Religious Pluralism Secularism or Priority for Democracy

Veit Bader

Political Theory Vol 27 No 5 (Oct 1999) pp 597-633

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RELIGION TOLERATION AND POLITICS

RELIGIOUS PLURALISM Secularism or Priority for Democracy

VEIT BADER University cf Amsterdam

T H A T MODERN SECULAR STATES require the complete constitu- tional legal administrative political and cultural separation of state and church is the assumption of most liberal republican feminist and socialist political theories Two recent debates however may contribute to a critical scrutiny of this standard view

England is known for its many constitutional anomalies including an established Anglican church that many consider an absurd anachronism (Phillips in Modood 199623)A few years ago the Policy Studies Institute in London organized a discussion on Church State and Religious Minori- ties The majority of non-Anglican contributors from Catholic Jewish Muslim Sikh and Hindu backgrounds attacked the program of secular con- stitutional reform or complete disestablishment proposed by the Liberal Party by Tony Benn and others Instead they opted for a pluralization of established churches or embryonic multi-faithism (Modood 19965)They questioned whether religious freedom and equal treatment of all religions requires disestablishment and whether political equality requires a complete separation between state and (organized) religions or even a complete privati- zation of religion They appealed to the specific history and identity of the English nation to defend some form of establishment and criticized the pre- sumed neutrality of secular public morality In addition to these normative issues they raised important empirical questions regarding the contested pri- vatization of religions the effects of establishment and disestablishment on

AUTHORS NOTE I wish to thunk Turiq Modood Ruiner Buubiick Ewctld Engelen Marianne Boenink Pieter Pekelhuring Hent de Vries Covert den Hctrtogh und Peter vd Veerfor criticul and constructive comments

POLITICAL THEORY Vol 27 No 5 October 1999 597-633 O 1999Sage Publications Inc

598 POLITICAL THEORY October 1999

religious fundamentalism the presumed divisiveness and destabilization of society and the possible strengthening of religious minorities by a pluraliza- tion of establishment

In the United States there is a lively debate about the role of Religion in Public Life (Thiemann 1996) Some of the basic assumptions of standard liberalism and of the more sophisticated forms of liberalism of reasoned respect (Weithman 1997a) are being criticized Whereas the English debate about the relationship between the state and (organized) religions (churches sects denominations) has been wide-ranging and covered not only moral principles and rights but also constitutional issues institutional design cul- tures virtues practical judgment and policies the American philosophical debate centers on the legitimate role of religious argument in public andor constitutional discourse in democratic constitutional states Most American liberal philosophers among them Dworkin Ackerman Galston Rawls Macedo and Audi believe that values of freedom equality and tolera- tion are best preserved if religion is removed from public affairs They are virtually unanimous in their staunch advocacy of the wall of separation They believe that both religious practice and pluralistic democracy are best preserved by precluding religious argumentation within the public realm (Thiemann 199674ff) and by putting the moral ideals that divide us off the conversational agenda of the liberal state (Ackerman 1989 16) This belief is mainly motivated by twoconcerns First by an old Lockean fear that public and political religions inherently threaten political unity and stability (see Creppell 1996) Second by a hands-off notion of justice (Carens 1997) which holds that to treat humans as free and equal reasonable persons requires abstracting from all their particularities especially from religious beliefs and practices In this article I intend to challenge the standard view of a complete separation and to present an alternative way of reconsidering moral principles and reconstructing institutions

What Is Wrong with Political Liberalism

Advocates of standard liberalism as well as sophisticated defenders of liberalism of reasoned respect are convinced that some kind of separa- tion is inevitable in a world of inescapable religious pluralism (Audi 1997 38) Robert Audi set out to explore appropriate liberal-democratic principles for well-ordered societies in three areas Institutional separation of the state should be guided by three basic principles a libertarian principle (states must permit the practice of any religion) an equalitarian principle (states may not give preference to one religion over another) and a neutrality

Bader 1 RELIGIOUS PLURALISM 599

principle (states should neither favor nor disfavor religion as such) Mature rational religious people or individuals should be guided by the two princi- ples of conscience by a principle of secular rationale and of secular moti- vation and by a higher second-order principle of theo-ethical equilibrium requiring them to seek at least a measure of reflective equilibrium among their beliefs and attitudes grounded in religious sources and those grounded in secular sources (Audi 198946) a kind of rational integration between religious deliverances and insights and secular ethical considera- tions (Audi 19895262) Churches finally should be guided by the princi- ple of ecclesiastical political neutrality and clerics by the principle of clerical political neutrality

John Rawls has modified his position regarding the role of religion con- siderably (see Weithman 1997a Thiemann 1996) In his Theory of Justice (1972) religion was most often invoked to exemplify unreasonable compre- hensive schemes that undermine tolerance In his Political Liberalism (1993) reasonable religious doctrines are allowed to play a more positive role in two regards First the stability of the overlapping consensus on a political conception of justice requires that citizens endorse the basic consti- tutional structure Reasonable religions provide one of the many competing and opposing comprehensive schemes citizens have to draw on (Rawls 1993 380 Second the exclusive view is associated with well-ordered socie- ties (pp 247ff) whereas more inclusive views are allowed in nearly well-ordered societies where the application of fundamental principles to specific cases is in doubt and in not well-ordered societies in which there is a profound division about constitutional essentials (Rawls 1993249) In both cases the appeal to comprehensive reasons including religious ones may be justified as long as such an appeal is necessary to strengthen the ideal of public reason itself (Thiemann 1996 85 Weithman 1991 570 Still within the realm of the political religious reasons are precluded

The range and force of these Rawlsian constraints on religious arguments in public discourse continue to be contested In the paperback edition of Political Liberalism Rawls (1996) has tried to respond to the criticism that his constraints remain too exclusionary He now stresses more clearly that they should be applied only when constitutional essentials or matters of basic justice are at stake not to normal political debates and decisions

Standard liberalism (and to a lesser extent sophisticated liberalism) is vulnerable to the following objections

(i) Liberal political philosophy excels in the construction of ideal models of well-ordered states and societies and ideally reasonable citizens it does not tell us how to judge or act under conditions of not so well-ordered actual states and societies Quite often the link between the ideal world and the real

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one is missing and yet the real world is treated as if it approximates orresem- bles the ideal world One might even say that such an unrecognized shift from model to muddle is a characteristic feature of Rawlss Political Liberalism in which one looks in vain for clear distinctions between liberal-democratic constitutions liberal-democratic states and liberal-democratic societies Recent societies and actual states are treated as liberal-democratic socie- ties and liberal-democratic regimes despite the fact that they show sig- nificant degrees of sexism genderism racism ethnocentrism and class cleavages all at odds with Rawlss own principles of justice One result is a blatant neglect of structural political and cultural inequalities among (organ- ized) religions Principles that might be appropriate in an ideal world such as difference-blind neutrality actually stabilize discrimination and inequality if applied to the actual world

(ii) In the real world of existing state societies states are not neutral with regard to (organized) religions A constitutionally and legally equal treatment of religions does not prevent and quite often masks administrative political and cultural inequalities between majority religions and minority ones a situa- tion at odds with religious pluralism under the assumption of rough equality (fair background institutions and practices) Combined with the predominant individualist bias of liberal politics and the concomitant liberal and republican distrust toward group representation and institutional political pluralism4 this amounts to an unintended entrenchment and legitimation of these ine- qualities or at least to a deafening silence when it comes to the question of how to practically redress the balance in favor of minority religions

(iii) In the ideal worlds of liberal contractarianism too much consensus is assumed and moral pluralism is underestimated (see critically Barber 1988 Gutmann and Thompson 1996 Bader 1998~) Traditional refutations of such criticism stress that principles do not determine the outcome of their applica- tion and there is contestation about which principles should be applied in specific case^^ Hence there is room for much disagreement and political deliberation in ordinary political matters while consensus is restricted to constitutional essentials and basic justice However these refutations under- estimate the problem for three reasons First in the nonideal realms of exist- ing real societies the meaning significance and application of even the most fundamental political notions are constantly being contested (Thie- mann 1996 87)econd this basic flaw proves to be more profound if we take seriously the conflicts and tensions between different moral principles (eg liberty and equality with regard to religions) tensions deepened by the fact that the necessary trade-offs and balancings are themselves strongly con- tested Third the refutations reproduce the illusion that we would reach con- sensus by moving deeper down (toward foundations) or higher up

Bader 1 RELIGIOUS PLURALISM 601

(toward principles or second-order principles such as agreement to disagree or consent to dissent) they fail to recognize that dissension is as serious among ordinary people deliberating about moral and political issues as it is among judges of Supreme Courts constitutional theorists and moral phi- losophers advocating foundational theories

(iv) Liberal philosophers are well known for their conceptual dichotn- mies private versus public (from Locke onwards) social versus political (Rawls 1993 220) essentials or basics versus ordinary politics (Rawls 1993 1996) specific policy proposals versus in general (Audi 1989 199169) political versus moral (Audi 1989276281) and secular versus religious First these conceptual dualisms have themselves been strongly and convincingly criticized Second the application of these analytical dis- tinctions in the real world leads to the well-known normative recommenda- tions to preclude religious arguments in the public realm (to privatize reli- gion) or to allow them only in social but not in political discourse (Rawls 1993 14) or only in ordinary political matters but not in essentials or basics These liberal strategies to separate or divide and isolate private from public reasons and religious from secular reasons thus purifying secular public rea- son from all illegitimate remnants may not only be vehemently criticized as unfair exclusionist unachievable counterproductive or self-defeating In all real-world cases these neat or clean distinctions are themselves strongly contested and no consensus can be expected In all circumstances of inequal- ity these liberal strategies work in favor of the resourceful and powerful

(v) It took a long time for contemporary liberal philosophy to recognize the importance of virtues Recently many liberals (not only Macedo and Galston but also Rawls and Audi) have clearly stated that private or social associa- tions such as churches and sects may contribute significantly to the develop- ment of the (necessarily nonneutral) civic and political virtues and the skills of pluralist citizenship needed for the stability and flourishing of political democ- racy and for effective liberal-democratic constitutions It appears now to some critics that the liberal strategies of separation and of privatization of religion combined with the ardent refusal of any public and political role for religious associations are a serious impediment to the development of a lively civic democracy and are in the end self-defeating strategiesx

(vi) The liberal analysis of the relation between state and (organized) religions is predominantly sometimes even exclusively focused on its con- stitutional and legal aspects on establishment versus nonestablishment (see critically Casanova 1994) This bias has two odd consequences First as already mentioned there is a tendency to neglect social political and cul- tural inequalities among (organized) religions and given the social political and cultural establishment of the majority religions to hide the (inevitable)

602 POLITICAL THEORY 1October 1999

administrative political and cultural nonneutrality of the state under the guise of neutrality Second in the tradition of the profound juridification of American political culture it gives too prominent a role to conflict resolution by the hero-judges of the Supreme Court whose moral and legal delibera- tions and decisions pretend to be neatly separated from public political deliberation Actually they are not-they lack democratic legitimacynd they lack consistency (see below)

(vii) Rawls has claimed to present a really freestanding public morality by developing his political not metaphysical liberalism He claims to have done no more than explicate and reconstruct the principles of public morality inherent in liberal-democratic constitutions of modern state societies By vir- tue of the thesis of priority for democracy and of nonfoundationalism these principles and rights should have priority over all competing opposing deeper foundational comprehensive schemes-be they religious philo- sophical scientistic or whatever (unfortunately much less emphasis is placed on the priority of the institutional mechanisms political culture or civic and political virtues concerned) This is often misunderstood by liberal philosophers as second-order secularism Second-order secularism still shows remnants of a secularist bias unfair to convinced religious people whose arguments attitudes and practices are compatible with liberal democ- racy1 but who refuse to accept the strategies of privatization isolation or separation of religious and secular reasons (see Wolterstorff 1997) The important thing given the priority of democracy should not be whether argu- ments are religious or secular but whether arguments attitudes and practices are compatible with the principles rights culture virtues and good practices of social democratic constitutionalism (see Thiemann 1996 89f 173 Weithman 1997b 33 Hollenbach 1997 Quinn 1997) This distinction is important because most of the atrocities genocides and ethnic cleansings in our century have been legitimized by secularist ideologies Liberal philoso- phers preoccupation with religions as a threat to political stability (Weithman 1997b 3 Thiemann 199680f 122 understandable in the con- text of the religious wars of the sixteenth and seventeenth centuries is now myopic and outdated Priority for democracy should not be confused with a secularist strategy to purify public reason from religious arguments Rather the decisive criterion should be the recognition that no contested truth-claim of any kind whether religious philosophical or scientific is entitled to over- rule democratic political deliberation and decision making Many modern liberalized religions have accepted this whereas many modern philosophers and scientists have failed to do so and continue to behave as philosophical or scientistic fundamentalists

Bader l RELIGIOUS PLURALISM 603

(viii) Finally I want to raise a second meta-ethical question regarding the famous principle of neutrality Significantly it is not part of any human rights canon or of any set of constitutionalized rights Rather it is introduced by lib- eral philosophers and constitutional theorists as a kind of second-order prin- ciple to guide interpretations of the nonestablishment and free exercise clauses of the First Amendment As in all other cases of benign state neu- trality or difference-blindness benign religious state neutrality or strict neutrality is only presumed neutrality and serves as a guise for the actual bias in favor of dominant majorities (see Galanter 1966 Note 1987 Thie- mann 1996) It is a remarkable sign of the strength of this second-order prin- ciple of neutrality that even critics of the presumed ethnic or national neutral- ity of the state share it when it comes to religion Kymlicka (1997 21) for instance rightly argues that the usual analogy between religion and (ethnic or national) culture is flawed or mistaken It is possible for a state not to have an established church But the state cannot help but give at least partial establishment to a culture (Kymlicka 1997 27) The separation of church and state and the depoliticization of religious identities (p 21) however are accepted without critical scrutiny The idea that liberal states or civic nations are neutral between ethnocultural identities (p 27) is surely a myth but the same is true for the states presumed religious neutrality It is not only flawed in a historical and comparative perspective From a norma- tive perspective the presumption that only a complete separation of the state from (organized) religions is compatible with the thin public morality of modern states is also mistaken14

Myths of Separation and Neutrality

Next I want to show that complete separation and neutrality15 are mis- leading second-order principles introduced by liberal philosophers constitu- tional theorists and judges who are inspired by a mythical history of the American constitutional tradition

The interpretation of the nonestablishment clause of the First Amendment as complete separation of state and religion has always served to protect the political social and cultural establishment of majority religions from exposure Sociologists and historians of religion have clearly demonstrated that the legal nonestablishment of the First Amendment has only been the first phase in an ongoing and unfinished process of disestablishment The legal prohibition of the establishment of a national church had little effect on the political social and cultural or symbolic power of de facto established Protestant Christianity The second religious disestablishment that

604 POLITICAL THEORY 1October 1999

eventually led to higher degrees of actual disestablishment of the American state society and culture from Evangelical Protestantism as its historical civil religion1 has been the result of challenges by competing organized minority religions first by Roman Catholicism next by Jewish minorities The emerging predominant non-christological theism (Thiemann 1996) or Judeo-Christian deism (Herberg 1960) has been challenged by black Mus- lim churches though largely without success Islam is still perceived as a fun- damental threat (Zolberg 1998) For many foreign observers American political life is still to an astonishing degree dominated by Christianity not only internally but also in US foreign policy (America as the chosen coun- try Americans as the chosen people) Whether a third moral disestablish- ment can be discerned as Bellah and others (1985) think and if so where this development would leave American civil religion is much more con- tested The myth of a complete separation not only neglects this history but it is also at odds with the continuing presence of legal privileges such as con- gressional and military chaplains paid from public funds tax exemptions exemptions from military service or from combat duties state officials swearing belief in God prayers in the Supreme Court and US Congress In God We Trust on US currency and Thanksgiving ~ a ~

Neither separation nor neutrality are concepts to be found in the text of the American constitution or in international rights covenants Nevertheless the opening words of the American Bill of Rights-Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof-are now commonly known as the principle of separation Ronald Thiemann (199642 see Richards 1986 1889 has shown that this principle

is derived from a metaphor first used by Roger Williams in a letter to John Cotton and then by Thomas Jefferson In a letter to the Baptist Association of Danbury Connecti- cut It became common constitutional parlance through adecision written by Justice Hugo Black in 1947 Despite its somewhat obscure origins and its rather recent introduc- tion into the legal tradition this principle has come to shape our nations understanding of the relation between the political and religious spheres in the United States

According to Justice Black the First Amendment has erected a wall (of separation) between church and state That wall must be kept high and impregnable We could not approve the slightest breach The quasi-doctrinal status of this interpretation has two odd consequences critics of the metaphor are associated with political conservatism whereas Liberals and Leftists are tempted to defend absolute separation

Critics of the Supreme Courts record in adjudicating cases involving the religion clauses have characterized the questionable logic and contradictory

Bader 1 RELIGIOUS PLURALISM 605

opinions of the decisions as bizarre fatuous a hodgepodge and judi- cial meandering Indeed the principle of separation does not foster a coherent and convincing interpretation of the two clauses for they can eas- ily work at cross-purposesY The nonestablishment clause seems to forbid any governmental assistance and to require noninvolvement and no aid to any religion The free exercise clause seems to mandate governmental accommodation and impartiality seems to require equal aid to religions Noninvolvement and impartiality cannot be consistently combined (Valauri 1986) and the separation metaphor does not help to combine them in a productive way The resulting confusion is displayed in many cases excel- lently documented by Galanter (1966) Note (1987) and Stoltenberg (1993) To illustrate the point let me discuss the Allegheny County v Greater Pitts- burgh ACLU case (1988) on the display of a creche including an angel bear- ing a banner with the words Gloria in Excelsis Deo on or near county prop- erty Three major positions of the Supreme Court justices can be discerned The majority uphold a separationist secular purpose position arguing that government is only permitted to display religious symbols with a secular pur- pose Government may not engage in practices that serve to endorse religious beliefs Any state action that serves to favor prefer or promote one religious theory over another or religious belief over disbelief is in violation of the non- establishment clause The concurring minority took a stronger position of strict neutrality arguing that government is never permitted to display reli- gious symbols of any kind because the nonestablishment clause is interpreted to require neutrality not just among religions but between religion and non-religion The dissenting minority judges oppose the decision as includ- ing an unjustified hostility toward religion and ask for symbolic accommo- dation because it is difficult to maintain the fiction that requiring govern- ment to avoid all assistance to religion can in fairness be viewed as serving the goal of neutrality (Justice ~ e n n e d ~ ) ~

All three positions are inadequate Strict neutrality reproduces impossi- ble fictions and ignores the patterns of co-operation between church and state created by our history of civic piety and by the expanding regulatory role of the welfare state22 Separationist secular purpose has four odd conse- quences ( I ) The intent to acknowledge religious symbols in a general way but not as particular cultural phenomena proposes to strip religions of all their specific meaning Government may celebrate Christmas in some man- ner and form but not in a way that endorses Christian doctrine Because religious beliefs practices and symbols are inevitably particular this offends religious people2 (2) It places judges in an uncomfortable position they must act as theological critics to determine the meaning of a symbol and as social critics to determine whether such a symbol has been sufficiently

606 POLITICAL THEORY 1October 1999

stripped of its inherent religious meanings (3) It contributes to the already desultory rhetoric of contemporary politics (4) It is motivated by a hands- off notion of justice or fairness that for fear of unequal and discriminatory treatment of other religious and nonreligious people does not ask to treat them even-handedly respecting and accommodating their particularities but requires us to abstract from all their particularities This is not only impossible but it would also make all people religious and nonreligious worse off24 Symbolic accommodation has the considerable advantage of recognizing that

the principles of the Establishment Clausc and our Nations historic traditions of diver- sity and pluralism allow communitics to makc reasonable judgements respecting the accommodation of holidays with both cultural and religious aspccts No constitutional violation occurs when they do so by displaying a symbol of the holidays religious ori- gins (Justice Kennedy)

By equating religions with Christianity however it sidesteps the question of religious pluralism particularly the issue of a fair treatment of minority reli- gions Thus it does not live up to the minimal requirements of fairness as even-handedness and is unable to answer the really pressing questions

What arc the appropriate limits of governmental accommodation of mi~jorityrcligious belief and practice within a pluralistic democracy At what point docs propcr accommo- dation of religion become impropcr aid or assistance to religion When docs accommo- dation of the majority religion bccome discriminatory toward religious minorities (Thicmann 1996530

Since Justice Blacks decision in Everson separation has been fatefully joined with the doctrine of government neutrality toward religion All three positions in Allegheny agreed that state neutrality toward religion is man- dated by the Constitution but they widely differ on the meaning and applica- tion of this protean concept (Thiemann 199660ff) Strict Neutrulity of the concurring minority judges mandates governmental noninvolvement in religious matters by requiring a consistent no-aid to religion policy Non-discriniinatov neutruliamp of the majority judges softens the doctrinal purity by allowing some public sphere accommodation providing the symbols or practices supported by government are nonsectarian and nondis- criminatory This position reads the Constitution as mandating a no-aid to religion (or noninvolvenzent) policy whenever sectarian practices are at issue and an equal uid to religion (or inlpartiality) policy when the practices are generally cultural or have a discernible secular purpose Benevolent neu- trality explicitly seeks to broaden the framework within which religion

Bader RELIGIOUS PLURALISM 607

might be freely exercised [It] proscribes only governmentally estab- lished religion or governmental interference with religion None of the three interpretations can serve as a guide to a more coherent interpretation of the religion clauses2h

This is I think a reasonable presentation of the present state of the consti- tutional debate I agree therefore with Thiemanns (1996) conclusion that we have to abandon (p 43) the separation metaphor for four reasons (1) it deflects attention from more fundamental principles (eg liberty equality tolerance) that undergird the two clauses (2) it conceptualizes church-state relations in singular and monolithic terms (3) it conceals the variety of ways in which they interact and (4) it constrains our ability to imagine new possi- bilities for their relation The separation metaphor cannot reasonably guide interpretations of the American Constitution It has only served as a mislead- ing placeholder for constitutional nonestablishment It cannot be used either as a reasonable second-order principle for the interpretation of international rights treatises or alternative constitutional traditions (characterized by weak or plural constitutional establishment) But should we also follow Thiemanns proposal to jettison (p 64) two other candidates of productive second-order principles neutrality and secularism

Relational Neutrulity and Priority for Democracy

Neutrality separation and secularism are-to repeat-not consti-tutional rights but second-order principles Why not get rid of second-order principles as such Why and for what purposes do we need these meta-rules Second-order principles as well as moral and legal paradigms are in my view important as guidelines in two types of cases in all cases in which con- stitutional rights and first-order moral principles conflict and in all cases of conflicting interpretations and applications of rights They should allow more coherent interpretations of constitutions and should be able to guide the difficult art of balancing in a more productive way

To summarize strict neutrality and complete separation have failed in this regard Difference-blind religious neutrality is a prominent version of an ideological mechanism that universalizes the particular and hides it from view In the case of religions as with sexes gender race and ethnicity there can exist no absolute impartiality no absolute perspective no view from nowhere Such well-known criticism2 forces us to reconceptualize these principles to rescue the two commendable moral intuitions they mean to articulate the prohibition of moral particularism and the preclusion of injus- tice under conditions of religious diversity and structural inequality These

608 POLITICAL THEORY 1 October 1999

moral intuitions are better conceptualized by the principles of relational neu- trality and even-handedness

Relational neutrality replaces the idea of difference-blindness by difference-sensitivity Only if we take into account actual differences and inequalities between religious groups and organizations can we hope that institutions and policies will in the long run become more neutral in relation to these religions and to nonreligious people as well Relational neutrality does not presume some imagined place of neutral transcendence (Thie- mann 1996 82) or some objective observer (Justice OConnor see Note 1987 1647) as in the old untenable versions of nonsocially situated ahis- torical universal knowledge but neither does it lapse into a relativistic any- thing goes There are more inclusive better-situated perspectives that take into account the degree of inclusiveness of the actual2v relevant secular and religious voices and the particular point in history

Fairness as even-handedness is a better candidate than majority-biased symbolic accommodation It criticizes the exclusive reliance on a hands- oft concept of fairness regarding culture and identity that has informed the concepts of neutrality and complete separation predominant in liberal phi- losophy In a critical response to my article on transnational citizenship Joseph Carens has characterized

the ideal of cven-handedness to contrast it with the hands-off approach of neutrality The guiding idea of even-handedness is that what fairness entails is a sensitive balancing of competing claims for recognition and support in matters of culture and identity Instead of trying to abstract from particularity we shouldembrace it but in a way that is fair to all the different particularities Now being fair docs not mean that every cultural claim and identity will be givcn equal wcight but rather that cach will be given appropriate wcight undcr thc circumstances and given a commitment to equal respect for all History mat- tcrs numbers matter the relative importance of the claim to those who present it matters and so do many other considcmtions (Carens 1997 818 claboratcd in Carcns 1998 Introduction)

Religious cultures and identities are not treated fairly by declaring that religion is a private matter or by excluding religious arguments from political or constitutional debate or from debates about constitutional essentials and basic justice Nondiscrimination and equal treatment of different religions as well as of religious and nonreligious people are not well served by hands- off abstractions They require a sensitive balancing of the different claims taking into account structural inequalities between majority religions and minority ones Policies of accommodation which take cultures and identi- ties seriously and strive for a sensible balancing but neglect structural ine- qualities should be combined with a concept of rough complex equality that

Hader RELIGIOUS PLURALISM 609

uncovers neglected structural inequalities between (organized) religions and asks for policies to redress them (policies furiously criticized by liberal crit- ics of affirmative action in all fields) Sensitive balancing of cultural and identity claims will never achieve complete cultural equality and support will never achieve substantive equality between majority religions minority ones and secular people (nor would this be morally required in my view) but they may help to redress obviously unfair situations

Nondiscrimination and equal treatment also do not require second-order secularism I realize that my claim here conflicts with one of the crucial the- ses and assumptions of liberal republican and socialist political philoso phy2~propose to reconceptualize the central moral intuition of second-order secularism by the second-order principle of priority for democracy

We saw earlier that religiously and theologically motivated critics of political liberalism in the United States such as Neuhaus Wolterstorff and Thiemann challenged the presumed neutrality of second-order secularism In England similar complaints have been raised by Anglican Jewish Catho- lic and Muslim opponents of complete separation Conceptualizing mod- ern public morality as secular morality is said to privilege secular over reli- gious values unfairly Writing from a Jewish perspective Sylvia Rothschild fears most

a purportedly neutral secularism for thcre is nothing so dogmatic as that which is dog- matically neutral and sccularisrn far from being open to all closes the many diverse doors to the communities of faith As I read it the secular mode is merely another point on thc spectrum of religious expression but one which has no understanding of and which makes no allowances for othcr modes of religious expression On thc othcr hand pluralism can and does flow from religious vision [The] sccular crusade against thc Anglican church is an attack on all forms of religious expression and thus indirectly harmful to us too [Discstablishmcnt] sccms to mc a way only towards mono- dominant and triumphant sccularism rathcr than a pathway which may lcad to true multi-faith multi-cultural pluralism (Rothschild in Modood 1996 56 60 sce similar charges by Levinson 1990 and Carter 1993 in the United States)

The real question for her thus is just how do we organize ourselves so that the many voices can be heard so that one dominant culture doesnt impose itself on us all (Modood 199658) Bikhu Parekh also challenges Rawlsian political liberalism for keeping

religion out of political life in a democracy Like Rawls (1995) we might insist that citi- Lens In a liberal society should derivc or at least publicly dcfend thcir political judgc- ments in a secular manner but that is arbitrary and has no appeal to those who do not sharc his views of religion and politics [We have to] challenge thc untenable and long-hcld beliefs that only a secular state can be libcnl and dcmocratic and that political

610 POLITICAL THEORY October 1999

discourse is manageable only whcn it is conceptually monolingual and homogeneous (Parckh in Modood 19962 122)

If a secular public morality cannot be neutral we seem to be caught in a trap forced to choose between two equally miserable imperialisms either mono-dominant and triumphant secularism and an out-and-out (or funda- mentalist) secularism which in its late twentieth century manifestation is a climate inimical to any religion (Daoud Rosser-Owen from a Muslim per- spective in Modood 1996 84) on one hand or troubling triumphalism by those who believed religion had a monopoly on moral concerns (Phillips in Modood 1996 27) on the other Anne Phillips has tried to resolve this dilemma by pointing out that

secularism occupies a dual location in this kind of debate Those who do not follow any of thc worlds religions arc by definition secular in thcir beliefs when secularism speaks on bchalf of thcsc non-believers it speaks on a par with the spokcspcoplc for Anglicans Catholics Muslims or Jcws Hut secularism also presents itself as thc solu- tion after all other voices havc spoken for in arguing fora separation between church and state it promises to protect thc beliefs and the practices of each from thc prcssures to go along with what any othcrs bclicve This looks suspiciously like a sleight of hand and thats the w o q that the even-handed accommodation of all turns out to be particularly attuned to one (Phillips in Modood 1996 27)

Anne Phillips tries to defend secular public morality on a meta-level as

the only approach that can even approximatc equality of treatment between those who hold different beliefs thc interests of democratic equality cannot be well served by practices that privilege one church ovcr the others nor can thcy bc well servcd by prac- tices that privilege religious values over secular oncs nor-and this is the difficult one--can thcy be well served by practices that privilege secular valucs over religious bclicfs The difficulty remains that any way of formulating this puts it in the framework of a secular solution and some will rcgard this as diminishing the significance of relig- ion Rut the secular separation of church from statc is still the closest we can get to parity of treatment between those who are rcli~ious and those who are not and between thc fol- lowers of different religions Equality is onc of the crucial principles of amodern democ- racy and for this reason (evcn cxcluding all the others) thc secular solution is the only onc I could defend (Phillips in Modood 1996270

Plausible though it looks at first sight such a defense common to Audi Phillips and many others still suffers from an unrecognized identification of public morality with secular morality Audi (1991) treats public and secular reason as if they would be exactly the same For him public reasons are explicitly and by definition secular and his principles of rationale and moti- vation are secularist principles

Bader 1 RELIGIOUS PLURALISM 61 1

unless they offer (or at least have) adequate secular (non-religious) reasons to support thc law or policy in question By sccular reason I do not mcan onc that is con- sciously held in contrast to a religious onc noris there anything anti-religious implicit in a proper use of thc tcrm Indccd a sccular reason may be fully uligned with a reli- giously sanctioned vicw Rather a secular reason is roughly one whose normative force that is its status as a prima facie justificatory clcment does not (evidentially) depend on thc existence of God (for cxamplc through appeals to divine command) or on theological considerations (such as interpretations of a sacred tcxt) or on the pro- nouncements of a person or institution qua religious authority (Audi 1989 278 see also Audi 1997)

Although Audi Macedo and other liberal political philosophers believe that they can rely on Rawlss conceptions of political justice and public rea- son Rawls himself has carefully avoided identifying public reason with secular reason both terminologically34 as well as in his substantive arguments in favor of a freestanding public morality (see below)

In the sixteenth and seventeenth centuries such a terminological and con- ceptual identity was historically understandable because public morality had to be fought for first in battles against defenders of absolutist or fundamen- talist religions and established churches and later on in battles against those theological and philosophical defenders of freedom of religion and of con- sciousness who explicitly or implicitly limited these freedoms to the variety of conflicting Christian denominations and who did not extend their argu- ments into a principled defense of freedom of consciousness for all religious believers whether Christian or not as well as for those who hold secular val- ues and beliefs In a context in which the enemies of a general freedom of consciousness (and of most other liberal and democratic principles and rights) were absolutist religions public morality took the form of secular morality and a religious or theological defense of public morality seemed unthinkable Its true defenders thus were secular philosophers (such as Spi- noza and Kant)

In our times this context has changed public morality and liberal democracy have to be defended against secularist philosophers scientistic technocrats and expertocracy as well as against those religions that still defend absolutist and fundamentalist claims in politics In this context it is still true that secularism is more commonly perceived as the opposite of religion (Phillips in Modood 199627) but it may be that the most danger- ous enemies of liberal democracy are not or not mainly religions but secular- ist ideologies (as Wolterstorff 1997 pointed out) And from Madison onwards we also find religiously or theologically motivated defenders of a principled nonexclusive right to freedom of consciousness and of other rights institutions and public morality of liberal democracy

612 POLITICAL THEORY October 1999

In such a ~on tex t ~ both the meaning of secular and re~i~ious~ and their relation have changed Consequently the conceptual identification of public with secular morality is increasingly misleading for the following reasons

1 It scduccs us into conceptualizing the justificatory nonneutrality of libcral dcrnocracy in terms of sccular versus rcligious arguments or foundations The main question is not howevcr whether arguments are secular or rcligious but whcther thcy arc compatible with andlor support liberal dcrnocracy

2 It neglccts the possibility and existence of principled rcligious or thcological founda- tions of liberal dcmocmcy and excludcs thc possibility of public rcason in thcological and religious argumcnts It thus unfairly discriminates against those modem theologi- ans and religions that dcfcnd liberal democracy (Thiernann 1996 13 1 ff)

3 It directs our criticism of fundamcntalism in politics in a onc-sidcd and myopic manncr against rcligious or theological fundamcntalism and thus tcnds to neglcct all secular fundarncntalisms even if thcy posc much morc dangerous threats to tolerance and lib- eral dcrnocracy

There is a better way to account for the intuition that liberal democracy is inevitably nonneutral This is the principle of priority for democracy (always as a shorthand for liberal democracy in the sense defined above) In a short explication and defense of this second-order principle I proceed as follows First I want to highlight that not only religions had to learn what priority for democracy implies but philosophers scientists expertocrats and judges had to learn this too Second I want to defend the priority for democracy against misleading challenges from religions that argue that a secular moral- ity would be impossible would lead to a decay of morals or would weaken necessary limitations of state sovereignty and politics or claim a kind of his- torical priority41 Third I want to defend the priority for democracy against philosophical imperialisms which claim a kind of philosophical priority fail to radicalize the principle of nonfoundationalism and thus limit the produc- tive idea of a freestanding public morality that is political not metaphysi- cal Finally I want to defend the priority for democracy against the ironic and skeptic antiphilosophy of Richard Rorty who has coined the phrase

Priority for Democracy Versus All Fundamentalisms

Simply stated priorityfbr democracy means to begin with that princi- ples institutions cultures virtues and practices of liberal democracy have priority over the competing and often incompatible foundations of liberal democracy be they religious philosophical (metaphysical ontological moral ethical) or scientific Furthermore all opinions and voices like votes

Bader 1 RELIGIOUS PLURALISM 613

have to count equally when it comes to decision making even if paternalistic elites for the best of reasons think that they are uninformed misinformed false morally wrong and so on Liberal democracy thus understood cannot be neutral nor should it be But this inevitable nonneutrality which is essential with regard to all nonliberal nondemocratic principles and prac- tices should not be confused with nonneutrality between secular and reli- gious foundations and arguments

It is now common knowledge among sophisticated political philosophers that liberal democracy cannot be neutral42 This inevitable nonneutrality should be directed explicitly and exclusively against principles and prac- tices at odds with liberal democracy against fundamentalism of all kinds not against religions as such In their defense of the principle of reciprocity against the fundamentalist (religious) challenge that it is biased against fun- damentalism and in favor of religions that conform to deliberative views of civic education Gutmann and Thompson concede that it is correct

that the principle is not neutral among religions or ways of life The case forreciprocity and more generally for the deliberative perspective must be defended on substantive moral grounds and there is no reason to expect that such a defense would have the same (positive or negative) implications for all moral positions But the value of public rea- son expressed by the deliberative perspective is not just another morality It is offered as the morally optimal basis on which citizens who disagree about moralities and reli- gions can act collectively to makeeducational policy The principle of reciprocity is not privileged in the sense that it needs no moral defense But the defense it needs and the objections to which it is vulnerable are different from those of moral disagreement in politics The principle proposes a basis on which those who morally disagree can coop- erate and it can be appropriately criticized only by proposing an alternative basis not simply by reaffirming the moral or religious claim that constitutes the disagreement The fundamentalists do not offer an alternative (Gutmann and Thompson 1996 67 cf 93 second-order agreement not on secularism but on principles and virtues of liberal democracy)

Anne Phillips-like Tariq Modood (1996 13) Stephen Macedo (1998)~ Richard Rorty ( 1 9 9 7 ) ~ ~ and others-treats Charles Taylor ( 1 9 9 8 ) ~ ~ this inevitable nonneutrality of liberal democracy and of public morality as inevi- table secularity This is the most basic flaw of almost all recent political phi- losophy Christian and other religions particularly established churches have obviously learned to accept priority for democracy only as a result of protracted conflict Protestant denominations and free churches living under conditions of an established church had learned this from painful experiences much earlier and deeper than established churches particularly the Catholic Church However under conditions of liberal-democratic constitutional states even churches that think of themselves as the depositor of divine

614 POLITICAL THEORY 1October 1999

truth have eventually learned to accept the notion that when it comes to pub- lic democratic decision making error has the same rights as The authoritative sources of this Truth-be it God the Pope the Ayatollah priests or mullahs however important they may be inside the churches or the community o f believers-add nothing to its persuasive force in the arena o f public reason public deliberation and public scrutiny This is what all churches have to learn under conditions o f a modern constitution They all have to find their own ways to solve the fundamentalist dilemma (Casa- nova 1994 165)

I f this is clear about religion it is less well known and often forgotten that the same holds for all types o f secular truths While many modern religions and churches have tried to resolve this dilemma many prominent modern philosophers have not even addressed it properly This is not only evident for some o f the recently fashionable prominent continental philosophers such as Nietzsche Carl Schmitt and Heidegger To a lesser degree many Anglo- Saxon liberal moral philosophers are also guilty o f such an elitist conquest o f democratic politics (Barber 1988) The history o f modern social science is full o f scientistic ideology (from Saint-Simons scientistic religion via scientific racism to recent conquests o f democratic politics by neoclassical economic ideology) and the practices o f many experts (scientists techni- cians medical practitioners architects economists ecologists pedagogues psychologists sociologists judges etc) are rife with illegitimate scien- tocracy or expertocracy All o f them still have to learn how to resolve the fun- damentalist dilemma-namely that in democratic deliberation and decision making their truths are no more than opinions among 0the1-s~ Instead o f trying to limit thecontent o f public reason by keeping all contested compre- hensive doctrines and truth-claims out one has to develop the duties o f civility such as the duty to explain positions in publicly understandable lan- guage the willingness to listen to others fair-mindedness and readiness to accept reasonable accommoclat~ons or alterations In ones own view (see below)

Priority for Democracy versus Religious Challenges

The priority o f democracy has to be defended against five well-known untenable challenges from religious or theological imperialists

( i )Many religious believers and some theologians still think that a person cannot be solidly moral without being religious (Audi 1989 290f contra William Bennett) implicitly or explicitly they hold that secular morality In general is impossible Kulananda from a Buddhist perspective demonstrates

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

598 POLITICAL THEORY October 1999

religious fundamentalism the presumed divisiveness and destabilization of society and the possible strengthening of religious minorities by a pluraliza- tion of establishment

In the United States there is a lively debate about the role of Religion in Public Life (Thiemann 1996) Some of the basic assumptions of standard liberalism and of the more sophisticated forms of liberalism of reasoned respect (Weithman 1997a) are being criticized Whereas the English debate about the relationship between the state and (organized) religions (churches sects denominations) has been wide-ranging and covered not only moral principles and rights but also constitutional issues institutional design cul- tures virtues practical judgment and policies the American philosophical debate centers on the legitimate role of religious argument in public andor constitutional discourse in democratic constitutional states Most American liberal philosophers among them Dworkin Ackerman Galston Rawls Macedo and Audi believe that values of freedom equality and tolera- tion are best preserved if religion is removed from public affairs They are virtually unanimous in their staunch advocacy of the wall of separation They believe that both religious practice and pluralistic democracy are best preserved by precluding religious argumentation within the public realm (Thiemann 199674ff) and by putting the moral ideals that divide us off the conversational agenda of the liberal state (Ackerman 1989 16) This belief is mainly motivated by twoconcerns First by an old Lockean fear that public and political religions inherently threaten political unity and stability (see Creppell 1996) Second by a hands-off notion of justice (Carens 1997) which holds that to treat humans as free and equal reasonable persons requires abstracting from all their particularities especially from religious beliefs and practices In this article I intend to challenge the standard view of a complete separation and to present an alternative way of reconsidering moral principles and reconstructing institutions

What Is Wrong with Political Liberalism

Advocates of standard liberalism as well as sophisticated defenders of liberalism of reasoned respect are convinced that some kind of separa- tion is inevitable in a world of inescapable religious pluralism (Audi 1997 38) Robert Audi set out to explore appropriate liberal-democratic principles for well-ordered societies in three areas Institutional separation of the state should be guided by three basic principles a libertarian principle (states must permit the practice of any religion) an equalitarian principle (states may not give preference to one religion over another) and a neutrality

Bader 1 RELIGIOUS PLURALISM 599

principle (states should neither favor nor disfavor religion as such) Mature rational religious people or individuals should be guided by the two princi- ples of conscience by a principle of secular rationale and of secular moti- vation and by a higher second-order principle of theo-ethical equilibrium requiring them to seek at least a measure of reflective equilibrium among their beliefs and attitudes grounded in religious sources and those grounded in secular sources (Audi 198946) a kind of rational integration between religious deliverances and insights and secular ethical considera- tions (Audi 19895262) Churches finally should be guided by the princi- ple of ecclesiastical political neutrality and clerics by the principle of clerical political neutrality

John Rawls has modified his position regarding the role of religion con- siderably (see Weithman 1997a Thiemann 1996) In his Theory of Justice (1972) religion was most often invoked to exemplify unreasonable compre- hensive schemes that undermine tolerance In his Political Liberalism (1993) reasonable religious doctrines are allowed to play a more positive role in two regards First the stability of the overlapping consensus on a political conception of justice requires that citizens endorse the basic consti- tutional structure Reasonable religions provide one of the many competing and opposing comprehensive schemes citizens have to draw on (Rawls 1993 380 Second the exclusive view is associated with well-ordered socie- ties (pp 247ff) whereas more inclusive views are allowed in nearly well-ordered societies where the application of fundamental principles to specific cases is in doubt and in not well-ordered societies in which there is a profound division about constitutional essentials (Rawls 1993249) In both cases the appeal to comprehensive reasons including religious ones may be justified as long as such an appeal is necessary to strengthen the ideal of public reason itself (Thiemann 1996 85 Weithman 1991 570 Still within the realm of the political religious reasons are precluded

The range and force of these Rawlsian constraints on religious arguments in public discourse continue to be contested In the paperback edition of Political Liberalism Rawls (1996) has tried to respond to the criticism that his constraints remain too exclusionary He now stresses more clearly that they should be applied only when constitutional essentials or matters of basic justice are at stake not to normal political debates and decisions

Standard liberalism (and to a lesser extent sophisticated liberalism) is vulnerable to the following objections

(i) Liberal political philosophy excels in the construction of ideal models of well-ordered states and societies and ideally reasonable citizens it does not tell us how to judge or act under conditions of not so well-ordered actual states and societies Quite often the link between the ideal world and the real

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one is missing and yet the real world is treated as if it approximates orresem- bles the ideal world One might even say that such an unrecognized shift from model to muddle is a characteristic feature of Rawlss Political Liberalism in which one looks in vain for clear distinctions between liberal-democratic constitutions liberal-democratic states and liberal-democratic societies Recent societies and actual states are treated as liberal-democratic socie- ties and liberal-democratic regimes despite the fact that they show sig- nificant degrees of sexism genderism racism ethnocentrism and class cleavages all at odds with Rawlss own principles of justice One result is a blatant neglect of structural political and cultural inequalities among (organ- ized) religions Principles that might be appropriate in an ideal world such as difference-blind neutrality actually stabilize discrimination and inequality if applied to the actual world

(ii) In the real world of existing state societies states are not neutral with regard to (organized) religions A constitutionally and legally equal treatment of religions does not prevent and quite often masks administrative political and cultural inequalities between majority religions and minority ones a situa- tion at odds with religious pluralism under the assumption of rough equality (fair background institutions and practices) Combined with the predominant individualist bias of liberal politics and the concomitant liberal and republican distrust toward group representation and institutional political pluralism4 this amounts to an unintended entrenchment and legitimation of these ine- qualities or at least to a deafening silence when it comes to the question of how to practically redress the balance in favor of minority religions

(iii) In the ideal worlds of liberal contractarianism too much consensus is assumed and moral pluralism is underestimated (see critically Barber 1988 Gutmann and Thompson 1996 Bader 1998~) Traditional refutations of such criticism stress that principles do not determine the outcome of their applica- tion and there is contestation about which principles should be applied in specific case^^ Hence there is room for much disagreement and political deliberation in ordinary political matters while consensus is restricted to constitutional essentials and basic justice However these refutations under- estimate the problem for three reasons First in the nonideal realms of exist- ing real societies the meaning significance and application of even the most fundamental political notions are constantly being contested (Thie- mann 1996 87)econd this basic flaw proves to be more profound if we take seriously the conflicts and tensions between different moral principles (eg liberty and equality with regard to religions) tensions deepened by the fact that the necessary trade-offs and balancings are themselves strongly con- tested Third the refutations reproduce the illusion that we would reach con- sensus by moving deeper down (toward foundations) or higher up

Bader 1 RELIGIOUS PLURALISM 601

(toward principles or second-order principles such as agreement to disagree or consent to dissent) they fail to recognize that dissension is as serious among ordinary people deliberating about moral and political issues as it is among judges of Supreme Courts constitutional theorists and moral phi- losophers advocating foundational theories

(iv) Liberal philosophers are well known for their conceptual dichotn- mies private versus public (from Locke onwards) social versus political (Rawls 1993 220) essentials or basics versus ordinary politics (Rawls 1993 1996) specific policy proposals versus in general (Audi 1989 199169) political versus moral (Audi 1989276281) and secular versus religious First these conceptual dualisms have themselves been strongly and convincingly criticized Second the application of these analytical dis- tinctions in the real world leads to the well-known normative recommenda- tions to preclude religious arguments in the public realm (to privatize reli- gion) or to allow them only in social but not in political discourse (Rawls 1993 14) or only in ordinary political matters but not in essentials or basics These liberal strategies to separate or divide and isolate private from public reasons and religious from secular reasons thus purifying secular public rea- son from all illegitimate remnants may not only be vehemently criticized as unfair exclusionist unachievable counterproductive or self-defeating In all real-world cases these neat or clean distinctions are themselves strongly contested and no consensus can be expected In all circumstances of inequal- ity these liberal strategies work in favor of the resourceful and powerful

