religiously motivated (and so favor the motivating religion), then it likewise should not be supportable by secular reasoning, on the grounds that its adoption would then be irreligiously motivated (and so favor the motivating irreligion). This critique fails if there is a universal commitment to secular reasoning, for then no sect is singled out for special favor, and the point of strong religious neutrality is to prevent government’s favoring the some. It is unlikely that such a universal commitment exists in anything but a highly attenuated, and consequently normatively impotent, sense.

[2] This is different from the relativized conception of religious neutrality that Smith critiques in that it still seeks to supply a criterion for neutrality as such.

[3] Again, one can make the recherché point that evolution might be the best-evidenced theory according to universally accepted norms; thus, teaching it does not amount to favoring a particular sect. The claim is dubious. Even if everybody accepts the norms of science in certain contexts (such as when navigating our little corners of the world), it is likely that there are differences of opinion as far as their proper scope. Even assuming the universality claim is true, however, it is not clear that religious neutrality is compatible with the state’s favoring a worldview that everybody is committed to without realizing it. The point of religious neutrality is to treat everybody’s conscious religious commitments (and devotions) equally – even those that are poorly worked out, or predicated on mistakes.

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Responses

  1. It’s nice to find someone else who likes Smith’s work and who recognizes his point that religious neutrality is impossible. It is so hard to convince many people of this rather obvious fact!


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