Second-class citizenship for those with deeply religious moral systems

[Howard Schweber]

Eugene's basic point here is that religious beliefs are not different from 
other kinds of beliefs, or at least should not be treated as 
different.  For example:

>         I would indeed find something problematic with a legislator who 
> says "Allah tells us that pork is unclean, so no one may be allowed to 
> eat pork in our state."  But I also find something problematic with 
> legislators who say "It's disgusting and offensive to eat horses, so no 
> one may be allowed to eat horse in our state" (which is what California 
> voters enacted by initiative about a decade ago, and what could equally 
> well have been done by legislators).  The problem is not the religious 
> source of their beliefs, but that I think the results they call for are 
> wrong.


These two cases may both be problematic, but are they equally problematic?

There are two related but distinct questions here, as I said 
earlier.  First, is majoritarian moral preference a legitimate basis for 
lawmaking at all?  If the answer is "no," then obviously religious moral 
preference is an included sub-category.  In that view, legislators are 
required to leave their beliefs of all stripes "at home" -- that is, to 
make public arguments in terms that do not draw directly on the authority 
of those beliefs -- in pursuing their public functions and there is no 
issue of second-class anything.

If the answer to the broader question is "yes" then the question is whether 
religion is a special case or not.  I and the First Amendment maintain that 
it is, based on historical experience, sociological and psychological 
significance, the totality of the worldviews involved, the intensity of 
identification, the assertions of authority, and a host of other elements.

That these characteristics vary between religions is beyond peradventure; 
Stephen Macedo straightforwardly argues that we should distinguish between 
desirable and undesirable religious teachings.  Furthermore, as I was at 
pains to point out, no one of these characteristics is unique to religion, 
but they are characteristic of religion.  Eugene's point that religion may 
yield beneficial results, as in the example of a religious mandate to 
toleration and free thought, reassures me very little; if a religious 
mandate is the only reason (remember the argument was about whether moral 
preferences standing alone could ever justify legislation), then a 
religious mandate to burn witches is equally compelling and should be 
entitled to the same respect.  I distinguish between the two because one 
seems to me consistent with the political mandates of the American 
constitutional order, and one does not.  The reason is simple:  an argument 
for toleration may be couched in terms of a mandate from divine authority, 
but it may also be expressed in -- "translated into," if you like -- 
propositions of constitutional principle whose validity can be explained to 
nonadherents rather than solely in a secret language accessible only to 
members of a tribe.  (For an intrareligious analogy, one might consider the 
significance of the Muslim doctrine that teaches that the Quran cannot be 
translated into languages other than Arabic.)

Eugene's argument may be one of underinclusion:  that is, one may read him 
to be arguing that certain secular doctrines should similarly be excluded 
as the basis for political argument:  for example, we might say that a 
secular belief system that appeals to an external authority as superior to 
the American political tradition is suspect -- that was David Bernstein's 
point about the CPUSA in the 1930s a little while back and I did not 
disagree (our point of argument was over whether each individual member 
must be assumed to share the commitments of the organization with respect 
to free speech based on the fact of their membership).

Or he might join the unbroken line of Supreme Court authority that says 
that a desire to denigrate a class of citizens can never be a legitimate 
state purpose, in which case he might want to argue that a secular belief 
in the inferiority of a class of citizens may not legitimately be invoked 
to justify legislation.

Alternatively his argument may be that all claims of authority are equally 
valid and that religion is therefore not a special case.  I assume this is 
the position he intends to take.  The position I would not want to infer 
from his argument is that religion is special when it suits religious 
people to say so, and not when it does not.

I agree that religion is a sub-category of a larger class of phenomena.  I 
agree that if the larger class is treated as suspect (in a non-legal sense) 
then religion must be similarly treated.  I disagree that if the larger 
class is not treated as suspect then religion cannot be so treated just as 
I would disagree with the proposition that limitations on religious conduct 
can be justified in the same way as limitations of other kinds of 
expressive association, because I remain committed to the notion that 
religion is a special case.  I confess that I remain perplexed by arguments 
to the contrary.

Howard Schweber
Dept. of Poli. Sci.
UW-Madison 
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