(v) It took a long time for contemporary liberal philosophy to recognize the importance of virtues Recently many liberals (not only Macedo and Galston but also Rawls and Audi) have clearly stated that private or social associa- tions such as churches and sects may contribute significantly to the develop- ment of the (necessarily nonneutral) civic and political virtues and the skills of pluralist citizenship needed for the stability and flourishing of political democ- racy and for effective liberal-democratic constitutions It appears now to some critics that the liberal strategies of separation and of privatization of religion combined with the ardent refusal of any public and political role for religious associations are a serious impediment to the development of a lively civic democracy and are in the end self-defeating strategiesx

(vi) The liberal analysis of the relation between state and (organized) religions is predominantly sometimes even exclusively focused on its con- stitutional and legal aspects on establishment versus nonestablishment (see critically Casanova 1994) This bias has two odd consequences First as already mentioned there is a tendency to neglect social political and cul- tural inequalities among (organized) religions and given the social political and cultural establishment of the majority religions to hide the (inevitable)

602 POLITICAL THEORY 1October 1999

administrative political and cultural nonneutrality of the state under the guise of neutrality Second in the tradition of the profound juridification of American political culture it gives too prominent a role to conflict resolution by the hero-judges of the Supreme Court whose moral and legal delibera- tions and decisions pretend to be neatly separated from public political deliberation Actually they are not-they lack democratic legitimacynd they lack consistency (see below)

(vii) Rawls has claimed to present a really freestanding public morality by developing his political not metaphysical liberalism He claims to have done no more than explicate and reconstruct the principles of public morality inherent in liberal-democratic constitutions of modern state societies By vir- tue of the thesis of priority for democracy and of nonfoundationalism these principles and rights should have priority over all competing opposing deeper foundational comprehensive schemes-be they religious philo- sophical scientistic or whatever (unfortunately much less emphasis is placed on the priority of the institutional mechanisms political culture or civic and political virtues concerned) This is often misunderstood by liberal philosophers as second-order secularism Second-order secularism still shows remnants of a secularist bias unfair to convinced religious people whose arguments attitudes and practices are compatible with liberal democ- racy1 but who refuse to accept the strategies of privatization isolation or separation of religious and secular reasons (see Wolterstorff 1997) The important thing given the priority of democracy should not be whether argu- ments are religious or secular but whether arguments attitudes and practices are compatible with the principles rights culture virtues and good practices of social democratic constitutionalism (see Thiemann 1996 89f 173 Weithman 1997b 33 Hollenbach 1997 Quinn 1997) This distinction is important because most of the atrocities genocides and ethnic cleansings in our century have been legitimized by secularist ideologies Liberal philoso- phers preoccupation with religions as a threat to political stability (Weithman 1997b 3 Thiemann 199680f 122 understandable in the con- text of the religious wars of the sixteenth and seventeenth centuries is now myopic and outdated Priority for democracy should not be confused with a secularist strategy to purify public reason from religious arguments Rather the decisive criterion should be the recognition that no contested truth-claim of any kind whether religious philosophical or scientific is entitled to over- rule democratic political deliberation and decision making Many modern liberalized religions have accepted this whereas many modern philosophers and scientists have failed to do so and continue to behave as philosophical or scientistic fundamentalists

Bader l RELIGIOUS PLURALISM 603

(viii) Finally I want to raise a second meta-ethical question regarding the famous principle of neutrality Significantly it is not part of any human rights canon or of any set of constitutionalized rights Rather it is introduced by lib- eral philosophers and constitutional theorists as a kind of second-order prin- ciple to guide interpretations of the nonestablishment and free exercise clauses of the First Amendment As in all other cases of benign state neu- trality or difference-blindness benign religious state neutrality or strict neutrality is only presumed neutrality and serves as a guise for the actual bias in favor of dominant majorities (see Galanter 1966 Note 1987 Thie- mann 1996) It is a remarkable sign of the strength of this second-order prin- ciple of neutrality that even critics of the presumed ethnic or national neutral- ity of the state share it when it comes to religion Kymlicka (1997 21) for instance rightly argues that the usual analogy between religion and (ethnic or national) culture is flawed or mistaken It is possible for a state not to have an established church But the state cannot help but give at least partial establishment to a culture (Kymlicka 1997 27) The separation of church and state and the depoliticization of religious identities (p 21) however are accepted without critical scrutiny The idea that liberal states or civic nations are neutral between ethnocultural identities (p 27) is surely a myth but the same is true for the states presumed religious neutrality It is not only flawed in a historical and comparative perspective From a norma- tive perspective the presumption that only a complete separation of the state from (organized) religions is compatible with the thin public morality of modern states is also mistaken14

Myths of Separation and Neutrality

Next I want to show that complete separation and neutrality15 are mis- leading second-order principles introduced by liberal philosophers constitu- tional theorists and judges who are inspired by a mythical history of the American constitutional tradition

The interpretation of the nonestablishment clause of the First Amendment as complete separation of state and religion has always served to protect the political social and cultural establishment of majority religions from exposure Sociologists and historians of religion have clearly demonstrated that the legal nonestablishment of the First Amendment has only been the first phase in an ongoing and unfinished process of disestablishment The legal prohibition of the establishment of a national church had little effect on the political social and cultural or symbolic power of de facto established Protestant Christianity The second religious disestablishment that

604 POLITICAL THEORY 1October 1999

eventually led to higher degrees of actual disestablishment of the American state society and culture from Evangelical Protestantism as its historical civil religion1 has been the result of challenges by competing organized minority religions first by Roman Catholicism next by Jewish minorities The emerging predominant non-christological theism (Thiemann 1996) or Judeo-Christian deism (Herberg 1960) has been challenged by black Mus- lim churches though largely without success Islam is still perceived as a fun- damental threat (Zolberg 1998) For many foreign observers American political life is still to an astonishing degree dominated by Christianity not only internally but also in US foreign policy (America as the chosen coun- try Americans as the chosen people) Whether a third moral disestablish- ment can be discerned as Bellah and others (1985) think and if so where this development would leave American civil religion is much more con- tested The myth of a complete separation not only neglects this history but it is also at odds with the continuing presence of legal privileges such as con- gressional and military chaplains paid from public funds tax exemptions exemptions from military service or from combat duties state officials swearing belief in God prayers in the Supreme Court and US Congress In God We Trust on US currency and Thanksgiving ~ a ~

Neither separation nor neutrality are concepts to be found in the text of the American constitution or in international rights covenants Nevertheless the opening words of the American Bill of Rights-Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof-are now commonly known as the principle of separation Ronald Thiemann (199642 see Richards 1986 1889 has shown that this principle

is derived from a metaphor first used by Roger Williams in a letter to John Cotton and then by Thomas Jefferson In a letter to the Baptist Association of Danbury Connecti- cut It became common constitutional parlance through adecision written by Justice Hugo Black in 1947 Despite its somewhat obscure origins and its rather recent introduc- tion into the legal tradition this principle has come to shape our nations understanding of the relation between the political and religious spheres in the United States

According to Justice Black the First Amendment has erected a wall (of separation) between church and state That wall must be kept high and impregnable We could not approve the slightest breach The quasi-doctrinal status of this interpretation has two odd consequences critics of the metaphor are associated with political conservatism whereas Liberals and Leftists are tempted to defend absolute separation

Critics of the Supreme Courts record in adjudicating cases involving the religion clauses have characterized the questionable logic and contradictory

Bader 1 RELIGIOUS PLURALISM 605

opinions of the decisions as bizarre fatuous a hodgepodge and judi- cial meandering Indeed the principle of separation does not foster a coherent and convincing interpretation of the two clauses for they can eas- ily work at cross-purposesY The nonestablishment clause seems to forbid any governmental assistance and to require noninvolvement and no aid to any religion The free exercise clause seems to mandate governmental accommodation and impartiality seems to require equal aid to religions Noninvolvement and impartiality cannot be consistently combined (Valauri 1986) and the separation metaphor does not help to combine them in a productive way The resulting confusion is displayed in many cases excel- lently documented by Galanter (1966) Note (1987) and Stoltenberg (1993) To illustrate the point let me discuss the Allegheny County v Greater Pitts- burgh ACLU case (1988) on the display of a creche including an angel bear- ing a banner with the words Gloria in Excelsis Deo on or near county prop- erty Three major positions of the Supreme Court justices can be discerned The majority uphold a separationist secular purpose position arguing that government is only permitted to display religious symbols with a secular pur- pose Government may not engage in practices that serve to endorse religious beliefs Any state action that serves to favor prefer or promote one religious theory over another or religious belief over disbelief is in violation of the non- establishment clause The concurring minority took a stronger position of strict neutrality arguing that government is never permitted to display reli- gious symbols of any kind because the nonestablishment clause is interpreted to require neutrality not just among religions but between religion and non-religion The dissenting minority judges oppose the decision as includ- ing an unjustified hostility toward religion and ask for symbolic accommo- dation because it is difficult to maintain the fiction that requiring govern- ment to avoid all assistance to religion can in fairness be viewed as serving the goal of neutrality (Justice ~ e n n e d ~ ) ~

All three positions are inadequate Strict neutrality reproduces impossi- ble fictions and ignores the patterns of co-operation between church and state created by our history of civic piety and by the expanding regulatory role of the welfare state22 Separationist secular purpose has four odd conse- quences ( I ) The intent to acknowledge religious symbols in a general way but not as particular cultural phenomena proposes to strip religions of all their specific meaning Government may celebrate Christmas in some man- ner and form but not in a way that endorses Christian doctrine Because religious beliefs practices and symbols are inevitably particular this offends religious people2 (2) It places judges in an uncomfortable position they must act as theological critics to determine the meaning of a symbol and as social critics to determine whether such a symbol has been sufficiently

606 POLITICAL THEORY 1October 1999

stripped of its inherent religious meanings (3) It contributes to the already desultory rhetoric of contemporary politics (4) It is motivated by a hands- off notion of justice or fairness that for fear of unequal and discriminatory treatment of other religious and nonreligious people does not ask to treat them even-handedly respecting and accommodating their particularities but requires us to abstract from all their particularities This is not only impossible but it would also make all people religious and nonreligious worse off24 Symbolic accommodation has the considerable advantage of recognizing that

the principles of the Establishment Clausc and our Nations historic traditions of diver- sity and pluralism allow communitics to makc reasonable judgements respecting the accommodation of holidays with both cultural and religious aspccts No constitutional violation occurs when they do so by displaying a symbol of the holidays religious ori- gins (Justice Kennedy)

By equating religions with Christianity however it sidesteps the question of religious pluralism particularly the issue of a fair treatment of minority reli- gions Thus it does not live up to the minimal requirements of fairness as even-handedness and is unable to answer the really pressing questions

What arc the appropriate limits of governmental accommodation of mi~jorityrcligious belief and practice within a pluralistic democracy At what point docs propcr accommo- dation of religion become impropcr aid or assistance to religion When docs accommo- dation of the majority religion bccome discriminatory toward religious minorities (Thicmann 1996530

Since Justice Blacks decision in Everson separation has been fatefully joined with the doctrine of government neutrality toward religion All three positions in Allegheny agreed that state neutrality toward religion is man- dated by the Constitution but they widely differ on the meaning and applica- tion of this protean concept (Thiemann 199660ff) Strict Neutrulity of the concurring minority judges mandates governmental noninvolvement in religious matters by requiring a consistent no-aid to religion policy Non-discriniinatov neutruliamp of the majority judges softens the doctrinal purity by allowing some public sphere accommodation providing the symbols or practices supported by government are nonsectarian and nondis- criminatory This position reads the Constitution as mandating a no-aid to religion (or noninvolvenzent) policy whenever sectarian practices are at issue and an equal uid to religion (or inlpartiality) policy when the practices are generally cultural or have a discernible secular purpose Benevolent neu- trality explicitly seeks to broaden the framework within which religion

Bader RELIGIOUS PLURALISM 607

might be freely exercised [It] proscribes only governmentally estab- lished religion or governmental interference with religion None of the three interpretations can serve as a guide to a more coherent interpretation of the religion clauses2h

This is I think a reasonable presentation of the present state of the consti- tutional debate I agree therefore with Thiemanns (1996) conclusion that we have to abandon (p 43) the separation metaphor for four reasons (1) it deflects attention from more fundamental principles (eg liberty equality tolerance) that undergird the two clauses (2) it conceptualizes church-state relations in singular and monolithic terms (3) it conceals the variety of ways in which they interact and (4) it constrains our ability to imagine new possi- bilities for their relation The separation metaphor cannot reasonably guide interpretations of the American Constitution It has only served as a mislead- ing placeholder for constitutional nonestablishment It cannot be used either as a reasonable second-order principle for the interpretation of international rights treatises or alternative constitutional traditions (characterized by weak or plural constitutional establishment) But should we also follow Thiemanns proposal to jettison (p 64) two other candidates of productive second-order principles neutrality and secularism

Relational Neutrulity and Priority for Democracy

Neutrality separation and secularism are-to repeat-not consti-tutional rights but second-order principles Why not get rid of second-order principles as such Why and for what purposes do we need these meta-rules Second-order principles as well as moral and legal paradigms are in my view important as guidelines in two types of cases in all cases in which con- stitutional rights and first-order moral principles conflict and in all cases of conflicting interpretations and applications of rights They should allow more coherent interpretations of constitutions and should be able to guide the difficult art of balancing in a more productive way

To summarize strict neutrality and complete separation have failed in this regard Difference-blind religious neutrality is a prominent version of an ideological mechanism that universalizes the particular and hides it from view In the case of religions as with sexes gender race and ethnicity there can exist no absolute impartiality no absolute perspective no view from nowhere Such well-known criticism2 forces us to reconceptualize these principles to rescue the two commendable moral intuitions they mean to articulate the prohibition of moral particularism and the preclusion of injus- tice under conditions of religious diversity and structural inequality These

608 POLITICAL THEORY 1 October 1999

moral intuitions are better conceptualized by the principles of relational neu- trality and even-handedness

Relational neutrality replaces the idea of difference-blindness by difference-sensitivity Only if we take into account actual differences and inequalities between religious groups and organizations can we hope that institutions and policies will in the long run become more neutral in relation to these religions and to nonreligious people as well Relational neutrality does not presume some imagined place of neutral transcendence (Thie- mann 1996 82) or some objective observer (Justice OConnor see Note 1987 1647) as in the old untenable versions of nonsocially situated ahis- torical universal knowledge but neither does it lapse into a relativistic any- thing goes There are more inclusive better-situated perspectives that take into account the degree of inclusiveness of the actual2v relevant secular and religious voices and the particular point in history

Fairness as even-handedness is a better candidate than majority-biased symbolic accommodation It criticizes the exclusive reliance on a hands- oft concept of fairness regarding culture and identity that has informed the concepts of neutrality and complete separation predominant in liberal phi- losophy In a critical response to my article on transnational citizenship Joseph Carens has characterized

the ideal of cven-handedness to contrast it with the hands-off approach of neutrality The guiding idea of even-handedness is that what fairness entails is a sensitive balancing of competing claims for recognition and support in matters of culture and identity Instead of trying to abstract from particularity we shouldembrace it but in a way that is fair to all the different particularities Now being fair docs not mean that every cultural claim and identity will be givcn equal wcight but rather that cach will be given appropriate wcight undcr thc circumstances and given a commitment to equal respect for all History mat- tcrs numbers matter the relative importance of the claim to those who present it matters and so do many other considcmtions (Carens 1997 818 claboratcd in Carcns 1998 Introduction)

Religious cultures and identities are not treated fairly by declaring that religion is a private matter or by excluding religious arguments from political or constitutional debate or from debates about constitutional essentials and basic justice Nondiscrimination and equal treatment of different religions as well as of religious and nonreligious people are not well served by hands- off abstractions They require a sensitive balancing of the different claims taking into account structural inequalities between majority religions and minority ones Policies of accommodation which take cultures and identi- ties seriously and strive for a sensible balancing but neglect structural ine- qualities should be combined with a concept of rough complex equality that

Hader RELIGIOUS PLURALISM 609

uncovers neglected structural inequalities between (organized) religions and asks for policies to redress them (policies furiously criticized by liberal crit- ics of affirmative action in all fields) Sensitive balancing of cultural and identity claims will never achieve complete cultural equality and support will never achieve substantive equality between majority religions minority ones and secular people (nor would this be morally required in my view) but they may help to redress obviously unfair situations

Nondiscrimination and equal treatment also do not require second-order secularism I realize that my claim here conflicts with one of the crucial the- ses and assumptions of liberal republican and socialist political philoso phy2~propose to reconceptualize the central moral intuition of second-order secularism by the second-order principle of priority for democracy

We saw earlier that religiously and theologically motivated critics of political liberalism in the United States such as Neuhaus Wolterstorff and Thiemann challenged the presumed neutrality of second-order secularism In England similar complaints have been raised by Anglican Jewish Catho- lic and Muslim opponents of complete separation Conceptualizing mod- ern public morality as secular morality is said to privilege secular over reli- gious values unfairly Writing from a Jewish perspective Sylvia Rothschild fears most

a purportedly neutral secularism for thcre is nothing so dogmatic as that which is dog- matically neutral and sccularisrn far from being open to all closes the many diverse doors to the communities of faith As I read it the secular mode is merely another point on thc spectrum of religious expression but one which has no understanding of and which makes no allowances for othcr modes of religious expression On thc othcr hand pluralism can and does flow from religious vision [The] sccular crusade against thc Anglican church is an attack on all forms of religious expression and thus indirectly harmful to us too [Discstablishmcnt] sccms to mc a way only towards mono- dominant and triumphant sccularism rathcr than a pathway which may lcad to true multi-faith multi-cultural pluralism (Rothschild in Modood 1996 56 60 sce similar charges by Levinson 1990 and Carter 1993 in the United States)

The real question for her thus is just how do we organize ourselves so that the many voices can be heard so that one dominant culture doesnt impose itself on us all (Modood 199658) Bikhu Parekh also challenges Rawlsian political liberalism for keeping

religion out of political life in a democracy Like Rawls (1995) we might insist that citi- Lens In a liberal society should derivc or at least publicly dcfend thcir political judgc- ments in a secular manner but that is arbitrary and has no appeal to those who do not sharc his views of religion and politics [We have to] challenge thc untenable and long-hcld beliefs that only a secular state can be libcnl and dcmocratic and that political

610 POLITICAL THEORY October 1999

discourse is manageable only whcn it is conceptually monolingual and homogeneous (Parckh in Modood 19962 122)

If a secular public morality cannot be neutral we seem to be caught in a trap forced to choose between two equally miserable imperialisms either mono-dominant and triumphant secularism and an out-and-out (or funda- mentalist) secularism which in its late twentieth century manifestation is a climate inimical to any religion (Daoud Rosser-Owen from a Muslim per- spective in Modood 1996 84) on one hand or troubling triumphalism by those who believed religion had a monopoly on moral concerns (Phillips in Modood 1996 27) on the other Anne Phillips has tried to resolve this dilemma by pointing out that

secularism occupies a dual location in this kind of debate Those who do not follow any of thc worlds religions arc by definition secular in thcir beliefs when secularism speaks on bchalf of thcsc non-believers it speaks on a par with the spokcspcoplc for Anglicans Catholics Muslims or Jcws Hut secularism also presents itself as thc solu- tion after all other voices havc spoken for in arguing fora separation between church and state it promises to protect thc beliefs and the practices of each from thc prcssures to go along with what any othcrs bclicve This looks suspiciously like a sleight of hand and thats the w o q that the even-handed accommodation of all turns out to be particularly attuned to one (Phillips in Modood 1996 27)

Anne Phillips tries to defend secular public morality on a meta-level as

the only approach that can even approximatc equality of treatment between those who hold different beliefs thc interests of democratic equality cannot be well served by practices that privilege one church ovcr the others nor can thcy bc well servcd by prac- tices that privilege religious values over secular oncs nor-and this is the difficult one--can thcy be well served by practices that privilege secular valucs over religious bclicfs The difficulty remains that any way of formulating this puts it in the framework of a secular solution and some will rcgard this as diminishing the significance of relig- ion Rut the secular separation of church from statc is still the closest we can get to parity of treatment between those who are rcli~ious and those who are not and between thc fol- lowers of different religions Equality is onc of the crucial principles of amodern democ- racy and for this reason (evcn cxcluding all the others) thc secular solution is the only onc I could defend (Phillips in Modood 1996270

Plausible though it looks at first sight such a defense common to Audi Phillips and many others still suffers from an unrecognized identification of public morality with secular morality Audi (1991) treats public and secular reason as if they would be exactly the same For him public reasons are explicitly and by definition secular and his principles of rationale and moti- vation are secularist principles

Bader 1 RELIGIOUS PLURALISM 61 1

unless they offer (or at least have) adequate secular (non-religious) reasons to support thc law or policy in question By sccular reason I do not mcan onc that is con- sciously held in contrast to a religious onc noris there anything anti-religious implicit in a proper use of thc tcrm Indccd a sccular reason may be fully uligned with a reli- giously sanctioned vicw Rather a secular reason is roughly one whose normative force that is its status as a prima facie justificatory clcment does not (evidentially) depend on thc existence of God (for cxamplc through appeals to divine command) or on theological considerations (such as interpretations of a sacred tcxt) or on the pro- nouncements of a person or institution qua religious authority (Audi 1989 278 see also Audi 1997)

Although Audi Macedo and other liberal political philosophers believe that they can rely on Rawlss conceptions of political justice and public rea- son Rawls himself has carefully avoided identifying public reason with secular reason both terminologically34 as well as in his substantive arguments in favor of a freestanding public morality (see below)

In the sixteenth and seventeenth centuries such a terminological and con- ceptual identity was historically understandable because public morality had to be fought for first in battles against defenders of absolutist or fundamen- talist religions and established churches and later on in battles against those theological and philosophical defenders of freedom of religion and of con- sciousness who explicitly or implicitly limited these freedoms to the variety of conflicting Christian denominations and who did not extend their argu- ments into a principled defense of freedom of consciousness for all religious believers whether Christian or not as well as for those who hold secular val- ues and beliefs In a context in which the enemies of a general freedom of consciousness (and of most other liberal and democratic principles and rights) were absolutist religions public morality took the form of secular morality and a religious or theological defense of public morality seemed unthinkable Its true defenders thus were secular philosophers (such as Spi- noza and Kant)

In our times this context has changed public morality and liberal democracy have to be defended against secularist philosophers scientistic technocrats and expertocracy as well as against those religions that still defend absolutist and fundamentalist claims in politics In this context it is still true that secularism is more commonly perceived as the opposite of religion (Phillips in Modood 199627) but it may be that the most danger- ous enemies of liberal democracy are not or not mainly religions but secular- ist ideologies (as Wolterstorff 1997 pointed out) And from Madison onwards we also find religiously or theologically motivated defenders of a principled nonexclusive right to freedom of consciousness and of other rights institutions and public morality of liberal democracy

612 POLITICAL THEORY October 1999

In such a ~on tex t ~ both the meaning of secular and re~i~ious~ and their relation have changed Consequently the conceptual identification of public with secular morality is increasingly misleading for the following reasons

1 It scduccs us into conceptualizing the justificatory nonneutrality of libcral dcrnocracy in terms of sccular versus rcligious arguments or foundations The main question is not howevcr whether arguments are secular or rcligious but whcther thcy arc compatible with andlor support liberal dcrnocracy

2 It neglccts the possibility and existence of principled rcligious or thcological founda- tions of liberal dcmocmcy and excludcs thc possibility of public rcason in thcological and religious argumcnts It thus unfairly discriminates against those modem theologi- ans and religions that dcfcnd liberal democracy (Thiernann 1996 13 1 ff)

3 It directs our criticism of fundamcntalism in politics in a onc-sidcd and myopic manncr against rcligious or theological fundamcntalism and thus tcnds to neglcct all secular fundarncntalisms even if thcy posc much morc dangerous threats to tolerance and lib- eral dcrnocracy

There is a better way to account for the intuition that liberal democracy is inevitably nonneutral This is the principle of priority for democracy (always as a shorthand for liberal democracy in the sense defined above) In a short explication and defense of this second-order principle I proceed as follows First I want to highlight that not only religions had to learn what priority for democracy implies but philosophers scientists expertocrats and judges had to learn this too Second I want to defend the priority for democracy against misleading challenges from religions that argue that a secular moral- ity would be impossible would lead to a decay of morals or would weaken necessary limitations of state sovereignty and politics or claim a kind of his- torical priority41 Third I want to defend the priority for democracy against philosophical imperialisms which claim a kind of philosophical priority fail to radicalize the principle of nonfoundationalism and thus limit the produc- tive idea of a freestanding public morality that is political not metaphysi- cal Finally I want to defend the priority for democracy against the ironic and skeptic antiphilosophy of Richard Rorty who has coined the phrase

Priority for Democracy Versus All Fundamentalisms

Simply stated priorityfbr democracy means to begin with that princi- ples institutions cultures virtues and practices of liberal democracy have priority over the competing and often incompatible foundations of liberal democracy be they religious philosophical (metaphysical ontological moral ethical) or scientific Furthermore all opinions and voices like votes

Bader 1 RELIGIOUS PLURALISM 613

have to count equally when it comes to decision making even if paternalistic elites for the best of reasons think that they are uninformed misinformed false morally wrong and so on Liberal democracy thus understood cannot be neutral nor should it be But this inevitable nonneutrality which is essential with regard to all nonliberal nondemocratic principles and prac- tices should not be confused with nonneutrality between secular and reli- gious foundations and arguments

It is now common knowledge among sophisticated political philosophers that liberal democracy cannot be neutral42 This inevitable nonneutrality should be directed explicitly and exclusively against principles and prac- tices at odds with liberal democracy against fundamentalism of all kinds not against religions as such In their defense of the principle of reciprocity against the fundamentalist (religious) challenge that it is biased against fun- damentalism and in favor of religions that conform to deliberative views of civic education Gutmann and Thompson concede that it is correct

that the principle is not neutral among religions or ways of life The case forreciprocity and more generally for the deliberative perspective must be defended on substantive moral grounds and there is no reason to expect that such a defense would have the same (positive or negative) implications for all moral positions But the value of public rea- son expressed by the deliberative perspective is not just another morality It is offered as the morally optimal basis on which citizens who disagree about moralities and reli- gions can act collectively to makeeducational policy The principle of reciprocity is not privileged in the sense that it needs no moral defense But the defense it needs and the objections to which it is vulnerable are different from those of moral disagreement in politics The principle proposes a basis on which those who morally disagree can coop- erate and it can be appropriately criticized only by proposing an alternative basis not simply by reaffirming the moral or religious claim that constitutes the disagreement The fundamentalists do not offer an alternative (Gutmann and Thompson 1996 67 cf 93 second-order agreement not on secularism but on principles and virtues of liberal democracy)

Anne Phillips-like Tariq Modood (1996 13) Stephen Macedo (1998)~ Richard Rorty ( 1 9 9 7 ) ~ ~ and others-treats Charles Taylor ( 1 9 9 8 ) ~ ~ this inevitable nonneutrality of liberal democracy and of public morality as inevi- table secularity This is the most basic flaw of almost all recent political phi- losophy Christian and other religions particularly established churches have obviously learned to accept priority for democracy only as a result of protracted conflict Protestant denominations and free churches living under conditions of an established church had learned this from painful experiences much earlier and deeper than established churches particularly the Catholic Church However under conditions of liberal-democratic constitutional states even churches that think of themselves as the depositor of divine

614 POLITICAL THEORY 1October 1999

truth have eventually learned to accept the notion that when it comes to pub- lic democratic decision making error has the same rights as The authoritative sources of this Truth-be it God the Pope the Ayatollah priests or mullahs however important they may be inside the churches or the community o f believers-add nothing to its persuasive force in the arena o f public reason public deliberation and public scrutiny This is what all churches have to learn under conditions o f a modern constitution They all have to find their own ways to solve the fundamentalist dilemma (Casa- nova 1994 165)

I f this is clear about religion it is less well known and often forgotten that the same holds for all types o f secular truths While many modern religions and churches have tried to resolve this dilemma many prominent modern philosophers have not even addressed it properly This is not only evident for some o f the recently fashionable prominent continental philosophers such as Nietzsche Carl Schmitt and Heidegger To a lesser degree many Anglo- Saxon liberal moral philosophers are also guilty o f such an elitist conquest o f democratic politics (Barber 1988) The history o f modern social science is full o f scientistic ideology (from Saint-Simons scientistic religion via scientific racism to recent conquests o f democratic politics by neoclassical economic ideology) and the practices o f many experts (scientists techni- cians medical practitioners architects economists ecologists pedagogues psychologists sociologists judges etc) are rife with illegitimate scien- tocracy or expertocracy All o f them still have to learn how to resolve the fun- damentalist dilemma-namely that in democratic deliberation and decision making their truths are no more than opinions among 0the1-s~ Instead o f trying to limit thecontent o f public reason by keeping all contested compre- hensive doctrines and truth-claims out one has to develop the duties o f civility such as the duty to explain positions in publicly understandable lan- guage the willingness to listen to others fair-mindedness and readiness to accept reasonable accommoclat~ons or alterations In ones own view (see below)

Priority for Democracy versus Religious Challenges

The priority o f democracy has to be defended against five well-known untenable challenges from religious or theological imperialists

( i )Many religious believers and some theologians still think that a person cannot be solidly moral without being religious (Audi 1989 290f contra William Bennett) implicitly or explicitly they hold that secular morality In general is impossible Kulananda from a Buddhist perspective demonstrates

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

Bader 1 RELIGIOUS PLURALISM 599

principle (states should neither favor nor disfavor religion as such) Mature rational religious people or individuals should be guided by the two princi- ples of conscience by a principle of secular rationale and of secular moti- vation and by a higher second-order principle of theo-ethical equilibrium requiring them to seek at least a measure of reflective equilibrium among their beliefs and attitudes grounded in religious sources and those grounded in secular sources (Audi 198946) a kind of rational integration between religious deliverances and insights and secular ethical considera- tions (Audi 19895262) Churches finally should be guided by the princi- ple of ecclesiastical political neutrality and clerics by the principle of clerical political neutrality

John Rawls has modified his position regarding the role of religion con- siderably (see Weithman 1997a Thiemann 1996) In his Theory of Justice (1972) religion was most often invoked to exemplify unreasonable compre- hensive schemes that undermine tolerance In his Political Liberalism (1993) reasonable religious doctrines are allowed to play a more positive role in two regards First the stability of the overlapping consensus on a political conception of justice requires that citizens endorse the basic consti- tutional structure Reasonable religions provide one of the many competing and opposing comprehensive schemes citizens have to draw on (Rawls 1993 380 Second the exclusive view is associated with well-ordered socie- ties (pp 247ff) whereas more inclusive views are allowed in nearly well-ordered societies where the application of fundamental principles to specific cases is in doubt and in not well-ordered societies in which there is a profound division about constitutional essentials (Rawls 1993249) In both cases the appeal to comprehensive reasons including religious ones may be justified as long as such an appeal is necessary to strengthen the ideal of public reason itself (Thiemann 1996 85 Weithman 1991 570 Still within the realm of the political religious reasons are precluded

The range and force of these Rawlsian constraints on religious arguments in public discourse continue to be contested In the paperback edition of Political Liberalism Rawls (1996) has tried to respond to the criticism that his constraints remain too exclusionary He now stresses more clearly that they should be applied only when constitutional essentials or matters of basic justice are at stake not to normal political debates and decisions

Standard liberalism (and to a lesser extent sophisticated liberalism) is vulnerable to the following objections

(i) Liberal political philosophy excels in the construction of ideal models of well-ordered states and societies and ideally reasonable citizens it does not tell us how to judge or act under conditions of not so well-ordered actual states and societies Quite often the link between the ideal world and the real

600 POLITICAL THEORY 1October 1999

one is missing and yet the real world is treated as if it approximates orresem- bles the ideal world One might even say that such an unrecognized shift from model to muddle is a characteristic feature of Rawlss Political Liberalism in which one looks in vain for clear distinctions between liberal-democratic constitutions liberal-democratic states and liberal-democratic societies Recent societies and actual states are treated as liberal-democratic socie- ties and liberal-democratic regimes despite the fact that they show sig- nificant degrees of sexism genderism racism ethnocentrism and class cleavages all at odds with Rawlss own principles of justice One result is a blatant neglect of structural political and cultural inequalities among (organ- ized) religions Principles that might be appropriate in an ideal world such as difference-blind neutrality actually stabilize discrimination and inequality if applied to the actual world

(ii) In the real world of existing state societies states are not neutral with regard to (organized) religions A constitutionally and legally equal treatment of religions does not prevent and quite often masks administrative political and cultural inequalities between majority religions and minority ones a situa- tion at odds with religious pluralism under the assumption of rough equality (fair background institutions and practices) Combined with the predominant individualist bias of liberal politics and the concomitant liberal and republican distrust toward group representation and institutional political pluralism4 this amounts to an unintended entrenchment and legitimation of these ine- qualities or at least to a deafening silence when it comes to the question of how to practically redress the balance in favor of minority religions

(iii) In the ideal worlds of liberal contractarianism too much consensus is assumed and moral pluralism is underestimated (see critically Barber 1988 Gutmann and Thompson 1996 Bader 1998~) Traditional refutations of such criticism stress that principles do not determine the outcome of their applica- tion and there is contestation about which principles should be applied in specific case^^ Hence there is room for much disagreement and political deliberation in ordinary political matters while consensus is restricted to constitutional essentials and basic justice However these refutations under- estimate the problem for three reasons First in the nonideal realms of exist- ing real societies the meaning significance and application of even the most fundamental political notions are constantly being contested (Thie- mann 1996 87)econd this basic flaw proves to be more profound if we take seriously the conflicts and tensions between different moral principles (eg liberty and equality with regard to religions) tensions deepened by the fact that the necessary trade-offs and balancings are themselves strongly con- tested Third the refutations reproduce the illusion that we would reach con- sensus by moving deeper down (toward foundations) or higher up

Bader 1 RELIGIOUS PLURALISM 601

(toward principles or second-order principles such as agreement to disagree or consent to dissent) they fail to recognize that dissension is as serious among ordinary people deliberating about moral and political issues as it is among judges of Supreme Courts constitutional theorists and moral phi- losophers advocating foundational theories

(iv) Liberal philosophers are well known for their conceptual dichotn- mies private versus public (from Locke onwards) social versus political (Rawls 1993 220) essentials or basics versus ordinary politics (Rawls 1993 1996) specific policy proposals versus in general (Audi 1989 199169) political versus moral (Audi 1989276281) and secular versus religious First these conceptual dualisms have themselves been strongly and convincingly criticized Second the application of these analytical dis- tinctions in the real world leads to the well-known normative recommenda- tions to preclude religious arguments in the public realm (to privatize reli- gion) or to allow them only in social but not in political discourse (Rawls 1993 14) or only in ordinary political matters but not in essentials or basics These liberal strategies to separate or divide and isolate private from public reasons and religious from secular reasons thus purifying secular public rea- son from all illegitimate remnants may not only be vehemently criticized as unfair exclusionist unachievable counterproductive or self-defeating In all real-world cases these neat or clean distinctions are themselves strongly contested and no consensus can be expected In all circumstances of inequal- ity these liberal strategies work in favor of the resourceful and powerful

(v) It took a long time for contemporary liberal philosophy to recognize the importance of virtues Recently many liberals (not only Macedo and Galston but also Rawls and Audi) have clearly stated that private or social associa- tions such as churches and sects may contribute significantly to the develop- ment of the (necessarily nonneutral) civic and political virtues and the skills of pluralist citizenship needed for the stability and flourishing of political democ- racy and for effective liberal-democratic constitutions It appears now to some critics that the liberal strategies of separation and of privatization of religion combined with the ardent refusal of any public and political role for religious associations are a serious impediment to the development of a lively civic democracy and are in the end self-defeating strategiesx

(vi) The liberal analysis of the relation between state and (organized) religions is predominantly sometimes even exclusively focused on its con- stitutional and legal aspects on establishment versus nonestablishment (see critically Casanova 1994) This bias has two odd consequences First as already mentioned there is a tendency to neglect social political and cul- tural inequalities among (organized) religions and given the social political and cultural establishment of the majority religions to hide the (inevitable)

602 POLITICAL THEORY 1October 1999

administrative political and cultural nonneutrality of the state under the guise of neutrality Second in the tradition of the profound juridification of American political culture it gives too prominent a role to conflict resolution by the hero-judges of the Supreme Court whose moral and legal delibera- tions and decisions pretend to be neatly separated from public political deliberation Actually they are not-they lack democratic legitimacynd they lack consistency (see below)

(vii) Rawls has claimed to present a really freestanding public morality by developing his political not metaphysical liberalism He claims to have done no more than explicate and reconstruct the principles of public morality inherent in liberal-democratic constitutions of modern state societies By vir- tue of the thesis of priority for democracy and of nonfoundationalism these principles and rights should have priority over all competing opposing deeper foundational comprehensive schemes-be they religious philo- sophical scientistic or whatever (unfortunately much less emphasis is placed on the priority of the institutional mechanisms political culture or civic and political virtues concerned) This is often misunderstood by liberal philosophers as second-order secularism Second-order secularism still shows remnants of a secularist bias unfair to convinced religious people whose arguments attitudes and practices are compatible with liberal democ- racy1 but who refuse to accept the strategies of privatization isolation or separation of religious and secular reasons (see Wolterstorff 1997) The important thing given the priority of democracy should not be whether argu- ments are religious or secular but whether arguments attitudes and practices are compatible with the principles rights culture virtues and good practices of social democratic constitutionalism (see Thiemann 1996 89f 173 Weithman 1997b 33 Hollenbach 1997 Quinn 1997) This distinction is important because most of the atrocities genocides and ethnic cleansings in our century have been legitimized by secularist ideologies Liberal philoso- phers preoccupation with religions as a threat to political stability (Weithman 1997b 3 Thiemann 199680f 122 understandable in the con- text of the religious wars of the sixteenth and seventeenth centuries is now myopic and outdated Priority for democracy should not be confused with a secularist strategy to purify public reason from religious arguments Rather the decisive criterion should be the recognition that no contested truth-claim of any kind whether religious philosophical or scientific is entitled to over- rule democratic political deliberation and decision making Many modern liberalized religions have accepted this whereas many modern philosophers and scientists have failed to do so and continue to behave as philosophical or scientistic fundamentalists

Bader l RELIGIOUS PLURALISM 603

(viii) Finally I want to raise a second meta-ethical question regarding the famous principle of neutrality Significantly it is not part of any human rights canon or of any set of constitutionalized rights Rather it is introduced by lib- eral philosophers and constitutional theorists as a kind of second-order prin- ciple to guide interpretations of the nonestablishment and free exercise clauses of the First Amendment As in all other cases of benign state neu- trality or difference-blindness benign religious state neutrality or strict neutrality is only presumed neutrality and serves as a guise for the actual bias in favor of dominant majorities (see Galanter 1966 Note 1987 Thie- mann 1996) It is a remarkable sign of the strength of this second-order prin- ciple of neutrality that even critics of the presumed ethnic or national neutral- ity of the state share it when it comes to religion Kymlicka (1997 21) for instance rightly argues that the usual analogy between religion and (ethnic or national) culture is flawed or mistaken It is possible for a state not to have an established church But the state cannot help but give at least partial establishment to a culture (Kymlicka 1997 27) The separation of church and state and the depoliticization of religious identities (p 21) however are accepted without critical scrutiny The idea that liberal states or civic nations are neutral between ethnocultural identities (p 27) is surely a myth but the same is true for the states presumed religious neutrality It is not only flawed in a historical and comparative perspective From a norma- tive perspective the presumption that only a complete separation of the state from (organized) religions is compatible with the thin public morality of modern states is also mistaken14

Myths of Separation and Neutrality

Next I want to show that complete separation and neutrality15 are mis- leading second-order principles introduced by liberal philosophers constitu- tional theorists and judges who are inspired by a mythical history of the American constitutional tradition

The interpretation of the nonestablishment clause of the First Amendment as complete separation of state and religion has always served to protect the political social and cultural establishment of majority religions from exposure Sociologists and historians of religion have clearly demonstrated that the legal nonestablishment of the First Amendment has only been the first phase in an ongoing and unfinished process of disestablishment The legal prohibition of the establishment of a national church had little effect on the political social and cultural or symbolic power of de facto established Protestant Christianity The second religious disestablishment that

604 POLITICAL THEORY 1October 1999

eventually led to higher degrees of actual disestablishment of the American state society and culture from Evangelical Protestantism as its historical civil religion1 has been the result of challenges by competing organized minority religions first by Roman Catholicism next by Jewish minorities The emerging predominant non-christological theism (Thiemann 1996) or Judeo-Christian deism (Herberg 1960) has been challenged by black Mus- lim churches though largely without success Islam is still perceived as a fun- damental threat (Zolberg 1998) For many foreign observers American political life is still to an astonishing degree dominated by Christianity not only internally but also in US foreign policy (America as the chosen coun- try Americans as the chosen people) Whether a third moral disestablish- ment can be discerned as Bellah and others (1985) think and if so where this development would leave American civil religion is much more con- tested The myth of a complete separation not only neglects this history but it is also at odds with the continuing presence of legal privileges such as con- gressional and military chaplains paid from public funds tax exemptions exemptions from military service or from combat duties state officials swearing belief in God prayers in the Supreme Court and US Congress In God We Trust on US currency and Thanksgiving ~ a ~

Neither separation nor neutrality are concepts to be found in the text of the American constitution or in international rights covenants Nevertheless the opening words of the American Bill of Rights-Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof-are now commonly known as the principle of separation Ronald Thiemann (199642 see Richards 1986 1889 has shown that this principle

is derived from a metaphor first used by Roger Williams in a letter to John Cotton and then by Thomas Jefferson In a letter to the Baptist Association of Danbury Connecti- cut It became common constitutional parlance through adecision written by Justice Hugo Black in 1947 Despite its somewhat obscure origins and its rather recent introduc- tion into the legal tradition this principle has come to shape our nations understanding of the relation between the political and religious spheres in the United States

According to Justice Black the First Amendment has erected a wall (of separation) between church and state That wall must be kept high and impregnable We could not approve the slightest breach The quasi-doctrinal status of this interpretation has two odd consequences critics of the metaphor are associated with political conservatism whereas Liberals and Leftists are tempted to defend absolute separation

Critics of the Supreme Courts record in adjudicating cases involving the religion clauses have characterized the questionable logic and contradictory

Bader 1 RELIGIOUS PLURALISM 605

opinions of the decisions as bizarre fatuous a hodgepodge and judi- cial meandering Indeed the principle of separation does not foster a coherent and convincing interpretation of the two clauses for they can eas- ily work at cross-purposesY The nonestablishment clause seems to forbid any governmental assistance and to require noninvolvement and no aid to any religion The free exercise clause seems to mandate governmental accommodation and impartiality seems to require equal aid to religions Noninvolvement and impartiality cannot be consistently combined (Valauri 1986) and the separation metaphor does not help to combine them in a productive way The resulting confusion is displayed in many cases excel- lently documented by Galanter (1966) Note (1987) and Stoltenberg (1993) To illustrate the point let me discuss the Allegheny County v Greater Pitts- burgh ACLU case (1988) on the display of a creche including an angel bear- ing a banner with the words Gloria in Excelsis Deo on or near county prop- erty Three major positions of the Supreme Court justices can be discerned The majority uphold a separationist secular purpose position arguing that government is only permitted to display religious symbols with a secular pur- pose Government may not engage in practices that serve to endorse religious beliefs Any state action that serves to favor prefer or promote one religious theory over another or religious belief over disbelief is in violation of the non- establishment clause The concurring minority took a stronger position of strict neutrality arguing that government is never permitted to display reli- gious symbols of any kind because the nonestablishment clause is interpreted to require neutrality not just among religions but between religion and non-religion The dissenting minority judges oppose the decision as includ- ing an unjustified hostility toward religion and ask for symbolic accommo- dation because it is difficult to maintain the fiction that requiring govern- ment to avoid all assistance to religion can in fairness be viewed as serving the goal of neutrality (Justice ~ e n n e d ~ ) ~

All three positions are inadequate Strict neutrality reproduces impossi- ble fictions and ignores the patterns of co-operation between church and state created by our history of civic piety and by the expanding regulatory role of the welfare state22 Separationist secular purpose has four odd conse- quences ( I ) The intent to acknowledge religious symbols in a general way but not as particular cultural phenomena proposes to strip religions of all their specific meaning Government may celebrate Christmas in some man- ner and form but not in a way that endorses Christian doctrine Because religious beliefs practices and symbols are inevitably particular this offends religious people2 (2) It places judges in an uncomfortable position they must act as theological critics to determine the meaning of a symbol and as social critics to determine whether such a symbol has been sufficiently

606 POLITICAL THEORY 1October 1999

stripped of its inherent religious meanings (3) It contributes to the already desultory rhetoric of contemporary politics (4) It is motivated by a hands- off notion of justice or fairness that for fear of unequal and discriminatory treatment of other religious and nonreligious people does not ask to treat them even-handedly respecting and accommodating their particularities but requires us to abstract from all their particularities This is not only impossible but it would also make all people religious and nonreligious worse off24 Symbolic accommodation has the considerable advantage of recognizing that

the principles of the Establishment Clausc and our Nations historic traditions of diver- sity and pluralism allow communitics to makc reasonable judgements respecting the accommodation of holidays with both cultural and religious aspccts No constitutional violation occurs when they do so by displaying a symbol of the holidays religious ori- gins (Justice Kennedy)

By equating religions with Christianity however it sidesteps the question of religious pluralism particularly the issue of a fair treatment of minority reli- gions Thus it does not live up to the minimal requirements of fairness as even-handedness and is unable to answer the really pressing questions

What arc the appropriate limits of governmental accommodation of mi~jorityrcligious belief and practice within a pluralistic democracy At what point docs propcr accommo- dation of religion become impropcr aid or assistance to religion When docs accommo- dation of the majority religion bccome discriminatory toward religious minorities (Thicmann 1996530

Since Justice Blacks decision in Everson separation has been fatefully joined with the doctrine of government neutrality toward religion All three positions in Allegheny agreed that state neutrality toward religion is man- dated by the Constitution but they widely differ on the meaning and applica- tion of this protean concept (Thiemann 199660ff) Strict Neutrulity of the concurring minority judges mandates governmental noninvolvement in religious matters by requiring a consistent no-aid to religion policy Non-discriniinatov neutruliamp of the majority judges softens the doctrinal purity by allowing some public sphere accommodation providing the symbols or practices supported by government are nonsectarian and nondis- criminatory This position reads the Constitution as mandating a no-aid to religion (or noninvolvenzent) policy whenever sectarian practices are at issue and an equal uid to religion (or inlpartiality) policy when the practices are generally cultural or have a discernible secular purpose Benevolent neu- trality explicitly seeks to broaden the framework within which religion

Bader RELIGIOUS PLURALISM 607

might be freely exercised [It] proscribes only governmentally estab- lished religion or governmental interference with religion None of the three interpretations can serve as a guide to a more coherent interpretation of the religion clauses2h

This is I think a reasonable presentation of the present state of the consti- tutional debate I agree therefore with Thiemanns (1996) conclusion that we have to abandon (p 43) the separation metaphor for four reasons (1) it deflects attention from more fundamental principles (eg liberty equality tolerance) that undergird the two clauses (2) it conceptualizes church-state relations in singular and monolithic terms (3) it conceals the variety of ways in which they interact and (4) it constrains our ability to imagine new possi- bilities for their relation The separation metaphor cannot reasonably guide interpretations of the American Constitution It has only served as a mislead- ing placeholder for constitutional nonestablishment It cannot be used either as a reasonable second-order principle for the interpretation of international rights treatises or alternative constitutional traditions (characterized by weak or plural constitutional establishment) But should we also follow Thiemanns proposal to jettison (p 64) two other candidates of productive second-order principles neutrality and secularism

Relational Neutrulity and Priority for Democracy

Neutrality separation and secularism are-to repeat-not consti-tutional rights but second-order principles Why not get rid of second-order principles as such Why and for what purposes do we need these meta-rules Second-order principles as well as moral and legal paradigms are in my view important as guidelines in two types of cases in all cases in which con- stitutional rights and first-order moral principles conflict and in all cases of conflicting interpretations and applications of rights They should allow more coherent interpretations of constitutions and should be able to guide the difficult art of balancing in a more productive way

To summarize strict neutrality and complete separation have failed in this regard Difference-blind religious neutrality is a prominent version of an ideological mechanism that universalizes the particular and hides it from view In the case of religions as with sexes gender race and ethnicity there can exist no absolute impartiality no absolute perspective no view from nowhere Such well-known criticism2 forces us to reconceptualize these principles to rescue the two commendable moral intuitions they mean to articulate the prohibition of moral particularism and the preclusion of injus- tice under conditions of religious diversity and structural inequality These

608 POLITICAL THEORY 1 October 1999

moral intuitions are better conceptualized by the principles of relational neu- trality and even-handedness

Relational neutrality replaces the idea of difference-blindness by difference-sensitivity Only if we take into account actual differences and inequalities between religious groups and organizations can we hope that institutions and policies will in the long run become more neutral in relation to these religions and to nonreligious people as well Relational neutrality does not presume some imagined place of neutral transcendence (Thie- mann 1996 82) or some objective observer (Justice OConnor see Note 1987 1647) as in the old untenable versions of nonsocially situated ahis- torical universal knowledge but neither does it lapse into a relativistic any- thing goes There are more inclusive better-situated perspectives that take into account the degree of inclusiveness of the actual2v relevant secular and religious voices and the particular point in history

Fairness as even-handedness is a better candidate than majority-biased symbolic accommodation It criticizes the exclusive reliance on a hands- oft concept of fairness regarding culture and identity that has informed the concepts of neutrality and complete separation predominant in liberal phi- losophy In a critical response to my article on transnational citizenship Joseph Carens has characterized

the ideal of cven-handedness to contrast it with the hands-off approach of neutrality The guiding idea of even-handedness is that what fairness entails is a sensitive balancing of competing claims for recognition and support in matters of culture and identity Instead of trying to abstract from particularity we shouldembrace it but in a way that is fair to all the different particularities Now being fair docs not mean that every cultural claim and identity will be givcn equal wcight but rather that cach will be given appropriate wcight undcr thc circumstances and given a commitment to equal respect for all History mat- tcrs numbers matter the relative importance of the claim to those who present it matters and so do many other considcmtions (Carens 1997 818 claboratcd in Carcns 1998 Introduction)

Religious cultures and identities are not treated fairly by declaring that religion is a private matter or by excluding religious arguments from political or constitutional debate or from debates about constitutional essentials and basic justice Nondiscrimination and equal treatment of different religions as well as of religious and nonreligious people are not well served by hands- off abstractions They require a sensitive balancing of the different claims taking into account structural inequalities between majority religions and minority ones Policies of accommodation which take cultures and identi- ties seriously and strive for a sensible balancing but neglect structural ine- qualities should be combined with a concept of rough complex equality that

Hader RELIGIOUS PLURALISM 609

uncovers neglected structural inequalities between (organized) religions and asks for policies to redress them (policies furiously criticized by liberal crit- ics of affirmative action in all fields) Sensitive balancing of cultural and identity claims will never achieve complete cultural equality and support will never achieve substantive equality between majority religions minority ones and secular people (nor would this be morally required in my view) but they may help to redress obviously unfair situations

Nondiscrimination and equal treatment also do not require second-order secularism I realize that my claim here conflicts with one of the crucial the- ses and assumptions of liberal republican and socialist political philoso phy2~propose to reconceptualize the central moral intuition of second-order secularism by the second-order principle of priority for democracy

We saw earlier that religiously and theologically motivated critics of political liberalism in the United States such as Neuhaus Wolterstorff and Thiemann challenged the presumed neutrality of second-order secularism In England similar complaints have been raised by Anglican Jewish Catho- lic and Muslim opponents of complete separation Conceptualizing mod- ern public morality as secular morality is said to privilege secular over reli- gious values unfairly Writing from a Jewish perspective Sylvia Rothschild fears most

a purportedly neutral secularism for thcre is nothing so dogmatic as that which is dog- matically neutral and sccularisrn far from being open to all closes the many diverse doors to the communities of faith As I read it the secular mode is merely another point on thc spectrum of religious expression but one which has no understanding of and which makes no allowances for othcr modes of religious expression On thc othcr hand pluralism can and does flow from religious vision [The] sccular crusade against thc Anglican church is an attack on all forms of religious expression and thus indirectly harmful to us too [Discstablishmcnt] sccms to mc a way only towards mono- dominant and triumphant sccularism rathcr than a pathway which may lcad to true multi-faith multi-cultural pluralism (Rothschild in Modood 1996 56 60 sce similar charges by Levinson 1990 and Carter 1993 in the United States)

The real question for her thus is just how do we organize ourselves so that the many voices can be heard so that one dominant culture doesnt impose itself on us all (Modood 199658) Bikhu Parekh also challenges Rawlsian political liberalism for keeping

religion out of political life in a democracy Like Rawls (1995) we might insist that citi- Lens In a liberal society should derivc or at least publicly dcfend thcir political judgc- ments in a secular manner but that is arbitrary and has no appeal to those who do not sharc his views of religion and politics [We have to] challenge thc untenable and long-hcld beliefs that only a secular state can be libcnl and dcmocratic and that political

610 POLITICAL THEORY October 1999

discourse is manageable only whcn it is conceptually monolingual and homogeneous (Parckh in Modood 19962 122)

If a secular public morality cannot be neutral we seem to be caught in a trap forced to choose between two equally miserable imperialisms either mono-dominant and triumphant secularism and an out-and-out (or funda- mentalist) secularism which in its late twentieth century manifestation is a climate inimical to any religion (Daoud Rosser-Owen from a Muslim per- spective in Modood 1996 84) on one hand or troubling triumphalism by those who believed religion had a monopoly on moral concerns (Phillips in Modood 1996 27) on the other Anne Phillips has tried to resolve this dilemma by pointing out that

secularism occupies a dual location in this kind of debate Those who do not follow any of thc worlds religions arc by definition secular in thcir beliefs when secularism speaks on bchalf of thcsc non-believers it speaks on a par with the spokcspcoplc for Anglicans Catholics Muslims or Jcws Hut secularism also presents itself as thc solu- tion after all other voices havc spoken for in arguing fora separation between church and state it promises to protect thc beliefs and the practices of each from thc prcssures to go along with what any othcrs bclicve This looks suspiciously like a sleight of hand and thats the w o q that the even-handed accommodation of all turns out to be particularly attuned to one (Phillips in Modood 1996 27)

Anne Phillips tries to defend secular public morality on a meta-level as

the only approach that can even approximatc equality of treatment between those who hold different beliefs thc interests of democratic equality cannot be well served by practices that privilege one church ovcr the others nor can thcy bc well servcd by prac- tices that privilege religious values over secular oncs nor-and this is the difficult one--can thcy be well served by practices that privilege secular valucs over religious bclicfs The difficulty remains that any way of formulating this puts it in the framework of a secular solution and some will rcgard this as diminishing the significance of relig- ion Rut the secular separation of church from statc is still the closest we can get to parity of treatment between those who are rcli~ious and those who are not and between thc fol- lowers of different religions Equality is onc of the crucial principles of amodern democ- racy and for this reason (evcn cxcluding all the others) thc secular solution is the only onc I could defend (Phillips in Modood 1996270

Plausible though it looks at first sight such a defense common to Audi Phillips and many others still suffers from an unrecognized identification of public morality with secular morality Audi (1991) treats public and secular reason as if they would be exactly the same For him public reasons are explicitly and by definition secular and his principles of rationale and moti- vation are secularist principles

Bader 1 RELIGIOUS PLURALISM 61 1

unless they offer (or at least have) adequate secular (non-religious) reasons to support thc law or policy in question By sccular reason I do not mcan onc that is con- sciously held in contrast to a religious onc noris there anything anti-religious implicit in a proper use of thc tcrm Indccd a sccular reason may be fully uligned with a reli- giously sanctioned vicw Rather a secular reason is roughly one whose normative force that is its status as a prima facie justificatory clcment does not (evidentially) depend on thc existence of God (for cxamplc through appeals to divine command) or on theological considerations (such as interpretations of a sacred tcxt) or on the pro- nouncements of a person or institution qua religious authority (Audi 1989 278 see also Audi 1997)

Although Audi Macedo and other liberal political philosophers believe that they can rely on Rawlss conceptions of political justice and public rea- son Rawls himself has carefully avoided identifying public reason with secular reason both terminologically34 as well as in his substantive arguments in favor of a freestanding public morality (see below)

In the sixteenth and seventeenth centuries such a terminological and con- ceptual identity was historically understandable because public morality had to be fought for first in battles against defenders of absolutist or fundamen- talist religions and established churches and later on in battles against those theological and philosophical defenders of freedom of religion and of con- sciousness who explicitly or implicitly limited these freedoms to the variety of conflicting Christian denominations and who did not extend their argu- ments into a principled defense of freedom of consciousness for all religious believers whether Christian or not as well as for those who hold secular val- ues and beliefs In a context in which the enemies of a general freedom of consciousness (and of most other liberal and democratic principles and rights) were absolutist religions public morality took the form of secular morality and a religious or theological defense of public morality seemed unthinkable Its true defenders thus were secular philosophers (such as Spi- noza and Kant)

In our times this context has changed public morality and liberal democracy have to be defended against secularist philosophers scientistic technocrats and expertocracy as well as against those religions that still defend absolutist and fundamentalist claims in politics In this context it is still true that secularism is more commonly perceived as the opposite of religion (Phillips in Modood 199627) but it may be that the most danger- ous enemies of liberal democracy are not or not mainly religions but secular- ist ideologies (as Wolterstorff 1997 pointed out) And from Madison onwards we also find religiously or theologically motivated defenders of a principled nonexclusive right to freedom of consciousness and of other rights institutions and public morality of liberal democracy

612 POLITICAL THEORY October 1999

In such a ~on tex t ~ both the meaning of secular and re~i~ious~ and their relation have changed Consequently the conceptual identification of public with secular morality is increasingly misleading for the following reasons

1 It scduccs us into conceptualizing the justificatory nonneutrality of libcral dcrnocracy in terms of sccular versus rcligious arguments or foundations The main question is not howevcr whether arguments are secular or rcligious but whcther thcy arc compatible with andlor support liberal dcrnocracy

2 It neglccts the possibility and existence of principled rcligious or thcological founda- tions of liberal dcmocmcy and excludcs thc possibility of public rcason in thcological and religious argumcnts It thus unfairly discriminates against those modem theologi- ans and religions that dcfcnd liberal democracy (Thiernann 1996 13 1 ff)

3 It directs our criticism of fundamcntalism in politics in a onc-sidcd and myopic manncr against rcligious or theological fundamcntalism and thus tcnds to neglcct all secular fundarncntalisms even if thcy posc much morc dangerous threats to tolerance and lib- eral dcrnocracy

There is a better way to account for the intuition that liberal democracy is inevitably nonneutral This is the principle of priority for democracy (always as a shorthand for liberal democracy in the sense defined above) In a short explication and defense of this second-order principle I proceed as follows First I want to highlight that not only religions had to learn what priority for democracy implies but philosophers scientists expertocrats and judges had to learn this too Second I want to defend the priority for democracy against misleading challenges from religions that argue that a secular moral- ity would be impossible would lead to a decay of morals or would weaken necessary limitations of state sovereignty and politics or claim a kind of his- torical priority41 Third I want to defend the priority for democracy against philosophical imperialisms which claim a kind of philosophical priority fail to radicalize the principle of nonfoundationalism and thus limit the produc- tive idea of a freestanding public morality that is political not metaphysi- cal Finally I want to defend the priority for democracy against the ironic and skeptic antiphilosophy of Richard Rorty who has coined the phrase

Priority for Democracy Versus All Fundamentalisms

Simply stated priorityfbr democracy means to begin with that princi- ples institutions cultures virtues and practices of liberal democracy have priority over the competing and often incompatible foundations of liberal democracy be they religious philosophical (metaphysical ontological moral ethical) or scientific Furthermore all opinions and voices like votes

Bader 1 RELIGIOUS PLURALISM 613

have to count equally when it comes to decision making even if paternalistic elites for the best of reasons think that they are uninformed misinformed false morally wrong and so on Liberal democracy thus understood cannot be neutral nor should it be But this inevitable nonneutrality which is essential with regard to all nonliberal nondemocratic principles and prac- tices should not be confused with nonneutrality between secular and reli- gious foundations and arguments

It is now common knowledge among sophisticated political philosophers that liberal democracy cannot be neutral42 This inevitable nonneutrality should be directed explicitly and exclusively against principles and prac- tices at odds with liberal democracy against fundamentalism of all kinds not against religions as such In their defense of the principle of reciprocity against the fundamentalist (religious) challenge that it is biased against fun- damentalism and in favor of religions that conform to deliberative views of civic education Gutmann and Thompson concede that it is correct

that the principle is not neutral among religions or ways of life The case forreciprocity and more generally for the deliberative perspective must be defended on substantive moral grounds and there is no reason to expect that such a defense would have the same (positive or negative) implications for all moral positions But the value of public rea- son expressed by the deliberative perspective is not just another morality It is offered as the morally optimal basis on which citizens who disagree about moralities and reli- gions can act collectively to makeeducational policy The principle of reciprocity is not privileged in the sense that it needs no moral defense But the defense it needs and the objections to which it is vulnerable are different from those of moral disagreement in politics The principle proposes a basis on which those who morally disagree can coop- erate and it can be appropriately criticized only by proposing an alternative basis not simply by reaffirming the moral or religious claim that constitutes the disagreement The fundamentalists do not offer an alternative (Gutmann and Thompson 1996 67 cf 93 second-order agreement not on secularism but on principles and virtues of liberal democracy)

Anne Phillips-like Tariq Modood (1996 13) Stephen Macedo (1998)~ Richard Rorty ( 1 9 9 7 ) ~ ~ and others-treats Charles Taylor ( 1 9 9 8 ) ~ ~ this inevitable nonneutrality of liberal democracy and of public morality as inevi- table secularity This is the most basic flaw of almost all recent political phi- losophy Christian and other religions particularly established churches have obviously learned to accept priority for democracy only as a result of protracted conflict Protestant denominations and free churches living under conditions of an established church had learned this from painful experiences much earlier and deeper than established churches particularly the Catholic Church However under conditions of liberal-democratic constitutional states even churches that think of themselves as the depositor of divine

614 POLITICAL THEORY 1October 1999

truth have eventually learned to accept the notion that when it comes to pub- lic democratic decision making error has the same rights as The authoritative sources of this Truth-be it God the Pope the Ayatollah priests or mullahs however important they may be inside the churches or the community o f believers-add nothing to its persuasive force in the arena o f public reason public deliberation and public scrutiny This is what all churches have to learn under conditions o f a modern constitution They all have to find their own ways to solve the fundamentalist dilemma (Casa- nova 1994 165)

I f this is clear about religion it is less well known and often forgotten that the same holds for all types o f secular truths While many modern religions and churches have tried to resolve this dilemma many prominent modern philosophers have not even addressed it properly This is not only evident for some o f the recently fashionable prominent continental philosophers such as Nietzsche Carl Schmitt and Heidegger To a lesser degree many Anglo- Saxon liberal moral philosophers are also guilty o f such an elitist conquest o f democratic politics (Barber 1988) The history o f modern social science is full o f scientistic ideology (from Saint-Simons scientistic religion via scientific racism to recent conquests o f democratic politics by neoclassical economic ideology) and the practices o f many experts (scientists techni- cians medical practitioners architects economists ecologists pedagogues psychologists sociologists judges etc) are rife with illegitimate scien- tocracy or expertocracy All o f them still have to learn how to resolve the fun- damentalist dilemma-namely that in democratic deliberation and decision making their truths are no more than opinions among 0the1-s~ Instead o f trying to limit thecontent o f public reason by keeping all contested compre- hensive doctrines and truth-claims out one has to develop the duties o f civility such as the duty to explain positions in publicly understandable lan- guage the willingness to listen to others fair-mindedness and readiness to accept reasonable accommoclat~ons or alterations In ones own view (see below)

Priority for Democracy versus Religious Challenges

The priority o f democracy has to be defended against five well-known untenable challenges from religious or theological imperialists

( i )Many religious believers and some theologians still think that a person cannot be solidly moral without being religious (Audi 1989 290f contra William Bennett) implicitly or explicitly they hold that secular morality In general is impossible Kulananda from a Buddhist perspective demonstrates

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

600 POLITICAL THEORY 1October 1999

one is missing and yet the real world is treated as if it approximates orresem- bles the ideal world One might even say that such an unrecognized shift from model to muddle is a characteristic feature of Rawlss Political Liberalism in which one looks in vain for clear distinctions between liberal-democratic constitutions liberal-democratic states and liberal-democratic societies Recent societies and actual states are treated as liberal-democratic socie- ties and liberal-democratic regimes despite the fact that they show sig- nificant degrees of sexism genderism racism ethnocentrism and class cleavages all at odds with Rawlss own principles of justice One result is a blatant neglect of structural political and cultural inequalities among (organ- ized) religions Principles that might be appropriate in an ideal world such as difference-blind neutrality actually stabilize discrimination and inequality if applied to the actual world

(ii) In the real world of existing state societies states are not neutral with regard to (organized) religions A constitutionally and legally equal treatment of religions does not prevent and quite often masks administrative political and cultural inequalities between majority religions and minority ones a situa- tion at odds with religious pluralism under the assumption of rough equality (fair background institutions and practices) Combined with the predominant individualist bias of liberal politics and the concomitant liberal and republican distrust toward group representation and institutional political pluralism4 this amounts to an unintended entrenchment and legitimation of these ine- qualities or at least to a deafening silence when it comes to the question of how to practically redress the balance in favor of minority religions

(iii) In the ideal worlds of liberal contractarianism too much consensus is assumed and moral pluralism is underestimated (see critically Barber 1988 Gutmann and Thompson 1996 Bader 1998~) Traditional refutations of such criticism stress that principles do not determine the outcome of their applica- tion and there is contestation about which principles should be applied in specific case^^ Hence there is room for much disagreement and political deliberation in ordinary political matters while consensus is restricted to constitutional essentials and basic justice However these refutations under- estimate the problem for three reasons First in the nonideal realms of exist- ing real societies the meaning significance and application of even the most fundamental political notions are constantly being contested (Thie- mann 1996 87)econd this basic flaw proves to be more profound if we take seriously the conflicts and tensions between different moral principles (eg liberty and equality with regard to religions) tensions deepened by the fact that the necessary trade-offs and balancings are themselves strongly con- tested Third the refutations reproduce the illusion that we would reach con- sensus by moving deeper down (toward foundations) or higher up

Bader 1 RELIGIOUS PLURALISM 601

(toward principles or second-order principles such as agreement to disagree or consent to dissent) they fail to recognize that dissension is as serious among ordinary people deliberating about moral and political issues as it is among judges of Supreme Courts constitutional theorists and moral phi- losophers advocating foundational theories

(iv) Liberal philosophers are well known for their conceptual dichotn- mies private versus public (from Locke onwards) social versus political (Rawls 1993 220) essentials or basics versus ordinary politics (Rawls 1993 1996) specific policy proposals versus in general (Audi 1989 199169) political versus moral (Audi 1989276281) and secular versus religious First these conceptual dualisms have themselves been strongly and convincingly criticized Second the application of these analytical dis- tinctions in the real world leads to the well-known normative recommenda- tions to preclude religious arguments in the public realm (to privatize reli- gion) or to allow them only in social but not in political discourse (Rawls 1993 14) or only in ordinary political matters but not in essentials or basics These liberal strategies to separate or divide and isolate private from public reasons and religious from secular reasons thus purifying secular public rea- son from all illegitimate remnants may not only be vehemently criticized as unfair exclusionist unachievable counterproductive or self-defeating In all real-world cases these neat or clean distinctions are themselves strongly contested and no consensus can be expected In all circumstances of inequal- ity these liberal strategies work in favor of the resourceful and powerful

(v) It took a long time for contemporary liberal philosophy to recognize the importance of virtues Recently many liberals (not only Macedo and Galston but also Rawls and Audi) have clearly stated that private or social associa- tions such as churches and sects may contribute significantly to the develop- ment of the (necessarily nonneutral) civic and political virtues and the skills of pluralist citizenship needed for the stability and flourishing of political democ- racy and for effective liberal-democratic constitutions It appears now to some critics that the liberal strategies of separation and of privatization of religion combined with the ardent refusal of any public and political role for religious associations are a serious impediment to the development of a lively civic democracy and are in the end self-defeating strategiesx

(vi) The liberal analysis of the relation between state and (organized) religions is predominantly sometimes even exclusively focused on its con- stitutional and legal aspects on establishment versus nonestablishment (see critically Casanova 1994) This bias has two odd consequences First as already mentioned there is a tendency to neglect social political and cul- tural inequalities among (organized) religions and given the social political and cultural establishment of the majority religions to hide the (inevitable)

602 POLITICAL THEORY 1October 1999

administrative political and cultural nonneutrality of the state under the guise of neutrality Second in the tradition of the profound juridification of American political culture it gives too prominent a role to conflict resolution by the hero-judges of the Supreme Court whose moral and legal delibera- tions and decisions pretend to be neatly separated from public political deliberation Actually they are not-they lack democratic legitimacynd they lack consistency (see below)

(vii) Rawls has claimed to present a really freestanding public morality by developing his political not metaphysical liberalism He claims to have done no more than explicate and reconstruct the principles of public morality inherent in liberal-democratic constitutions of modern state societies By vir- tue of the thesis of priority for democracy and of nonfoundationalism these principles and rights should have priority over all competing opposing deeper foundational comprehensive schemes-be they religious philo- sophical scientistic or whatever (unfortunately much less emphasis is placed on the priority of the institutional mechanisms political culture or civic and political virtues concerned) This is often misunderstood by liberal philosophers as second-order secularism Second-order secularism still shows remnants of a secularist bias unfair to convinced religious people whose arguments attitudes and practices are compatible with liberal democ- racy1 but who refuse to accept the strategies of privatization isolation or separation of religious and secular reasons (see Wolterstorff 1997) The important thing given the priority of democracy should not be whether argu- ments are religious or secular but whether arguments attitudes and practices are compatible with the principles rights culture virtues and good practices of social democratic constitutionalism (see Thiemann 1996 89f 173 Weithman 1997b 33 Hollenbach 1997 Quinn 1997) This distinction is important because most of the atrocities genocides and ethnic cleansings in our century have been legitimized by secularist ideologies Liberal philoso- phers preoccupation with religions as a threat to political stability (Weithman 1997b 3 Thiemann 199680f 122 understandable in the con- text of the religious wars of the sixteenth and seventeenth centuries is now myopic and outdated Priority for democracy should not be confused with a secularist strategy to purify public reason from religious arguments Rather the decisive criterion should be the recognition that no contested truth-claim of any kind whether religious philosophical or scientific is entitled to over- rule democratic political deliberation and decision making Many modern liberalized religions have accepted this whereas many modern philosophers and scientists have failed to do so and continue to behave as philosophical or scientistic fundamentalists

Bader l RELIGIOUS PLURALISM 603

(viii) Finally I want to raise a second meta-ethical question regarding the famous principle of neutrality Significantly it is not part of any human rights canon or of any set of constitutionalized rights Rather it is introduced by lib- eral philosophers and constitutional theorists as a kind of second-order prin- ciple to guide interpretations of the nonestablishment and free exercise clauses of the First Amendment As in all other cases of benign state neu- trality or difference-blindness benign religious state neutrality or strict neutrality is only presumed neutrality and serves as a guise for the actual bias in favor of dominant majorities (see Galanter 1966 Note 1987 Thie- mann 1996) It is a remarkable sign of the strength of this second-order prin- ciple of neutrality that even critics of the presumed ethnic or national neutral- ity of the state share it when it comes to religion Kymlicka (1997 21) for instance rightly argues that the usual analogy between religion and (ethnic or national) culture is flawed or mistaken It is possible for a state not to have an established church But the state cannot help but give at least partial establishment to a culture (Kymlicka 1997 27) The separation of church and state and the depoliticization of religious identities (p 21) however are accepted without critical scrutiny The idea that liberal states or civic nations are neutral between ethnocultural identities (p 27) is surely a myth but the same is true for the states presumed religious neutrality It is not only flawed in a historical and comparative perspective From a norma- tive perspective the presumption that only a complete separation of the state from (organized) religions is compatible with the thin public morality of modern states is also mistaken14

Myths of Separation and Neutrality

Next I want to show that complete separation and neutrality15 are mis- leading second-order principles introduced by liberal philosophers constitu- tional theorists and judges who are inspired by a mythical history of the American constitutional tradition

The interpretation of the nonestablishment clause of the First Amendment as complete separation of state and religion has always served to protect the political social and cultural establishment of majority religions from exposure Sociologists and historians of religion have clearly demonstrated that the legal nonestablishment of the First Amendment has only been the first phase in an ongoing and unfinished process of disestablishment The legal prohibition of the establishment of a national church had little effect on the political social and cultural or symbolic power of de facto established Protestant Christianity The second religious disestablishment that

604 POLITICAL THEORY 1October 1999

eventually led to higher degrees of actual disestablishment of the American state society and culture from Evangelical Protestantism as its historical civil religion1 has been the result of challenges by competing organized minority religions first by Roman Catholicism next by Jewish minorities The emerging predominant non-christological theism (Thiemann 1996) or Judeo-Christian deism (Herberg 1960) has been challenged by black Mus- lim churches though largely without success Islam is still perceived as a fun- damental threat (Zolberg 1998) For many foreign observers American political life is still to an astonishing degree dominated by Christianity not only internally but also in US foreign policy (America as the chosen coun- try Americans as the chosen people) Whether a third moral disestablish- ment can be discerned as Bellah and others (1985) think and if so where this development would leave American civil religion is much more con- tested The myth of a complete separation not only neglects this history but it is also at odds with the continuing presence of legal privileges such as con- gressional and military chaplains paid from public funds tax exemptions exemptions from military service or from combat duties state officials swearing belief in God prayers in the Supreme Court and US Congress In God We Trust on US currency and Thanksgiving ~ a ~

Neither separation nor neutrality are concepts to be found in the text of the American constitution or in international rights covenants Nevertheless the opening words of the American Bill of Rights-Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof-are now commonly known as the principle of separation Ronald Thiemann (199642 see Richards 1986 1889 has shown that this principle

is derived from a metaphor first used by Roger Williams in a letter to John Cotton and then by Thomas Jefferson In a letter to the Baptist Association of Danbury Connecti- cut It became common constitutional parlance through adecision written by Justice Hugo Black in 1947 Despite its somewhat obscure origins and its rather recent introduc- tion into the legal tradition this principle has come to shape our nations understanding of the relation between the political and religious spheres in the United States

According to Justice Black the First Amendment has erected a wall (of separation) between church and state That wall must be kept high and impregnable We could not approve the slightest breach The quasi-doctrinal status of this interpretation has two odd consequences critics of the metaphor are associated with political conservatism whereas Liberals and Leftists are tempted to defend absolute separation

Critics of the Supreme Courts record in adjudicating cases involving the religion clauses have characterized the questionable logic and contradictory

Bader 1 RELIGIOUS PLURALISM 605

opinions of the decisions as bizarre fatuous a hodgepodge and judi- cial meandering Indeed the principle of separation does not foster a coherent and convincing interpretation of the two clauses for they can eas- ily work at cross-purposesY The nonestablishment clause seems to forbid any governmental assistance and to require noninvolvement and no aid to any religion The free exercise clause seems to mandate governmental accommodation and impartiality seems to require equal aid to religions Noninvolvement and impartiality cannot be consistently combined (Valauri 1986) and the separation metaphor does not help to combine them in a productive way The resulting confusion is displayed in many cases excel- lently documented by Galanter (1966) Note (1987) and Stoltenberg (1993) To illustrate the point let me discuss the Allegheny County v Greater Pitts- burgh ACLU case (1988) on the display of a creche including an angel bear- ing a banner with the words Gloria in Excelsis Deo on or near county prop- erty Three major positions of the Supreme Court justices can be discerned The majority uphold a separationist secular purpose position arguing that government is only permitted to display religious symbols with a secular pur- pose Government may not engage in practices that serve to endorse religious beliefs Any state action that serves to favor prefer or promote one religious theory over another or religious belief over disbelief is in violation of the non- establishment clause The concurring minority took a stronger position of strict neutrality arguing that government is never permitted to display reli- gious symbols of any kind because the nonestablishment clause is interpreted to require neutrality not just among religions but between religion and non-religion The dissenting minority judges oppose the decision as includ- ing an unjustified hostility toward religion and ask for symbolic accommo- dation because it is difficult to maintain the fiction that requiring govern- ment to avoid all assistance to religion can in fairness be viewed as serving the goal of neutrality (Justice ~ e n n e d ~ ) ~

All three positions are inadequate Strict neutrality reproduces impossi- ble fictions and ignores the patterns of co-operation between church and state created by our history of civic piety and by the expanding regulatory role of the welfare state22 Separationist secular purpose has four odd conse- quences ( I ) The intent to acknowledge religious symbols in a general way but not as particular cultural phenomena proposes to strip religions of all their specific meaning Government may celebrate Christmas in some man- ner and form but not in a way that endorses Christian doctrine Because religious beliefs practices and symbols are inevitably particular this offends religious people2 (2) It places judges in an uncomfortable position they must act as theological critics to determine the meaning of a symbol and as social critics to determine whether such a symbol has been sufficiently

606 POLITICAL THEORY 1October 1999

stripped of its inherent religious meanings (3) It contributes to the already desultory rhetoric of contemporary politics (4) It is motivated by a hands- off notion of justice or fairness that for fear of unequal and discriminatory treatment of other religious and nonreligious people does not ask to treat them even-handedly respecting and accommodating their particularities but requires us to abstract from all their particularities This is not only impossible but it would also make all people religious and nonreligious worse off24 Symbolic accommodation has the considerable advantage of recognizing that

the principles of the Establishment Clausc and our Nations historic traditions of diver- sity and pluralism allow communitics to makc reasonable judgements respecting the accommodation of holidays with both cultural and religious aspccts No constitutional violation occurs when they do so by displaying a symbol of the holidays religious ori- gins (Justice Kennedy)

By equating religions with Christianity however it sidesteps the question of religious pluralism particularly the issue of a fair treatment of minority reli- gions Thus it does not live up to the minimal requirements of fairness as even-handedness and is unable to answer the really pressing questions

What arc the appropriate limits of governmental accommodation of mi~jorityrcligious belief and practice within a pluralistic democracy At what point docs propcr accommo- dation of religion become impropcr aid or assistance to religion When docs accommo- dation of the majority religion bccome discriminatory toward religious minorities (Thicmann 1996530

Since Justice Blacks decision in Everson separation has been fatefully joined with the doctrine of government neutrality toward religion All three positions in Allegheny agreed that state neutrality toward religion is man- dated by the Constitution but they widely differ on the meaning and applica- tion of this protean concept (Thiemann 199660ff) Strict Neutrulity of the concurring minority judges mandates governmental noninvolvement in religious matters by requiring a consistent no-aid to religion policy Non-discriniinatov neutruliamp of the majority judges softens the doctrinal purity by allowing some public sphere accommodation providing the symbols or practices supported by government are nonsectarian and nondis- criminatory This position reads the Constitution as mandating a no-aid to religion (or noninvolvenzent) policy whenever sectarian practices are at issue and an equal uid to religion (or inlpartiality) policy when the practices are generally cultural or have a discernible secular purpose Benevolent neu- trality explicitly seeks to broaden the framework within which religion

Bader RELIGIOUS PLURALISM 607

might be freely exercised [It] proscribes only governmentally estab- lished religion or governmental interference with religion None of the three interpretations can serve as a guide to a more coherent interpretation of the religion clauses2h

This is I think a reasonable presentation of the present state of the consti- tutional debate I agree therefore with Thiemanns (1996) conclusion that we have to abandon (p 43) the separation metaphor for four reasons (1) it deflects attention from more fundamental principles (eg liberty equality tolerance) that undergird the two clauses (2) it conceptualizes church-state relations in singular and monolithic terms (3) it conceals the variety of ways in which they interact and (4) it constrains our ability to imagine new possi- bilities for their relation The separation metaphor cannot reasonably guide interpretations of the American Constitution It has only served as a mislead- ing placeholder for constitutional nonestablishment It cannot be used either as a reasonable second-order principle for the interpretation of international rights treatises or alternative constitutional traditions (characterized by weak or plural constitutional establishment) But should we also follow Thiemanns proposal to jettison (p 64) two other candidates of productive second-order principles neutrality and secularism

Relational Neutrulity and Priority for Democracy

Neutrality separation and secularism are-to repeat-not consti-tutional rights but second-order principles Why not get rid of second-order principles as such Why and for what purposes do we need these meta-rules Second-order principles as well as moral and legal paradigms are in my view important as guidelines in two types of cases in all cases in which con- stitutional rights and first-order moral principles conflict and in all cases of conflicting interpretations and applications of rights They should allow more coherent interpretations of constitutions and should be able to guide the difficult art of balancing in a more productive way

To summarize strict neutrality and complete separation have failed in this regard Difference-blind religious neutrality is a prominent version of an ideological mechanism that universalizes the particular and hides it from view In the case of religions as with sexes gender race and ethnicity there can exist no absolute impartiality no absolute perspective no view from nowhere Such well-known criticism2 forces us to reconceptualize these principles to rescue the two commendable moral intuitions they mean to articulate the prohibition of moral particularism and the preclusion of injus- tice under conditions of religious diversity and structural inequality These

608 POLITICAL THEORY 1 October 1999

moral intuitions are better conceptualized by the principles of relational neu- trality and even-handedness

Relational neutrality replaces the idea of difference-blindness by difference-sensitivity Only if we take into account actual differences and inequalities between religious groups and organizations can we hope that institutions and policies will in the long run become more neutral in relation to these religions and to nonreligious people as well Relational neutrality does not presume some imagined place of neutral transcendence (Thie- mann 1996 82) or some objective observer (Justice OConnor see Note 1987 1647) as in the old untenable versions of nonsocially situated ahis- torical universal knowledge but neither does it lapse into a relativistic any- thing goes There are more inclusive better-situated perspectives that take into account the degree of inclusiveness of the actual2v relevant secular and religious voices and the particular point in history

Fairness as even-handedness is a better candidate than majority-biased symbolic accommodation It criticizes the exclusive reliance on a hands- oft concept of fairness regarding culture and identity that has informed the concepts of neutrality and complete separation predominant in liberal phi- losophy In a critical response to my article on transnational citizenship Joseph Carens has characterized

the ideal of cven-handedness to contrast it with the hands-off approach of neutrality The guiding idea of even-handedness is that what fairness entails is a sensitive balancing of competing claims for recognition and support in matters of culture and identity Instead of trying to abstract from particularity we shouldembrace it but in a way that is fair to all the different particularities Now being fair docs not mean that every cultural claim and identity will be givcn equal wcight but rather that cach will be given appropriate wcight undcr thc circumstances and given a commitment to equal respect for all History mat- tcrs numbers matter the relative importance of the claim to those who present it matters and so do many other considcmtions (Carens 1997 818 claboratcd in Carcns 1998 Introduction)

Religious cultures and identities are not treated fairly by declaring that religion is a private matter or by excluding religious arguments from political or constitutional debate or from debates about constitutional essentials and basic justice Nondiscrimination and equal treatment of different religions as well as of religious and nonreligious people are not well served by hands- off abstractions They require a sensitive balancing of the different claims taking into account structural inequalities between majority religions and minority ones Policies of accommodation which take cultures and identi- ties seriously and strive for a sensible balancing but neglect structural ine- qualities should be combined with a concept of rough complex equality that

Hader RELIGIOUS PLURALISM 609

uncovers neglected structural inequalities between (organized) religions and asks for policies to redress them (policies furiously criticized by liberal crit- ics of affirmative action in all fields) Sensitive balancing of cultural and identity claims will never achieve complete cultural equality and support will never achieve substantive equality between majority religions minority ones and secular people (nor would this be morally required in my view) but they may help to redress obviously unfair situations

Nondiscrimination and equal treatment also do not require second-order secularism I realize that my claim here conflicts with one of the crucial the- ses and assumptions of liberal republican and socialist political philoso phy2~propose to reconceptualize the central moral intuition of second-order secularism by the second-order principle of priority for democracy

We saw earlier that religiously and theologically motivated critics of political liberalism in the United States such as Neuhaus Wolterstorff and Thiemann challenged the presumed neutrality of second-order secularism In England similar complaints have been raised by Anglican Jewish Catho- lic and Muslim opponents of complete separation Conceptualizing mod- ern public morality as secular morality is said to privilege secular over reli- gious values unfairly Writing from a Jewish perspective Sylvia Rothschild fears most

a purportedly neutral secularism for thcre is nothing so dogmatic as that which is dog- matically neutral and sccularisrn far from being open to all closes the many diverse doors to the communities of faith As I read it the secular mode is merely another point on thc spectrum of religious expression but one which has no understanding of and which makes no allowances for othcr modes of religious expression On thc othcr hand pluralism can and does flow from religious vision [The] sccular crusade against thc Anglican church is an attack on all forms of religious expression and thus indirectly harmful to us too [Discstablishmcnt] sccms to mc a way only towards mono- dominant and triumphant sccularism rathcr than a pathway which may lcad to true multi-faith multi-cultural pluralism (Rothschild in Modood 1996 56 60 sce similar charges by Levinson 1990 and Carter 1993 in the United States)

The real question for her thus is just how do we organize ourselves so that the many voices can be heard so that one dominant culture doesnt impose itself on us all (Modood 199658) Bikhu Parekh also challenges Rawlsian political liberalism for keeping

religion out of political life in a democracy Like Rawls (1995) we might insist that citi- Lens In a liberal society should derivc or at least publicly dcfend thcir political judgc- ments in a secular manner but that is arbitrary and has no appeal to those who do not sharc his views of religion and politics [We have to] challenge thc untenable and long-hcld beliefs that only a secular state can be libcnl and dcmocratic and that political

610 POLITICAL THEORY October 1999

discourse is manageable only whcn it is conceptually monolingual and homogeneous (Parckh in Modood 19962 122)

If a secular public morality cannot be neutral we seem to be caught in a trap forced to choose between two equally miserable imperialisms either mono-dominant and triumphant secularism and an out-and-out (or funda- mentalist) secularism which in its late twentieth century manifestation is a climate inimical to any religion (Daoud Rosser-Owen from a Muslim per- spective in Modood 1996 84) on one hand or troubling triumphalism by those who believed religion had a monopoly on moral concerns (Phillips in Modood 1996 27) on the other Anne Phillips has tried to resolve this dilemma by pointing out that

secularism occupies a dual location in this kind of debate Those who do not follow any of thc worlds religions arc by definition secular in thcir beliefs when secularism speaks on bchalf of thcsc non-believers it speaks on a par with the spokcspcoplc for Anglicans Catholics Muslims or Jcws Hut secularism also presents itself as thc solu- tion after all other voices havc spoken for in arguing fora separation between church and state it promises to protect thc beliefs and the practices of each from thc prcssures to go along with what any othcrs bclicve This looks suspiciously like a sleight of hand and thats the w o q that the even-handed accommodation of all turns out to be particularly attuned to one (Phillips in Modood 1996 27)

Anne Phillips tries to defend secular public morality on a meta-level as

the only approach that can even approximatc equality of treatment between those who hold different beliefs thc interests of democratic equality cannot be well served by practices that privilege one church ovcr the others nor can thcy bc well servcd by prac- tices that privilege religious values over secular oncs nor-and this is the difficult one--can thcy be well served by practices that privilege secular valucs over religious bclicfs The difficulty remains that any way of formulating this puts it in the framework of a secular solution and some will rcgard this as diminishing the significance of relig- ion Rut the secular separation of church from statc is still the closest we can get to parity of treatment between those who are rcli~ious and those who are not and between thc fol- lowers of different religions Equality is onc of the crucial principles of amodern democ- racy and for this reason (evcn cxcluding all the others) thc secular solution is the only onc I could defend (Phillips in Modood 1996270

Plausible though it looks at first sight such a defense common to Audi Phillips and many others still suffers from an unrecognized identification of public morality with secular morality Audi (1991) treats public and secular reason as if they would be exactly the same For him public reasons are explicitly and by definition secular and his principles of rationale and moti- vation are secularist principles

Bader 1 RELIGIOUS PLURALISM 61 1

unless they offer (or at least have) adequate secular (non-religious) reasons to support thc law or policy in question By sccular reason I do not mcan onc that is con- sciously held in contrast to a religious onc noris there anything anti-religious implicit in a proper use of thc tcrm Indccd a sccular reason may be fully uligned with a reli- giously sanctioned vicw Rather a secular reason is roughly one whose normative force that is its status as a prima facie justificatory clcment does not (evidentially) depend on thc existence of God (for cxamplc through appeals to divine command) or on theological considerations (such as interpretations of a sacred tcxt) or on the pro- nouncements of a person or institution qua religious authority (Audi 1989 278 see also Audi 1997)

Although Audi Macedo and other liberal political philosophers believe that they can rely on Rawlss conceptions of political justice and public rea- son Rawls himself has carefully avoided identifying public reason with secular reason both terminologically34 as well as in his substantive arguments in favor of a freestanding public morality (see below)

In the sixteenth and seventeenth centuries such a terminological and con- ceptual identity was historically understandable because public morality had to be fought for first in battles against defenders of absolutist or fundamen- talist religions and established churches and later on in battles against those theological and philosophical defenders of freedom of religion and of con- sciousness who explicitly or implicitly limited these freedoms to the variety of conflicting Christian denominations and who did not extend their argu- ments into a principled defense of freedom of consciousness for all religious believers whether Christian or not as well as for those who hold secular val- ues and beliefs In a context in which the enemies of a general freedom of consciousness (and of most other liberal and democratic principles and rights) were absolutist religions public morality took the form of secular morality and a religious or theological defense of public morality seemed unthinkable Its true defenders thus were secular philosophers (such as Spi- noza and Kant)

In our times this context has changed public morality and liberal democracy have to be defended against secularist philosophers scientistic technocrats and expertocracy as well as against those religions that still defend absolutist and fundamentalist claims in politics In this context it is still true that secularism is more commonly perceived as the opposite of religion (Phillips in Modood 199627) but it may be that the most danger- ous enemies of liberal democracy are not or not mainly religions but secular- ist ideologies (as Wolterstorff 1997 pointed out) And from Madison onwards we also find religiously or theologically motivated defenders of a principled nonexclusive right to freedom of consciousness and of other rights institutions and public morality of liberal democracy

612 POLITICAL THEORY October 1999

In such a ~on tex t ~ both the meaning of secular and re~i~ious~ and their relation have changed Consequently the conceptual identification of public with secular morality is increasingly misleading for the following reasons

1 It scduccs us into conceptualizing the justificatory nonneutrality of libcral dcrnocracy in terms of sccular versus rcligious arguments or foundations The main question is not howevcr whether arguments are secular or rcligious but whcther thcy arc compatible with andlor support liberal dcrnocracy

2 It neglccts the possibility and existence of principled rcligious or thcological founda- tions of liberal dcmocmcy and excludcs thc possibility of public rcason in thcological and religious argumcnts It thus unfairly discriminates against those modem theologi- ans and religions that dcfcnd liberal democracy (Thiernann 1996 13 1 ff)

3 It directs our criticism of fundamcntalism in politics in a onc-sidcd and myopic manncr against rcligious or theological fundamcntalism and thus tcnds to neglcct all secular fundarncntalisms even if thcy posc much morc dangerous threats to tolerance and lib- eral dcrnocracy

There is a better way to account for the intuition that liberal democracy is inevitably nonneutral This is the principle of priority for democracy (always as a shorthand for liberal democracy in the sense defined above) In a short explication and defense of this second-order principle I proceed as follows First I want to highlight that not only religions had to learn what priority for democracy implies but philosophers scientists expertocrats and judges had to learn this too Second I want to defend the priority for democracy against misleading challenges from religions that argue that a secular moral- ity would be impossible would lead to a decay of morals or would weaken necessary limitations of state sovereignty and politics or claim a kind of his- torical priority41 Third I want to defend the priority for democracy against philosophical imperialisms which claim a kind of philosophical priority fail to radicalize the principle of nonfoundationalism and thus limit the produc- tive idea of a freestanding public morality that is political not metaphysi- cal Finally I want to defend the priority for democracy against the ironic and skeptic antiphilosophy of Richard Rorty who has coined the phrase

Priority for Democracy Versus All Fundamentalisms

Simply stated priorityfbr democracy means to begin with that princi- ples institutions cultures virtues and practices of liberal democracy have priority over the competing and often incompatible foundations of liberal democracy be they religious philosophical (metaphysical ontological moral ethical) or scientific Furthermore all opinions and voices like votes

Bader 1 RELIGIOUS PLURALISM 613

have to count equally when it comes to decision making even if paternalistic elites for the best of reasons think that they are uninformed misinformed false morally wrong and so on Liberal democracy thus understood cannot be neutral nor should it be But this inevitable nonneutrality which is essential with regard to all nonliberal nondemocratic principles and prac- tices should not be confused with nonneutrality between secular and reli- gious foundations and arguments

It is now common knowledge among sophisticated political philosophers that liberal democracy cannot be neutral42 This inevitable nonneutrality should be directed explicitly and exclusively against principles and prac- tices at odds with liberal democracy against fundamentalism of all kinds not against religions as such In their defense of the principle of reciprocity against the fundamentalist (religious) challenge that it is biased against fun- damentalism and in favor of religions that conform to deliberative views of civic education Gutmann and Thompson concede that it is correct

that the principle is not neutral among religions or ways of life The case forreciprocity and more generally for the deliberative perspective must be defended on substantive moral grounds and there is no reason to expect that such a defense would have the same (positive or negative) implications for all moral positions But the value of public rea- son expressed by the deliberative perspective is not just another morality It is offered as the morally optimal basis on which citizens who disagree about moralities and reli- gions can act collectively to makeeducational policy The principle of reciprocity is not privileged in the sense that it needs no moral defense But the defense it needs and the objections to which it is vulnerable are different from those of moral disagreement in politics The principle proposes a basis on which those who morally disagree can coop- erate and it can be appropriately criticized only by proposing an alternative basis not simply by reaffirming the moral or religious claim that constitutes the disagreement The fundamentalists do not offer an alternative (Gutmann and Thompson 1996 67 cf 93 second-order agreement not on secularism but on principles and virtues of liberal democracy)

Anne Phillips-like Tariq Modood (1996 13) Stephen Macedo (1998)~ Richard Rorty ( 1 9 9 7 ) ~ ~ and others-treats Charles Taylor ( 1 9 9 8 ) ~ ~ this inevitable nonneutrality of liberal democracy and of public morality as inevi- table secularity This is the most basic flaw of almost all recent political phi- losophy Christian and other religions particularly established churches have obviously learned to accept priority for democracy only as a result of protracted conflict Protestant denominations and free churches living under conditions of an established church had learned this from painful experiences much earlier and deeper than established churches particularly the Catholic Church However under conditions of liberal-democratic constitutional states even churches that think of themselves as the depositor of divine

614 POLITICAL THEORY 1October 1999

truth have eventually learned to accept the notion that when it comes to pub- lic democratic decision making error has the same rights as The authoritative sources of this Truth-be it God the Pope the Ayatollah priests or mullahs however important they may be inside the churches or the community o f believers-add nothing to its persuasive force in the arena o f public reason public deliberation and public scrutiny This is what all churches have to learn under conditions o f a modern constitution They all have to find their own ways to solve the fundamentalist dilemma (Casa- nova 1994 165)

I f this is clear about religion it is less well known and often forgotten that the same holds for all types o f secular truths While many modern religions and churches have tried to resolve this dilemma many prominent modern philosophers have not even addressed it properly This is not only evident for some o f the recently fashionable prominent continental philosophers such as Nietzsche Carl Schmitt and Heidegger To a lesser degree many Anglo- Saxon liberal moral philosophers are also guilty o f such an elitist conquest o f democratic politics (Barber 1988) The history o f modern social science is full o f scientistic ideology (from Saint-Simons scientistic religion via scientific racism to recent conquests o f democratic politics by neoclassical economic ideology) and the practices o f many experts (scientists techni- cians medical practitioners architects economists ecologists pedagogues psychologists sociologists judges etc) are rife with illegitimate scien- tocracy or expertocracy All o f them still have to learn how to resolve the fun- damentalist dilemma-namely that in democratic deliberation and decision making their truths are no more than opinions among 0the1-s~ Instead o f trying to limit thecontent o f public reason by keeping all contested compre- hensive doctrines and truth-claims out one has to develop the duties o f civility such as the duty to explain positions in publicly understandable lan- guage the willingness to listen to others fair-mindedness and readiness to accept reasonable accommoclat~ons or alterations In ones own view (see below)

Priority for Democracy versus Religious Challenges

The priority o f democracy has to be defended against five well-known untenable challenges from religious or theological imperialists

( i )Many religious believers and some theologians still think that a person cannot be solidly moral without being religious (Audi 1989 290f contra William Bennett) implicitly or explicitly they hold that secular morality In general is impossible Kulananda from a Buddhist perspective demonstrates

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

Bader 1 RELIGIOUS PLURALISM 601

(toward principles or second-order principles such as agreement to disagree or consent to dissent) they fail to recognize that dissension is as serious among ordinary people deliberating about moral and political issues as it is among judges of Supreme Courts constitutional theorists and moral phi- losophers advocating foundational theories

(iv) Liberal philosophers are well known for their conceptual dichotn- mies private versus public (from Locke onwards) social versus political (Rawls 1993 220) essentials or basics versus ordinary politics (Rawls 1993 1996) specific policy proposals versus in general (Audi 1989 199169) political versus moral (Audi 1989276281) and secular versus religious First these conceptual dualisms have themselves been strongly and convincingly criticized Second the application of these analytical dis- tinctions in the real world leads to the well-known normative recommenda- tions to preclude religious arguments in the public realm (to privatize reli- gion) or to allow them only in social but not in political discourse (Rawls 1993 14) or only in ordinary political matters but not in essentials or basics These liberal strategies to separate or divide and isolate private from public reasons and religious from secular reasons thus purifying secular public rea- son from all illegitimate remnants may not only be vehemently criticized as unfair exclusionist unachievable counterproductive or self-defeating In all real-world cases these neat or clean distinctions are themselves strongly contested and no consensus can be expected In all circumstances of inequal- ity these liberal strategies work in favor of the resourceful and powerful

(v) It took a long time for contemporary liberal philosophy to recognize the importance of virtues Recently many liberals (not only Macedo and Galston but also Rawls and Audi) have clearly stated that private or social associa- tions such as churches and sects may contribute significantly to the develop- ment of the (necessarily nonneutral) civic and political virtues and the skills of pluralist citizenship needed for the stability and flourishing of political democ- racy and for effective liberal-democratic constitutions It appears now to some critics that the liberal strategies of separation and of privatization of religion combined with the ardent refusal of any public and political role for religious associations are a serious impediment to the development of a lively civic democracy and are in the end self-defeating strategiesx

(vi) The liberal analysis of the relation between state and (organized) religions is predominantly sometimes even exclusively focused on its con- stitutional and legal aspects on establishment versus nonestablishment (see critically Casanova 1994) This bias has two odd consequences First as already mentioned there is a tendency to neglect social political and cul- tural inequalities among (organized) religions and given the social political and cultural establishment of the majority religions to hide the (inevitable)

602 POLITICAL THEORY 1October 1999

administrative political and cultural nonneutrality of the state under the guise of neutrality Second in the tradition of the profound juridification of American political culture it gives too prominent a role to conflict resolution by the hero-judges of the Supreme Court whose moral and legal delibera- tions and decisions pretend to be neatly separated from public political deliberation Actually they are not-they lack democratic legitimacynd they lack consistency (see below)

(vii) Rawls has claimed to present a really freestanding public morality by developing his political not metaphysical liberalism He claims to have done no more than explicate and reconstruct the principles of public morality inherent in liberal-democratic constitutions of modern state societies By vir- tue of the thesis of priority for democracy and of nonfoundationalism these principles and rights should have priority over all competing opposing deeper foundational comprehensive schemes-be they religious philo- sophical scientistic or whatever (unfortunately much less emphasis is placed on the priority of the institutional mechanisms political culture or civic and political virtues concerned) This is often misunderstood by liberal philosophers as second-order secularism Second-order secularism still shows remnants of a secularist bias unfair to convinced religious people whose arguments attitudes and practices are compatible with liberal democ- racy1 but who refuse to accept the strategies of privatization isolation or separation of religious and secular reasons (see Wolterstorff 1997) The important thing given the priority of democracy should not be whether argu- ments are religious or secular but whether arguments attitudes and practices are compatible with the principles rights culture virtues and good practices of social democratic constitutionalism (see Thiemann 1996 89f 173 Weithman 1997b 33 Hollenbach 1997 Quinn 1997) This distinction is important because most of the atrocities genocides and ethnic cleansings in our century have been legitimized by secularist ideologies Liberal philoso- phers preoccupation with religions as a threat to political stability (Weithman 1997b 3 Thiemann 199680f 122 understandable in the con- text of the religious wars of the sixteenth and seventeenth centuries is now myopic and outdated Priority for democracy should not be confused with a secularist strategy to purify public reason from religious arguments Rather the decisive criterion should be the recognition that no contested truth-claim of any kind whether religious philosophical or scientific is entitled to over- rule democratic political deliberation and decision making Many modern liberalized religions have accepted this whereas many modern philosophers and scientists have failed to do so and continue to behave as philosophical or scientistic fundamentalists

Bader l RELIGIOUS PLURALISM 603

(viii) Finally I want to raise a second meta-ethical question regarding the famous principle of neutrality Significantly it is not part of any human rights canon or of any set of constitutionalized rights Rather it is introduced by lib- eral philosophers and constitutional theorists as a kind of second-order prin- ciple to guide interpretations of the nonestablishment and free exercise clauses of the First Amendment As in all other cases of benign state neu- trality or difference-blindness benign religious state neutrality or strict neutrality is only presumed neutrality and serves as a guise for the actual bias in favor of dominant majorities (see Galanter 1966 Note 1987 Thie- mann 1996) It is a remarkable sign of the strength of this second-order prin- ciple of neutrality that even critics of the presumed ethnic or national neutral- ity of the state share it when it comes to religion Kymlicka (1997 21) for instance rightly argues that the usual analogy between religion and (ethnic or national) culture is flawed or mistaken It is possible for a state not to have an established church But the state cannot help but give at least partial establishment to a culture (Kymlicka 1997 27) The separation of church and state and the depoliticization of religious identities (p 21) however are accepted without critical scrutiny The idea that liberal states or civic nations are neutral between ethnocultural identities (p 27) is surely a myth but the same is true for the states presumed religious neutrality It is not only flawed in a historical and comparative perspective From a norma- tive perspective the presumption that only a complete separation of the state from (organized) religions is compatible with the thin public morality of modern states is also mistaken14

Myths of Separation and Neutrality

Next I want to show that complete separation and neutrality15 are mis- leading second-order principles introduced by liberal philosophers constitu- tional theorists and judges who are inspired by a mythical history of the American constitutional tradition

The interpretation of the nonestablishment clause of the First Amendment as complete separation of state and religion has always served to protect the political social and cultural establishment of majority religions from exposure Sociologists and historians of religion have clearly demonstrated that the legal nonestablishment of the First Amendment has only been the first phase in an ongoing and unfinished process of disestablishment The legal prohibition of the establishment of a national church had little effect on the political social and cultural or symbolic power of de facto established Protestant Christianity The second religious disestablishment that

604 POLITICAL THEORY 1October 1999

eventually led to higher degrees of actual disestablishment of the American state society and culture from Evangelical Protestantism as its historical civil religion1 has been the result of challenges by competing organized minority religions first by Roman Catholicism next by Jewish minorities The emerging predominant non-christological theism (Thiemann 1996) or Judeo-Christian deism (Herberg 1960) has been challenged by black Mus- lim churches though largely without success Islam is still perceived as a fun- damental threat (Zolberg 1998) For many foreign observers American political life is still to an astonishing degree dominated by Christianity not only internally but also in US foreign policy (America as the chosen coun- try Americans as the chosen people) Whether a third moral disestablish- ment can be discerned as Bellah and others (1985) think and if so where this development would leave American civil religion is much more con- tested The myth of a complete separation not only neglects this history but it is also at odds with the continuing presence of legal privileges such as con- gressional and military chaplains paid from public funds tax exemptions exemptions from military service or from combat duties state officials swearing belief in God prayers in the Supreme Court and US Congress In God We Trust on US currency and Thanksgiving ~ a ~

Neither separation nor neutrality are concepts to be found in the text of the American constitution or in international rights covenants Nevertheless the opening words of the American Bill of Rights-Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof-are now commonly known as the principle of separation Ronald Thiemann (199642 see Richards 1986 1889 has shown that this principle

is derived from a metaphor first used by Roger Williams in a letter to John Cotton and then by Thomas Jefferson In a letter to the Baptist Association of Danbury Connecti- cut It became common constitutional parlance through adecision written by Justice Hugo Black in 1947 Despite its somewhat obscure origins and its rather recent introduc- tion into the legal tradition this principle has come to shape our nations understanding of the relation between the political and religious spheres in the United States

According to Justice Black the First Amendment has erected a wall (of separation) between church and state That wall must be kept high and impregnable We could not approve the slightest breach The quasi-doctrinal status of this interpretation has two odd consequences critics of the metaphor are associated with political conservatism whereas Liberals and Leftists are tempted to defend absolute separation

Critics of the Supreme Courts record in adjudicating cases involving the religion clauses have characterized the questionable logic and contradictory

Bader 1 RELIGIOUS PLURALISM 605

opinions of the decisions as bizarre fatuous a hodgepodge and judi- cial meandering Indeed the principle of separation does not foster a coherent and convincing interpretation of the two clauses for they can eas- ily work at cross-purposesY The nonestablishment clause seems to forbid any governmental assistance and to require noninvolvement and no aid to any religion The free exercise clause seems to mandate governmental accommodation and impartiality seems to require equal aid to religions Noninvolvement and impartiality cannot be consistently combined (Valauri 1986) and the separation metaphor does not help to combine them in a productive way The resulting confusion is displayed in many cases excel- lently documented by Galanter (1966) Note (1987) and Stoltenberg (1993) To illustrate the point let me discuss the Allegheny County v Greater Pitts- burgh ACLU case (1988) on the display of a creche including an angel bear- ing a banner with the words Gloria in Excelsis Deo on or near county prop- erty Three major positions of the Supreme Court justices can be discerned The majority uphold a separationist secular purpose position arguing that government is only permitted to display religious symbols with a secular pur- pose Government may not engage in practices that serve to endorse religious beliefs Any state action that serves to favor prefer or promote one religious theory over another or religious belief over disbelief is in violation of the non- establishment clause The concurring minority took a stronger position of strict neutrality arguing that government is never permitted to display reli- gious symbols of any kind because the nonestablishment clause is interpreted to require neutrality not just among religions but between religion and non-religion The dissenting minority judges oppose the decision as includ- ing an unjustified hostility toward religion and ask for symbolic accommo- dation because it is difficult to maintain the fiction that requiring govern- ment to avoid all assistance to religion can in fairness be viewed as serving the goal of neutrality (Justice ~ e n n e d ~ ) ~

All three positions are inadequate Strict neutrality reproduces impossi- ble fictions and ignores the patterns of co-operation between church and state created by our history of civic piety and by the expanding regulatory role of the welfare state22 Separationist secular purpose has four odd conse- quences ( I ) The intent to acknowledge religious symbols in a general way but not as particular cultural phenomena proposes to strip religions of all their specific meaning Government may celebrate Christmas in some man- ner and form but not in a way that endorses Christian doctrine Because religious beliefs practices and symbols are inevitably particular this offends religious people2 (2) It places judges in an uncomfortable position they must act as theological critics to determine the meaning of a symbol and as social critics to determine whether such a symbol has been sufficiently

606 POLITICAL THEORY 1October 1999

stripped of its inherent religious meanings (3) It contributes to the already desultory rhetoric of contemporary politics (4) It is motivated by a hands- off notion of justice or fairness that for fear of unequal and discriminatory treatment of other religious and nonreligious people does not ask to treat them even-handedly respecting and accommodating their particularities but requires us to abstract from all their particularities This is not only impossible but it would also make all people religious and nonreligious worse off24 Symbolic accommodation has the considerable advantage of recognizing that

the principles of the Establishment Clausc and our Nations historic traditions of diver- sity and pluralism allow communitics to makc reasonable judgements respecting the accommodation of holidays with both cultural and religious aspccts No constitutional violation occurs when they do so by displaying a symbol of the holidays religious ori- gins (Justice Kennedy)

By equating religions with Christianity however it sidesteps the question of religious pluralism particularly the issue of a fair treatment of minority reli- gions Thus it does not live up to the minimal requirements of fairness as even-handedness and is unable to answer the really pressing questions

What arc the appropriate limits of governmental accommodation of mi~jorityrcligious belief and practice within a pluralistic democracy At what point docs propcr accommo- dation of religion become impropcr aid or assistance to religion When docs accommo- dation of the majority religion bccome discriminatory toward religious minorities (Thicmann 1996530

Since Justice Blacks decision in Everson separation has been fatefully joined with the doctrine of government neutrality toward religion All three positions in Allegheny agreed that state neutrality toward religion is man- dated by the Constitution but they widely differ on the meaning and applica- tion of this protean concept (Thiemann 199660ff) Strict Neutrulity of the concurring minority judges mandates governmental noninvolvement in religious matters by requiring a consistent no-aid to religion policy Non-discriniinatov neutruliamp of the majority judges softens the doctrinal purity by allowing some public sphere accommodation providing the symbols or practices supported by government are nonsectarian and nondis- criminatory This position reads the Constitution as mandating a no-aid to religion (or noninvolvenzent) policy whenever sectarian practices are at issue and an equal uid to religion (or inlpartiality) policy when the practices are generally cultural or have a discernible secular purpose Benevolent neu- trality explicitly seeks to broaden the framework within which religion

Bader RELIGIOUS PLURALISM 607

might be freely exercised [It] proscribes only governmentally estab- lished religion or governmental interference with religion None of the three interpretations can serve as a guide to a more coherent interpretation of the religion clauses2h

This is I think a reasonable presentation of the present state of the consti- tutional debate I agree therefore with Thiemanns (1996) conclusion that we have to abandon (p 43) the separation metaphor for four reasons (1) it deflects attention from more fundamental principles (eg liberty equality tolerance) that undergird the two clauses (2) it conceptualizes church-state relations in singular and monolithic terms (3) it conceals the variety of ways in which they interact and (4) it constrains our ability to imagine new possi- bilities for their relation The separation metaphor cannot reasonably guide interpretations of the American Constitution It has only served as a mislead- ing placeholder for constitutional nonestablishment It cannot be used either as a reasonable second-order principle for the interpretation of international rights treatises or alternative constitutional traditions (characterized by weak or plural constitutional establishment) But should we also follow Thiemanns proposal to jettison (p 64) two other candidates of productive second-order principles neutrality and secularism

Relational Neutrulity and Priority for Democracy

Neutrality separation and secularism are-to repeat-not consti-tutional rights but second-order principles Why not get rid of second-order principles as such Why and for what purposes do we need these meta-rules Second-order principles as well as moral and legal paradigms are in my view important as guidelines in two types of cases in all cases in which con- stitutional rights and first-order moral principles conflict and in all cases of conflicting interpretations and applications of rights They should allow more coherent interpretations of constitutions and should be able to guide the difficult art of balancing in a more productive way

To summarize strict neutrality and complete separation have failed in this regard Difference-blind religious neutrality is a prominent version of an ideological mechanism that universalizes the particular and hides it from view In the case of religions as with sexes gender race and ethnicity there can exist no absolute impartiality no absolute perspective no view from nowhere Such well-known criticism2 forces us to reconceptualize these principles to rescue the two commendable moral intuitions they mean to articulate the prohibition of moral particularism and the preclusion of injus- tice under conditions of religious diversity and structural inequality These

608 POLITICAL THEORY 1 October 1999

moral intuitions are better conceptualized by the principles of relational neu- trality and even-handedness

Relational neutrality replaces the idea of difference-blindness by difference-sensitivity Only if we take into account actual differences and inequalities between religious groups and organizations can we hope that institutions and policies will in the long run become more neutral in relation to these religions and to nonreligious people as well Relational neutrality does not presume some imagined place of neutral transcendence (Thie- mann 1996 82) or some objective observer (Justice OConnor see Note 1987 1647) as in the old untenable versions of nonsocially situated ahis- torical universal knowledge but neither does it lapse into a relativistic any- thing goes There are more inclusive better-situated perspectives that take into account the degree of inclusiveness of the actual2v relevant secular and religious voices and the particular point in history

Fairness as even-handedness is a better candidate than majority-biased symbolic accommodation It criticizes the exclusive reliance on a hands- oft concept of fairness regarding culture and identity that has informed the concepts of neutrality and complete separation predominant in liberal phi- losophy In a critical response to my article on transnational citizenship Joseph Carens has characterized

the ideal of cven-handedness to contrast it with the hands-off approach of neutrality The guiding idea of even-handedness is that what fairness entails is a sensitive balancing of competing claims for recognition and support in matters of culture and identity Instead of trying to abstract from particularity we shouldembrace it but in a way that is fair to all the different particularities Now being fair docs not mean that every cultural claim and identity will be givcn equal wcight but rather that cach will be given appropriate wcight undcr thc circumstances and given a commitment to equal respect for all History mat- tcrs numbers matter the relative importance of the claim to those who present it matters and so do many other considcmtions (Carens 1997 818 claboratcd in Carcns 1998 Introduction)

Religious cultures and identities are not treated fairly by declaring that religion is a private matter or by excluding religious arguments from political or constitutional debate or from debates about constitutional essentials and basic justice Nondiscrimination and equal treatment of different religions as well as of religious and nonreligious people are not well served by hands- off abstractions They require a sensitive balancing of the different claims taking into account structural inequalities between majority religions and minority ones Policies of accommodation which take cultures and identi- ties seriously and strive for a sensible balancing but neglect structural ine- qualities should be combined with a concept of rough complex equality that

Hader RELIGIOUS PLURALISM 609

uncovers neglected structural inequalities between (organized) religions and asks for policies to redress them (policies furiously criticized by liberal crit- ics of affirmative action in all fields) Sensitive balancing of cultural and identity claims will never achieve complete cultural equality and support will never achieve substantive equality between majority religions minority ones and secular people (nor would this be morally required in my view) but they may help to redress obviously unfair situations

Nondiscrimination and equal treatment also do not require second-order secularism I realize that my claim here conflicts with one of the crucial the- ses and assumptions of liberal republican and socialist political philoso phy2~propose to reconceptualize the central moral intuition of second-order secularism by the second-order principle of priority for democracy

We saw earlier that religiously and theologically motivated critics of political liberalism in the United States such as Neuhaus Wolterstorff and Thiemann challenged the presumed neutrality of second-order secularism In England similar complaints have been raised by Anglican Jewish Catho- lic and Muslim opponents of complete separation Conceptualizing mod- ern public morality as secular morality is said to privilege secular over reli- gious values unfairly Writing from a Jewish perspective Sylvia Rothschild fears most

a purportedly neutral secularism for thcre is nothing so dogmatic as that which is dog- matically neutral and sccularisrn far from being open to all closes the many diverse doors to the communities of faith As I read it the secular mode is merely another point on thc spectrum of religious expression but one which has no understanding of and which makes no allowances for othcr modes of religious expression On thc othcr hand pluralism can and does flow from religious vision [The] sccular crusade against thc Anglican church is an attack on all forms of religious expression and thus indirectly harmful to us too [Discstablishmcnt] sccms to mc a way only towards mono- dominant and triumphant sccularism rathcr than a pathway which may lcad to true multi-faith multi-cultural pluralism (Rothschild in Modood 1996 56 60 sce similar charges by Levinson 1990 and Carter 1993 in the United States)

The real question for her thus is just how do we organize ourselves so that the many voices can be heard so that one dominant culture doesnt impose itself on us all (Modood 199658) Bikhu Parekh also challenges Rawlsian political liberalism for keeping

religion out of political life in a democracy Like Rawls (1995) we might insist that citi- Lens In a liberal society should derivc or at least publicly dcfend thcir political judgc- ments in a secular manner but that is arbitrary and has no appeal to those who do not sharc his views of religion and politics [We have to] challenge thc untenable and long-hcld beliefs that only a secular state can be libcnl and dcmocratic and that political

610 POLITICAL THEORY October 1999

discourse is manageable only whcn it is conceptually monolingual and homogeneous (Parckh in Modood 19962 122)

If a secular public morality cannot be neutral we seem to be caught in a trap forced to choose between two equally miserable imperialisms either mono-dominant and triumphant secularism and an out-and-out (or funda- mentalist) secularism which in its late twentieth century manifestation is a climate inimical to any religion (Daoud Rosser-Owen from a Muslim per- spective in Modood 1996 84) on one hand or troubling triumphalism by those who believed religion had a monopoly on moral concerns (Phillips in Modood 1996 27) on the other Anne Phillips has tried to resolve this dilemma by pointing out that

secularism occupies a dual location in this kind of debate Those who do not follow any of thc worlds religions arc by definition secular in thcir beliefs when secularism speaks on bchalf of thcsc non-believers it speaks on a par with the spokcspcoplc for Anglicans Catholics Muslims or Jcws Hut secularism also presents itself as thc solu- tion after all other voices havc spoken for in arguing fora separation between church and state it promises to protect thc beliefs and the practices of each from thc prcssures to go along with what any othcrs bclicve This looks suspiciously like a sleight of hand and thats the w o q that the even-handed accommodation of all turns out to be particularly attuned to one (Phillips in Modood 1996 27)

Anne Phillips tries to defend secular public morality on a meta-level as

the only approach that can even approximatc equality of treatment between those who hold different beliefs thc interests of democratic equality cannot be well served by practices that privilege one church ovcr the others nor can thcy bc well servcd by prac- tices that privilege religious values over secular oncs nor-and this is the difficult one--can thcy be well served by practices that privilege secular valucs over religious bclicfs The difficulty remains that any way of formulating this puts it in the framework of a secular solution and some will rcgard this as diminishing the significance of relig- ion Rut the secular separation of church from statc is still the closest we can get to parity of treatment between those who are rcli~ious and those who are not and between thc fol- lowers of different religions Equality is onc of the crucial principles of amodern democ- racy and for this reason (evcn cxcluding all the others) thc secular solution is the only onc I could defend (Phillips in Modood 1996270

Plausible though it looks at first sight such a defense common to Audi Phillips and many others still suffers from an unrecognized identification of public morality with secular morality Audi (1991) treats public and secular reason as if they would be exactly the same For him public reasons are explicitly and by definition secular and his principles of rationale and moti- vation are secularist principles

Bader 1 RELIGIOUS PLURALISM 61 1

unless they offer (or at least have) adequate secular (non-religious) reasons to support thc law or policy in question By sccular reason I do not mcan onc that is con- sciously held in contrast to a religious onc noris there anything anti-religious implicit in a proper use of thc tcrm Indccd a sccular reason may be fully uligned with a reli- giously sanctioned vicw Rather a secular reason is roughly one whose normative force that is its status as a prima facie justificatory clcment does not (evidentially) depend on thc existence of God (for cxamplc through appeals to divine command) or on theological considerations (such as interpretations of a sacred tcxt) or on the pro- nouncements of a person or institution qua religious authority (Audi 1989 278 see also Audi 1997)

Although Audi Macedo and other liberal political philosophers believe that they can rely on Rawlss conceptions of political justice and public rea- son Rawls himself has carefully avoided identifying public reason with secular reason both terminologically34 as well as in his substantive arguments in favor of a freestanding public morality (see below)

In the sixteenth and seventeenth centuries such a terminological and con- ceptual identity was historically understandable because public morality had to be fought for first in battles against defenders of absolutist or fundamen- talist religions and established churches and later on in battles against those theological and philosophical defenders of freedom of religion and of con- sciousness who explicitly or implicitly limited these freedoms to the variety of conflicting Christian denominations and who did not extend their argu- ments into a principled defense of freedom of consciousness for all religious believers whether Christian or not as well as for those who hold secular val- ues and beliefs In a context in which the enemies of a general freedom of consciousness (and of most other liberal and democratic principles and rights) were absolutist religions public morality took the form of secular morality and a religious or theological defense of public morality seemed unthinkable Its true defenders thus were secular philosophers (such as Spi- noza and Kant)

In our times this context has changed public morality and liberal democracy have to be defended against secularist philosophers scientistic technocrats and expertocracy as well as against those religions that still defend absolutist and fundamentalist claims in politics In this context it is still true that secularism is more commonly perceived as the opposite of religion (Phillips in Modood 199627) but it may be that the most danger- ous enemies of liberal democracy are not or not mainly religions but secular- ist ideologies (as Wolterstorff 1997 pointed out) And from Madison onwards we also find religiously or theologically motivated defenders of a principled nonexclusive right to freedom of consciousness and of other rights institutions and public morality of liberal democracy

612 POLITICAL THEORY October 1999

In such a ~on tex t ~ both the meaning of secular and re~i~ious~ and their relation have changed Consequently the conceptual identification of public with secular morality is increasingly misleading for the following reasons

1 It scduccs us into conceptualizing the justificatory nonneutrality of libcral dcrnocracy in terms of sccular versus rcligious arguments or foundations The main question is not howevcr whether arguments are secular or rcligious but whcther thcy arc compatible with andlor support liberal dcrnocracy

2 It neglccts the possibility and existence of principled rcligious or thcological founda- tions of liberal dcmocmcy and excludcs thc possibility of public rcason in thcological and religious argumcnts It thus unfairly discriminates against those modem theologi- ans and religions that dcfcnd liberal democracy (Thiernann 1996 13 1 ff)

3 It directs our criticism of fundamcntalism in politics in a onc-sidcd and myopic manncr against rcligious or theological fundamcntalism and thus tcnds to neglcct all secular fundarncntalisms even if thcy posc much morc dangerous threats to tolerance and lib- eral dcrnocracy

There is a better way to account for the intuition that liberal democracy is inevitably nonneutral This is the principle of priority for democracy (always as a shorthand for liberal democracy in the sense defined above) In a short explication and defense of this second-order principle I proceed as follows First I want to highlight that not only religions had to learn what priority for democracy implies but philosophers scientists expertocrats and judges had to learn this too Second I want to defend the priority for democracy against misleading challenges from religions that argue that a secular moral- ity would be impossible would lead to a decay of morals or would weaken necessary limitations of state sovereignty and politics or claim a kind of his- torical priority41 Third I want to defend the priority for democracy against philosophical imperialisms which claim a kind of philosophical priority fail to radicalize the principle of nonfoundationalism and thus limit the produc- tive idea of a freestanding public morality that is political not metaphysi- cal Finally I want to defend the priority for democracy against the ironic and skeptic antiphilosophy of Richard Rorty who has coined the phrase

Priority for Democracy Versus All Fundamentalisms

Simply stated priorityfbr democracy means to begin with that princi- ples institutions cultures virtues and practices of liberal democracy have priority over the competing and often incompatible foundations of liberal democracy be they religious philosophical (metaphysical ontological moral ethical) or scientific Furthermore all opinions and voices like votes

Bader 1 RELIGIOUS PLURALISM 613

have to count equally when it comes to decision making even if paternalistic elites for the best of reasons think that they are uninformed misinformed false morally wrong and so on Liberal democracy thus understood cannot be neutral nor should it be But this inevitable nonneutrality which is essential with regard to all nonliberal nondemocratic principles and prac- tices should not be confused with nonneutrality between secular and reli- gious foundations and arguments

It is now common knowledge among sophisticated political philosophers that liberal democracy cannot be neutral42 This inevitable nonneutrality should be directed explicitly and exclusively against principles and prac- tices at odds with liberal democracy against fundamentalism of all kinds not against religions as such In their defense of the principle of reciprocity against the fundamentalist (religious) challenge that it is biased against fun- damentalism and in favor of religions that conform to deliberative views of civic education Gutmann and Thompson concede that it is correct

that the principle is not neutral among religions or ways of life The case forreciprocity and more generally for the deliberative perspective must be defended on substantive moral grounds and there is no reason to expect that such a defense would have the same (positive or negative) implications for all moral positions But the value of public rea- son expressed by the deliberative perspective is not just another morality It is offered as the morally optimal basis on which citizens who disagree about moralities and reli- gions can act collectively to makeeducational policy The principle of reciprocity is not privileged in the sense that it needs no moral defense But the defense it needs and the objections to which it is vulnerable are different from those of moral disagreement in politics The principle proposes a basis on which those who morally disagree can coop- erate and it can be appropriately criticized only by proposing an alternative basis not simply by reaffirming the moral or religious claim that constitutes the disagreement The fundamentalists do not offer an alternative (Gutmann and Thompson 1996 67 cf 93 second-order agreement not on secularism but on principles and virtues of liberal democracy)

Anne Phillips-like Tariq Modood (1996 13) Stephen Macedo (1998)~ Richard Rorty ( 1 9 9 7 ) ~ ~ and others-treats Charles Taylor ( 1 9 9 8 ) ~ ~ this inevitable nonneutrality of liberal democracy and of public morality as inevi- table secularity This is the most basic flaw of almost all recent political phi- losophy Christian and other religions particularly established churches have obviously learned to accept priority for democracy only as a result of protracted conflict Protestant denominations and free churches living under conditions of an established church had learned this from painful experiences much earlier and deeper than established churches particularly the Catholic Church However under conditions of liberal-democratic constitutional states even churches that think of themselves as the depositor of divine

614 POLITICAL THEORY 1October 1999

truth have eventually learned to accept the notion that when it comes to pub- lic democratic decision making error has the same rights as The authoritative sources of this Truth-be it God the Pope the Ayatollah priests or mullahs however important they may be inside the churches or the community o f believers-add nothing to its persuasive force in the arena o f public reason public deliberation and public scrutiny This is what all churches have to learn under conditions o f a modern constitution They all have to find their own ways to solve the fundamentalist dilemma (Casa- nova 1994 165)

I f this is clear about religion it is less well known and often forgotten that the same holds for all types o f secular truths While many modern religions and churches have tried to resolve this dilemma many prominent modern philosophers have not even addressed it properly This is not only evident for some o f the recently fashionable prominent continental philosophers such as Nietzsche Carl Schmitt and Heidegger To a lesser degree many Anglo- Saxon liberal moral philosophers are also guilty o f such an elitist conquest o f democratic politics (Barber 1988) The history o f modern social science is full o f scientistic ideology (from Saint-Simons scientistic religion via scientific racism to recent conquests o f democratic politics by neoclassical economic ideology) and the practices o f many experts (scientists techni- cians medical practitioners architects economists ecologists pedagogues psychologists sociologists judges etc) are rife with illegitimate scien- tocracy or expertocracy All o f them still have to learn how to resolve the fun- damentalist dilemma-namely that in democratic deliberation and decision making their truths are no more than opinions among 0the1-s~ Instead o f trying to limit thecontent o f public reason by keeping all contested compre- hensive doctrines and truth-claims out one has to develop the duties o f civility such as the duty to explain positions in publicly understandable lan- guage the willingness to listen to others fair-mindedness and readiness to accept reasonable accommoclat~ons or alterations In ones own view (see below)

Priority for Democracy versus Religious Challenges

The priority o f democracy has to be defended against five well-known untenable challenges from religious or theological imperialists

( i )Many religious believers and some theologians still think that a person cannot be solidly moral without being religious (Audi 1989 290f contra William Bennett) implicitly or explicitly they hold that secular morality In general is impossible Kulananda from a Buddhist perspective demonstrates

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

602 POLITICAL THEORY 1October 1999

administrative political and cultural nonneutrality of the state under the guise of neutrality Second in the tradition of the profound juridification of American political culture it gives too prominent a role to conflict resolution by the hero-judges of the Supreme Court whose moral and legal delibera- tions and decisions pretend to be neatly separated from public political deliberation Actually they are not-they lack democratic legitimacynd they lack consistency (see below)

(vii) Rawls has claimed to present a really freestanding public morality by developing his political not metaphysical liberalism He claims to have done no more than explicate and reconstruct the principles of public morality inherent in liberal-democratic constitutions of modern state societies By vir- tue of the thesis of priority for democracy and of nonfoundationalism these principles and rights should have priority over all competing opposing deeper foundational comprehensive schemes-be they religious philo- sophical scientistic or whatever (unfortunately much less emphasis is placed on the priority of the institutional mechanisms political culture or civic and political virtues concerned) This is often misunderstood by liberal philosophers as second-order secularism Second-order secularism still shows remnants of a secularist bias unfair to convinced religious people whose arguments attitudes and practices are compatible with liberal democ- racy1 but who refuse to accept the strategies of privatization isolation or separation of religious and secular reasons (see Wolterstorff 1997) The important thing given the priority of democracy should not be whether argu- ments are religious or secular but whether arguments attitudes and practices are compatible with the principles rights culture virtues and good practices of social democratic constitutionalism (see Thiemann 1996 89f 173 Weithman 1997b 33 Hollenbach 1997 Quinn 1997) This distinction is important because most of the atrocities genocides and ethnic cleansings in our century have been legitimized by secularist ideologies Liberal philoso- phers preoccupation with religions as a threat to political stability (Weithman 1997b 3 Thiemann 199680f 122 understandable in the con- text of the religious wars of the sixteenth and seventeenth centuries is now myopic and outdated Priority for democracy should not be confused with a secularist strategy to purify public reason from religious arguments Rather the decisive criterion should be the recognition that no contested truth-claim of any kind whether religious philosophical or scientific is entitled to over- rule democratic political deliberation and decision making Many modern liberalized religions have accepted this whereas many modern philosophers and scientists have failed to do so and continue to behave as philosophical or scientistic fundamentalists

Bader l RELIGIOUS PLURALISM 603

(viii) Finally I want to raise a second meta-ethical question regarding the famous principle of neutrality Significantly it is not part of any human rights canon or of any set of constitutionalized rights Rather it is introduced by lib- eral philosophers and constitutional theorists as a kind of second-order prin- ciple to guide interpretations of the nonestablishment and free exercise clauses of the First Amendment As in all other cases of benign state neu- trality or difference-blindness benign religious state neutrality or strict neutrality is only presumed neutrality and serves as a guise for the actual bias in favor of dominant majorities (see Galanter 1966 Note 1987 Thie- mann 1996) It is a remarkable sign of the strength of this second-order prin- ciple of neutrality that even critics of the presumed ethnic or national neutral- ity of the state share it when it comes to religion Kymlicka (1997 21) for instance rightly argues that the usual analogy between religion and (ethnic or national) culture is flawed or mistaken It is possible for a state not to have an established church But the state cannot help but give at least partial establishment to a culture (Kymlicka 1997 27) The separation of church and state and the depoliticization of religious identities (p 21) however are accepted without critical scrutiny The idea that liberal states or civic nations are neutral between ethnocultural identities (p 27) is surely a myth but the same is true for the states presumed religious neutrality It is not only flawed in a historical and comparative perspective From a norma- tive perspective the presumption that only a complete separation of the state from (organized) religions is compatible with the thin public morality of modern states is also mistaken14

Myths of Separation and Neutrality

Next I want to show that complete separation and neutrality15 are mis- leading second-order principles introduced by liberal philosophers constitu- tional theorists and judges who are inspired by a mythical history of the American constitutional tradition

The interpretation of the nonestablishment clause of the First Amendment as complete separation of state and religion has always served to protect the political social and cultural establishment of majority religions from exposure Sociologists and historians of religion have clearly demonstrated that the legal nonestablishment of the First Amendment has only been the first phase in an ongoing and unfinished process of disestablishment The legal prohibition of the establishment of a national church had little effect on the political social and cultural or symbolic power of de facto established Protestant Christianity The second religious disestablishment that

604 POLITICAL THEORY 1October 1999

eventually led to higher degrees of actual disestablishment of the American state society and culture from Evangelical Protestantism as its historical civil religion1 has been the result of challenges by competing organized minority religions first by Roman Catholicism next by Jewish minorities The emerging predominant non-christological theism (Thiemann 1996) or Judeo-Christian deism (Herberg 1960) has been challenged by black Mus- lim churches though largely without success Islam is still perceived as a fun- damental threat (Zolberg 1998) For many foreign observers American political life is still to an astonishing degree dominated by Christianity not only internally but also in US foreign policy (America as the chosen coun- try Americans as the chosen people) Whether a third moral disestablish- ment can be discerned as Bellah and others (1985) think and if so where this development would leave American civil religion is much more con- tested The myth of a complete separation not only neglects this history but it is also at odds with the continuing presence of legal privileges such as con- gressional and military chaplains paid from public funds tax exemptions exemptions from military service or from combat duties state officials swearing belief in God prayers in the Supreme Court and US Congress In God We Trust on US currency and Thanksgiving ~ a ~

Neither separation nor neutrality are concepts to be found in the text of the American constitution or in international rights covenants Nevertheless the opening words of the American Bill of Rights-Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof-are now commonly known as the principle of separation Ronald Thiemann (199642 see Richards 1986 1889 has shown that this principle

is derived from a metaphor first used by Roger Williams in a letter to John Cotton and then by Thomas Jefferson In a letter to the Baptist Association of Danbury Connecti- cut It became common constitutional parlance through adecision written by Justice Hugo Black in 1947 Despite its somewhat obscure origins and its rather recent introduc- tion into the legal tradition this principle has come to shape our nations understanding of the relation between the political and religious spheres in the United States

According to Justice Black the First Amendment has erected a wall (of separation) between church and state That wall must be kept high and impregnable We could not approve the slightest breach The quasi-doctrinal status of this interpretation has two odd consequences critics of the metaphor are associated with political conservatism whereas Liberals and Leftists are tempted to defend absolute separation

Critics of the Supreme Courts record in adjudicating cases involving the religion clauses have characterized the questionable logic and contradictory

Bader 1 RELIGIOUS PLURALISM 605

opinions of the decisions as bizarre fatuous a hodgepodge and judi- cial meandering Indeed the principle of separation does not foster a coherent and convincing interpretation of the two clauses for they can eas- ily work at cross-purposesY The nonestablishment clause seems to forbid any governmental assistance and to require noninvolvement and no aid to any religion The free exercise clause seems to mandate governmental accommodation and impartiality seems to require equal aid to religions Noninvolvement and impartiality cannot be consistently combined (Valauri 1986) and the separation metaphor does not help to combine them in a productive way The resulting confusion is displayed in many cases excel- lently documented by Galanter (1966) Note (1987) and Stoltenberg (1993) To illustrate the point let me discuss the Allegheny County v Greater Pitts- burgh ACLU case (1988) on the display of a creche including an angel bear- ing a banner with the words Gloria in Excelsis Deo on or near county prop- erty Three major positions of the Supreme Court justices can be discerned The majority uphold a separationist secular purpose position arguing that government is only permitted to display religious symbols with a secular pur- pose Government may not engage in practices that serve to endorse religious beliefs Any state action that serves to favor prefer or promote one religious theory over another or religious belief over disbelief is in violation of the non- establishment clause The concurring minority took a stronger position of strict neutrality arguing that government is never permitted to display reli- gious symbols of any kind because the nonestablishment clause is interpreted to require neutrality not just among religions but between religion and non-religion The dissenting minority judges oppose the decision as includ- ing an unjustified hostility toward religion and ask for symbolic accommo- dation because it is difficult to maintain the fiction that requiring govern- ment to avoid all assistance to religion can in fairness be viewed as serving the goal of neutrality (Justice ~ e n n e d ~ ) ~

All three positions are inadequate Strict neutrality reproduces impossi- ble fictions and ignores the patterns of co-operation between church and state created by our history of civic piety and by the expanding regulatory role of the welfare state22 Separationist secular purpose has four odd conse- quences ( I ) The intent to acknowledge religious symbols in a general way but not as particular cultural phenomena proposes to strip religions of all their specific meaning Government may celebrate Christmas in some man- ner and form but not in a way that endorses Christian doctrine Because religious beliefs practices and symbols are inevitably particular this offends religious people2 (2) It places judges in an uncomfortable position they must act as theological critics to determine the meaning of a symbol and as social critics to determine whether such a symbol has been sufficiently

606 POLITICAL THEORY 1October 1999

stripped of its inherent religious meanings (3) It contributes to the already desultory rhetoric of contemporary politics (4) It is motivated by a hands- off notion of justice or fairness that for fear of unequal and discriminatory treatment of other religious and nonreligious people does not ask to treat them even-handedly respecting and accommodating their particularities but requires us to abstract from all their particularities This is not only impossible but it would also make all people religious and nonreligious worse off24 Symbolic accommodation has the considerable advantage of recognizing that

the principles of the Establishment Clausc and our Nations historic traditions of diver- sity and pluralism allow communitics to makc reasonable judgements respecting the accommodation of holidays with both cultural and religious aspccts No constitutional violation occurs when they do so by displaying a symbol of the holidays religious ori- gins (Justice Kennedy)

By equating religions with Christianity however it sidesteps the question of religious pluralism particularly the issue of a fair treatment of minority reli- gions Thus it does not live up to the minimal requirements of fairness as even-handedness and is unable to answer the really pressing questions

What arc the appropriate limits of governmental accommodation of mi~jorityrcligious belief and practice within a pluralistic democracy At what point docs propcr accommo- dation of religion become impropcr aid or assistance to religion When docs accommo- dation of the majority religion bccome discriminatory toward religious minorities (Thicmann 1996530

Since Justice Blacks decision in Everson separation has been fatefully joined with the doctrine of government neutrality toward religion All three positions in Allegheny agreed that state neutrality toward religion is man- dated by the Constitution but they widely differ on the meaning and applica- tion of this protean concept (Thiemann 199660ff) Strict Neutrulity of the concurring minority judges mandates governmental noninvolvement in religious matters by requiring a consistent no-aid to religion policy Non-discriniinatov neutruliamp of the majority judges softens the doctrinal purity by allowing some public sphere accommodation providing the symbols or practices supported by government are nonsectarian and nondis- criminatory This position reads the Constitution as mandating a no-aid to religion (or noninvolvenzent) policy whenever sectarian practices are at issue and an equal uid to religion (or inlpartiality) policy when the practices are generally cultural or have a discernible secular purpose Benevolent neu- trality explicitly seeks to broaden the framework within which religion

Bader RELIGIOUS PLURALISM 607

might be freely exercised [It] proscribes only governmentally estab- lished religion or governmental interference with religion None of the three interpretations can serve as a guide to a more coherent interpretation of the religion clauses2h

This is I think a reasonable presentation of the present state of the consti- tutional debate I agree therefore with Thiemanns (1996) conclusion that we have to abandon (p 43) the separation metaphor for four reasons (1) it deflects attention from more fundamental principles (eg liberty equality tolerance) that undergird the two clauses (2) it conceptualizes church-state relations in singular and monolithic terms (3) it conceals the variety of ways in which they interact and (4) it constrains our ability to imagine new possi- bilities for their relation The separation metaphor cannot reasonably guide interpretations of the American Constitution It has only served as a mislead- ing placeholder for constitutional nonestablishment It cannot be used either as a reasonable second-order principle for the interpretation of international rights treatises or alternative constitutional traditions (characterized by weak or plural constitutional establishment) But should we also follow Thiemanns proposal to jettison (p 64) two other candidates of productive second-order principles neutrality and secularism

Relational Neutrulity and Priority for Democracy

Neutrality separation and secularism are-to repeat-not consti-tutional rights but second-order principles Why not get rid of second-order principles as such Why and for what purposes do we need these meta-rules Second-order principles as well as moral and legal paradigms are in my view important as guidelines in two types of cases in all cases in which con- stitutional rights and first-order moral principles conflict and in all cases of conflicting interpretations and applications of rights They should allow more coherent interpretations of constitutions and should be able to guide the difficult art of balancing in a more productive way

To summarize strict neutrality and complete separation have failed in this regard Difference-blind religious neutrality is a prominent version of an ideological mechanism that universalizes the particular and hides it from view In the case of religions as with sexes gender race and ethnicity there can exist no absolute impartiality no absolute perspective no view from nowhere Such well-known criticism2 forces us to reconceptualize these principles to rescue the two commendable moral intuitions they mean to articulate the prohibition of moral particularism and the preclusion of injus- tice under conditions of religious diversity and structural inequality These

608 POLITICAL THEORY 1 October 1999

moral intuitions are better conceptualized by the principles of relational neu- trality and even-handedness

Relational neutrality replaces the idea of difference-blindness by difference-sensitivity Only if we take into account actual differences and inequalities between religious groups and organizations can we hope that institutions and policies will in the long run become more neutral in relation to these religions and to nonreligious people as well Relational neutrality does not presume some imagined place of neutral transcendence (Thie- mann 1996 82) or some objective observer (Justice OConnor see Note 1987 1647) as in the old untenable versions of nonsocially situated ahis- torical universal knowledge but neither does it lapse into a relativistic any- thing goes There are more inclusive better-situated perspectives that take into account the degree of inclusiveness of the actual2v relevant secular and religious voices and the particular point in history

Fairness as even-handedness is a better candidate than majority-biased symbolic accommodation It criticizes the exclusive reliance on a hands- oft concept of fairness regarding culture and identity that has informed the concepts of neutrality and complete separation predominant in liberal phi- losophy In a critical response to my article on transnational citizenship Joseph Carens has characterized

the ideal of cven-handedness to contrast it with the hands-off approach of neutrality The guiding idea of even-handedness is that what fairness entails is a sensitive balancing of competing claims for recognition and support in matters of culture and identity Instead of trying to abstract from particularity we shouldembrace it but in a way that is fair to all the different particularities Now being fair docs not mean that every cultural claim and identity will be givcn equal wcight but rather that cach will be given appropriate wcight undcr thc circumstances and given a commitment to equal respect for all History mat- tcrs numbers matter the relative importance of the claim to those who present it matters and so do many other considcmtions (Carens 1997 818 claboratcd in Carcns 1998 Introduction)

Religious cultures and identities are not treated fairly by declaring that religion is a private matter or by excluding religious arguments from political or constitutional debate or from debates about constitutional essentials and basic justice Nondiscrimination and equal treatment of different religions as well as of religious and nonreligious people are not well served by hands- off abstractions They require a sensitive balancing of the different claims taking into account structural inequalities between majority religions and minority ones Policies of accommodation which take cultures and identi- ties seriously and strive for a sensible balancing but neglect structural ine- qualities should be combined with a concept of rough complex equality that

Hader RELIGIOUS PLURALISM 609

uncovers neglected structural inequalities between (organized) religions and asks for policies to redress them (policies furiously criticized by liberal crit- ics of affirmative action in all fields) Sensitive balancing of cultural and identity claims will never achieve complete cultural equality and support will never achieve substantive equality between majority religions minority ones and secular people (nor would this be morally required in my view) but they may help to redress obviously unfair situations

Nondiscrimination and equal treatment also do not require second-order secularism I realize that my claim here conflicts with one of the crucial the- ses and assumptions of liberal republican and socialist political philoso phy2~propose to reconceptualize the central moral intuition of second-order secularism by the second-order principle of priority for democracy

We saw earlier that religiously and theologically motivated critics of political liberalism in the United States such as Neuhaus Wolterstorff and Thiemann challenged the presumed neutrality of second-order secularism In England similar complaints have been raised by Anglican Jewish Catho- lic and Muslim opponents of complete separation Conceptualizing mod- ern public morality as secular morality is said to privilege secular over reli- gious values unfairly Writing from a Jewish perspective Sylvia Rothschild fears most

a purportedly neutral secularism for thcre is nothing so dogmatic as that which is dog- matically neutral and sccularisrn far from being open to all closes the many diverse doors to the communities of faith As I read it the secular mode is merely another point on thc spectrum of religious expression but one which has no understanding of and which makes no allowances for othcr modes of religious expression On thc othcr hand pluralism can and does flow from religious vision [The] sccular crusade against thc Anglican church is an attack on all forms of religious expression and thus indirectly harmful to us too [Discstablishmcnt] sccms to mc a way only towards mono- dominant and triumphant sccularism rathcr than a pathway which may lcad to true multi-faith multi-cultural pluralism (Rothschild in Modood 1996 56 60 sce similar charges by Levinson 1990 and Carter 1993 in the United States)

The real question for her thus is just how do we organize ourselves so that the many voices can be heard so that one dominant culture doesnt impose itself on us all (Modood 199658) Bikhu Parekh also challenges Rawlsian political liberalism for keeping

religion out of political life in a democracy Like Rawls (1995) we might insist that citi- Lens In a liberal society should derivc or at least publicly dcfend thcir political judgc- ments in a secular manner but that is arbitrary and has no appeal to those who do not sharc his views of religion and politics [We have to] challenge thc untenable and long-hcld beliefs that only a secular state can be libcnl and dcmocratic and that political

610 POLITICAL THEORY October 1999

discourse is manageable only whcn it is conceptually monolingual and homogeneous (Parckh in Modood 19962 122)

If a secular public morality cannot be neutral we seem to be caught in a trap forced to choose between two equally miserable imperialisms either mono-dominant and triumphant secularism and an out-and-out (or funda- mentalist) secularism which in its late twentieth century manifestation is a climate inimical to any religion (Daoud Rosser-Owen from a Muslim per- spective in Modood 1996 84) on one hand or troubling triumphalism by those who believed religion had a monopoly on moral concerns (Phillips in Modood 1996 27) on the other Anne Phillips has tried to resolve this dilemma by pointing out that

secularism occupies a dual location in this kind of debate Those who do not follow any of thc worlds religions arc by definition secular in thcir beliefs when secularism speaks on bchalf of thcsc non-believers it speaks on a par with the spokcspcoplc for Anglicans Catholics Muslims or Jcws Hut secularism also presents itself as thc solu- tion after all other voices havc spoken for in arguing fora separation between church and state it promises to protect thc beliefs and the practices of each from thc prcssures to go along with what any othcrs bclicve This looks suspiciously like a sleight of hand and thats the w o q that the even-handed accommodation of all turns out to be particularly attuned to one (Phillips in Modood 1996 27)

Anne Phillips tries to defend secular public morality on a meta-level as

the only approach that can even approximatc equality of treatment between those who hold different beliefs thc interests of democratic equality cannot be well served by practices that privilege one church ovcr the others nor can thcy bc well servcd by prac- tices that privilege religious values over secular oncs nor-and this is the difficult one--can thcy be well served by practices that privilege secular valucs over religious bclicfs The difficulty remains that any way of formulating this puts it in the framework of a secular solution and some will rcgard this as diminishing the significance of relig- ion Rut the secular separation of church from statc is still the closest we can get to parity of treatment between those who are rcli~ious and those who are not and between thc fol- lowers of different religions Equality is onc of the crucial principles of amodern democ- racy and for this reason (evcn cxcluding all the others) thc secular solution is the only onc I could defend (Phillips in Modood 1996270

Plausible though it looks at first sight such a defense common to Audi Phillips and many others still suffers from an unrecognized identification of public morality with secular morality Audi (1991) treats public and secular reason as if they would be exactly the same For him public reasons are explicitly and by definition secular and his principles of rationale and moti- vation are secularist principles

Bader 1 RELIGIOUS PLURALISM 61 1

unless they offer (or at least have) adequate secular (non-religious) reasons to support thc law or policy in question By sccular reason I do not mcan onc that is con- sciously held in contrast to a religious onc noris there anything anti-religious implicit in a proper use of thc tcrm Indccd a sccular reason may be fully uligned with a reli- giously sanctioned vicw Rather a secular reason is roughly one whose normative force that is its status as a prima facie justificatory clcment does not (evidentially) depend on thc existence of God (for cxamplc through appeals to divine command) or on theological considerations (such as interpretations of a sacred tcxt) or on the pro- nouncements of a person or institution qua religious authority (Audi 1989 278 see also Audi 1997)

Although Audi Macedo and other liberal political philosophers believe that they can rely on Rawlss conceptions of political justice and public rea- son Rawls himself has carefully avoided identifying public reason with secular reason both terminologically34 as well as in his substantive arguments in favor of a freestanding public morality (see below)

In the sixteenth and seventeenth centuries such a terminological and con- ceptual identity was historically understandable because public morality had to be fought for first in battles against defenders of absolutist or fundamen- talist religions and established churches and later on in battles against those theological and philosophical defenders of freedom of religion and of con- sciousness who explicitly or implicitly limited these freedoms to the variety of conflicting Christian denominations and who did not extend their argu- ments into a principled defense of freedom of consciousness for all religious believers whether Christian or not as well as for those who hold secular val- ues and beliefs In a context in which the enemies of a general freedom of consciousness (and of most other liberal and democratic principles and rights) were absolutist religions public morality took the form of secular morality and a religious or theological defense of public morality seemed unthinkable Its true defenders thus were secular philosophers (such as Spi- noza and Kant)

In our times this context has changed public morality and liberal democracy have to be defended against secularist philosophers scientistic technocrats and expertocracy as well as against those religions that still defend absolutist and fundamentalist claims in politics In this context it is still true that secularism is more commonly perceived as the opposite of religion (Phillips in Modood 199627) but it may be that the most danger- ous enemies of liberal democracy are not or not mainly religions but secular- ist ideologies (as Wolterstorff 1997 pointed out) And from Madison onwards we also find religiously or theologically motivated defenders of a principled nonexclusive right to freedom of consciousness and of other rights institutions and public morality of liberal democracy

612 POLITICAL THEORY October 1999

In such a ~on tex t ~ both the meaning of secular and re~i~ious~ and their relation have changed Consequently the conceptual identification of public with secular morality is increasingly misleading for the following reasons

1 It scduccs us into conceptualizing the justificatory nonneutrality of libcral dcrnocracy in terms of sccular versus rcligious arguments or foundations The main question is not howevcr whether arguments are secular or rcligious but whcther thcy arc compatible with andlor support liberal dcrnocracy

2 It neglccts the possibility and existence of principled rcligious or thcological founda- tions of liberal dcmocmcy and excludcs thc possibility of public rcason in thcological and religious argumcnts It thus unfairly discriminates against those modem theologi- ans and religions that dcfcnd liberal democracy (Thiernann 1996 13 1 ff)

3 It directs our criticism of fundamcntalism in politics in a onc-sidcd and myopic manncr against rcligious or theological fundamcntalism and thus tcnds to neglcct all secular fundarncntalisms even if thcy posc much morc dangerous threats to tolerance and lib- eral dcrnocracy

There is a better way to account for the intuition that liberal democracy is inevitably nonneutral This is the principle of priority for democracy (always as a shorthand for liberal democracy in the sense defined above) In a short explication and defense of this second-order principle I proceed as follows First I want to highlight that not only religions had to learn what priority for democracy implies but philosophers scientists expertocrats and judges had to learn this too Second I want to defend the priority for democracy against misleading challenges from religions that argue that a secular moral- ity would be impossible would lead to a decay of morals or would weaken necessary limitations of state sovereignty and politics or claim a kind of his- torical priority41 Third I want to defend the priority for democracy against philosophical imperialisms which claim a kind of philosophical priority fail to radicalize the principle of nonfoundationalism and thus limit the produc- tive idea of a freestanding public morality that is political not metaphysi- cal Finally I want to defend the priority for democracy against the ironic and skeptic antiphilosophy of Richard Rorty who has coined the phrase

Priority for Democracy Versus All Fundamentalisms

Simply stated priorityfbr democracy means to begin with that princi- ples institutions cultures virtues and practices of liberal democracy have priority over the competing and often incompatible foundations of liberal democracy be they religious philosophical (metaphysical ontological moral ethical) or scientific Furthermore all opinions and voices like votes

Bader 1 RELIGIOUS PLURALISM 613

have to count equally when it comes to decision making even if paternalistic elites for the best of reasons think that they are uninformed misinformed false morally wrong and so on Liberal democracy thus understood cannot be neutral nor should it be But this inevitable nonneutrality which is essential with regard to all nonliberal nondemocratic principles and prac- tices should not be confused with nonneutrality between secular and reli- gious foundations and arguments

It is now common knowledge among sophisticated political philosophers that liberal democracy cannot be neutral42 This inevitable nonneutrality should be directed explicitly and exclusively against principles and prac- tices at odds with liberal democracy against fundamentalism of all kinds not against religions as such In their defense of the principle of reciprocity against the fundamentalist (religious) challenge that it is biased against fun- damentalism and in favor of religions that conform to deliberative views of civic education Gutmann and Thompson concede that it is correct

that the principle is not neutral among religions or ways of life The case forreciprocity and more generally for the deliberative perspective must be defended on substantive moral grounds and there is no reason to expect that such a defense would have the same (positive or negative) implications for all moral positions But the value of public rea- son expressed by the deliberative perspective is not just another morality It is offered as the morally optimal basis on which citizens who disagree about moralities and reli- gions can act collectively to makeeducational policy The principle of reciprocity is not privileged in the sense that it needs no moral defense But the defense it needs and the objections to which it is vulnerable are different from those of moral disagreement in politics The principle proposes a basis on which those who morally disagree can coop- erate and it can be appropriately criticized only by proposing an alternative basis not simply by reaffirming the moral or religious claim that constitutes the disagreement The fundamentalists do not offer an alternative (Gutmann and Thompson 1996 67 cf 93 second-order agreement not on secularism but on principles and virtues of liberal democracy)

Anne Phillips-like Tariq Modood (1996 13) Stephen Macedo (1998)~ Richard Rorty ( 1 9 9 7 ) ~ ~ and others-treats Charles Taylor ( 1 9 9 8 ) ~ ~ this inevitable nonneutrality of liberal democracy and of public morality as inevi- table secularity This is the most basic flaw of almost all recent political phi- losophy Christian and other religions particularly established churches have obviously learned to accept priority for democracy only as a result of protracted conflict Protestant denominations and free churches living under conditions of an established church had learned this from painful experiences much earlier and deeper than established churches particularly the Catholic Church However under conditions of liberal-democratic constitutional states even churches that think of themselves as the depositor of divine

614 POLITICAL THEORY 1October 1999

truth have eventually learned to accept the notion that when it comes to pub- lic democratic decision making error has the same rights as The authoritative sources of this Truth-be it God the Pope the Ayatollah priests or mullahs however important they may be inside the churches or the community o f believers-add nothing to its persuasive force in the arena o f public reason public deliberation and public scrutiny This is what all churches have to learn under conditions o f a modern constitution They all have to find their own ways to solve the fundamentalist dilemma (Casa- nova 1994 165)

I f this is clear about religion it is less well known and often forgotten that the same holds for all types o f secular truths While many modern religions and churches have tried to resolve this dilemma many prominent modern philosophers have not even addressed it properly This is not only evident for some o f the recently fashionable prominent continental philosophers such as Nietzsche Carl Schmitt and Heidegger To a lesser degree many Anglo- Saxon liberal moral philosophers are also guilty o f such an elitist conquest o f democratic politics (Barber 1988) The history o f modern social science is full o f scientistic ideology (from Saint-Simons scientistic religion via scientific racism to recent conquests o f democratic politics by neoclassical economic ideology) and the practices o f many experts (scientists techni- cians medical practitioners architects economists ecologists pedagogues psychologists sociologists judges etc) are rife with illegitimate scien- tocracy or expertocracy All o f them still have to learn how to resolve the fun- damentalist dilemma-namely that in democratic deliberation and decision making their truths are no more than opinions among 0the1-s~ Instead o f trying to limit thecontent o f public reason by keeping all contested compre- hensive doctrines and truth-claims out one has to develop the duties o f civility such as the duty to explain positions in publicly understandable lan- guage the willingness to listen to others fair-mindedness and readiness to accept reasonable accommoclat~ons or alterations In ones own view (see below)

Priority for Democracy versus Religious Challenges

The priority o f democracy has to be defended against five well-known untenable challenges from religious or theological imperialists

( i )Many religious believers and some theologians still think that a person cannot be solidly moral without being religious (Audi 1989 290f contra William Bennett) implicitly or explicitly they hold that secular morality In general is impossible Kulananda from a Buddhist perspective demonstrates

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

Bader l RELIGIOUS PLURALISM 603

(viii) Finally I want to raise a second meta-ethical question regarding the famous principle of neutrality Significantly it is not part of any human rights canon or of any set of constitutionalized rights Rather it is introduced by lib- eral philosophers and constitutional theorists as a kind of second-order prin- ciple to guide interpretations of the nonestablishment and free exercise clauses of the First Amendment As in all other cases of benign state neu- trality or difference-blindness benign religious state neutrality or strict neutrality is only presumed neutrality and serves as a guise for the actual bias in favor of dominant majorities (see Galanter 1966 Note 1987 Thie- mann 1996) It is a remarkable sign of the strength of this second-order prin- ciple of neutrality that even critics of the presumed ethnic or national neutral- ity of the state share it when it comes to religion Kymlicka (1997 21) for instance rightly argues that the usual analogy between religion and (ethnic or national) culture is flawed or mistaken It is possible for a state not to have an established church But the state cannot help but give at least partial establishment to a culture (Kymlicka 1997 27) The separation of church and state and the depoliticization of religious identities (p 21) however are accepted without critical scrutiny The idea that liberal states or civic nations are neutral between ethnocultural identities (p 27) is surely a myth but the same is true for the states presumed religious neutrality It is not only flawed in a historical and comparative perspective From a norma- tive perspective the presumption that only a complete separation of the state from (organized) religions is compatible with the thin public morality of modern states is also mistaken14

Myths of Separation and Neutrality

Next I want to show that complete separation and neutrality15 are mis- leading second-order principles introduced by liberal philosophers constitu- tional theorists and judges who are inspired by a mythical history of the American constitutional tradition

The interpretation of the nonestablishment clause of the First Amendment as complete separation of state and religion has always served to protect the political social and cultural establishment of majority religions from exposure Sociologists and historians of religion have clearly demonstrated that the legal nonestablishment of the First Amendment has only been the first phase in an ongoing and unfinished process of disestablishment The legal prohibition of the establishment of a national church had little effect on the political social and cultural or symbolic power of de facto established Protestant Christianity The second religious disestablishment that

604 POLITICAL THEORY 1October 1999

eventually led to higher degrees of actual disestablishment of the American state society and culture from Evangelical Protestantism as its historical civil religion1 has been the result of challenges by competing organized minority religions first by Roman Catholicism next by Jewish minorities The emerging predominant non-christological theism (Thiemann 1996) or Judeo-Christian deism (Herberg 1960) has been challenged by black Mus- lim churches though largely without success Islam is still perceived as a fun- damental threat (Zolberg 1998) For many foreign observers American political life is still to an astonishing degree dominated by Christianity not only internally but also in US foreign policy (America as the chosen coun- try Americans as the chosen people) Whether a third moral disestablish- ment can be discerned as Bellah and others (1985) think and if so where this development would leave American civil religion is much more con- tested The myth of a complete separation not only neglects this history but it is also at odds with the continuing presence of legal privileges such as con- gressional and military chaplains paid from public funds tax exemptions exemptions from military service or from combat duties state officials swearing belief in God prayers in the Supreme Court and US Congress In God We Trust on US currency and Thanksgiving ~ a ~

Neither separation nor neutrality are concepts to be found in the text of the American constitution or in international rights covenants Nevertheless the opening words of the American Bill of Rights-Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof-are now commonly known as the principle of separation Ronald Thiemann (199642 see Richards 1986 1889 has shown that this principle

is derived from a metaphor first used by Roger Williams in a letter to John Cotton and then by Thomas Jefferson In a letter to the Baptist Association of Danbury Connecti- cut It became common constitutional parlance through adecision written by Justice Hugo Black in 1947 Despite its somewhat obscure origins and its rather recent introduc- tion into the legal tradition this principle has come to shape our nations understanding of the relation between the political and religious spheres in the United States

According to Justice Black the First Amendment has erected a wall (of separation) between church and state That wall must be kept high and impregnable We could not approve the slightest breach The quasi-doctrinal status of this interpretation has two odd consequences critics of the metaphor are associated with political conservatism whereas Liberals and Leftists are tempted to defend absolute separation

Critics of the Supreme Courts record in adjudicating cases involving the religion clauses have characterized the questionable logic and contradictory

Bader 1 RELIGIOUS PLURALISM 605

opinions of the decisions as bizarre fatuous a hodgepodge and judi- cial meandering Indeed the principle of separation does not foster a coherent and convincing interpretation of the two clauses for they can eas- ily work at cross-purposesY The nonestablishment clause seems to forbid any governmental assistance and to require noninvolvement and no aid to any religion The free exercise clause seems to mandate governmental accommodation and impartiality seems to require equal aid to religions Noninvolvement and impartiality cannot be consistently combined (Valauri 1986) and the separation metaphor does not help to combine them in a productive way The resulting confusion is displayed in many cases excel- lently documented by Galanter (1966) Note (1987) and Stoltenberg (1993) To illustrate the point let me discuss the Allegheny County v Greater Pitts- burgh ACLU case (1988) on the display of a creche including an angel bear- ing a banner with the words Gloria in Excelsis Deo on or near county prop- erty Three major positions of the Supreme Court justices can be discerned The majority uphold a separationist secular purpose position arguing that government is only permitted to display religious symbols with a secular pur- pose Government may not engage in practices that serve to endorse religious beliefs Any state action that serves to favor prefer or promote one religious theory over another or religious belief over disbelief is in violation of the non- establishment clause The concurring minority took a stronger position of strict neutrality arguing that government is never permitted to display reli- gious symbols of any kind because the nonestablishment clause is interpreted to require neutrality not just among religions but between religion and non-religion The dissenting minority judges oppose the decision as includ- ing an unjustified hostility toward religion and ask for symbolic accommo- dation because it is difficult to maintain the fiction that requiring govern- ment to avoid all assistance to religion can in fairness be viewed as serving the goal of neutrality (Justice ~ e n n e d ~ ) ~

All three positions are inadequate Strict neutrality reproduces impossi- ble fictions and ignores the patterns of co-operation between church and state created by our history of civic piety and by the expanding regulatory role of the welfare state22 Separationist secular purpose has four odd conse- quences ( I ) The intent to acknowledge religious symbols in a general way but not as particular cultural phenomena proposes to strip religions of all their specific meaning Government may celebrate Christmas in some man- ner and form but not in a way that endorses Christian doctrine Because religious beliefs practices and symbols are inevitably particular this offends religious people2 (2) It places judges in an uncomfortable position they must act as theological critics to determine the meaning of a symbol and as social critics to determine whether such a symbol has been sufficiently

606 POLITICAL THEORY 1October 1999

stripped of its inherent religious meanings (3) It contributes to the already desultory rhetoric of contemporary politics (4) It is motivated by a hands- off notion of justice or fairness that for fear of unequal and discriminatory treatment of other religious and nonreligious people does not ask to treat them even-handedly respecting and accommodating their particularities but requires us to abstract from all their particularities This is not only impossible but it would also make all people religious and nonreligious worse off24 Symbolic accommodation has the considerable advantage of recognizing that

the principles of the Establishment Clausc and our Nations historic traditions of diver- sity and pluralism allow communitics to makc reasonable judgements respecting the accommodation of holidays with both cultural and religious aspccts No constitutional violation occurs when they do so by displaying a symbol of the holidays religious ori- gins (Justice Kennedy)

By equating religions with Christianity however it sidesteps the question of religious pluralism particularly the issue of a fair treatment of minority reli- gions Thus it does not live up to the minimal requirements of fairness as even-handedness and is unable to answer the really pressing questions

What arc the appropriate limits of governmental accommodation of mi~jorityrcligious belief and practice within a pluralistic democracy At what point docs propcr accommo- dation of religion become impropcr aid or assistance to religion When docs accommo- dation of the majority religion bccome discriminatory toward religious minorities (Thicmann 1996530

Since Justice Blacks decision in Everson separation has been fatefully joined with the doctrine of government neutrality toward religion All three positions in Allegheny agreed that state neutrality toward religion is man- dated by the Constitution but they widely differ on the meaning and applica- tion of this protean concept (Thiemann 199660ff) Strict Neutrulity of the concurring minority judges mandates governmental noninvolvement in religious matters by requiring a consistent no-aid to religion policy Non-discriniinatov neutruliamp of the majority judges softens the doctrinal purity by allowing some public sphere accommodation providing the symbols or practices supported by government are nonsectarian and nondis- criminatory This position reads the Constitution as mandating a no-aid to religion (or noninvolvenzent) policy whenever sectarian practices are at issue and an equal uid to religion (or inlpartiality) policy when the practices are generally cultural or have a discernible secular purpose Benevolent neu- trality explicitly seeks to broaden the framework within which religion

Bader RELIGIOUS PLURALISM 607

might be freely exercised [It] proscribes only governmentally estab- lished religion or governmental interference with religion None of the three interpretations can serve as a guide to a more coherent interpretation of the religion clauses2h

This is I think a reasonable presentation of the present state of the consti- tutional debate I agree therefore with Thiemanns (1996) conclusion that we have to abandon (p 43) the separation metaphor for four reasons (1) it deflects attention from more fundamental principles (eg liberty equality tolerance) that undergird the two clauses (2) it conceptualizes church-state relations in singular and monolithic terms (3) it conceals the variety of ways in which they interact and (4) it constrains our ability to imagine new possi- bilities for their relation The separation metaphor cannot reasonably guide interpretations of the American Constitution It has only served as a mislead- ing placeholder for constitutional nonestablishment It cannot be used either as a reasonable second-order principle for the interpretation of international rights treatises or alternative constitutional traditions (characterized by weak or plural constitutional establishment) But should we also follow Thiemanns proposal to jettison (p 64) two other candidates of productive second-order principles neutrality and secularism

Relational Neutrulity and Priority for Democracy

Neutrality separation and secularism are-to repeat-not consti-tutional rights but second-order principles Why not get rid of second-order principles as such Why and for what purposes do we need these meta-rules Second-order principles as well as moral and legal paradigms are in my view important as guidelines in two types of cases in all cases in which con- stitutional rights and first-order moral principles conflict and in all cases of conflicting interpretations and applications of rights They should allow more coherent interpretations of constitutions and should be able to guide the difficult art of balancing in a more productive way

To summarize strict neutrality and complete separation have failed in this regard Difference-blind religious neutrality is a prominent version of an ideological mechanism that universalizes the particular and hides it from view In the case of religions as with sexes gender race and ethnicity there can exist no absolute impartiality no absolute perspective no view from nowhere Such well-known criticism2 forces us to reconceptualize these principles to rescue the two commendable moral intuitions they mean to articulate the prohibition of moral particularism and the preclusion of injus- tice under conditions of religious diversity and structural inequality These

608 POLITICAL THEORY 1 October 1999

moral intuitions are better conceptualized by the principles of relational neu- trality and even-handedness

Relational neutrality replaces the idea of difference-blindness by difference-sensitivity Only if we take into account actual differences and inequalities between religious groups and organizations can we hope that institutions and policies will in the long run become more neutral in relation to these religions and to nonreligious people as well Relational neutrality does not presume some imagined place of neutral transcendence (Thie- mann 1996 82) or some objective observer (Justice OConnor see Note 1987 1647) as in the old untenable versions of nonsocially situated ahis- torical universal knowledge but neither does it lapse into a relativistic any- thing goes There are more inclusive better-situated perspectives that take into account the degree of inclusiveness of the actual2v relevant secular and religious voices and the particular point in history

Fairness as even-handedness is a better candidate than majority-biased symbolic accommodation It criticizes the exclusive reliance on a hands- oft concept of fairness regarding culture and identity that has informed the concepts of neutrality and complete separation predominant in liberal phi- losophy In a critical response to my article on transnational citizenship Joseph Carens has characterized

the ideal of cven-handedness to contrast it with the hands-off approach of neutrality The guiding idea of even-handedness is that what fairness entails is a sensitive balancing of competing claims for recognition and support in matters of culture and identity Instead of trying to abstract from particularity we shouldembrace it but in a way that is fair to all the different particularities Now being fair docs not mean that every cultural claim and identity will be givcn equal wcight but rather that cach will be given appropriate wcight undcr thc circumstances and given a commitment to equal respect for all History mat- tcrs numbers matter the relative importance of the claim to those who present it matters and so do many other considcmtions (Carens 1997 818 claboratcd in Carcns 1998 Introduction)

Religious cultures and identities are not treated fairly by declaring that religion is a private matter or by excluding religious arguments from political or constitutional debate or from debates about constitutional essentials and basic justice Nondiscrimination and equal treatment of different religions as well as of religious and nonreligious people are not well served by hands- off abstractions They require a sensitive balancing of the different claims taking into account structural inequalities between majority religions and minority ones Policies of accommodation which take cultures and identi- ties seriously and strive for a sensible balancing but neglect structural ine- qualities should be combined with a concept of rough complex equality that

Hader RELIGIOUS PLURALISM 609

uncovers neglected structural inequalities between (organized) religions and asks for policies to redress them (policies furiously criticized by liberal crit- ics of affirmative action in all fields) Sensitive balancing of cultural and identity claims will never achieve complete cultural equality and support will never achieve substantive equality between majority religions minority ones and secular people (nor would this be morally required in my view) but they may help to redress obviously unfair situations

Nondiscrimination and equal treatment also do not require second-order secularism I realize that my claim here conflicts with one of the crucial the- ses and assumptions of liberal republican and socialist political philoso phy2~propose to reconceptualize the central moral intuition of second-order secularism by the second-order principle of priority for democracy

We saw earlier that religiously and theologically motivated critics of political liberalism in the United States such as Neuhaus Wolterstorff and Thiemann challenged the presumed neutrality of second-order secularism In England similar complaints have been raised by Anglican Jewish Catho- lic and Muslim opponents of complete separation Conceptualizing mod- ern public morality as secular morality is said to privilege secular over reli- gious values unfairly Writing from a Jewish perspective Sylvia Rothschild fears most

a purportedly neutral secularism for thcre is nothing so dogmatic as that which is dog- matically neutral and sccularisrn far from being open to all closes the many diverse doors to the communities of faith As I read it the secular mode is merely another point on thc spectrum of religious expression but one which has no understanding of and which makes no allowances for othcr modes of religious expression On thc othcr hand pluralism can and does flow from religious vision [The] sccular crusade against thc Anglican church is an attack on all forms of religious expression and thus indirectly harmful to us too [Discstablishmcnt] sccms to mc a way only towards mono- dominant and triumphant sccularism rathcr than a pathway which may lcad to true multi-faith multi-cultural pluralism (Rothschild in Modood 1996 56 60 sce similar charges by Levinson 1990 and Carter 1993 in the United States)

The real question for her thus is just how do we organize ourselves so that the many voices can be heard so that one dominant culture doesnt impose itself on us all (Modood 199658) Bikhu Parekh also challenges Rawlsian political liberalism for keeping

religion out of political life in a democracy Like Rawls (1995) we might insist that citi- Lens In a liberal society should derivc or at least publicly dcfend thcir political judgc- ments in a secular manner but that is arbitrary and has no appeal to those who do not sharc his views of religion and politics [We have to] challenge thc untenable and long-hcld beliefs that only a secular state can be libcnl and dcmocratic and that political

610 POLITICAL THEORY October 1999

discourse is manageable only whcn it is conceptually monolingual and homogeneous (Parckh in Modood 19962 122)

If a secular public morality cannot be neutral we seem to be caught in a trap forced to choose between two equally miserable imperialisms either mono-dominant and triumphant secularism and an out-and-out (or funda- mentalist) secularism which in its late twentieth century manifestation is a climate inimical to any religion (Daoud Rosser-Owen from a Muslim per- spective in Modood 1996 84) on one hand or troubling triumphalism by those who believed religion had a monopoly on moral concerns (Phillips in Modood 1996 27) on the other Anne Phillips has tried to resolve this dilemma by pointing out that

secularism occupies a dual location in this kind of debate Those who do not follow any of thc worlds religions arc by definition secular in thcir beliefs when secularism speaks on bchalf of thcsc non-believers it speaks on a par with the spokcspcoplc for Anglicans Catholics Muslims or Jcws Hut secularism also presents itself as thc solu- tion after all other voices havc spoken for in arguing fora separation between church and state it promises to protect thc beliefs and the practices of each from thc prcssures to go along with what any othcrs bclicve This looks suspiciously like a sleight of hand and thats the w o q that the even-handed accommodation of all turns out to be particularly attuned to one (Phillips in Modood 1996 27)

Anne Phillips tries to defend secular public morality on a meta-level as

the only approach that can even approximatc equality of treatment between those who hold different beliefs thc interests of democratic equality cannot be well served by practices that privilege one church ovcr the others nor can thcy bc well servcd by prac- tices that privilege religious values over secular oncs nor-and this is the difficult one--can thcy be well served by practices that privilege secular valucs over religious bclicfs The difficulty remains that any way of formulating this puts it in the framework of a secular solution and some will rcgard this as diminishing the significance of relig- ion Rut the secular separation of church from statc is still the closest we can get to parity of treatment between those who are rcli~ious and those who are not and between thc fol- lowers of different religions Equality is onc of the crucial principles of amodern democ- racy and for this reason (evcn cxcluding all the others) thc secular solution is the only onc I could defend (Phillips in Modood 1996270

Plausible though it looks at first sight such a defense common to Audi Phillips and many others still suffers from an unrecognized identification of public morality with secular morality Audi (1991) treats public and secular reason as if they would be exactly the same For him public reasons are explicitly and by definition secular and his principles of rationale and moti- vation are secularist principles

Bader 1 RELIGIOUS PLURALISM 61 1

unless they offer (or at least have) adequate secular (non-religious) reasons to support thc law or policy in question By sccular reason I do not mcan onc that is con- sciously held in contrast to a religious onc noris there anything anti-religious implicit in a proper use of thc tcrm Indccd a sccular reason may be fully uligned with a reli- giously sanctioned vicw Rather a secular reason is roughly one whose normative force that is its status as a prima facie justificatory clcment does not (evidentially) depend on thc existence of God (for cxamplc through appeals to divine command) or on theological considerations (such as interpretations of a sacred tcxt) or on the pro- nouncements of a person or institution qua religious authority (Audi 1989 278 see also Audi 1997)

Although Audi Macedo and other liberal political philosophers believe that they can rely on Rawlss conceptions of political justice and public rea- son Rawls himself has carefully avoided identifying public reason with secular reason both terminologically34 as well as in his substantive arguments in favor of a freestanding public morality (see below)

In the sixteenth and seventeenth centuries such a terminological and con- ceptual identity was historically understandable because public morality had to be fought for first in battles against defenders of absolutist or fundamen- talist religions and established churches and later on in battles against those theological and philosophical defenders of freedom of religion and of con- sciousness who explicitly or implicitly limited these freedoms to the variety of conflicting Christian denominations and who did not extend their argu- ments into a principled defense of freedom of consciousness for all religious believers whether Christian or not as well as for those who hold secular val- ues and beliefs In a context in which the enemies of a general freedom of consciousness (and of most other liberal and democratic principles and rights) were absolutist religions public morality took the form of secular morality and a religious or theological defense of public morality seemed unthinkable Its true defenders thus were secular philosophers (such as Spi- noza and Kant)

In our times this context has changed public morality and liberal democracy have to be defended against secularist philosophers scientistic technocrats and expertocracy as well as against those religions that still defend absolutist and fundamentalist claims in politics In this context it is still true that secularism is more commonly perceived as the opposite of religion (Phillips in Modood 199627) but it may be that the most danger- ous enemies of liberal democracy are not or not mainly religions but secular- ist ideologies (as Wolterstorff 1997 pointed out) And from Madison onwards we also find religiously or theologically motivated defenders of a principled nonexclusive right to freedom of consciousness and of other rights institutions and public morality of liberal democracy

612 POLITICAL THEORY October 1999

In such a ~on tex t ~ both the meaning of secular and re~i~ious~ and their relation have changed Consequently the conceptual identification of public with secular morality is increasingly misleading for the following reasons

1 It scduccs us into conceptualizing the justificatory nonneutrality of libcral dcrnocracy in terms of sccular versus rcligious arguments or foundations The main question is not howevcr whether arguments are secular or rcligious but whcther thcy arc compatible with andlor support liberal dcrnocracy

2 It neglccts the possibility and existence of principled rcligious or thcological founda- tions of liberal dcmocmcy and excludcs thc possibility of public rcason in thcological and religious argumcnts It thus unfairly discriminates against those modem theologi- ans and religions that dcfcnd liberal democracy (Thiernann 1996 13 1 ff)

3 It directs our criticism of fundamcntalism in politics in a onc-sidcd and myopic manncr against rcligious or theological fundamcntalism and thus tcnds to neglcct all secular fundarncntalisms even if thcy posc much morc dangerous threats to tolerance and lib- eral dcrnocracy

There is a better way to account for the intuition that liberal democracy is inevitably nonneutral This is the principle of priority for democracy (always as a shorthand for liberal democracy in the sense defined above) In a short explication and defense of this second-order principle I proceed as follows First I want to highlight that not only religions had to learn what priority for democracy implies but philosophers scientists expertocrats and judges had to learn this too Second I want to defend the priority for democracy against misleading challenges from religions that argue that a secular moral- ity would be impossible would lead to a decay of morals or would weaken necessary limitations of state sovereignty and politics or claim a kind of his- torical priority41 Third I want to defend the priority for democracy against philosophical imperialisms which claim a kind of philosophical priority fail to radicalize the principle of nonfoundationalism and thus limit the produc- tive idea of a freestanding public morality that is political not metaphysi- cal Finally I want to defend the priority for democracy against the ironic and skeptic antiphilosophy of Richard Rorty who has coined the phrase

Priority for Democracy Versus All Fundamentalisms

Simply stated priorityfbr democracy means to begin with that princi- ples institutions cultures virtues and practices of liberal democracy have priority over the competing and often incompatible foundations of liberal democracy be they religious philosophical (metaphysical ontological moral ethical) or scientific Furthermore all opinions and voices like votes

Bader 1 RELIGIOUS PLURALISM 613

have to count equally when it comes to decision making even if paternalistic elites for the best of reasons think that they are uninformed misinformed false morally wrong and so on Liberal democracy thus understood cannot be neutral nor should it be But this inevitable nonneutrality which is essential with regard to all nonliberal nondemocratic principles and prac- tices should not be confused with nonneutrality between secular and reli- gious foundations and arguments

It is now common knowledge among sophisticated political philosophers that liberal democracy cannot be neutral42 This inevitable nonneutrality should be directed explicitly and exclusively against principles and prac- tices at odds with liberal democracy against fundamentalism of all kinds not against religions as such In their defense of the principle of reciprocity against the fundamentalist (religious) challenge that it is biased against fun- damentalism and in favor of religions that conform to deliberative views of civic education Gutmann and Thompson concede that it is correct

that the principle is not neutral among religions or ways of life The case forreciprocity and more generally for the deliberative perspective must be defended on substantive moral grounds and there is no reason to expect that such a defense would have the same (positive or negative) implications for all moral positions But the value of public rea- son expressed by the deliberative perspective is not just another morality It is offered as the morally optimal basis on which citizens who disagree about moralities and reli- gions can act collectively to makeeducational policy The principle of reciprocity is not privileged in the sense that it needs no moral defense But the defense it needs and the objections to which it is vulnerable are different from those of moral disagreement in politics The principle proposes a basis on which those who morally disagree can coop- erate and it can be appropriately criticized only by proposing an alternative basis not simply by reaffirming the moral or religious claim that constitutes the disagreement The fundamentalists do not offer an alternative (Gutmann and Thompson 1996 67 cf 93 second-order agreement not on secularism but on principles and virtues of liberal democracy)

Anne Phillips-like Tariq Modood (1996 13) Stephen Macedo (1998)~ Richard Rorty ( 1 9 9 7 ) ~ ~ and others-treats Charles Taylor ( 1 9 9 8 ) ~ ~ this inevitable nonneutrality of liberal democracy and of public morality as inevi- table secularity This is the most basic flaw of almost all recent political phi- losophy Christian and other religions particularly established churches have obviously learned to accept priority for democracy only as a result of protracted conflict Protestant denominations and free churches living under conditions of an established church had learned this from painful experiences much earlier and deeper than established churches particularly the Catholic Church However under conditions of liberal-democratic constitutional states even churches that think of themselves as the depositor of divine

614 POLITICAL THEORY 1October 1999

truth have eventually learned to accept the notion that when it comes to pub- lic democratic decision making error has the same rights as The authoritative sources of this Truth-be it God the Pope the Ayatollah priests or mullahs however important they may be inside the churches or the community o f believers-add nothing to its persuasive force in the arena o f public reason public deliberation and public scrutiny This is what all churches have to learn under conditions o f a modern constitution They all have to find their own ways to solve the fundamentalist dilemma (Casa- nova 1994 165)

I f this is clear about religion it is less well known and often forgotten that the same holds for all types o f secular truths While many modern religions and churches have tried to resolve this dilemma many prominent modern philosophers have not even addressed it properly This is not only evident for some o f the recently fashionable prominent continental philosophers such as Nietzsche Carl Schmitt and Heidegger To a lesser degree many Anglo- Saxon liberal moral philosophers are also guilty o f such an elitist conquest o f democratic politics (Barber 1988) The history o f modern social science is full o f scientistic ideology (from Saint-Simons scientistic religion via scientific racism to recent conquests o f democratic politics by neoclassical economic ideology) and the practices o f many experts (scientists techni- cians medical practitioners architects economists ecologists pedagogues psychologists sociologists judges etc) are rife with illegitimate scien- tocracy or expertocracy All o f them still have to learn how to resolve the fun- damentalist dilemma-namely that in democratic deliberation and decision making their truths are no more than opinions among 0the1-s~ Instead o f trying to limit thecontent o f public reason by keeping all contested compre- hensive doctrines and truth-claims out one has to develop the duties o f civility such as the duty to explain positions in publicly understandable lan- guage the willingness to listen to others fair-mindedness and readiness to accept reasonable accommoclat~ons or alterations In ones own view (see below)

Priority for Democracy versus Religious Challenges

The priority o f democracy has to be defended against five well-known untenable challenges from religious or theological imperialists

( i )Many religious believers and some theologians still think that a person cannot be solidly moral without being religious (Audi 1989 290f contra William Bennett) implicitly or explicitly they hold that secular morality In general is impossible Kulananda from a Buddhist perspective demonstrates

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

604 POLITICAL THEORY 1October 1999

eventually led to higher degrees of actual disestablishment of the American state society and culture from Evangelical Protestantism as its historical civil religion1 has been the result of challenges by competing organized minority religions first by Roman Catholicism next by Jewish minorities The emerging predominant non-christological theism (Thiemann 1996) or Judeo-Christian deism (Herberg 1960) has been challenged by black Mus- lim churches though largely without success Islam is still perceived as a fun- damental threat (Zolberg 1998) For many foreign observers American political life is still to an astonishing degree dominated by Christianity not only internally but also in US foreign policy (America as the chosen coun- try Americans as the chosen people) Whether a third moral disestablish- ment can be discerned as Bellah and others (1985) think and if so where this development would leave American civil religion is much more con- tested The myth of a complete separation not only neglects this history but it is also at odds with the continuing presence of legal privileges such as con- gressional and military chaplains paid from public funds tax exemptions exemptions from military service or from combat duties state officials swearing belief in God prayers in the Supreme Court and US Congress In God We Trust on US currency and Thanksgiving ~ a ~

Neither separation nor neutrality are concepts to be found in the text of the American constitution or in international rights covenants Nevertheless the opening words of the American Bill of Rights-Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof-are now commonly known as the principle of separation Ronald Thiemann (199642 see Richards 1986 1889 has shown that this principle

is derived from a metaphor first used by Roger Williams in a letter to John Cotton and then by Thomas Jefferson In a letter to the Baptist Association of Danbury Connecti- cut It became common constitutional parlance through adecision written by Justice Hugo Black in 1947 Despite its somewhat obscure origins and its rather recent introduc- tion into the legal tradition this principle has come to shape our nations understanding of the relation between the political and religious spheres in the United States

According to Justice Black the First Amendment has erected a wall (of separation) between church and state That wall must be kept high and impregnable We could not approve the slightest breach The quasi-doctrinal status of this interpretation has two odd consequences critics of the metaphor are associated with political conservatism whereas Liberals and Leftists are tempted to defend absolute separation

Critics of the Supreme Courts record in adjudicating cases involving the religion clauses have characterized the questionable logic and contradictory

Bader 1 RELIGIOUS PLURALISM 605

opinions of the decisions as bizarre fatuous a hodgepodge and judi- cial meandering Indeed the principle of separation does not foster a coherent and convincing interpretation of the two clauses for they can eas- ily work at cross-purposesY The nonestablishment clause seems to forbid any governmental assistance and to require noninvolvement and no aid to any religion The free exercise clause seems to mandate governmental accommodation and impartiality seems to require equal aid to religions Noninvolvement and impartiality cannot be consistently combined (Valauri 1986) and the separation metaphor does not help to combine them in a productive way The resulting confusion is displayed in many cases excel- lently documented by Galanter (1966) Note (1987) and Stoltenberg (1993) To illustrate the point let me discuss the Allegheny County v Greater Pitts- burgh ACLU case (1988) on the display of a creche including an angel bear- ing a banner with the words Gloria in Excelsis Deo on or near county prop- erty Three major positions of the Supreme Court justices can be discerned The majority uphold a separationist secular purpose position arguing that government is only permitted to display religious symbols with a secular pur- pose Government may not engage in practices that serve to endorse religious beliefs Any state action that serves to favor prefer or promote one religious theory over another or religious belief over disbelief is in violation of the non- establishment clause The concurring minority took a stronger position of strict neutrality arguing that government is never permitted to display reli- gious symbols of any kind because the nonestablishment clause is interpreted to require neutrality not just among religions but between religion and non-religion The dissenting minority judges oppose the decision as includ- ing an unjustified hostility toward religion and ask for symbolic accommo- dation because it is difficult to maintain the fiction that requiring govern- ment to avoid all assistance to religion can in fairness be viewed as serving the goal of neutrality (Justice ~ e n n e d ~ ) ~

All three positions are inadequate Strict neutrality reproduces impossi- ble fictions and ignores the patterns of co-operation between church and state created by our history of civic piety and by the expanding regulatory role of the welfare state22 Separationist secular purpose has four odd conse- quences ( I ) The intent to acknowledge religious symbols in a general way but not as particular cultural phenomena proposes to strip religions of all their specific meaning Government may celebrate Christmas in some man- ner and form but not in a way that endorses Christian doctrine Because religious beliefs practices and symbols are inevitably particular this offends religious people2 (2) It places judges in an uncomfortable position they must act as theological critics to determine the meaning of a symbol and as social critics to determine whether such a symbol has been sufficiently

606 POLITICAL THEORY 1October 1999

stripped of its inherent religious meanings (3) It contributes to the already desultory rhetoric of contemporary politics (4) It is motivated by a hands- off notion of justice or fairness that for fear of unequal and discriminatory treatment of other religious and nonreligious people does not ask to treat them even-handedly respecting and accommodating their particularities but requires us to abstract from all their particularities This is not only impossible but it would also make all people religious and nonreligious worse off24 Symbolic accommodation has the considerable advantage of recognizing that

the principles of the Establishment Clausc and our Nations historic traditions of diver- sity and pluralism allow communitics to makc reasonable judgements respecting the accommodation of holidays with both cultural and religious aspccts No constitutional violation occurs when they do so by displaying a symbol of the holidays religious ori- gins (Justice Kennedy)

By equating religions with Christianity however it sidesteps the question of religious pluralism particularly the issue of a fair treatment of minority reli- gions Thus it does not live up to the minimal requirements of fairness as even-handedness and is unable to answer the really pressing questions

What arc the appropriate limits of governmental accommodation of mi~jorityrcligious belief and practice within a pluralistic democracy At what point docs propcr accommo- dation of religion become impropcr aid or assistance to religion When docs accommo- dation of the majority religion bccome discriminatory toward religious minorities (Thicmann 1996530

Since Justice Blacks decision in Everson separation has been fatefully joined with the doctrine of government neutrality toward religion All three positions in Allegheny agreed that state neutrality toward religion is man- dated by the Constitution but they widely differ on the meaning and applica- tion of this protean concept (Thiemann 199660ff) Strict Neutrulity of the concurring minority judges mandates governmental noninvolvement in religious matters by requiring a consistent no-aid to religion policy Non-discriniinatov neutruliamp of the majority judges softens the doctrinal purity by allowing some public sphere accommodation providing the symbols or practices supported by government are nonsectarian and nondis- criminatory This position reads the Constitution as mandating a no-aid to religion (or noninvolvenzent) policy whenever sectarian practices are at issue and an equal uid to religion (or inlpartiality) policy when the practices are generally cultural or have a discernible secular purpose Benevolent neu- trality explicitly seeks to broaden the framework within which religion

Bader RELIGIOUS PLURALISM 607

might be freely exercised [It] proscribes only governmentally estab- lished religion or governmental interference with religion None of the three interpretations can serve as a guide to a more coherent interpretation of the religion clauses2h

This is I think a reasonable presentation of the present state of the consti- tutional debate I agree therefore with Thiemanns (1996) conclusion that we have to abandon (p 43) the separation metaphor for four reasons (1) it deflects attention from more fundamental principles (eg liberty equality tolerance) that undergird the two clauses (2) it conceptualizes church-state relations in singular and monolithic terms (3) it conceals the variety of ways in which they interact and (4) it constrains our ability to imagine new possi- bilities for their relation The separation metaphor cannot reasonably guide interpretations of the American Constitution It has only served as a mislead- ing placeholder for constitutional nonestablishment It cannot be used either as a reasonable second-order principle for the interpretation of international rights treatises or alternative constitutional traditions (characterized by weak or plural constitutional establishment) But should we also follow Thiemanns proposal to jettison (p 64) two other candidates of productive second-order principles neutrality and secularism

Relational Neutrulity and Priority for Democracy

Neutrality separation and secularism are-to repeat-not consti-tutional rights but second-order principles Why not get rid of second-order principles as such Why and for what purposes do we need these meta-rules Second-order principles as well as moral and legal paradigms are in my view important as guidelines in two types of cases in all cases in which con- stitutional rights and first-order moral principles conflict and in all cases of conflicting interpretations and applications of rights They should allow more coherent interpretations of constitutions and should be able to guide the difficult art of balancing in a more productive way

To summarize strict neutrality and complete separation have failed in this regard Difference-blind religious neutrality is a prominent version of an ideological mechanism that universalizes the particular and hides it from view In the case of religions as with sexes gender race and ethnicity there can exist no absolute impartiality no absolute perspective no view from nowhere Such well-known criticism2 forces us to reconceptualize these principles to rescue the two commendable moral intuitions they mean to articulate the prohibition of moral particularism and the preclusion of injus- tice under conditions of religious diversity and structural inequality These

608 POLITICAL THEORY 1 October 1999

moral intuitions are better conceptualized by the principles of relational neu- trality and even-handedness

Relational neutrality replaces the idea of difference-blindness by difference-sensitivity Only if we take into account actual differences and inequalities between religious groups and organizations can we hope that institutions and policies will in the long run become more neutral in relation to these religions and to nonreligious people as well Relational neutrality does not presume some imagined place of neutral transcendence (Thie- mann 1996 82) or some objective observer (Justice OConnor see Note 1987 1647) as in the old untenable versions of nonsocially situated ahis- torical universal knowledge but neither does it lapse into a relativistic any- thing goes There are more inclusive better-situated perspectives that take into account the degree of inclusiveness of the actual2v relevant secular and religious voices and the particular point in history

Fairness as even-handedness is a better candidate than majority-biased symbolic accommodation It criticizes the exclusive reliance on a hands- oft concept of fairness regarding culture and identity that has informed the concepts of neutrality and complete separation predominant in liberal phi- losophy In a critical response to my article on transnational citizenship Joseph Carens has characterized

the ideal of cven-handedness to contrast it with the hands-off approach of neutrality The guiding idea of even-handedness is that what fairness entails is a sensitive balancing of competing claims for recognition and support in matters of culture and identity Instead of trying to abstract from particularity we shouldembrace it but in a way that is fair to all the different particularities Now being fair docs not mean that every cultural claim and identity will be givcn equal wcight but rather that cach will be given appropriate wcight undcr thc circumstances and given a commitment to equal respect for all History mat- tcrs numbers matter the relative importance of the claim to those who present it matters and so do many other considcmtions (Carens 1997 818 claboratcd in Carcns 1998 Introduction)

Religious cultures and identities are not treated fairly by declaring that religion is a private matter or by excluding religious arguments from political or constitutional debate or from debates about constitutional essentials and basic justice Nondiscrimination and equal treatment of different religions as well as of religious and nonreligious people are not well served by hands- off abstractions They require a sensitive balancing of the different claims taking into account structural inequalities between majority religions and minority ones Policies of accommodation which take cultures and identi- ties seriously and strive for a sensible balancing but neglect structural ine- qualities should be combined with a concept of rough complex equality that

Hader RELIGIOUS PLURALISM 609

uncovers neglected structural inequalities between (organized) religions and asks for policies to redress them (policies furiously criticized by liberal crit- ics of affirmative action in all fields) Sensitive balancing of cultural and identity claims will never achieve complete cultural equality and support will never achieve substantive equality between majority religions minority ones and secular people (nor would this be morally required in my view) but they may help to redress obviously unfair situations

Nondiscrimination and equal treatment also do not require second-order secularism I realize that my claim here conflicts with one of the crucial the- ses and assumptions of liberal republican and socialist political philoso phy2~propose to reconceptualize the central moral intuition of second-order secularism by the second-order principle of priority for democracy

We saw earlier that religiously and theologically motivated critics of political liberalism in the United States such as Neuhaus Wolterstorff and Thiemann challenged the presumed neutrality of second-order secularism In England similar complaints have been raised by Anglican Jewish Catho- lic and Muslim opponents of complete separation Conceptualizing mod- ern public morality as secular morality is said to privilege secular over reli- gious values unfairly Writing from a Jewish perspective Sylvia Rothschild fears most

a purportedly neutral secularism for thcre is nothing so dogmatic as that which is dog- matically neutral and sccularisrn far from being open to all closes the many diverse doors to the communities of faith As I read it the secular mode is merely another point on thc spectrum of religious expression but one which has no understanding of and which makes no allowances for othcr modes of religious expression On thc othcr hand pluralism can and does flow from religious vision [The] sccular crusade against thc Anglican church is an attack on all forms of religious expression and thus indirectly harmful to us too [Discstablishmcnt] sccms to mc a way only towards mono- dominant and triumphant sccularism rathcr than a pathway which may lcad to true multi-faith multi-cultural pluralism (Rothschild in Modood 1996 56 60 sce similar charges by Levinson 1990 and Carter 1993 in the United States)

The real question for her thus is just how do we organize ourselves so that the many voices can be heard so that one dominant culture doesnt impose itself on us all (Modood 199658) Bikhu Parekh also challenges Rawlsian political liberalism for keeping

religion out of political life in a democracy Like Rawls (1995) we might insist that citi- Lens In a liberal society should derivc or at least publicly dcfend thcir political judgc- ments in a secular manner but that is arbitrary and has no appeal to those who do not sharc his views of religion and politics [We have to] challenge thc untenable and long-hcld beliefs that only a secular state can be libcnl and dcmocratic and that political

610 POLITICAL THEORY October 1999

discourse is manageable only whcn it is conceptually monolingual and homogeneous (Parckh in Modood 19962 122)

If a secular public morality cannot be neutral we seem to be caught in a trap forced to choose between two equally miserable imperialisms either mono-dominant and triumphant secularism and an out-and-out (or funda- mentalist) secularism which in its late twentieth century manifestation is a climate inimical to any religion (Daoud Rosser-Owen from a Muslim per- spective in Modood 1996 84) on one hand or troubling triumphalism by those who believed religion had a monopoly on moral concerns (Phillips in Modood 1996 27) on the other Anne Phillips has tried to resolve this dilemma by pointing out that

secularism occupies a dual location in this kind of debate Those who do not follow any of thc worlds religions arc by definition secular in thcir beliefs when secularism speaks on bchalf of thcsc non-believers it speaks on a par with the spokcspcoplc for Anglicans Catholics Muslims or Jcws Hut secularism also presents itself as thc solu- tion after all other voices havc spoken for in arguing fora separation between church and state it promises to protect thc beliefs and the practices of each from thc prcssures to go along with what any othcrs bclicve This looks suspiciously like a sleight of hand and thats the w o q that the even-handed accommodation of all turns out to be particularly attuned to one (Phillips in Modood 1996 27)

Anne Phillips tries to defend secular public morality on a meta-level as

the only approach that can even approximatc equality of treatment between those who hold different beliefs thc interests of democratic equality cannot be well served by practices that privilege one church ovcr the others nor can thcy bc well servcd by prac- tices that privilege religious values over secular oncs nor-and this is the difficult one--can thcy be well served by practices that privilege secular valucs over religious bclicfs The difficulty remains that any way of formulating this puts it in the framework of a secular solution and some will rcgard this as diminishing the significance of relig- ion Rut the secular separation of church from statc is still the closest we can get to parity of treatment between those who are rcli~ious and those who are not and between thc fol- lowers of different religions Equality is onc of the crucial principles of amodern democ- racy and for this reason (evcn cxcluding all the others) thc secular solution is the only onc I could defend (Phillips in Modood 1996270

Plausible though it looks at first sight such a defense common to Audi Phillips and many others still suffers from an unrecognized identification of public morality with secular morality Audi (1991) treats public and secular reason as if they would be exactly the same For him public reasons are explicitly and by definition secular and his principles of rationale and moti- vation are secularist principles

Bader 1 RELIGIOUS PLURALISM 61 1

unless they offer (or at least have) adequate secular (non-religious) reasons to support thc law or policy in question By sccular reason I do not mcan onc that is con- sciously held in contrast to a religious onc noris there anything anti-religious implicit in a proper use of thc tcrm Indccd a sccular reason may be fully uligned with a reli- giously sanctioned vicw Rather a secular reason is roughly one whose normative force that is its status as a prima facie justificatory clcment does not (evidentially) depend on thc existence of God (for cxamplc through appeals to divine command) or on theological considerations (such as interpretations of a sacred tcxt) or on the pro- nouncements of a person or institution qua religious authority (Audi 1989 278 see also Audi 1997)

Although Audi Macedo and other liberal political philosophers believe that they can rely on Rawlss conceptions of political justice and public rea- son Rawls himself has carefully avoided identifying public reason with secular reason both terminologically34 as well as in his substantive arguments in favor of a freestanding public morality (see below)

In the sixteenth and seventeenth centuries such a terminological and con- ceptual identity was historically understandable because public morality had to be fought for first in battles against defenders of absolutist or fundamen- talist religions and established churches and later on in battles against those theological and philosophical defenders of freedom of religion and of con- sciousness who explicitly or implicitly limited these freedoms to the variety of conflicting Christian denominations and who did not extend their argu- ments into a principled defense of freedom of consciousness for all religious believers whether Christian or not as well as for those who hold secular val- ues and beliefs In a context in which the enemies of a general freedom of consciousness (and of most other liberal and democratic principles and rights) were absolutist religions public morality took the form of secular morality and a religious or theological defense of public morality seemed unthinkable Its true defenders thus were secular philosophers (such as Spi- noza and Kant)

In our times this context has changed public morality and liberal democracy have to be defended against secularist philosophers scientistic technocrats and expertocracy as well as against those religions that still defend absolutist and fundamentalist claims in politics In this context it is still true that secularism is more commonly perceived as the opposite of religion (Phillips in Modood 199627) but it may be that the most danger- ous enemies of liberal democracy are not or not mainly religions but secular- ist ideologies (as Wolterstorff 1997 pointed out) And from Madison onwards we also find religiously or theologically motivated defenders of a principled nonexclusive right to freedom of consciousness and of other rights institutions and public morality of liberal democracy

612 POLITICAL THEORY October 1999

In such a ~on tex t ~ both the meaning of secular and re~i~ious~ and their relation have changed Consequently the conceptual identification of public with secular morality is increasingly misleading for the following reasons

1 It scduccs us into conceptualizing the justificatory nonneutrality of libcral dcrnocracy in terms of sccular versus rcligious arguments or foundations The main question is not howevcr whether arguments are secular or rcligious but whcther thcy arc compatible with andlor support liberal dcrnocracy

2 It neglccts the possibility and existence of principled rcligious or thcological founda- tions of liberal dcmocmcy and excludcs thc possibility of public rcason in thcological and religious argumcnts It thus unfairly discriminates against those modem theologi- ans and religions that dcfcnd liberal democracy (Thiernann 1996 13 1 ff)

3 It directs our criticism of fundamcntalism in politics in a onc-sidcd and myopic manncr against rcligious or theological fundamcntalism and thus tcnds to neglcct all secular fundarncntalisms even if thcy posc much morc dangerous threats to tolerance and lib- eral dcrnocracy

There is a better way to account for the intuition that liberal democracy is inevitably nonneutral This is the principle of priority for democracy (always as a shorthand for liberal democracy in the sense defined above) In a short explication and defense of this second-order principle I proceed as follows First I want to highlight that not only religions had to learn what priority for democracy implies but philosophers scientists expertocrats and judges had to learn this too Second I want to defend the priority for democracy against misleading challenges from religions that argue that a secular moral- ity would be impossible would lead to a decay of morals or would weaken necessary limitations of state sovereignty and politics or claim a kind of his- torical priority41 Third I want to defend the priority for democracy against philosophical imperialisms which claim a kind of philosophical priority fail to radicalize the principle of nonfoundationalism and thus limit the produc- tive idea of a freestanding public morality that is political not metaphysi- cal Finally I want to defend the priority for democracy against the ironic and skeptic antiphilosophy of Richard Rorty who has coined the phrase

Priority for Democracy Versus All Fundamentalisms

Simply stated priorityfbr democracy means to begin with that princi- ples institutions cultures virtues and practices of liberal democracy have priority over the competing and often incompatible foundations of liberal democracy be they religious philosophical (metaphysical ontological moral ethical) or scientific Furthermore all opinions and voices like votes

Bader 1 RELIGIOUS PLURALISM 613

have to count equally when it comes to decision making even if paternalistic elites for the best of reasons think that they are uninformed misinformed false morally wrong and so on Liberal democracy thus understood cannot be neutral nor should it be But this inevitable nonneutrality which is essential with regard to all nonliberal nondemocratic principles and prac- tices should not be confused with nonneutrality between secular and reli- gious foundations and arguments

It is now common knowledge among sophisticated political philosophers that liberal democracy cannot be neutral42 This inevitable nonneutrality should be directed explicitly and exclusively against principles and prac- tices at odds with liberal democracy against fundamentalism of all kinds not against religions as such In their defense of the principle of reciprocity against the fundamentalist (religious) challenge that it is biased against fun- damentalism and in favor of religions that conform to deliberative views of civic education Gutmann and Thompson concede that it is correct

that the principle is not neutral among religions or ways of life The case forreciprocity and more generally for the deliberative perspective must be defended on substantive moral grounds and there is no reason to expect that such a defense would have the same (positive or negative) implications for all moral positions But the value of public rea- son expressed by the deliberative perspective is not just another morality It is offered as the morally optimal basis on which citizens who disagree about moralities and reli- gions can act collectively to makeeducational policy The principle of reciprocity is not privileged in the sense that it needs no moral defense But the defense it needs and the objections to which it is vulnerable are different from those of moral disagreement in politics The principle proposes a basis on which those who morally disagree can coop- erate and it can be appropriately criticized only by proposing an alternative basis not simply by reaffirming the moral or religious claim that constitutes the disagreement The fundamentalists do not offer an alternative (Gutmann and Thompson 1996 67 cf 93 second-order agreement not on secularism but on principles and virtues of liberal democracy)

Anne Phillips-like Tariq Modood (1996 13) Stephen Macedo (1998)~ Richard Rorty ( 1 9 9 7 ) ~ ~ and others-treats Charles Taylor ( 1 9 9 8 ) ~ ~ this inevitable nonneutrality of liberal democracy and of public morality as inevi- table secularity This is the most basic flaw of almost all recent political phi- losophy Christian and other religions particularly established churches have obviously learned to accept priority for democracy only as a result of protracted conflict Protestant denominations and free churches living under conditions of an established church had learned this from painful experiences much earlier and deeper than established churches particularly the Catholic Church However under conditions of liberal-democratic constitutional states even churches that think of themselves as the depositor of divine

614 POLITICAL THEORY 1October 1999

truth have eventually learned to accept the notion that when it comes to pub- lic democratic decision making error has the same rights as The authoritative sources of this Truth-be it God the Pope the Ayatollah priests or mullahs however important they may be inside the churches or the community o f believers-add nothing to its persuasive force in the arena o f public reason public deliberation and public scrutiny This is what all churches have to learn under conditions o f a modern constitution They all have to find their own ways to solve the fundamentalist dilemma (Casa- nova 1994 165)

I f this is clear about religion it is less well known and often forgotten that the same holds for all types o f secular truths While many modern religions and churches have tried to resolve this dilemma many prominent modern philosophers have not even addressed it properly This is not only evident for some o f the recently fashionable prominent continental philosophers such as Nietzsche Carl Schmitt and Heidegger To a lesser degree many Anglo- Saxon liberal moral philosophers are also guilty o f such an elitist conquest o f democratic politics (Barber 1988) The history o f modern social science is full o f scientistic ideology (from Saint-Simons scientistic religion via scientific racism to recent conquests o f democratic politics by neoclassical economic ideology) and the practices o f many experts (scientists techni- cians medical practitioners architects economists ecologists pedagogues psychologists sociologists judges etc) are rife with illegitimate scien- tocracy or expertocracy All o f them still have to learn how to resolve the fun- damentalist dilemma-namely that in democratic deliberation and decision making their truths are no more than opinions among 0the1-s~ Instead o f trying to limit thecontent o f public reason by keeping all contested compre- hensive doctrines and truth-claims out one has to develop the duties o f civility such as the duty to explain positions in publicly understandable lan- guage the willingness to listen to others fair-mindedness and readiness to accept reasonable accommoclat~ons or alterations In ones own view (see below)

Priority for Democracy versus Religious Challenges

The priority o f democracy has to be defended against five well-known untenable challenges from religious or theological imperialists

( i )Many religious believers and some theologians still think that a person cannot be solidly moral without being religious (Audi 1989 290f contra William Bennett) implicitly or explicitly they hold that secular morality In general is impossible Kulananda from a Buddhist perspective demonstrates

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

Bader 1 RELIGIOUS PLURALISM 605

opinions of the decisions as bizarre fatuous a hodgepodge and judi- cial meandering Indeed the principle of separation does not foster a coherent and convincing interpretation of the two clauses for they can eas- ily work at cross-purposesY The nonestablishment clause seems to forbid any governmental assistance and to require noninvolvement and no aid to any religion The free exercise clause seems to mandate governmental accommodation and impartiality seems to require equal aid to religions Noninvolvement and impartiality cannot be consistently combined (Valauri 1986) and the separation metaphor does not help to combine them in a productive way The resulting confusion is displayed in many cases excel- lently documented by Galanter (1966) Note (1987) and Stoltenberg (1993) To illustrate the point let me discuss the Allegheny County v Greater Pitts- burgh ACLU case (1988) on the display of a creche including an angel bear- ing a banner with the words Gloria in Excelsis Deo on or near county prop- erty Three major positions of the Supreme Court justices can be discerned The majority uphold a separationist secular purpose position arguing that government is only permitted to display religious symbols with a secular pur- pose Government may not engage in practices that serve to endorse religious beliefs Any state action that serves to favor prefer or promote one religious theory over another or religious belief over disbelief is in violation of the non- establishment clause The concurring minority took a stronger position of strict neutrality arguing that government is never permitted to display reli- gious symbols of any kind because the nonestablishment clause is interpreted to require neutrality not just among religions but between religion and non-religion The dissenting minority judges oppose the decision as includ- ing an unjustified hostility toward religion and ask for symbolic accommo- dation because it is difficult to maintain the fiction that requiring govern- ment to avoid all assistance to religion can in fairness be viewed as serving the goal of neutrality (Justice ~ e n n e d ~ ) ~

All three positions are inadequate Strict neutrality reproduces impossi- ble fictions and ignores the patterns of co-operation between church and state created by our history of civic piety and by the expanding regulatory role of the welfare state22 Separationist secular purpose has four odd conse- quences ( I ) The intent to acknowledge religious symbols in a general way but not as particular cultural phenomena proposes to strip religions of all their specific meaning Government may celebrate Christmas in some man- ner and form but not in a way that endorses Christian doctrine Because religious beliefs practices and symbols are inevitably particular this offends religious people2 (2) It places judges in an uncomfortable position they must act as theological critics to determine the meaning of a symbol and as social critics to determine whether such a symbol has been sufficiently

606 POLITICAL THEORY 1October 1999

stripped of its inherent religious meanings (3) It contributes to the already desultory rhetoric of contemporary politics (4) It is motivated by a hands- off notion of justice or fairness that for fear of unequal and discriminatory treatment of other religious and nonreligious people does not ask to treat them even-handedly respecting and accommodating their particularities but requires us to abstract from all their particularities This is not only impossible but it would also make all people religious and nonreligious worse off24 Symbolic accommodation has the considerable advantage of recognizing that

the principles of the Establishment Clausc and our Nations historic traditions of diver- sity and pluralism allow communitics to makc reasonable judgements respecting the accommodation of holidays with both cultural and religious aspccts No constitutional violation occurs when they do so by displaying a symbol of the holidays religious ori- gins (Justice Kennedy)

By equating religions with Christianity however it sidesteps the question of religious pluralism particularly the issue of a fair treatment of minority reli- gions Thus it does not live up to the minimal requirements of fairness as even-handedness and is unable to answer the really pressing questions

What arc the appropriate limits of governmental accommodation of mi~jorityrcligious belief and practice within a pluralistic democracy At what point docs propcr accommo- dation of religion become impropcr aid or assistance to religion When docs accommo- dation of the majority religion bccome discriminatory toward religious minorities (Thicmann 1996530

Since Justice Blacks decision in Everson separation has been fatefully joined with the doctrine of government neutrality toward religion All three positions in Allegheny agreed that state neutrality toward religion is man- dated by the Constitution but they widely differ on the meaning and applica- tion of this protean concept (Thiemann 199660ff) Strict Neutrulity of the concurring minority judges mandates governmental noninvolvement in religious matters by requiring a consistent no-aid to religion policy Non-discriniinatov neutruliamp of the majority judges softens the doctrinal purity by allowing some public sphere accommodation providing the symbols or practices supported by government are nonsectarian and nondis- criminatory This position reads the Constitution as mandating a no-aid to religion (or noninvolvenzent) policy whenever sectarian practices are at issue and an equal uid to religion (or inlpartiality) policy when the practices are generally cultural or have a discernible secular purpose Benevolent neu- trality explicitly seeks to broaden the framework within which religion

Bader RELIGIOUS PLURALISM 607

might be freely exercised [It] proscribes only governmentally estab- lished religion or governmental interference with religion None of the three interpretations can serve as a guide to a more coherent interpretation of the religion clauses2h

This is I think a reasonable presentation of the present state of the consti- tutional debate I agree therefore with Thiemanns (1996) conclusion that we have to abandon (p 43) the separation metaphor for four reasons (1) it deflects attention from more fundamental principles (eg liberty equality tolerance) that undergird the two clauses (2) it conceptualizes church-state relations in singular and monolithic terms (3) it conceals the variety of ways in which they interact and (4) it constrains our ability to imagine new possi- bilities for their relation The separation metaphor cannot reasonably guide interpretations of the American Constitution It has only served as a mislead- ing placeholder for constitutional nonestablishment It cannot be used either as a reasonable second-order principle for the interpretation of international rights treatises or alternative constitutional traditions (characterized by weak or plural constitutional establishment) But should we also follow Thiemanns proposal to jettison (p 64) two other candidates of productive second-order principles neutrality and secularism

Relational Neutrulity and Priority for Democracy

Neutrality separation and secularism are-to repeat-not consti-tutional rights but second-order principles Why not get rid of second-order principles as such Why and for what purposes do we need these meta-rules Second-order principles as well as moral and legal paradigms are in my view important as guidelines in two types of cases in all cases in which con- stitutional rights and first-order moral principles conflict and in all cases of conflicting interpretations and applications of rights They should allow more coherent interpretations of constitutions and should be able to guide the difficult art of balancing in a more productive way

To summarize strict neutrality and complete separation have failed in this regard Difference-blind religious neutrality is a prominent version of an ideological mechanism that universalizes the particular and hides it from view In the case of religions as with sexes gender race and ethnicity there can exist no absolute impartiality no absolute perspective no view from nowhere Such well-known criticism2 forces us to reconceptualize these principles to rescue the two commendable moral intuitions they mean to articulate the prohibition of moral particularism and the preclusion of injus- tice under conditions of religious diversity and structural inequality These

608 POLITICAL THEORY 1 October 1999

moral intuitions are better conceptualized by the principles of relational neu- trality and even-handedness

Relational neutrality replaces the idea of difference-blindness by difference-sensitivity Only if we take into account actual differences and inequalities between religious groups and organizations can we hope that institutions and policies will in the long run become more neutral in relation to these religions and to nonreligious people as well Relational neutrality does not presume some imagined place of neutral transcendence (Thie- mann 1996 82) or some objective observer (Justice OConnor see Note 1987 1647) as in the old untenable versions of nonsocially situated ahis- torical universal knowledge but neither does it lapse into a relativistic any- thing goes There are more inclusive better-situated perspectives that take into account the degree of inclusiveness of the actual2v relevant secular and religious voices and the particular point in history

Fairness as even-handedness is a better candidate than majority-biased symbolic accommodation It criticizes the exclusive reliance on a hands- oft concept of fairness regarding culture and identity that has informed the concepts of neutrality and complete separation predominant in liberal phi- losophy In a critical response to my article on transnational citizenship Joseph Carens has characterized

the ideal of cven-handedness to contrast it with the hands-off approach of neutrality The guiding idea of even-handedness is that what fairness entails is a sensitive balancing of competing claims for recognition and support in matters of culture and identity Instead of trying to abstract from particularity we shouldembrace it but in a way that is fair to all the different particularities Now being fair docs not mean that every cultural claim and identity will be givcn equal wcight but rather that cach will be given appropriate wcight undcr thc circumstances and given a commitment to equal respect for all History mat- tcrs numbers matter the relative importance of the claim to those who present it matters and so do many other considcmtions (Carens 1997 818 claboratcd in Carcns 1998 Introduction)

Religious cultures and identities are not treated fairly by declaring that religion is a private matter or by excluding religious arguments from political or constitutional debate or from debates about constitutional essentials and basic justice Nondiscrimination and equal treatment of different religions as well as of religious and nonreligious people are not well served by hands- off abstractions They require a sensitive balancing of the different claims taking into account structural inequalities between majority religions and minority ones Policies of accommodation which take cultures and identi- ties seriously and strive for a sensible balancing but neglect structural ine- qualities should be combined with a concept of rough complex equality that

Hader RELIGIOUS PLURALISM 609

uncovers neglected structural inequalities between (organized) religions and asks for policies to redress them (policies furiously criticized by liberal crit- ics of affirmative action in all fields) Sensitive balancing of cultural and identity claims will never achieve complete cultural equality and support will never achieve substantive equality between majority religions minority ones and secular people (nor would this be morally required in my view) but they may help to redress obviously unfair situations

Nondiscrimination and equal treatment also do not require second-order secularism I realize that my claim here conflicts with one of the crucial the- ses and assumptions of liberal republican and socialist political philoso phy2~propose to reconceptualize the central moral intuition of second-order secularism by the second-order principle of priority for democracy

We saw earlier that religiously and theologically motivated critics of political liberalism in the United States such as Neuhaus Wolterstorff and Thiemann challenged the presumed neutrality of second-order secularism In England similar complaints have been raised by Anglican Jewish Catho- lic and Muslim opponents of complete separation Conceptualizing mod- ern public morality as secular morality is said to privilege secular over reli- gious values unfairly Writing from a Jewish perspective Sylvia Rothschild fears most

a purportedly neutral secularism for thcre is nothing so dogmatic as that which is dog- matically neutral and sccularisrn far from being open to all closes the many diverse doors to the communities of faith As I read it the secular mode is merely another point on thc spectrum of religious expression but one which has no understanding of and which makes no allowances for othcr modes of religious expression On thc othcr hand pluralism can and does flow from religious vision [The] sccular crusade against thc Anglican church is an attack on all forms of religious expression and thus indirectly harmful to us too [Discstablishmcnt] sccms to mc a way only towards mono- dominant and triumphant sccularism rathcr than a pathway which may lcad to true multi-faith multi-cultural pluralism (Rothschild in Modood 1996 56 60 sce similar charges by Levinson 1990 and Carter 1993 in the United States)

The real question for her thus is just how do we organize ourselves so that the many voices can be heard so that one dominant culture doesnt impose itself on us all (Modood 199658) Bikhu Parekh also challenges Rawlsian political liberalism for keeping

religion out of political life in a democracy Like Rawls (1995) we might insist that citi- Lens In a liberal society should derivc or at least publicly dcfend thcir political judgc- ments in a secular manner but that is arbitrary and has no appeal to those who do not sharc his views of religion and politics [We have to] challenge thc untenable and long-hcld beliefs that only a secular state can be libcnl and dcmocratic and that political

610 POLITICAL THEORY October 1999

discourse is manageable only whcn it is conceptually monolingual and homogeneous (Parckh in Modood 19962 122)

If a secular public morality cannot be neutral we seem to be caught in a trap forced to choose between two equally miserable imperialisms either mono-dominant and triumphant secularism and an out-and-out (or funda- mentalist) secularism which in its late twentieth century manifestation is a climate inimical to any religion (Daoud Rosser-Owen from a Muslim per- spective in Modood 1996 84) on one hand or troubling triumphalism by those who believed religion had a monopoly on moral concerns (Phillips in Modood 1996 27) on the other Anne Phillips has tried to resolve this dilemma by pointing out that

secularism occupies a dual location in this kind of debate Those who do not follow any of thc worlds religions arc by definition secular in thcir beliefs when secularism speaks on bchalf of thcsc non-believers it speaks on a par with the spokcspcoplc for Anglicans Catholics Muslims or Jcws Hut secularism also presents itself as thc solu- tion after all other voices havc spoken for in arguing fora separation between church and state it promises to protect thc beliefs and the practices of each from thc prcssures to go along with what any othcrs bclicve This looks suspiciously like a sleight of hand and thats the w o q that the even-handed accommodation of all turns out to be particularly attuned to one (Phillips in Modood 1996 27)

Anne Phillips tries to defend secular public morality on a meta-level as

the only approach that can even approximatc equality of treatment between those who hold different beliefs thc interests of democratic equality cannot be well served by practices that privilege one church ovcr the others nor can thcy bc well servcd by prac- tices that privilege religious values over secular oncs nor-and this is the difficult one--can thcy be well served by practices that privilege secular valucs over religious bclicfs The difficulty remains that any way of formulating this puts it in the framework of a secular solution and some will rcgard this as diminishing the significance of relig- ion Rut the secular separation of church from statc is still the closest we can get to parity of treatment between those who are rcli~ious and those who are not and between thc fol- lowers of different religions Equality is onc of the crucial principles of amodern democ- racy and for this reason (evcn cxcluding all the others) thc secular solution is the only onc I could defend (Phillips in Modood 1996270

Plausible though it looks at first sight such a defense common to Audi Phillips and many others still suffers from an unrecognized identification of public morality with secular morality Audi (1991) treats public and secular reason as if they would be exactly the same For him public reasons are explicitly and by definition secular and his principles of rationale and moti- vation are secularist principles

Bader 1 RELIGIOUS PLURALISM 61 1

unless they offer (or at least have) adequate secular (non-religious) reasons to support thc law or policy in question By sccular reason I do not mcan onc that is con- sciously held in contrast to a religious onc noris there anything anti-religious implicit in a proper use of thc tcrm Indccd a sccular reason may be fully uligned with a reli- giously sanctioned vicw Rather a secular reason is roughly one whose normative force that is its status as a prima facie justificatory clcment does not (evidentially) depend on thc existence of God (for cxamplc through appeals to divine command) or on theological considerations (such as interpretations of a sacred tcxt) or on the pro- nouncements of a person or institution qua religious authority (Audi 1989 278 see also Audi 1997)

Although Audi Macedo and other liberal political philosophers believe that they can rely on Rawlss conceptions of political justice and public rea- son Rawls himself has carefully avoided identifying public reason with secular reason both terminologically34 as well as in his substantive arguments in favor of a freestanding public morality (see below)

In the sixteenth and seventeenth centuries such a terminological and con- ceptual identity was historically understandable because public morality had to be fought for first in battles against defenders of absolutist or fundamen- talist religions and established churches and later on in battles against those theological and philosophical defenders of freedom of religion and of con- sciousness who explicitly or implicitly limited these freedoms to the variety of conflicting Christian denominations and who did not extend their argu- ments into a principled defense of freedom of consciousness for all religious believers whether Christian or not as well as for those who hold secular val- ues and beliefs In a context in which the enemies of a general freedom of consciousness (and of most other liberal and democratic principles and rights) were absolutist religions public morality took the form of secular morality and a religious or theological defense of public morality seemed unthinkable Its true defenders thus were secular philosophers (such as Spi- noza and Kant)

In our times this context has changed public morality and liberal democracy have to be defended against secularist philosophers scientistic technocrats and expertocracy as well as against those religions that still defend absolutist and fundamentalist claims in politics In this context it is still true that secularism is more commonly perceived as the opposite of religion (Phillips in Modood 199627) but it may be that the most danger- ous enemies of liberal democracy are not or not mainly religions but secular- ist ideologies (as Wolterstorff 1997 pointed out) And from Madison onwards we also find religiously or theologically motivated defenders of a principled nonexclusive right to freedom of consciousness and of other rights institutions and public morality of liberal democracy

612 POLITICAL THEORY October 1999

In such a ~on tex t ~ both the meaning of secular and re~i~ious~ and their relation have changed Consequently the conceptual identification of public with secular morality is increasingly misleading for the following reasons

1 It scduccs us into conceptualizing the justificatory nonneutrality of libcral dcrnocracy in terms of sccular versus rcligious arguments or foundations The main question is not howevcr whether arguments are secular or rcligious but whcther thcy arc compatible with andlor support liberal dcrnocracy

2 It neglccts the possibility and existence of principled rcligious or thcological founda- tions of liberal dcmocmcy and excludcs thc possibility of public rcason in thcological and religious argumcnts It thus unfairly discriminates against those modem theologi- ans and religions that dcfcnd liberal democracy (Thiernann 1996 13 1 ff)

3 It directs our criticism of fundamcntalism in politics in a onc-sidcd and myopic manncr against rcligious or theological fundamcntalism and thus tcnds to neglcct all secular fundarncntalisms even if thcy posc much morc dangerous threats to tolerance and lib- eral dcrnocracy

There is a better way to account for the intuition that liberal democracy is inevitably nonneutral This is the principle of priority for democracy (always as a shorthand for liberal democracy in the sense defined above) In a short explication and defense of this second-order principle I proceed as follows First I want to highlight that not only religions had to learn what priority for democracy implies but philosophers scientists expertocrats and judges had to learn this too Second I want to defend the priority for democracy against misleading challenges from religions that argue that a secular moral- ity would be impossible would lead to a decay of morals or would weaken necessary limitations of state sovereignty and politics or claim a kind of his- torical priority41 Third I want to defend the priority for democracy against philosophical imperialisms which claim a kind of philosophical priority fail to radicalize the principle of nonfoundationalism and thus limit the produc- tive idea of a freestanding public morality that is political not metaphysi- cal Finally I want to defend the priority for democracy against the ironic and skeptic antiphilosophy of Richard Rorty who has coined the phrase

Priority for Democracy Versus All Fundamentalisms

Simply stated priorityfbr democracy means to begin with that princi- ples institutions cultures virtues and practices of liberal democracy have priority over the competing and often incompatible foundations of liberal democracy be they religious philosophical (metaphysical ontological moral ethical) or scientific Furthermore all opinions and voices like votes

Bader 1 RELIGIOUS PLURALISM 613

have to count equally when it comes to decision making even if paternalistic elites for the best of reasons think that they are uninformed misinformed false morally wrong and so on Liberal democracy thus understood cannot be neutral nor should it be But this inevitable nonneutrality which is essential with regard to all nonliberal nondemocratic principles and prac- tices should not be confused with nonneutrality between secular and reli- gious foundations and arguments

It is now common knowledge among sophisticated political philosophers that liberal democracy cannot be neutral42 This inevitable nonneutrality should be directed explicitly and exclusively against principles and prac- tices at odds with liberal democracy against fundamentalism of all kinds not against religions as such In their defense of the principle of reciprocity against the fundamentalist (religious) challenge that it is biased against fun- damentalism and in favor of religions that conform to deliberative views of civic education Gutmann and Thompson concede that it is correct

that the principle is not neutral among religions or ways of life The case forreciprocity and more generally for the deliberative perspective must be defended on substantive moral grounds and there is no reason to expect that such a defense would have the same (positive or negative) implications for all moral positions But the value of public rea- son expressed by the deliberative perspective is not just another morality It is offered as the morally optimal basis on which citizens who disagree about moralities and reli- gions can act collectively to makeeducational policy The principle of reciprocity is not privileged in the sense that it needs no moral defense But the defense it needs and the objections to which it is vulnerable are different from those of moral disagreement in politics The principle proposes a basis on which those who morally disagree can coop- erate and it can be appropriately criticized only by proposing an alternative basis not simply by reaffirming the moral or religious claim that constitutes the disagreement The fundamentalists do not offer an alternative (Gutmann and Thompson 1996 67 cf 93 second-order agreement not on secularism but on principles and virtues of liberal democracy)

Anne Phillips-like Tariq Modood (1996 13) Stephen Macedo (1998)~ Richard Rorty ( 1 9 9 7 ) ~ ~ and others-treats Charles Taylor ( 1 9 9 8 ) ~ ~ this inevitable nonneutrality of liberal democracy and of public morality as inevi- table secularity This is the most basic flaw of almost all recent political phi- losophy Christian and other religions particularly established churches have obviously learned to accept priority for democracy only as a result of protracted conflict Protestant denominations and free churches living under conditions of an established church had learned this from painful experiences much earlier and deeper than established churches particularly the Catholic Church However under conditions of liberal-democratic constitutional states even churches that think of themselves as the depositor of divine

614 POLITICAL THEORY 1October 1999

truth have eventually learned to accept the notion that when it comes to pub- lic democratic decision making error has the same rights as The authoritative sources of this Truth-be it God the Pope the Ayatollah priests or mullahs however important they may be inside the churches or the community o f believers-add nothing to its persuasive force in the arena o f public reason public deliberation and public scrutiny This is what all churches have to learn under conditions o f a modern constitution They all have to find their own ways to solve the fundamentalist dilemma (Casa- nova 1994 165)

I f this is clear about religion it is less well known and often forgotten that the same holds for all types o f secular truths While many modern religions and churches have tried to resolve this dilemma many prominent modern philosophers have not even addressed it properly This is not only evident for some o f the recently fashionable prominent continental philosophers such as Nietzsche Carl Schmitt and Heidegger To a lesser degree many Anglo- Saxon liberal moral philosophers are also guilty o f such an elitist conquest o f democratic politics (Barber 1988) The history o f modern social science is full o f scientistic ideology (from Saint-Simons scientistic religion via scientific racism to recent conquests o f democratic politics by neoclassical economic ideology) and the practices o f many experts (scientists techni- cians medical practitioners architects economists ecologists pedagogues psychologists sociologists judges etc) are rife with illegitimate scien- tocracy or expertocracy All o f them still have to learn how to resolve the fun- damentalist dilemma-namely that in democratic deliberation and decision making their truths are no more than opinions among 0the1-s~ Instead o f trying to limit thecontent o f public reason by keeping all contested compre- hensive doctrines and truth-claims out one has to develop the duties o f civility such as the duty to explain positions in publicly understandable lan- guage the willingness to listen to others fair-mindedness and readiness to accept reasonable accommoclat~ons or alterations In ones own view (see below)

Priority for Democracy versus Religious Challenges

The priority o f democracy has to be defended against five well-known untenable challenges from religious or theological imperialists

( i )Many religious believers and some theologians still think that a person cannot be solidly moral without being religious (Audi 1989 290f contra William Bennett) implicitly or explicitly they hold that secular morality In general is impossible Kulananda from a Buddhist perspective demonstrates

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

606 POLITICAL THEORY 1October 1999

stripped of its inherent religious meanings (3) It contributes to the already desultory rhetoric of contemporary politics (4) It is motivated by a hands- off notion of justice or fairness that for fear of unequal and discriminatory treatment of other religious and nonreligious people does not ask to treat them even-handedly respecting and accommodating their particularities but requires us to abstract from all their particularities This is not only impossible but it would also make all people religious and nonreligious worse off24 Symbolic accommodation has the considerable advantage of recognizing that

the principles of the Establishment Clausc and our Nations historic traditions of diver- sity and pluralism allow communitics to makc reasonable judgements respecting the accommodation of holidays with both cultural and religious aspccts No constitutional violation occurs when they do so by displaying a symbol of the holidays religious ori- gins (Justice Kennedy)

By equating religions with Christianity however it sidesteps the question of religious pluralism particularly the issue of a fair treatment of minority reli- gions Thus it does not live up to the minimal requirements of fairness as even-handedness and is unable to answer the really pressing questions

What arc the appropriate limits of governmental accommodation of mi~jorityrcligious belief and practice within a pluralistic democracy At what point docs propcr accommo- dation of religion become impropcr aid or assistance to religion When docs accommo- dation of the majority religion bccome discriminatory toward religious minorities (Thicmann 1996530

Since Justice Blacks decision in Everson separation has been fatefully joined with the doctrine of government neutrality toward religion All three positions in Allegheny agreed that state neutrality toward religion is man- dated by the Constitution but they widely differ on the meaning and applica- tion of this protean concept (Thiemann 199660ff) Strict Neutrulity of the concurring minority judges mandates governmental noninvolvement in religious matters by requiring a consistent no-aid to religion policy Non-discriniinatov neutruliamp of the majority judges softens the doctrinal purity by allowing some public sphere accommodation providing the symbols or practices supported by government are nonsectarian and nondis- criminatory This position reads the Constitution as mandating a no-aid to religion (or noninvolvenzent) policy whenever sectarian practices are at issue and an equal uid to religion (or inlpartiality) policy when the practices are generally cultural or have a discernible secular purpose Benevolent neu- trality explicitly seeks to broaden the framework within which religion

Bader RELIGIOUS PLURALISM 607

might be freely exercised [It] proscribes only governmentally estab- lished religion or governmental interference with religion None of the three interpretations can serve as a guide to a more coherent interpretation of the religion clauses2h

This is I think a reasonable presentation of the present state of the consti- tutional debate I agree therefore with Thiemanns (1996) conclusion that we have to abandon (p 43) the separation metaphor for four reasons (1) it deflects attention from more fundamental principles (eg liberty equality tolerance) that undergird the two clauses (2) it conceptualizes church-state relations in singular and monolithic terms (3) it conceals the variety of ways in which they interact and (4) it constrains our ability to imagine new possi- bilities for their relation The separation metaphor cannot reasonably guide interpretations of the American Constitution It has only served as a mislead- ing placeholder for constitutional nonestablishment It cannot be used either as a reasonable second-order principle for the interpretation of international rights treatises or alternative constitutional traditions (characterized by weak or plural constitutional establishment) But should we also follow Thiemanns proposal to jettison (p 64) two other candidates of productive second-order principles neutrality and secularism

Relational Neutrulity and Priority for Democracy

Neutrality separation and secularism are-to repeat-not consti-tutional rights but second-order principles Why not get rid of second-order principles as such Why and for what purposes do we need these meta-rules Second-order principles as well as moral and legal paradigms are in my view important as guidelines in two types of cases in all cases in which con- stitutional rights and first-order moral principles conflict and in all cases of conflicting interpretations and applications of rights They should allow more coherent interpretations of constitutions and should be able to guide the difficult art of balancing in a more productive way

To summarize strict neutrality and complete separation have failed in this regard Difference-blind religious neutrality is a prominent version of an ideological mechanism that universalizes the particular and hides it from view In the case of religions as with sexes gender race and ethnicity there can exist no absolute impartiality no absolute perspective no view from nowhere Such well-known criticism2 forces us to reconceptualize these principles to rescue the two commendable moral intuitions they mean to articulate the prohibition of moral particularism and the preclusion of injus- tice under conditions of religious diversity and structural inequality These

608 POLITICAL THEORY 1 October 1999

moral intuitions are better conceptualized by the principles of relational neu- trality and even-handedness

Relational neutrality replaces the idea of difference-blindness by difference-sensitivity Only if we take into account actual differences and inequalities between religious groups and organizations can we hope that institutions and policies will in the long run become more neutral in relation to these religions and to nonreligious people as well Relational neutrality does not presume some imagined place of neutral transcendence (Thie- mann 1996 82) or some objective observer (Justice OConnor see Note 1987 1647) as in the old untenable versions of nonsocially situated ahis- torical universal knowledge but neither does it lapse into a relativistic any- thing goes There are more inclusive better-situated perspectives that take into account the degree of inclusiveness of the actual2v relevant secular and religious voices and the particular point in history

Fairness as even-handedness is a better candidate than majority-biased symbolic accommodation It criticizes the exclusive reliance on a hands- oft concept of fairness regarding culture and identity that has informed the concepts of neutrality and complete separation predominant in liberal phi- losophy In a critical response to my article on transnational citizenship Joseph Carens has characterized

the ideal of cven-handedness to contrast it with the hands-off approach of neutrality The guiding idea of even-handedness is that what fairness entails is a sensitive balancing of competing claims for recognition and support in matters of culture and identity Instead of trying to abstract from particularity we shouldembrace it but in a way that is fair to all the different particularities Now being fair docs not mean that every cultural claim and identity will be givcn equal wcight but rather that cach will be given appropriate wcight undcr thc circumstances and given a commitment to equal respect for all History mat- tcrs numbers matter the relative importance of the claim to those who present it matters and so do many other considcmtions (Carens 1997 818 claboratcd in Carcns 1998 Introduction)

Religious cultures and identities are not treated fairly by declaring that religion is a private matter or by excluding religious arguments from political or constitutional debate or from debates about constitutional essentials and basic justice Nondiscrimination and equal treatment of different religions as well as of religious and nonreligious people are not well served by hands- off abstractions They require a sensitive balancing of the different claims taking into account structural inequalities between majority religions and minority ones Policies of accommodation which take cultures and identi- ties seriously and strive for a sensible balancing but neglect structural ine- qualities should be combined with a concept of rough complex equality that

Hader RELIGIOUS PLURALISM 609

uncovers neglected structural inequalities between (organized) religions and asks for policies to redress them (policies furiously criticized by liberal crit- ics of affirmative action in all fields) Sensitive balancing of cultural and identity claims will never achieve complete cultural equality and support will never achieve substantive equality between majority religions minority ones and secular people (nor would this be morally required in my view) but they may help to redress obviously unfair situations

Nondiscrimination and equal treatment also do not require second-order secularism I realize that my claim here conflicts with one of the crucial the- ses and assumptions of liberal republican and socialist political philoso phy2~propose to reconceptualize the central moral intuition of second-order secularism by the second-order principle of priority for democracy

We saw earlier that religiously and theologically motivated critics of political liberalism in the United States such as Neuhaus Wolterstorff and Thiemann challenged the presumed neutrality of second-order secularism In England similar complaints have been raised by Anglican Jewish Catho- lic and Muslim opponents of complete separation Conceptualizing mod- ern public morality as secular morality is said to privilege secular over reli- gious values unfairly Writing from a Jewish perspective Sylvia Rothschild fears most

a purportedly neutral secularism for thcre is nothing so dogmatic as that which is dog- matically neutral and sccularisrn far from being open to all closes the many diverse doors to the communities of faith As I read it the secular mode is merely another point on thc spectrum of religious expression but one which has no understanding of and which makes no allowances for othcr modes of religious expression On thc othcr hand pluralism can and does flow from religious vision [The] sccular crusade against thc Anglican church is an attack on all forms of religious expression and thus indirectly harmful to us too [Discstablishmcnt] sccms to mc a way only towards mono- dominant and triumphant sccularism rathcr than a pathway which may lcad to true multi-faith multi-cultural pluralism (Rothschild in Modood 1996 56 60 sce similar charges by Levinson 1990 and Carter 1993 in the United States)

The real question for her thus is just how do we organize ourselves so that the many voices can be heard so that one dominant culture doesnt impose itself on us all (Modood 199658) Bikhu Parekh also challenges Rawlsian political liberalism for keeping

religion out of political life in a democracy Like Rawls (1995) we might insist that citi- Lens In a liberal society should derivc or at least publicly dcfend thcir political judgc- ments in a secular manner but that is arbitrary and has no appeal to those who do not sharc his views of religion and politics [We have to] challenge thc untenable and long-hcld beliefs that only a secular state can be libcnl and dcmocratic and that political

610 POLITICAL THEORY October 1999

discourse is manageable only whcn it is conceptually monolingual and homogeneous (Parckh in Modood 19962 122)

If a secular public morality cannot be neutral we seem to be caught in a trap forced to choose between two equally miserable imperialisms either mono-dominant and triumphant secularism and an out-and-out (or funda- mentalist) secularism which in its late twentieth century manifestation is a climate inimical to any religion (Daoud Rosser-Owen from a Muslim per- spective in Modood 1996 84) on one hand or troubling triumphalism by those who believed religion had a monopoly on moral concerns (Phillips in Modood 1996 27) on the other Anne Phillips has tried to resolve this dilemma by pointing out that

secularism occupies a dual location in this kind of debate Those who do not follow any of thc worlds religions arc by definition secular in thcir beliefs when secularism speaks on bchalf of thcsc non-believers it speaks on a par with the spokcspcoplc for Anglicans Catholics Muslims or Jcws Hut secularism also presents itself as thc solu- tion after all other voices havc spoken for in arguing fora separation between church and state it promises to protect thc beliefs and the practices of each from thc prcssures to go along with what any othcrs bclicve This looks suspiciously like a sleight of hand and thats the w o q that the even-handed accommodation of all turns out to be particularly attuned to one (Phillips in Modood 1996 27)

Anne Phillips tries to defend secular public morality on a meta-level as

the only approach that can even approximatc equality of treatment between those who hold different beliefs thc interests of democratic equality cannot be well served by practices that privilege one church ovcr the others nor can thcy bc well servcd by prac- tices that privilege religious values over secular oncs nor-and this is the difficult one--can thcy be well served by practices that privilege secular valucs over religious bclicfs The difficulty remains that any way of formulating this puts it in the framework of a secular solution and some will rcgard this as diminishing the significance of relig- ion Rut the secular separation of church from statc is still the closest we can get to parity of treatment between those who are rcli~ious and those who are not and between thc fol- lowers of different religions Equality is onc of the crucial principles of amodern democ- racy and for this reason (evcn cxcluding all the others) thc secular solution is the only onc I could defend (Phillips in Modood 1996270

Plausible though it looks at first sight such a defense common to Audi Phillips and many others still suffers from an unrecognized identification of public morality with secular morality Audi (1991) treats public and secular reason as if they would be exactly the same For him public reasons are explicitly and by definition secular and his principles of rationale and moti- vation are secularist principles

Bader 1 RELIGIOUS PLURALISM 61 1

unless they offer (or at least have) adequate secular (non-religious) reasons to support thc law or policy in question By sccular reason I do not mcan onc that is con- sciously held in contrast to a religious onc noris there anything anti-religious implicit in a proper use of thc tcrm Indccd a sccular reason may be fully uligned with a reli- giously sanctioned vicw Rather a secular reason is roughly one whose normative force that is its status as a prima facie justificatory clcment does not (evidentially) depend on thc existence of God (for cxamplc through appeals to divine command) or on theological considerations (such as interpretations of a sacred tcxt) or on the pro- nouncements of a person or institution qua religious authority (Audi 1989 278 see also Audi 1997)

Although Audi Macedo and other liberal political philosophers believe that they can rely on Rawlss conceptions of political justice and public rea- son Rawls himself has carefully avoided identifying public reason with secular reason both terminologically34 as well as in his substantive arguments in favor of a freestanding public morality (see below)

In the sixteenth and seventeenth centuries such a terminological and con- ceptual identity was historically understandable because public morality had to be fought for first in battles against defenders of absolutist or fundamen- talist religions and established churches and later on in battles against those theological and philosophical defenders of freedom of religion and of con- sciousness who explicitly or implicitly limited these freedoms to the variety of conflicting Christian denominations and who did not extend their argu- ments into a principled defense of freedom of consciousness for all religious believers whether Christian or not as well as for those who hold secular val- ues and beliefs In a context in which the enemies of a general freedom of consciousness (and of most other liberal and democratic principles and rights) were absolutist religions public morality took the form of secular morality and a religious or theological defense of public morality seemed unthinkable Its true defenders thus were secular philosophers (such as Spi- noza and Kant)

In our times this context has changed public morality and liberal democracy have to be defended against secularist philosophers scientistic technocrats and expertocracy as well as against those religions that still defend absolutist and fundamentalist claims in politics In this context it is still true that secularism is more commonly perceived as the opposite of religion (Phillips in Modood 199627) but it may be that the most danger- ous enemies of liberal democracy are not or not mainly religions but secular- ist ideologies (as Wolterstorff 1997 pointed out) And from Madison onwards we also find religiously or theologically motivated defenders of a principled nonexclusive right to freedom of consciousness and of other rights institutions and public morality of liberal democracy

612 POLITICAL THEORY October 1999

In such a ~on tex t ~ both the meaning of secular and re~i~ious~ and their relation have changed Consequently the conceptual identification of public with secular morality is increasingly misleading for the following reasons

1 It scduccs us into conceptualizing the justificatory nonneutrality of libcral dcrnocracy in terms of sccular versus rcligious arguments or foundations The main question is not howevcr whether arguments are secular or rcligious but whcther thcy arc compatible with andlor support liberal dcrnocracy

2 It neglccts the possibility and existence of principled rcligious or thcological founda- tions of liberal dcmocmcy and excludcs thc possibility of public rcason in thcological and religious argumcnts It thus unfairly discriminates against those modem theologi- ans and religions that dcfcnd liberal democracy (Thiernann 1996 13 1 ff)

3 It directs our criticism of fundamcntalism in politics in a onc-sidcd and myopic manncr against rcligious or theological fundamcntalism and thus tcnds to neglcct all secular fundarncntalisms even if thcy posc much morc dangerous threats to tolerance and lib- eral dcrnocracy

There is a better way to account for the intuition that liberal democracy is inevitably nonneutral This is the principle of priority for democracy (always as a shorthand for liberal democracy in the sense defined above) In a short explication and defense of this second-order principle I proceed as follows First I want to highlight that not only religions had to learn what priority for democracy implies but philosophers scientists expertocrats and judges had to learn this too Second I want to defend the priority for democracy against misleading challenges from religions that argue that a secular moral- ity would be impossible would lead to a decay of morals or would weaken necessary limitations of state sovereignty and politics or claim a kind of his- torical priority41 Third I want to defend the priority for democracy against philosophical imperialisms which claim a kind of philosophical priority fail to radicalize the principle of nonfoundationalism and thus limit the produc- tive idea of a freestanding public morality that is political not metaphysi- cal Finally I want to defend the priority for democracy against the ironic and skeptic antiphilosophy of Richard Rorty who has coined the phrase

Priority for Democracy Versus All Fundamentalisms

Simply stated priorityfbr democracy means to begin with that princi- ples institutions cultures virtues and practices of liberal democracy have priority over the competing and often incompatible foundations of liberal democracy be they religious philosophical (metaphysical ontological moral ethical) or scientific Furthermore all opinions and voices like votes

Bader 1 RELIGIOUS PLURALISM 613

have to count equally when it comes to decision making even if paternalistic elites for the best of reasons think that they are uninformed misinformed false morally wrong and so on Liberal democracy thus understood cannot be neutral nor should it be But this inevitable nonneutrality which is essential with regard to all nonliberal nondemocratic principles and prac- tices should not be confused with nonneutrality between secular and reli- gious foundations and arguments

It is now common knowledge among sophisticated political philosophers that liberal democracy cannot be neutral42 This inevitable nonneutrality should be directed explicitly and exclusively against principles and prac- tices at odds with liberal democracy against fundamentalism of all kinds not against religions as such In their defense of the principle of reciprocity against the fundamentalist (religious) challenge that it is biased against fun- damentalism and in favor of religions that conform to deliberative views of civic education Gutmann and Thompson concede that it is correct

that the principle is not neutral among religions or ways of life The case forreciprocity and more generally for the deliberative perspective must be defended on substantive moral grounds and there is no reason to expect that such a defense would have the same (positive or negative) implications for all moral positions But the value of public rea- son expressed by the deliberative perspective is not just another morality It is offered as the morally optimal basis on which citizens who disagree about moralities and reli- gions can act collectively to makeeducational policy The principle of reciprocity is not privileged in the sense that it needs no moral defense But the defense it needs and the objections to which it is vulnerable are different from those of moral disagreement in politics The principle proposes a basis on which those who morally disagree can coop- erate and it can be appropriately criticized only by proposing an alternative basis not simply by reaffirming the moral or religious claim that constitutes the disagreement The fundamentalists do not offer an alternative (Gutmann and Thompson 1996 67 cf 93 second-order agreement not on secularism but on principles and virtues of liberal democracy)

Anne Phillips-like Tariq Modood (1996 13) Stephen Macedo (1998)~ Richard Rorty ( 1 9 9 7 ) ~ ~ and others-treats Charles Taylor ( 1 9 9 8 ) ~ ~ this inevitable nonneutrality of liberal democracy and of public morality as inevi- table secularity This is the most basic flaw of almost all recent political phi- losophy Christian and other religions particularly established churches have obviously learned to accept priority for democracy only as a result of protracted conflict Protestant denominations and free churches living under conditions of an established church had learned this from painful experiences much earlier and deeper than established churches particularly the Catholic Church However under conditions of liberal-democratic constitutional states even churches that think of themselves as the depositor of divine

614 POLITICAL THEORY 1October 1999

truth have eventually learned to accept the notion that when it comes to pub- lic democratic decision making error has the same rights as The authoritative sources of this Truth-be it God the Pope the Ayatollah priests or mullahs however important they may be inside the churches or the community o f believers-add nothing to its persuasive force in the arena o f public reason public deliberation and public scrutiny This is what all churches have to learn under conditions o f a modern constitution They all have to find their own ways to solve the fundamentalist dilemma (Casa- nova 1994 165)

I f this is clear about religion it is less well known and often forgotten that the same holds for all types o f secular truths While many modern religions and churches have tried to resolve this dilemma many prominent modern philosophers have not even addressed it properly This is not only evident for some o f the recently fashionable prominent continental philosophers such as Nietzsche Carl Schmitt and Heidegger To a lesser degree many Anglo- Saxon liberal moral philosophers are also guilty o f such an elitist conquest o f democratic politics (Barber 1988) The history o f modern social science is full o f scientistic ideology (from Saint-Simons scientistic religion via scientific racism to recent conquests o f democratic politics by neoclassical economic ideology) and the practices o f many experts (scientists techni- cians medical practitioners architects economists ecologists pedagogues psychologists sociologists judges etc) are rife with illegitimate scien- tocracy or expertocracy All o f them still have to learn how to resolve the fun- damentalist dilemma-namely that in democratic deliberation and decision making their truths are no more than opinions among 0the1-s~ Instead o f trying to limit thecontent o f public reason by keeping all contested compre- hensive doctrines and truth-claims out one has to develop the duties o f civility such as the duty to explain positions in publicly understandable lan- guage the willingness to listen to others fair-mindedness and readiness to accept reasonable accommoclat~ons or alterations In ones own view (see below)

Priority for Democracy versus Religious Challenges

The priority o f democracy has to be defended against five well-known untenable challenges from religious or theological imperialists

( i )Many religious believers and some theologians still think that a person cannot be solidly moral without being religious (Audi 1989 290f contra William Bennett) implicitly or explicitly they hold that secular morality In general is impossible Kulananda from a Buddhist perspective demonstrates

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

Bader RELIGIOUS PLURALISM 607

might be freely exercised [It] proscribes only governmentally estab- lished religion or governmental interference with religion None of the three interpretations can serve as a guide to a more coherent interpretation of the religion clauses2h

This is I think a reasonable presentation of the present state of the consti- tutional debate I agree therefore with Thiemanns (1996) conclusion that we have to abandon (p 43) the separation metaphor for four reasons (1) it deflects attention from more fundamental principles (eg liberty equality tolerance) that undergird the two clauses (2) it conceptualizes church-state relations in singular and monolithic terms (3) it conceals the variety of ways in which they interact and (4) it constrains our ability to imagine new possi- bilities for their relation The separation metaphor cannot reasonably guide interpretations of the American Constitution It has only served as a mislead- ing placeholder for constitutional nonestablishment It cannot be used either as a reasonable second-order principle for the interpretation of international rights treatises or alternative constitutional traditions (characterized by weak or plural constitutional establishment) But should we also follow Thiemanns proposal to jettison (p 64) two other candidates of productive second-order principles neutrality and secularism

Relational Neutrulity and Priority for Democracy

Neutrality separation and secularism are-to repeat-not consti-tutional rights but second-order principles Why not get rid of second-order principles as such Why and for what purposes do we need these meta-rules Second-order principles as well as moral and legal paradigms are in my view important as guidelines in two types of cases in all cases in which con- stitutional rights and first-order moral principles conflict and in all cases of conflicting interpretations and applications of rights They should allow more coherent interpretations of constitutions and should be able to guide the difficult art of balancing in a more productive way

To summarize strict neutrality and complete separation have failed in this regard Difference-blind religious neutrality is a prominent version of an ideological mechanism that universalizes the particular and hides it from view In the case of religions as with sexes gender race and ethnicity there can exist no absolute impartiality no absolute perspective no view from nowhere Such well-known criticism2 forces us to reconceptualize these principles to rescue the two commendable moral intuitions they mean to articulate the prohibition of moral particularism and the preclusion of injus- tice under conditions of religious diversity and structural inequality These

608 POLITICAL THEORY 1 October 1999

moral intuitions are better conceptualized by the principles of relational neu- trality and even-handedness

Relational neutrality replaces the idea of difference-blindness by difference-sensitivity Only if we take into account actual differences and inequalities between religious groups and organizations can we hope that institutions and policies will in the long run become more neutral in relation to these religions and to nonreligious people as well Relational neutrality does not presume some imagined place of neutral transcendence (Thie- mann 1996 82) or some objective observer (Justice OConnor see Note 1987 1647) as in the old untenable versions of nonsocially situated ahis- torical universal knowledge but neither does it lapse into a relativistic any- thing goes There are more inclusive better-situated perspectives that take into account the degree of inclusiveness of the actual2v relevant secular and religious voices and the particular point in history

Fairness as even-handedness is a better candidate than majority-biased symbolic accommodation It criticizes the exclusive reliance on a hands- oft concept of fairness regarding culture and identity that has informed the concepts of neutrality and complete separation predominant in liberal phi- losophy In a critical response to my article on transnational citizenship Joseph Carens has characterized

the ideal of cven-handedness to contrast it with the hands-off approach of neutrality The guiding idea of even-handedness is that what fairness entails is a sensitive balancing of competing claims for recognition and support in matters of culture and identity Instead of trying to abstract from particularity we shouldembrace it but in a way that is fair to all the different particularities Now being fair docs not mean that every cultural claim and identity will be givcn equal wcight but rather that cach will be given appropriate wcight undcr thc circumstances and given a commitment to equal respect for all History mat- tcrs numbers matter the relative importance of the claim to those who present it matters and so do many other considcmtions (Carens 1997 818 claboratcd in Carcns 1998 Introduction)

Religious cultures and identities are not treated fairly by declaring that religion is a private matter or by excluding religious arguments from political or constitutional debate or from debates about constitutional essentials and basic justice Nondiscrimination and equal treatment of different religions as well as of religious and nonreligious people are not well served by hands- off abstractions They require a sensitive balancing of the different claims taking into account structural inequalities between majority religions and minority ones Policies of accommodation which take cultures and identi- ties seriously and strive for a sensible balancing but neglect structural ine- qualities should be combined with a concept of rough complex equality that

Hader RELIGIOUS PLURALISM 609

uncovers neglected structural inequalities between (organized) religions and asks for policies to redress them (policies furiously criticized by liberal crit- ics of affirmative action in all fields) Sensitive balancing of cultural and identity claims will never achieve complete cultural equality and support will never achieve substantive equality between majority religions minority ones and secular people (nor would this be morally required in my view) but they may help to redress obviously unfair situations

Nondiscrimination and equal treatment also do not require second-order secularism I realize that my claim here conflicts with one of the crucial the- ses and assumptions of liberal republican and socialist political philoso phy2~propose to reconceptualize the central moral intuition of second-order secularism by the second-order principle of priority for democracy

We saw earlier that religiously and theologically motivated critics of political liberalism in the United States such as Neuhaus Wolterstorff and Thiemann challenged the presumed neutrality of second-order secularism In England similar complaints have been raised by Anglican Jewish Catho- lic and Muslim opponents of complete separation Conceptualizing mod- ern public morality as secular morality is said to privilege secular over reli- gious values unfairly Writing from a Jewish perspective Sylvia Rothschild fears most

a purportedly neutral secularism for thcre is nothing so dogmatic as that which is dog- matically neutral and sccularisrn far from being open to all closes the many diverse doors to the communities of faith As I read it the secular mode is merely another point on thc spectrum of religious expression but one which has no understanding of and which makes no allowances for othcr modes of religious expression On thc othcr hand pluralism can and does flow from religious vision [The] sccular crusade against thc Anglican church is an attack on all forms of religious expression and thus indirectly harmful to us too [Discstablishmcnt] sccms to mc a way only towards mono- dominant and triumphant sccularism rathcr than a pathway which may lcad to true multi-faith multi-cultural pluralism (Rothschild in Modood 1996 56 60 sce similar charges by Levinson 1990 and Carter 1993 in the United States)

The real question for her thus is just how do we organize ourselves so that the many voices can be heard so that one dominant culture doesnt impose itself on us all (Modood 199658) Bikhu Parekh also challenges Rawlsian political liberalism for keeping

religion out of political life in a democracy Like Rawls (1995) we might insist that citi- Lens In a liberal society should derivc or at least publicly dcfend thcir political judgc- ments in a secular manner but that is arbitrary and has no appeal to those who do not sharc his views of religion and politics [We have to] challenge thc untenable and long-hcld beliefs that only a secular state can be libcnl and dcmocratic and that political

610 POLITICAL THEORY October 1999

discourse is manageable only whcn it is conceptually monolingual and homogeneous (Parckh in Modood 19962 122)

If a secular public morality cannot be neutral we seem to be caught in a trap forced to choose between two equally miserable imperialisms either mono-dominant and triumphant secularism and an out-and-out (or funda- mentalist) secularism which in its late twentieth century manifestation is a climate inimical to any religion (Daoud Rosser-Owen from a Muslim per- spective in Modood 1996 84) on one hand or troubling triumphalism by those who believed religion had a monopoly on moral concerns (Phillips in Modood 1996 27) on the other Anne Phillips has tried to resolve this dilemma by pointing out that

secularism occupies a dual location in this kind of debate Those who do not follow any of thc worlds religions arc by definition secular in thcir beliefs when secularism speaks on bchalf of thcsc non-believers it speaks on a par with the spokcspcoplc for Anglicans Catholics Muslims or Jcws Hut secularism also presents itself as thc solu- tion after all other voices havc spoken for in arguing fora separation between church and state it promises to protect thc beliefs and the practices of each from thc prcssures to go along with what any othcrs bclicve This looks suspiciously like a sleight of hand and thats the w o q that the even-handed accommodation of all turns out to be particularly attuned to one (Phillips in Modood 1996 27)

Anne Phillips tries to defend secular public morality on a meta-level as

the only approach that can even approximatc equality of treatment between those who hold different beliefs thc interests of democratic equality cannot be well served by practices that privilege one church ovcr the others nor can thcy bc well servcd by prac- tices that privilege religious values over secular oncs nor-and this is the difficult one--can thcy be well served by practices that privilege secular valucs over religious bclicfs The difficulty remains that any way of formulating this puts it in the framework of a secular solution and some will rcgard this as diminishing the significance of relig- ion Rut the secular separation of church from statc is still the closest we can get to parity of treatment between those who are rcli~ious and those who are not and between thc fol- lowers of different religions Equality is onc of the crucial principles of amodern democ- racy and for this reason (evcn cxcluding all the others) thc secular solution is the only onc I could defend (Phillips in Modood 1996270

Plausible though it looks at first sight such a defense common to Audi Phillips and many others still suffers from an unrecognized identification of public morality with secular morality Audi (1991) treats public and secular reason as if they would be exactly the same For him public reasons are explicitly and by definition secular and his principles of rationale and moti- vation are secularist principles

Bader 1 RELIGIOUS PLURALISM 61 1

unless they offer (or at least have) adequate secular (non-religious) reasons to support thc law or policy in question By sccular reason I do not mcan onc that is con- sciously held in contrast to a religious onc noris there anything anti-religious implicit in a proper use of thc tcrm Indccd a sccular reason may be fully uligned with a reli- giously sanctioned vicw Rather a secular reason is roughly one whose normative force that is its status as a prima facie justificatory clcment does not (evidentially) depend on thc existence of God (for cxamplc through appeals to divine command) or on theological considerations (such as interpretations of a sacred tcxt) or on the pro- nouncements of a person or institution qua religious authority (Audi 1989 278 see also Audi 1997)

Although Audi Macedo and other liberal political philosophers believe that they can rely on Rawlss conceptions of political justice and public rea- son Rawls himself has carefully avoided identifying public reason with secular reason both terminologically34 as well as in his substantive arguments in favor of a freestanding public morality (see below)

In the sixteenth and seventeenth centuries such a terminological and con- ceptual identity was historically understandable because public morality had to be fought for first in battles against defenders of absolutist or fundamen- talist religions and established churches and later on in battles against those theological and philosophical defenders of freedom of religion and of con- sciousness who explicitly or implicitly limited these freedoms to the variety of conflicting Christian denominations and who did not extend their argu- ments into a principled defense of freedom of consciousness for all religious believers whether Christian or not as well as for those who hold secular val- ues and beliefs In a context in which the enemies of a general freedom of consciousness (and of most other liberal and democratic principles and rights) were absolutist religions public morality took the form of secular morality and a religious or theological defense of public morality seemed unthinkable Its true defenders thus were secular philosophers (such as Spi- noza and Kant)

In our times this context has changed public morality and liberal democracy have to be defended against secularist philosophers scientistic technocrats and expertocracy as well as against those religions that still defend absolutist and fundamentalist claims in politics In this context it is still true that secularism is more commonly perceived as the opposite of religion (Phillips in Modood 199627) but it may be that the most danger- ous enemies of liberal democracy are not or not mainly religions but secular- ist ideologies (as Wolterstorff 1997 pointed out) And from Madison onwards we also find religiously or theologically motivated defenders of a principled nonexclusive right to freedom of consciousness and of other rights institutions and public morality of liberal democracy

612 POLITICAL THEORY October 1999

In such a ~on tex t ~ both the meaning of secular and re~i~ious~ and their relation have changed Consequently the conceptual identification of public with secular morality is increasingly misleading for the following reasons

1 It scduccs us into conceptualizing the justificatory nonneutrality of libcral dcrnocracy in terms of sccular versus rcligious arguments or foundations The main question is not howevcr whether arguments are secular or rcligious but whcther thcy arc compatible with andlor support liberal dcrnocracy

2 It neglccts the possibility and existence of principled rcligious or thcological founda- tions of liberal dcmocmcy and excludcs thc possibility of public rcason in thcological and religious argumcnts It thus unfairly discriminates against those modem theologi- ans and religions that dcfcnd liberal democracy (Thiernann 1996 13 1 ff)

3 It directs our criticism of fundamcntalism in politics in a onc-sidcd and myopic manncr against rcligious or theological fundamcntalism and thus tcnds to neglcct all secular fundarncntalisms even if thcy posc much morc dangerous threats to tolerance and lib- eral dcrnocracy

There is a better way to account for the intuition that liberal democracy is inevitably nonneutral This is the principle of priority for democracy (always as a shorthand for liberal democracy in the sense defined above) In a short explication and defense of this second-order principle I proceed as follows First I want to highlight that not only religions had to learn what priority for democracy implies but philosophers scientists expertocrats and judges had to learn this too Second I want to defend the priority for democracy against misleading challenges from religions that argue that a secular moral- ity would be impossible would lead to a decay of morals or would weaken necessary limitations of state sovereignty and politics or claim a kind of his- torical priority41 Third I want to defend the priority for democracy against philosophical imperialisms which claim a kind of philosophical priority fail to radicalize the principle of nonfoundationalism and thus limit the produc- tive idea of a freestanding public morality that is political not metaphysi- cal Finally I want to defend the priority for democracy against the ironic and skeptic antiphilosophy of Richard Rorty who has coined the phrase

Priority for Democracy Versus All Fundamentalisms

Simply stated priorityfbr democracy means to begin with that princi- ples institutions cultures virtues and practices of liberal democracy have priority over the competing and often incompatible foundations of liberal democracy be they religious philosophical (metaphysical ontological moral ethical) or scientific Furthermore all opinions and voices like votes

Bader 1 RELIGIOUS PLURALISM 613

have to count equally when it comes to decision making even if paternalistic elites for the best of reasons think that they are uninformed misinformed false morally wrong and so on Liberal democracy thus understood cannot be neutral nor should it be But this inevitable nonneutrality which is essential with regard to all nonliberal nondemocratic principles and prac- tices should not be confused with nonneutrality between secular and reli- gious foundations and arguments

It is now common knowledge among sophisticated political philosophers that liberal democracy cannot be neutral42 This inevitable nonneutrality should be directed explicitly and exclusively against principles and prac- tices at odds with liberal democracy against fundamentalism of all kinds not against religions as such In their defense of the principle of reciprocity against the fundamentalist (religious) challenge that it is biased against fun- damentalism and in favor of religions that conform to deliberative views of civic education Gutmann and Thompson concede that it is correct

that the principle is not neutral among religions or ways of life The case forreciprocity and more generally for the deliberative perspective must be defended on substantive moral grounds and there is no reason to expect that such a defense would have the same (positive or negative) implications for all moral positions But the value of public rea- son expressed by the deliberative perspective is not just another morality It is offered as the morally optimal basis on which citizens who disagree about moralities and reli- gions can act collectively to makeeducational policy The principle of reciprocity is not privileged in the sense that it needs no moral defense But the defense it needs and the objections to which it is vulnerable are different from those of moral disagreement in politics The principle proposes a basis on which those who morally disagree can coop- erate and it can be appropriately criticized only by proposing an alternative basis not simply by reaffirming the moral or religious claim that constitutes the disagreement The fundamentalists do not offer an alternative (Gutmann and Thompson 1996 67 cf 93 second-order agreement not on secularism but on principles and virtues of liberal democracy)

Anne Phillips-like Tariq Modood (1996 13) Stephen Macedo (1998)~ Richard Rorty ( 1 9 9 7 ) ~ ~ and others-treats Charles Taylor ( 1 9 9 8 ) ~ ~ this inevitable nonneutrality of liberal democracy and of public morality as inevi- table secularity This is the most basic flaw of almost all recent political phi- losophy Christian and other religions particularly established churches have obviously learned to accept priority for democracy only as a result of protracted conflict Protestant denominations and free churches living under conditions of an established church had learned this from painful experiences much earlier and deeper than established churches particularly the Catholic Church However under conditions of liberal-democratic constitutional states even churches that think of themselves as the depositor of divine

614 POLITICAL THEORY 1October 1999

truth have eventually learned to accept the notion that when it comes to pub- lic democratic decision making error has the same rights as The authoritative sources of this Truth-be it God the Pope the Ayatollah priests or mullahs however important they may be inside the churches or the community o f believers-add nothing to its persuasive force in the arena o f public reason public deliberation and public scrutiny This is what all churches have to learn under conditions o f a modern constitution They all have to find their own ways to solve the fundamentalist dilemma (Casa- nova 1994 165)

I f this is clear about religion it is less well known and often forgotten that the same holds for all types o f secular truths While many modern religions and churches have tried to resolve this dilemma many prominent modern philosophers have not even addressed it properly This is not only evident for some o f the recently fashionable prominent continental philosophers such as Nietzsche Carl Schmitt and Heidegger To a lesser degree many Anglo- Saxon liberal moral philosophers are also guilty o f such an elitist conquest o f democratic politics (Barber 1988) The history o f modern social science is full o f scientistic ideology (from Saint-Simons scientistic religion via scientific racism to recent conquests o f democratic politics by neoclassical economic ideology) and the practices o f many experts (scientists techni- cians medical practitioners architects economists ecologists pedagogues psychologists sociologists judges etc) are rife with illegitimate scien- tocracy or expertocracy All o f them still have to learn how to resolve the fun- damentalist dilemma-namely that in democratic deliberation and decision making their truths are no more than opinions among 0the1-s~ Instead o f trying to limit thecontent o f public reason by keeping all contested compre- hensive doctrines and truth-claims out one has to develop the duties o f civility such as the duty to explain positions in publicly understandable lan- guage the willingness to listen to others fair-mindedness and readiness to accept reasonable accommoclat~ons or alterations In ones own view (see below)

Priority for Democracy versus Religious Challenges

The priority o f democracy has to be defended against five well-known untenable challenges from religious or theological imperialists

( i )Many religious believers and some theologians still think that a person cannot be solidly moral without being religious (Audi 1989 290f contra William Bennett) implicitly or explicitly they hold that secular morality In general is impossible Kulananda from a Buddhist perspective demonstrates

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

608 POLITICAL THEORY 1 October 1999

moral intuitions are better conceptualized by the principles of relational neu- trality and even-handedness

Relational neutrality replaces the idea of difference-blindness by difference-sensitivity Only if we take into account actual differences and inequalities between religious groups and organizations can we hope that institutions and policies will in the long run become more neutral in relation to these religions and to nonreligious people as well Relational neutrality does not presume some imagined place of neutral transcendence (Thie- mann 1996 82) or some objective observer (Justice OConnor see Note 1987 1647) as in the old untenable versions of nonsocially situated ahis- torical universal knowledge but neither does it lapse into a relativistic any- thing goes There are more inclusive better-situated perspectives that take into account the degree of inclusiveness of the actual2v relevant secular and religious voices and the particular point in history

Fairness as even-handedness is a better candidate than majority-biased symbolic accommodation It criticizes the exclusive reliance on a hands- oft concept of fairness regarding culture and identity that has informed the concepts of neutrality and complete separation predominant in liberal phi- losophy In a critical response to my article on transnational citizenship Joseph Carens has characterized

the ideal of cven-handedness to contrast it with the hands-off approach of neutrality The guiding idea of even-handedness is that what fairness entails is a sensitive balancing of competing claims for recognition and support in matters of culture and identity Instead of trying to abstract from particularity we shouldembrace it but in a way that is fair to all the different particularities Now being fair docs not mean that every cultural claim and identity will be givcn equal wcight but rather that cach will be given appropriate wcight undcr thc circumstances and given a commitment to equal respect for all History mat- tcrs numbers matter the relative importance of the claim to those who present it matters and so do many other considcmtions (Carens 1997 818 claboratcd in Carcns 1998 Introduction)

Religious cultures and identities are not treated fairly by declaring that religion is a private matter or by excluding religious arguments from political or constitutional debate or from debates about constitutional essentials and basic justice Nondiscrimination and equal treatment of different religions as well as of religious and nonreligious people are not well served by hands- off abstractions They require a sensitive balancing of the different claims taking into account structural inequalities between majority religions and minority ones Policies of accommodation which take cultures and identi- ties seriously and strive for a sensible balancing but neglect structural ine- qualities should be combined with a concept of rough complex equality that

Hader RELIGIOUS PLURALISM 609

uncovers neglected structural inequalities between (organized) religions and asks for policies to redress them (policies furiously criticized by liberal crit- ics of affirmative action in all fields) Sensitive balancing of cultural and identity claims will never achieve complete cultural equality and support will never achieve substantive equality between majority religions minority ones and secular people (nor would this be morally required in my view) but they may help to redress obviously unfair situations

Nondiscrimination and equal treatment also do not require second-order secularism I realize that my claim here conflicts with one of the crucial the- ses and assumptions of liberal republican and socialist political philoso phy2~propose to reconceptualize the central moral intuition of second-order secularism by the second-order principle of priority for democracy

We saw earlier that religiously and theologically motivated critics of political liberalism in the United States such as Neuhaus Wolterstorff and Thiemann challenged the presumed neutrality of second-order secularism In England similar complaints have been raised by Anglican Jewish Catho- lic and Muslim opponents of complete separation Conceptualizing mod- ern public morality as secular morality is said to privilege secular over reli- gious values unfairly Writing from a Jewish perspective Sylvia Rothschild fears most

a purportedly neutral secularism for thcre is nothing so dogmatic as that which is dog- matically neutral and sccularisrn far from being open to all closes the many diverse doors to the communities of faith As I read it the secular mode is merely another point on thc spectrum of religious expression but one which has no understanding of and which makes no allowances for othcr modes of religious expression On thc othcr hand pluralism can and does flow from religious vision [The] sccular crusade against thc Anglican church is an attack on all forms of religious expression and thus indirectly harmful to us too [Discstablishmcnt] sccms to mc a way only towards mono- dominant and triumphant sccularism rathcr than a pathway which may lcad to true multi-faith multi-cultural pluralism (Rothschild in Modood 1996 56 60 sce similar charges by Levinson 1990 and Carter 1993 in the United States)

The real question for her thus is just how do we organize ourselves so that the many voices can be heard so that one dominant culture doesnt impose itself on us all (Modood 199658) Bikhu Parekh also challenges Rawlsian political liberalism for keeping

religion out of political life in a democracy Like Rawls (1995) we might insist that citi- Lens In a liberal society should derivc or at least publicly dcfend thcir political judgc- ments in a secular manner but that is arbitrary and has no appeal to those who do not sharc his views of religion and politics [We have to] challenge thc untenable and long-hcld beliefs that only a secular state can be libcnl and dcmocratic and that political

610 POLITICAL THEORY October 1999

discourse is manageable only whcn it is conceptually monolingual and homogeneous (Parckh in Modood 19962 122)

If a secular public morality cannot be neutral we seem to be caught in a trap forced to choose between two equally miserable imperialisms either mono-dominant and triumphant secularism and an out-and-out (or funda- mentalist) secularism which in its late twentieth century manifestation is a climate inimical to any religion (Daoud Rosser-Owen from a Muslim per- spective in Modood 1996 84) on one hand or troubling triumphalism by those who believed religion had a monopoly on moral concerns (Phillips in Modood 1996 27) on the other Anne Phillips has tried to resolve this dilemma by pointing out that

secularism occupies a dual location in this kind of debate Those who do not follow any of thc worlds religions arc by definition secular in thcir beliefs when secularism speaks on bchalf of thcsc non-believers it speaks on a par with the spokcspcoplc for Anglicans Catholics Muslims or Jcws Hut secularism also presents itself as thc solu- tion after all other voices havc spoken for in arguing fora separation between church and state it promises to protect thc beliefs and the practices of each from thc prcssures to go along with what any othcrs bclicve This looks suspiciously like a sleight of hand and thats the w o q that the even-handed accommodation of all turns out to be particularly attuned to one (Phillips in Modood 1996 27)

Anne Phillips tries to defend secular public morality on a meta-level as

the only approach that can even approximatc equality of treatment between those who hold different beliefs thc interests of democratic equality cannot be well served by practices that privilege one church ovcr the others nor can thcy bc well servcd by prac- tices that privilege religious values over secular oncs nor-and this is the difficult one--can thcy be well served by practices that privilege secular valucs over religious bclicfs The difficulty remains that any way of formulating this puts it in the framework of a secular solution and some will rcgard this as diminishing the significance of relig- ion Rut the secular separation of church from statc is still the closest we can get to parity of treatment between those who are rcli~ious and those who are not and between thc fol- lowers of different religions Equality is onc of the crucial principles of amodern democ- racy and for this reason (evcn cxcluding all the others) thc secular solution is the only onc I could defend (Phillips in Modood 1996270

Plausible though it looks at first sight such a defense common to Audi Phillips and many others still suffers from an unrecognized identification of public morality with secular morality Audi (1991) treats public and secular reason as if they would be exactly the same For him public reasons are explicitly and by definition secular and his principles of rationale and moti- vation are secularist principles

Bader 1 RELIGIOUS PLURALISM 61 1

unless they offer (or at least have) adequate secular (non-religious) reasons to support thc law or policy in question By sccular reason I do not mcan onc that is con- sciously held in contrast to a religious onc noris there anything anti-religious implicit in a proper use of thc tcrm Indccd a sccular reason may be fully uligned with a reli- giously sanctioned vicw Rather a secular reason is roughly one whose normative force that is its status as a prima facie justificatory clcment does not (evidentially) depend on thc existence of God (for cxamplc through appeals to divine command) or on theological considerations (such as interpretations of a sacred tcxt) or on the pro- nouncements of a person or institution qua religious authority (Audi 1989 278 see also Audi 1997)

Although Audi Macedo and other liberal political philosophers believe that they can rely on Rawlss conceptions of political justice and public rea- son Rawls himself has carefully avoided identifying public reason with secular reason both terminologically34 as well as in his substantive arguments in favor of a freestanding public morality (see below)

In the sixteenth and seventeenth centuries such a terminological and con- ceptual identity was historically understandable because public morality had to be fought for first in battles against defenders of absolutist or fundamen- talist religions and established churches and later on in battles against those theological and philosophical defenders of freedom of religion and of con- sciousness who explicitly or implicitly limited these freedoms to the variety of conflicting Christian denominations and who did not extend their argu- ments into a principled defense of freedom of consciousness for all religious believers whether Christian or not as well as for those who hold secular val- ues and beliefs In a context in which the enemies of a general freedom of consciousness (and of most other liberal and democratic principles and rights) were absolutist religions public morality took the form of secular morality and a religious or theological defense of public morality seemed unthinkable Its true defenders thus were secular philosophers (such as Spi- noza and Kant)

In our times this context has changed public morality and liberal democracy have to be defended against secularist philosophers scientistic technocrats and expertocracy as well as against those religions that still defend absolutist and fundamentalist claims in politics In this context it is still true that secularism is more commonly perceived as the opposite of religion (Phillips in Modood 199627) but it may be that the most danger- ous enemies of liberal democracy are not or not mainly religions but secular- ist ideologies (as Wolterstorff 1997 pointed out) And from Madison onwards we also find religiously or theologically motivated defenders of a principled nonexclusive right to freedom of consciousness and of other rights institutions and public morality of liberal democracy

612 POLITICAL THEORY October 1999

In such a ~on tex t ~ both the meaning of secular and re~i~ious~ and their relation have changed Consequently the conceptual identification of public with secular morality is increasingly misleading for the following reasons

1 It scduccs us into conceptualizing the justificatory nonneutrality of libcral dcrnocracy in terms of sccular versus rcligious arguments or foundations The main question is not howevcr whether arguments are secular or rcligious but whcther thcy arc compatible with andlor support liberal dcrnocracy

2 It neglccts the possibility and existence of principled rcligious or thcological founda- tions of liberal dcmocmcy and excludcs thc possibility of public rcason in thcological and religious argumcnts It thus unfairly discriminates against those modem theologi- ans and religions that dcfcnd liberal democracy (Thiernann 1996 13 1 ff)

3 It directs our criticism of fundamcntalism in politics in a onc-sidcd and myopic manncr against rcligious or theological fundamcntalism and thus tcnds to neglcct all secular fundarncntalisms even if thcy posc much morc dangerous threats to tolerance and lib- eral dcrnocracy

There is a better way to account for the intuition that liberal democracy is inevitably nonneutral This is the principle of priority for democracy (always as a shorthand for liberal democracy in the sense defined above) In a short explication and defense of this second-order principle I proceed as follows First I want to highlight that not only religions had to learn what priority for democracy implies but philosophers scientists expertocrats and judges had to learn this too Second I want to defend the priority for democracy against misleading challenges from religions that argue that a secular moral- ity would be impossible would lead to a decay of morals or would weaken necessary limitations of state sovereignty and politics or claim a kind of his- torical priority41 Third I want to defend the priority for democracy against philosophical imperialisms which claim a kind of philosophical priority fail to radicalize the principle of nonfoundationalism and thus limit the produc- tive idea of a freestanding public morality that is political not metaphysi- cal Finally I want to defend the priority for democracy against the ironic and skeptic antiphilosophy of Richard Rorty who has coined the phrase

Priority for Democracy Versus All Fundamentalisms

Simply stated priorityfbr democracy means to begin with that princi- ples institutions cultures virtues and practices of liberal democracy have priority over the competing and often incompatible foundations of liberal democracy be they religious philosophical (metaphysical ontological moral ethical) or scientific Furthermore all opinions and voices like votes

Bader 1 RELIGIOUS PLURALISM 613

have to count equally when it comes to decision making even if paternalistic elites for the best of reasons think that they are uninformed misinformed false morally wrong and so on Liberal democracy thus understood cannot be neutral nor should it be But this inevitable nonneutrality which is essential with regard to all nonliberal nondemocratic principles and prac- tices should not be confused with nonneutrality between secular and reli- gious foundations and arguments

It is now common knowledge among sophisticated political philosophers that liberal democracy cannot be neutral42 This inevitable nonneutrality should be directed explicitly and exclusively against principles and prac- tices at odds with liberal democracy against fundamentalism of all kinds not against religions as such In their defense of the principle of reciprocity against the fundamentalist (religious) challenge that it is biased against fun- damentalism and in favor of religions that conform to deliberative views of civic education Gutmann and Thompson concede that it is correct

that the principle is not neutral among religions or ways of life The case forreciprocity and more generally for the deliberative perspective must be defended on substantive moral grounds and there is no reason to expect that such a defense would have the same (positive or negative) implications for all moral positions But the value of public rea- son expressed by the deliberative perspective is not just another morality It is offered as the morally optimal basis on which citizens who disagree about moralities and reli- gions can act collectively to makeeducational policy The principle of reciprocity is not privileged in the sense that it needs no moral defense But the defense it needs and the objections to which it is vulnerable are different from those of moral disagreement in politics The principle proposes a basis on which those who morally disagree can coop- erate and it can be appropriately criticized only by proposing an alternative basis not simply by reaffirming the moral or religious claim that constitutes the disagreement The fundamentalists do not offer an alternative (Gutmann and Thompson 1996 67 cf 93 second-order agreement not on secularism but on principles and virtues of liberal democracy)

Anne Phillips-like Tariq Modood (1996 13) Stephen Macedo (1998)~ Richard Rorty ( 1 9 9 7 ) ~ ~ and others-treats Charles Taylor ( 1 9 9 8 ) ~ ~ this inevitable nonneutrality of liberal democracy and of public morality as inevi- table secularity This is the most basic flaw of almost all recent political phi- losophy Christian and other religions particularly established churches have obviously learned to accept priority for democracy only as a result of protracted conflict Protestant denominations and free churches living under conditions of an established church had learned this from painful experiences much earlier and deeper than established churches particularly the Catholic Church However under conditions of liberal-democratic constitutional states even churches that think of themselves as the depositor of divine

614 POLITICAL THEORY 1October 1999

truth have eventually learned to accept the notion that when it comes to pub- lic democratic decision making error has the same rights as The authoritative sources of this Truth-be it God the Pope the Ayatollah priests or mullahs however important they may be inside the churches or the community o f believers-add nothing to its persuasive force in the arena o f public reason public deliberation and public scrutiny This is what all churches have to learn under conditions o f a modern constitution They all have to find their own ways to solve the fundamentalist dilemma (Casa- nova 1994 165)

I f this is clear about religion it is less well known and often forgotten that the same holds for all types o f secular truths While many modern religions and churches have tried to resolve this dilemma many prominent modern philosophers have not even addressed it properly This is not only evident for some o f the recently fashionable prominent continental philosophers such as Nietzsche Carl Schmitt and Heidegger To a lesser degree many Anglo- Saxon liberal moral philosophers are also guilty o f such an elitist conquest o f democratic politics (Barber 1988) The history o f modern social science is full o f scientistic ideology (from Saint-Simons scientistic religion via scientific racism to recent conquests o f democratic politics by neoclassical economic ideology) and the practices o f many experts (scientists techni- cians medical practitioners architects economists ecologists pedagogues psychologists sociologists judges etc) are rife with illegitimate scien- tocracy or expertocracy All o f them still have to learn how to resolve the fun- damentalist dilemma-namely that in democratic deliberation and decision making their truths are no more than opinions among 0the1-s~ Instead o f trying to limit thecontent o f public reason by keeping all contested compre- hensive doctrines and truth-claims out one has to develop the duties o f civility such as the duty to explain positions in publicly understandable lan- guage the willingness to listen to others fair-mindedness and readiness to accept reasonable accommoclat~ons or alterations In ones own view (see below)

Priority for Democracy versus Religious Challenges

The priority o f democracy has to be defended against five well-known untenable challenges from religious or theological imperialists

( i )Many religious believers and some theologians still think that a person cannot be solidly moral without being religious (Audi 1989 290f contra William Bennett) implicitly or explicitly they hold that secular morality In general is impossible Kulananda from a Buddhist perspective demonstrates

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

Hader RELIGIOUS PLURALISM 609

uncovers neglected structural inequalities between (organized) religions and asks for policies to redress them (policies furiously criticized by liberal crit- ics of affirmative action in all fields) Sensitive balancing of cultural and identity claims will never achieve complete cultural equality and support will never achieve substantive equality between majority religions minority ones and secular people (nor would this be morally required in my view) but they may help to redress obviously unfair situations

Nondiscrimination and equal treatment also do not require second-order secularism I realize that my claim here conflicts with one of the crucial the- ses and assumptions of liberal republican and socialist political philoso phy2~propose to reconceptualize the central moral intuition of second-order secularism by the second-order principle of priority for democracy

We saw earlier that religiously and theologically motivated critics of political liberalism in the United States such as Neuhaus Wolterstorff and Thiemann challenged the presumed neutrality of second-order secularism In England similar complaints have been raised by Anglican Jewish Catho- lic and Muslim opponents of complete separation Conceptualizing mod- ern public morality as secular morality is said to privilege secular over reli- gious values unfairly Writing from a Jewish perspective Sylvia Rothschild fears most

a purportedly neutral secularism for thcre is nothing so dogmatic as that which is dog- matically neutral and sccularisrn far from being open to all closes the many diverse doors to the communities of faith As I read it the secular mode is merely another point on thc spectrum of religious expression but one which has no understanding of and which makes no allowances for othcr modes of religious expression On thc othcr hand pluralism can and does flow from religious vision [The] sccular crusade against thc Anglican church is an attack on all forms of religious expression and thus indirectly harmful to us too [Discstablishmcnt] sccms to mc a way only towards mono- dominant and triumphant sccularism rathcr than a pathway which may lcad to true multi-faith multi-cultural pluralism (Rothschild in Modood 1996 56 60 sce similar charges by Levinson 1990 and Carter 1993 in the United States)

The real question for her thus is just how do we organize ourselves so that the many voices can be heard so that one dominant culture doesnt impose itself on us all (Modood 199658) Bikhu Parekh also challenges Rawlsian political liberalism for keeping

religion out of political life in a democracy Like Rawls (1995) we might insist that citi- Lens In a liberal society should derivc or at least publicly dcfend thcir political judgc- ments in a secular manner but that is arbitrary and has no appeal to those who do not sharc his views of religion and politics [We have to] challenge thc untenable and long-hcld beliefs that only a secular state can be libcnl and dcmocratic and that political

610 POLITICAL THEORY October 1999

discourse is manageable only whcn it is conceptually monolingual and homogeneous (Parckh in Modood 19962 122)

If a secular public morality cannot be neutral we seem to be caught in a trap forced to choose between two equally miserable imperialisms either mono-dominant and triumphant secularism and an out-and-out (or funda- mentalist) secularism which in its late twentieth century manifestation is a climate inimical to any religion (Daoud Rosser-Owen from a Muslim per- spective in Modood 1996 84) on one hand or troubling triumphalism by those who believed religion had a monopoly on moral concerns (Phillips in Modood 1996 27) on the other Anne Phillips has tried to resolve this dilemma by pointing out that

secularism occupies a dual location in this kind of debate Those who do not follow any of thc worlds religions arc by definition secular in thcir beliefs when secularism speaks on bchalf of thcsc non-believers it speaks on a par with the spokcspcoplc for Anglicans Catholics Muslims or Jcws Hut secularism also presents itself as thc solu- tion after all other voices havc spoken for in arguing fora separation between church and state it promises to protect thc beliefs and the practices of each from thc prcssures to go along with what any othcrs bclicve This looks suspiciously like a sleight of hand and thats the w o q that the even-handed accommodation of all turns out to be particularly attuned to one (Phillips in Modood 1996 27)

Anne Phillips tries to defend secular public morality on a meta-level as

the only approach that can even approximatc equality of treatment between those who hold different beliefs thc interests of democratic equality cannot be well served by practices that privilege one church ovcr the others nor can thcy bc well servcd by prac- tices that privilege religious values over secular oncs nor-and this is the difficult one--can thcy be well served by practices that privilege secular valucs over religious bclicfs The difficulty remains that any way of formulating this puts it in the framework of a secular solution and some will rcgard this as diminishing the significance of relig- ion Rut the secular separation of church from statc is still the closest we can get to parity of treatment between those who are rcli~ious and those who are not and between thc fol- lowers of different religions Equality is onc of the crucial principles of amodern democ- racy and for this reason (evcn cxcluding all the others) thc secular solution is the only onc I could defend (Phillips in Modood 1996270

Plausible though it looks at first sight such a defense common to Audi Phillips and many others still suffers from an unrecognized identification of public morality with secular morality Audi (1991) treats public and secular reason as if they would be exactly the same For him public reasons are explicitly and by definition secular and his principles of rationale and moti- vation are secularist principles

Bader 1 RELIGIOUS PLURALISM 61 1

unless they offer (or at least have) adequate secular (non-religious) reasons to support thc law or policy in question By sccular reason I do not mcan onc that is con- sciously held in contrast to a religious onc noris there anything anti-religious implicit in a proper use of thc tcrm Indccd a sccular reason may be fully uligned with a reli- giously sanctioned vicw Rather a secular reason is roughly one whose normative force that is its status as a prima facie justificatory clcment does not (evidentially) depend on thc existence of God (for cxamplc through appeals to divine command) or on theological considerations (such as interpretations of a sacred tcxt) or on the pro- nouncements of a person or institution qua religious authority (Audi 1989 278 see also Audi 1997)

Although Audi Macedo and other liberal political philosophers believe that they can rely on Rawlss conceptions of political justice and public rea- son Rawls himself has carefully avoided identifying public reason with secular reason both terminologically34 as well as in his substantive arguments in favor of a freestanding public morality (see below)

In the sixteenth and seventeenth centuries such a terminological and con- ceptual identity was historically understandable because public morality had to be fought for first in battles against defenders of absolutist or fundamen- talist religions and established churches and later on in battles against those theological and philosophical defenders of freedom of religion and of con- sciousness who explicitly or implicitly limited these freedoms to the variety of conflicting Christian denominations and who did not extend their argu- ments into a principled defense of freedom of consciousness for all religious believers whether Christian or not as well as for those who hold secular val- ues and beliefs In a context in which the enemies of a general freedom of consciousness (and of most other liberal and democratic principles and rights) were absolutist religions public morality took the form of secular morality and a religious or theological defense of public morality seemed unthinkable Its true defenders thus were secular philosophers (such as Spi- noza and Kant)

In our times this context has changed public morality and liberal democracy have to be defended against secularist philosophers scientistic technocrats and expertocracy as well as against those religions that still defend absolutist and fundamentalist claims in politics In this context it is still true that secularism is more commonly perceived as the opposite of religion (Phillips in Modood 199627) but it may be that the most danger- ous enemies of liberal democracy are not or not mainly religions but secular- ist ideologies (as Wolterstorff 1997 pointed out) And from Madison onwards we also find religiously or theologically motivated defenders of a principled nonexclusive right to freedom of consciousness and of other rights institutions and public morality of liberal democracy

612 POLITICAL THEORY October 1999

In such a ~on tex t ~ both the meaning of secular and re~i~ious~ and their relation have changed Consequently the conceptual identification of public with secular morality is increasingly misleading for the following reasons

1 It scduccs us into conceptualizing the justificatory nonneutrality of libcral dcrnocracy in terms of sccular versus rcligious arguments or foundations The main question is not howevcr whether arguments are secular or rcligious but whcther thcy arc compatible with andlor support liberal dcrnocracy

2 It neglccts the possibility and existence of principled rcligious or thcological founda- tions of liberal dcmocmcy and excludcs thc possibility of public rcason in thcological and religious argumcnts It thus unfairly discriminates against those modem theologi- ans and religions that dcfcnd liberal democracy (Thiernann 1996 13 1 ff)

3 It directs our criticism of fundamcntalism in politics in a onc-sidcd and myopic manncr against rcligious or theological fundamcntalism and thus tcnds to neglcct all secular fundarncntalisms even if thcy posc much morc dangerous threats to tolerance and lib- eral dcrnocracy

There is a better way to account for the intuition that liberal democracy is inevitably nonneutral This is the principle of priority for democracy (always as a shorthand for liberal democracy in the sense defined above) In a short explication and defense of this second-order principle I proceed as follows First I want to highlight that not only religions had to learn what priority for democracy implies but philosophers scientists expertocrats and judges had to learn this too Second I want to defend the priority for democracy against misleading challenges from religions that argue that a secular moral- ity would be impossible would lead to a decay of morals or would weaken necessary limitations of state sovereignty and politics or claim a kind of his- torical priority41 Third I want to defend the priority for democracy against philosophical imperialisms which claim a kind of philosophical priority fail to radicalize the principle of nonfoundationalism and thus limit the produc- tive idea of a freestanding public morality that is political not metaphysi- cal Finally I want to defend the priority for democracy against the ironic and skeptic antiphilosophy of Richard Rorty who has coined the phrase

Priority for Democracy Versus All Fundamentalisms

Simply stated priorityfbr democracy means to begin with that princi- ples institutions cultures virtues and practices of liberal democracy have priority over the competing and often incompatible foundations of liberal democracy be they religious philosophical (metaphysical ontological moral ethical) or scientific Furthermore all opinions and voices like votes

Bader 1 RELIGIOUS PLURALISM 613

have to count equally when it comes to decision making even if paternalistic elites for the best of reasons think that they are uninformed misinformed false morally wrong and so on Liberal democracy thus understood cannot be neutral nor should it be But this inevitable nonneutrality which is essential with regard to all nonliberal nondemocratic principles and prac- tices should not be confused with nonneutrality between secular and reli- gious foundations and arguments

It is now common knowledge among sophisticated political philosophers that liberal democracy cannot be neutral42 This inevitable nonneutrality should be directed explicitly and exclusively against principles and prac- tices at odds with liberal democracy against fundamentalism of all kinds not against religions as such In their defense of the principle of reciprocity against the fundamentalist (religious) challenge that it is biased against fun- damentalism and in favor of religions that conform to deliberative views of civic education Gutmann and Thompson concede that it is correct

that the principle is not neutral among religions or ways of life The case forreciprocity and more generally for the deliberative perspective must be defended on substantive moral grounds and there is no reason to expect that such a defense would have the same (positive or negative) implications for all moral positions But the value of public rea- son expressed by the deliberative perspective is not just another morality It is offered as the morally optimal basis on which citizens who disagree about moralities and reli- gions can act collectively to makeeducational policy The principle of reciprocity is not privileged in the sense that it needs no moral defense But the defense it needs and the objections to which it is vulnerable are different from those of moral disagreement in politics The principle proposes a basis on which those who morally disagree can coop- erate and it can be appropriately criticized only by proposing an alternative basis not simply by reaffirming the moral or religious claim that constitutes the disagreement The fundamentalists do not offer an alternative (Gutmann and Thompson 1996 67 cf 93 second-order agreement not on secularism but on principles and virtues of liberal democracy)

Anne Phillips-like Tariq Modood (1996 13) Stephen Macedo (1998)~ Richard Rorty ( 1 9 9 7 ) ~ ~ and others-treats Charles Taylor ( 1 9 9 8 ) ~ ~ this inevitable nonneutrality of liberal democracy and of public morality as inevi- table secularity This is the most basic flaw of almost all recent political phi- losophy Christian and other religions particularly established churches have obviously learned to accept priority for democracy only as a result of protracted conflict Protestant denominations and free churches living under conditions of an established church had learned this from painful experiences much earlier and deeper than established churches particularly the Catholic Church However under conditions of liberal-democratic constitutional states even churches that think of themselves as the depositor of divine

614 POLITICAL THEORY 1October 1999

truth have eventually learned to accept the notion that when it comes to pub- lic democratic decision making error has the same rights as The authoritative sources of this Truth-be it God the Pope the Ayatollah priests or mullahs however important they may be inside the churches or the community o f believers-add nothing to its persuasive force in the arena o f public reason public deliberation and public scrutiny This is what all churches have to learn under conditions o f a modern constitution They all have to find their own ways to solve the fundamentalist dilemma (Casa- nova 1994 165)

I f this is clear about religion it is less well known and often forgotten that the same holds for all types o f secular truths While many modern religions and churches have tried to resolve this dilemma many prominent modern philosophers have not even addressed it properly This is not only evident for some o f the recently fashionable prominent continental philosophers such as Nietzsche Carl Schmitt and Heidegger To a lesser degree many Anglo- Saxon liberal moral philosophers are also guilty o f such an elitist conquest o f democratic politics (Barber 1988) The history o f modern social science is full o f scientistic ideology (from Saint-Simons scientistic religion via scientific racism to recent conquests o f democratic politics by neoclassical economic ideology) and the practices o f many experts (scientists techni- cians medical practitioners architects economists ecologists pedagogues psychologists sociologists judges etc) are rife with illegitimate scien- tocracy or expertocracy All o f them still have to learn how to resolve the fun- damentalist dilemma-namely that in democratic deliberation and decision making their truths are no more than opinions among 0the1-s~ Instead o f trying to limit thecontent o f public reason by keeping all contested compre- hensive doctrines and truth-claims out one has to develop the duties o f civility such as the duty to explain positions in publicly understandable lan- guage the willingness to listen to others fair-mindedness and readiness to accept reasonable accommoclat~ons or alterations In ones own view (see below)

Priority for Democracy versus Religious Challenges

The priority o f democracy has to be defended against five well-known untenable challenges from religious or theological imperialists

( i )Many religious believers and some theologians still think that a person cannot be solidly moral without being religious (Audi 1989 290f contra William Bennett) implicitly or explicitly they hold that secular morality In general is impossible Kulananda from a Buddhist perspective demonstrates

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

610 POLITICAL THEORY October 1999

discourse is manageable only whcn it is conceptually monolingual and homogeneous (Parckh in Modood 19962 122)

If a secular public morality cannot be neutral we seem to be caught in a trap forced to choose between two equally miserable imperialisms either mono-dominant and triumphant secularism and an out-and-out (or funda- mentalist) secularism which in its late twentieth century manifestation is a climate inimical to any religion (Daoud Rosser-Owen from a Muslim per- spective in Modood 1996 84) on one hand or troubling triumphalism by those who believed religion had a monopoly on moral concerns (Phillips in Modood 1996 27) on the other Anne Phillips has tried to resolve this dilemma by pointing out that

secularism occupies a dual location in this kind of debate Those who do not follow any of thc worlds religions arc by definition secular in thcir beliefs when secularism speaks on bchalf of thcsc non-believers it speaks on a par with the spokcspcoplc for Anglicans Catholics Muslims or Jcws Hut secularism also presents itself as thc solu- tion after all other voices havc spoken for in arguing fora separation between church and state it promises to protect thc beliefs and the practices of each from thc prcssures to go along with what any othcrs bclicve This looks suspiciously like a sleight of hand and thats the w o q that the even-handed accommodation of all turns out to be particularly attuned to one (Phillips in Modood 1996 27)

Anne Phillips tries to defend secular public morality on a meta-level as

the only approach that can even approximatc equality of treatment between those who hold different beliefs thc interests of democratic equality cannot be well served by practices that privilege one church ovcr the others nor can thcy bc well servcd by prac- tices that privilege religious values over secular oncs nor-and this is the difficult one--can thcy be well served by practices that privilege secular valucs over religious bclicfs The difficulty remains that any way of formulating this puts it in the framework of a secular solution and some will rcgard this as diminishing the significance of relig- ion Rut the secular separation of church from statc is still the closest we can get to parity of treatment between those who are rcli~ious and those who are not and between thc fol- lowers of different religions Equality is onc of the crucial principles of amodern democ- racy and for this reason (evcn cxcluding all the others) thc secular solution is the only onc I could defend (Phillips in Modood 1996270

Plausible though it looks at first sight such a defense common to Audi Phillips and many others still suffers from an unrecognized identification of public morality with secular morality Audi (1991) treats public and secular reason as if they would be exactly the same For him public reasons are explicitly and by definition secular and his principles of rationale and moti- vation are secularist principles

Bader 1 RELIGIOUS PLURALISM 61 1

unless they offer (or at least have) adequate secular (non-religious) reasons to support thc law or policy in question By sccular reason I do not mcan onc that is con- sciously held in contrast to a religious onc noris there anything anti-religious implicit in a proper use of thc tcrm Indccd a sccular reason may be fully uligned with a reli- giously sanctioned vicw Rather a secular reason is roughly one whose normative force that is its status as a prima facie justificatory clcment does not (evidentially) depend on thc existence of God (for cxamplc through appeals to divine command) or on theological considerations (such as interpretations of a sacred tcxt) or on the pro- nouncements of a person or institution qua religious authority (Audi 1989 278 see also Audi 1997)

Although Audi Macedo and other liberal political philosophers believe that they can rely on Rawlss conceptions of political justice and public rea- son Rawls himself has carefully avoided identifying public reason with secular reason both terminologically34 as well as in his substantive arguments in favor of a freestanding public morality (see below)

In the sixteenth and seventeenth centuries such a terminological and con- ceptual identity was historically understandable because public morality had to be fought for first in battles against defenders of absolutist or fundamen- talist religions and established churches and later on in battles against those theological and philosophical defenders of freedom of religion and of con- sciousness who explicitly or implicitly limited these freedoms to the variety of conflicting Christian denominations and who did not extend their argu- ments into a principled defense of freedom of consciousness for all religious believers whether Christian or not as well as for those who hold secular val- ues and beliefs In a context in which the enemies of a general freedom of consciousness (and of most other liberal and democratic principles and rights) were absolutist religions public morality took the form of secular morality and a religious or theological defense of public morality seemed unthinkable Its true defenders thus were secular philosophers (such as Spi- noza and Kant)

In our times this context has changed public morality and liberal democracy have to be defended against secularist philosophers scientistic technocrats and expertocracy as well as against those religions that still defend absolutist and fundamentalist claims in politics In this context it is still true that secularism is more commonly perceived as the opposite of religion (Phillips in Modood 199627) but it may be that the most danger- ous enemies of liberal democracy are not or not mainly religions but secular- ist ideologies (as Wolterstorff 1997 pointed out) And from Madison onwards we also find religiously or theologically motivated defenders of a principled nonexclusive right to freedom of consciousness and of other rights institutions and public morality of liberal democracy

612 POLITICAL THEORY October 1999

In such a ~on tex t ~ both the meaning of secular and re~i~ious~ and their relation have changed Consequently the conceptual identification of public with secular morality is increasingly misleading for the following reasons

1 It scduccs us into conceptualizing the justificatory nonneutrality of libcral dcrnocracy in terms of sccular versus rcligious arguments or foundations The main question is not howevcr whether arguments are secular or rcligious but whcther thcy arc compatible with andlor support liberal dcrnocracy

2 It neglccts the possibility and existence of principled rcligious or thcological founda- tions of liberal dcmocmcy and excludcs thc possibility of public rcason in thcological and religious argumcnts It thus unfairly discriminates against those modem theologi- ans and religions that dcfcnd liberal democracy (Thiernann 1996 13 1 ff)

3 It directs our criticism of fundamcntalism in politics in a onc-sidcd and myopic manncr against rcligious or theological fundamcntalism and thus tcnds to neglcct all secular fundarncntalisms even if thcy posc much morc dangerous threats to tolerance and lib- eral dcrnocracy

There is a better way to account for the intuition that liberal democracy is inevitably nonneutral This is the principle of priority for democracy (always as a shorthand for liberal democracy in the sense defined above) In a short explication and defense of this second-order principle I proceed as follows First I want to highlight that not only religions had to learn what priority for democracy implies but philosophers scientists expertocrats and judges had to learn this too Second I want to defend the priority for democracy against misleading challenges from religions that argue that a secular moral- ity would be impossible would lead to a decay of morals or would weaken necessary limitations of state sovereignty and politics or claim a kind of his- torical priority41 Third I want to defend the priority for democracy against philosophical imperialisms which claim a kind of philosophical priority fail to radicalize the principle of nonfoundationalism and thus limit the produc- tive idea of a freestanding public morality that is political not metaphysi- cal Finally I want to defend the priority for democracy against the ironic and skeptic antiphilosophy of Richard Rorty who has coined the phrase

Priority for Democracy Versus All Fundamentalisms

Simply stated priorityfbr democracy means to begin with that princi- ples institutions cultures virtues and practices of liberal democracy have priority over the competing and often incompatible foundations of liberal democracy be they religious philosophical (metaphysical ontological moral ethical) or scientific Furthermore all opinions and voices like votes

Bader 1 RELIGIOUS PLURALISM 613

have to count equally when it comes to decision making even if paternalistic elites for the best of reasons think that they are uninformed misinformed false morally wrong and so on Liberal democracy thus understood cannot be neutral nor should it be But this inevitable nonneutrality which is essential with regard to all nonliberal nondemocratic principles and prac- tices should not be confused with nonneutrality between secular and reli- gious foundations and arguments

It is now common knowledge among sophisticated political philosophers that liberal democracy cannot be neutral42 This inevitable nonneutrality should be directed explicitly and exclusively against principles and prac- tices at odds with liberal democracy against fundamentalism of all kinds not against religions as such In their defense of the principle of reciprocity against the fundamentalist (religious) challenge that it is biased against fun- damentalism and in favor of religions that conform to deliberative views of civic education Gutmann and Thompson concede that it is correct

that the principle is not neutral among religions or ways of life The case forreciprocity and more generally for the deliberative perspective must be defended on substantive moral grounds and there is no reason to expect that such a defense would have the same (positive or negative) implications for all moral positions But the value of public rea- son expressed by the deliberative perspective is not just another morality It is offered as the morally optimal basis on which citizens who disagree about moralities and reli- gions can act collectively to makeeducational policy The principle of reciprocity is not privileged in the sense that it needs no moral defense But the defense it needs and the objections to which it is vulnerable are different from those of moral disagreement in politics The principle proposes a basis on which those who morally disagree can coop- erate and it can be appropriately criticized only by proposing an alternative basis not simply by reaffirming the moral or religious claim that constitutes the disagreement The fundamentalists do not offer an alternative (Gutmann and Thompson 1996 67 cf 93 second-order agreement not on secularism but on principles and virtues of liberal democracy)

Anne Phillips-like Tariq Modood (1996 13) Stephen Macedo (1998)~ Richard Rorty ( 1 9 9 7 ) ~ ~ and others-treats Charles Taylor ( 1 9 9 8 ) ~ ~ this inevitable nonneutrality of liberal democracy and of public morality as inevi- table secularity This is the most basic flaw of almost all recent political phi- losophy Christian and other religions particularly established churches have obviously learned to accept priority for democracy only as a result of protracted conflict Protestant denominations and free churches living under conditions of an established church had learned this from painful experiences much earlier and deeper than established churches particularly the Catholic Church However under conditions of liberal-democratic constitutional states even churches that think of themselves as the depositor of divine

614 POLITICAL THEORY 1October 1999

truth have eventually learned to accept the notion that when it comes to pub- lic democratic decision making error has the same rights as The authoritative sources of this Truth-be it God the Pope the Ayatollah priests or mullahs however important they may be inside the churches or the community o f believers-add nothing to its persuasive force in the arena o f public reason public deliberation and public scrutiny This is what all churches have to learn under conditions o f a modern constitution They all have to find their own ways to solve the fundamentalist dilemma (Casa- nova 1994 165)

I f this is clear about religion it is less well known and often forgotten that the same holds for all types o f secular truths While many modern religions and churches have tried to resolve this dilemma many prominent modern philosophers have not even addressed it properly This is not only evident for some o f the recently fashionable prominent continental philosophers such as Nietzsche Carl Schmitt and Heidegger To a lesser degree many Anglo- Saxon liberal moral philosophers are also guilty o f such an elitist conquest o f democratic politics (Barber 1988) The history o f modern social science is full o f scientistic ideology (from Saint-Simons scientistic religion via scientific racism to recent conquests o f democratic politics by neoclassical economic ideology) and the practices o f many experts (scientists techni- cians medical practitioners architects economists ecologists pedagogues psychologists sociologists judges etc) are rife with illegitimate scien- tocracy or expertocracy All o f them still have to learn how to resolve the fun- damentalist dilemma-namely that in democratic deliberation and decision making their truths are no more than opinions among 0the1-s~ Instead o f trying to limit thecontent o f public reason by keeping all contested compre- hensive doctrines and truth-claims out one has to develop the duties o f civility such as the duty to explain positions in publicly understandable lan- guage the willingness to listen to others fair-mindedness and readiness to accept reasonable accommoclat~ons or alterations In ones own view (see below)

Priority for Democracy versus Religious Challenges

The priority o f democracy has to be defended against five well-known untenable challenges from religious or theological imperialists

( i )Many religious believers and some theologians still think that a person cannot be solidly moral without being religious (Audi 1989 290f contra William Bennett) implicitly or explicitly they hold that secular morality In general is impossible Kulananda from a Buddhist perspective demonstrates

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

Bader 1 RELIGIOUS PLURALISM 61 1

unless they offer (or at least have) adequate secular (non-religious) reasons to support thc law or policy in question By sccular reason I do not mcan onc that is con- sciously held in contrast to a religious onc noris there anything anti-religious implicit in a proper use of thc tcrm Indccd a sccular reason may be fully uligned with a reli- giously sanctioned vicw Rather a secular reason is roughly one whose normative force that is its status as a prima facie justificatory clcment does not (evidentially) depend on thc existence of God (for cxamplc through appeals to divine command) or on theological considerations (such as interpretations of a sacred tcxt) or on the pro- nouncements of a person or institution qua religious authority (Audi 1989 278 see also Audi 1997)

Although Audi Macedo and other liberal political philosophers believe that they can rely on Rawlss conceptions of political justice and public rea- son Rawls himself has carefully avoided identifying public reason with secular reason both terminologically34 as well as in his substantive arguments in favor of a freestanding public morality (see below)

In the sixteenth and seventeenth centuries such a terminological and con- ceptual identity was historically understandable because public morality had to be fought for first in battles against defenders of absolutist or fundamen- talist religions and established churches and later on in battles against those theological and philosophical defenders of freedom of religion and of con- sciousness who explicitly or implicitly limited these freedoms to the variety of conflicting Christian denominations and who did not extend their argu- ments into a principled defense of freedom of consciousness for all religious believers whether Christian or not as well as for those who hold secular val- ues and beliefs In a context in which the enemies of a general freedom of consciousness (and of most other liberal and democratic principles and rights) were absolutist religions public morality took the form of secular morality and a religious or theological defense of public morality seemed unthinkable Its true defenders thus were secular philosophers (such as Spi- noza and Kant)

In our times this context has changed public morality and liberal democracy have to be defended against secularist philosophers scientistic technocrats and expertocracy as well as against those religions that still defend absolutist and fundamentalist claims in politics In this context it is still true that secularism is more commonly perceived as the opposite of religion (Phillips in Modood 199627) but it may be that the most danger- ous enemies of liberal democracy are not or not mainly religions but secular- ist ideologies (as Wolterstorff 1997 pointed out) And from Madison onwards we also find religiously or theologically motivated defenders of a principled nonexclusive right to freedom of consciousness and of other rights institutions and public morality of liberal democracy

612 POLITICAL THEORY October 1999

In such a ~on tex t ~ both the meaning of secular and re~i~ious~ and their relation have changed Consequently the conceptual identification of public with secular morality is increasingly misleading for the following reasons

1 It scduccs us into conceptualizing the justificatory nonneutrality of libcral dcrnocracy in terms of sccular versus rcligious arguments or foundations The main question is not howevcr whether arguments are secular or rcligious but whcther thcy arc compatible with andlor support liberal dcrnocracy

2 It neglccts the possibility and existence of principled rcligious or thcological founda- tions of liberal dcmocmcy and excludcs thc possibility of public rcason in thcological and religious argumcnts It thus unfairly discriminates against those modem theologi- ans and religions that dcfcnd liberal democracy (Thiernann 1996 13 1 ff)

3 It directs our criticism of fundamcntalism in politics in a onc-sidcd and myopic manncr against rcligious or theological fundamcntalism and thus tcnds to neglcct all secular fundarncntalisms even if thcy posc much morc dangerous threats to tolerance and lib- eral dcrnocracy

There is a better way to account for the intuition that liberal democracy is inevitably nonneutral This is the principle of priority for democracy (always as a shorthand for liberal democracy in the sense defined above) In a short explication and defense of this second-order principle I proceed as follows First I want to highlight that not only religions had to learn what priority for democracy implies but philosophers scientists expertocrats and judges had to learn this too Second I want to defend the priority for democracy against misleading challenges from religions that argue that a secular moral- ity would be impossible would lead to a decay of morals or would weaken necessary limitations of state sovereignty and politics or claim a kind of his- torical priority41 Third I want to defend the priority for democracy against philosophical imperialisms which claim a kind of philosophical priority fail to radicalize the principle of nonfoundationalism and thus limit the produc- tive idea of a freestanding public morality that is political not metaphysi- cal Finally I want to defend the priority for democracy against the ironic and skeptic antiphilosophy of Richard Rorty who has coined the phrase

Priority for Democracy Versus All Fundamentalisms

Simply stated priorityfbr democracy means to begin with that princi- ples institutions cultures virtues and practices of liberal democracy have priority over the competing and often incompatible foundations of liberal democracy be they religious philosophical (metaphysical ontological moral ethical) or scientific Furthermore all opinions and voices like votes

Bader 1 RELIGIOUS PLURALISM 613

have to count equally when it comes to decision making even if paternalistic elites for the best of reasons think that they are uninformed misinformed false morally wrong and so on Liberal democracy thus understood cannot be neutral nor should it be But this inevitable nonneutrality which is essential with regard to all nonliberal nondemocratic principles and prac- tices should not be confused with nonneutrality between secular and reli- gious foundations and arguments

It is now common knowledge among sophisticated political philosophers that liberal democracy cannot be neutral42 This inevitable nonneutrality should be directed explicitly and exclusively against principles and prac- tices at odds with liberal democracy against fundamentalism of all kinds not against religions as such In their defense of the principle of reciprocity against the fundamentalist (religious) challenge that it is biased against fun- damentalism and in favor of religions that conform to deliberative views of civic education Gutmann and Thompson concede that it is correct

that the principle is not neutral among religions or ways of life The case forreciprocity and more generally for the deliberative perspective must be defended on substantive moral grounds and there is no reason to expect that such a defense would have the same (positive or negative) implications for all moral positions But the value of public rea- son expressed by the deliberative perspective is not just another morality It is offered as the morally optimal basis on which citizens who disagree about moralities and reli- gions can act collectively to makeeducational policy The principle of reciprocity is not privileged in the sense that it needs no moral defense But the defense it needs and the objections to which it is vulnerable are different from those of moral disagreement in politics The principle proposes a basis on which those who morally disagree can coop- erate and it can be appropriately criticized only by proposing an alternative basis not simply by reaffirming the moral or religious claim that constitutes the disagreement The fundamentalists do not offer an alternative (Gutmann and Thompson 1996 67 cf 93 second-order agreement not on secularism but on principles and virtues of liberal democracy)

Anne Phillips-like Tariq Modood (1996 13) Stephen Macedo (1998)~ Richard Rorty ( 1 9 9 7 ) ~ ~ and others-treats Charles Taylor ( 1 9 9 8 ) ~ ~ this inevitable nonneutrality of liberal democracy and of public morality as inevi- table secularity This is the most basic flaw of almost all recent political phi- losophy Christian and other religions particularly established churches have obviously learned to accept priority for democracy only as a result of protracted conflict Protestant denominations and free churches living under conditions of an established church had learned this from painful experiences much earlier and deeper than established churches particularly the Catholic Church However under conditions of liberal-democratic constitutional states even churches that think of themselves as the depositor of divine

614 POLITICAL THEORY 1October 1999

truth have eventually learned to accept the notion that when it comes to pub- lic democratic decision making error has the same rights as The authoritative sources of this Truth-be it God the Pope the Ayatollah priests or mullahs however important they may be inside the churches or the community o f believers-add nothing to its persuasive force in the arena o f public reason public deliberation and public scrutiny This is what all churches have to learn under conditions o f a modern constitution They all have to find their own ways to solve the fundamentalist dilemma (Casa- nova 1994 165)

I f this is clear about religion it is less well known and often forgotten that the same holds for all types o f secular truths While many modern religions and churches have tried to resolve this dilemma many prominent modern philosophers have not even addressed it properly This is not only evident for some o f the recently fashionable prominent continental philosophers such as Nietzsche Carl Schmitt and Heidegger To a lesser degree many Anglo- Saxon liberal moral philosophers are also guilty o f such an elitist conquest o f democratic politics (Barber 1988) The history o f modern social science is full o f scientistic ideology (from Saint-Simons scientistic religion via scientific racism to recent conquests o f democratic politics by neoclassical economic ideology) and the practices o f many experts (scientists techni- cians medical practitioners architects economists ecologists pedagogues psychologists sociologists judges etc) are rife with illegitimate scien- tocracy or expertocracy All o f them still have to learn how to resolve the fun- damentalist dilemma-namely that in democratic deliberation and decision making their truths are no more than opinions among 0the1-s~ Instead o f trying to limit thecontent o f public reason by keeping all contested compre- hensive doctrines and truth-claims out one has to develop the duties o f civility such as the duty to explain positions in publicly understandable lan- guage the willingness to listen to others fair-mindedness and readiness to accept reasonable accommoclat~ons or alterations In ones own view (see below)

Priority for Democracy versus Religious Challenges

The priority o f democracy has to be defended against five well-known untenable challenges from religious or theological imperialists

( i )Many religious believers and some theologians still think that a person cannot be solidly moral without being religious (Audi 1989 290f contra William Bennett) implicitly or explicitly they hold that secular morality In general is impossible Kulananda from a Buddhist perspective demonstrates

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

612 POLITICAL THEORY October 1999

In such a ~on tex t ~ both the meaning of secular and re~i~ious~ and their relation have changed Consequently the conceptual identification of public with secular morality is increasingly misleading for the following reasons

1 It scduccs us into conceptualizing the justificatory nonneutrality of libcral dcrnocracy in terms of sccular versus rcligious arguments or foundations The main question is not howevcr whether arguments are secular or rcligious but whcther thcy arc compatible with andlor support liberal dcrnocracy

2 It neglccts the possibility and existence of principled rcligious or thcological founda- tions of liberal dcmocmcy and excludcs thc possibility of public rcason in thcological and religious argumcnts It thus unfairly discriminates against those modem theologi- ans and religions that dcfcnd liberal democracy (Thiernann 1996 13 1 ff)

3 It directs our criticism of fundamcntalism in politics in a onc-sidcd and myopic manncr against rcligious or theological fundamcntalism and thus tcnds to neglcct all secular fundarncntalisms even if thcy posc much morc dangerous threats to tolerance and lib- eral dcrnocracy

There is a better way to account for the intuition that liberal democracy is inevitably nonneutral This is the principle of priority for democracy (always as a shorthand for liberal democracy in the sense defined above) In a short explication and defense of this second-order principle I proceed as follows First I want to highlight that not only religions had to learn what priority for democracy implies but philosophers scientists expertocrats and judges had to learn this too Second I want to defend the priority for democracy against misleading challenges from religions that argue that a secular moral- ity would be impossible would lead to a decay of morals or would weaken necessary limitations of state sovereignty and politics or claim a kind of his- torical priority41 Third I want to defend the priority for democracy against philosophical imperialisms which claim a kind of philosophical priority fail to radicalize the principle of nonfoundationalism and thus limit the produc- tive idea of a freestanding public morality that is political not metaphysi- cal Finally I want to defend the priority for democracy against the ironic and skeptic antiphilosophy of Richard Rorty who has coined the phrase

Priority for Democracy Versus All Fundamentalisms

Simply stated priorityfbr democracy means to begin with that princi- ples institutions cultures virtues and practices of liberal democracy have priority over the competing and often incompatible foundations of liberal democracy be they religious philosophical (metaphysical ontological moral ethical) or scientific Furthermore all opinions and voices like votes

Bader 1 RELIGIOUS PLURALISM 613

have to count equally when it comes to decision making even if paternalistic elites for the best of reasons think that they are uninformed misinformed false morally wrong and so on Liberal democracy thus understood cannot be neutral nor should it be But this inevitable nonneutrality which is essential with regard to all nonliberal nondemocratic principles and prac- tices should not be confused with nonneutrality between secular and reli- gious foundations and arguments

It is now common knowledge among sophisticated political philosophers that liberal democracy cannot be neutral42 This inevitable nonneutrality should be directed explicitly and exclusively against principles and prac- tices at odds with liberal democracy against fundamentalism of all kinds not against religions as such In their defense of the principle of reciprocity against the fundamentalist (religious) challenge that it is biased against fun- damentalism and in favor of religions that conform to deliberative views of civic education Gutmann and Thompson concede that it is correct

that the principle is not neutral among religions or ways of life The case forreciprocity and more generally for the deliberative perspective must be defended on substantive moral grounds and there is no reason to expect that such a defense would have the same (positive or negative) implications for all moral positions But the value of public rea- son expressed by the deliberative perspective is not just another morality It is offered as the morally optimal basis on which citizens who disagree about moralities and reli- gions can act collectively to makeeducational policy The principle of reciprocity is not privileged in the sense that it needs no moral defense But the defense it needs and the objections to which it is vulnerable are different from those of moral disagreement in politics The principle proposes a basis on which those who morally disagree can coop- erate and it can be appropriately criticized only by proposing an alternative basis not simply by reaffirming the moral or religious claim that constitutes the disagreement The fundamentalists do not offer an alternative (Gutmann and Thompson 1996 67 cf 93 second-order agreement not on secularism but on principles and virtues of liberal democracy)

Anne Phillips-like Tariq Modood (1996 13) Stephen Macedo (1998)~ Richard Rorty ( 1 9 9 7 ) ~ ~ and others-treats Charles Taylor ( 1 9 9 8 ) ~ ~ this inevitable nonneutrality of liberal democracy and of public morality as inevi- table secularity This is the most basic flaw of almost all recent political phi- losophy Christian and other religions particularly established churches have obviously learned to accept priority for democracy only as a result of protracted conflict Protestant denominations and free churches living under conditions of an established church had learned this from painful experiences much earlier and deeper than established churches particularly the Catholic Church However under conditions of liberal-democratic constitutional states even churches that think of themselves as the depositor of divine

614 POLITICAL THEORY 1October 1999

truth have eventually learned to accept the notion that when it comes to pub- lic democratic decision making error has the same rights as The authoritative sources of this Truth-be it God the Pope the Ayatollah priests or mullahs however important they may be inside the churches or the community o f believers-add nothing to its persuasive force in the arena o f public reason public deliberation and public scrutiny This is what all churches have to learn under conditions o f a modern constitution They all have to find their own ways to solve the fundamentalist dilemma (Casa- nova 1994 165)

I f this is clear about religion it is less well known and often forgotten that the same holds for all types o f secular truths While many modern religions and churches have tried to resolve this dilemma many prominent modern philosophers have not even addressed it properly This is not only evident for some o f the recently fashionable prominent continental philosophers such as Nietzsche Carl Schmitt and Heidegger To a lesser degree many Anglo- Saxon liberal moral philosophers are also guilty o f such an elitist conquest o f democratic politics (Barber 1988) The history o f modern social science is full o f scientistic ideology (from Saint-Simons scientistic religion via scientific racism to recent conquests o f democratic politics by neoclassical economic ideology) and the practices o f many experts (scientists techni- cians medical practitioners architects economists ecologists pedagogues psychologists sociologists judges etc) are rife with illegitimate scien- tocracy or expertocracy All o f them still have to learn how to resolve the fun- damentalist dilemma-namely that in democratic deliberation and decision making their truths are no more than opinions among 0the1-s~ Instead o f trying to limit thecontent o f public reason by keeping all contested compre- hensive doctrines and truth-claims out one has to develop the duties o f civility such as the duty to explain positions in publicly understandable lan- guage the willingness to listen to others fair-mindedness and readiness to accept reasonable accommoclat~ons or alterations In ones own view (see below)

Priority for Democracy versus Religious Challenges

The priority o f democracy has to be defended against five well-known untenable challenges from religious or theological imperialists

( i )Many religious believers and some theologians still think that a person cannot be solidly moral without being religious (Audi 1989 290f contra William Bennett) implicitly or explicitly they hold that secular morality In general is impossible Kulananda from a Buddhist perspective demonstrates

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

Bader 1 RELIGIOUS PLURALISM 613

have to count equally when it comes to decision making even if paternalistic elites for the best of reasons think that they are uninformed misinformed false morally wrong and so on Liberal democracy thus understood cannot be neutral nor should it be But this inevitable nonneutrality which is essential with regard to all nonliberal nondemocratic principles and prac- tices should not be confused with nonneutrality between secular and reli- gious foundations and arguments

It is now common knowledge among sophisticated political philosophers that liberal democracy cannot be neutral42 This inevitable nonneutrality should be directed explicitly and exclusively against principles and prac- tices at odds with liberal democracy against fundamentalism of all kinds not against religions as such In their defense of the principle of reciprocity against the fundamentalist (religious) challenge that it is biased against fun- damentalism and in favor of religions that conform to deliberative views of civic education Gutmann and Thompson concede that it is correct

that the principle is not neutral among religions or ways of life The case forreciprocity and more generally for the deliberative perspective must be defended on substantive moral grounds and there is no reason to expect that such a defense would have the same (positive or negative) implications for all moral positions But the value of public rea- son expressed by the deliberative perspective is not just another morality It is offered as the morally optimal basis on which citizens who disagree about moralities and reli- gions can act collectively to makeeducational policy The principle of reciprocity is not privileged in the sense that it needs no moral defense But the defense it needs and the objections to which it is vulnerable are different from those of moral disagreement in politics The principle proposes a basis on which those who morally disagree can coop- erate and it can be appropriately criticized only by proposing an alternative basis not simply by reaffirming the moral or religious claim that constitutes the disagreement The fundamentalists do not offer an alternative (Gutmann and Thompson 1996 67 cf 93 second-order agreement not on secularism but on principles and virtues of liberal democracy)

Anne Phillips-like Tariq Modood (1996 13) Stephen Macedo (1998)~ Richard Rorty ( 1 9 9 7 ) ~ ~ and others-treats Charles Taylor ( 1 9 9 8 ) ~ ~ this inevitable nonneutrality of liberal democracy and of public morality as inevi- table secularity This is the most basic flaw of almost all recent political phi- losophy Christian and other religions particularly established churches have obviously learned to accept priority for democracy only as a result of protracted conflict Protestant denominations and free churches living under conditions of an established church had learned this from painful experiences much earlier and deeper than established churches particularly the Catholic Church However under conditions of liberal-democratic constitutional states even churches that think of themselves as the depositor of divine

614 POLITICAL THEORY 1October 1999

truth have eventually learned to accept the notion that when it comes to pub- lic democratic decision making error has the same rights as The authoritative sources of this Truth-be it God the Pope the Ayatollah priests or mullahs however important they may be inside the churches or the community o f believers-add nothing to its persuasive force in the arena o f public reason public deliberation and public scrutiny This is what all churches have to learn under conditions o f a modern constitution They all have to find their own ways to solve the fundamentalist dilemma (Casa- nova 1994 165)

I f this is clear about religion it is less well known and often forgotten that the same holds for all types o f secular truths While many modern religions and churches have tried to resolve this dilemma many prominent modern philosophers have not even addressed it properly This is not only evident for some o f the recently fashionable prominent continental philosophers such as Nietzsche Carl Schmitt and Heidegger To a lesser degree many Anglo- Saxon liberal moral philosophers are also guilty o f such an elitist conquest o f democratic politics (Barber 1988) The history o f modern social science is full o f scientistic ideology (from Saint-Simons scientistic religion via scientific racism to recent conquests o f democratic politics by neoclassical economic ideology) and the practices o f many experts (scientists techni- cians medical practitioners architects economists ecologists pedagogues psychologists sociologists judges etc) are rife with illegitimate scien- tocracy or expertocracy All o f them still have to learn how to resolve the fun- damentalist dilemma-namely that in democratic deliberation and decision making their truths are no more than opinions among 0the1-s~ Instead o f trying to limit thecontent o f public reason by keeping all contested compre- hensive doctrines and truth-claims out one has to develop the duties o f civility such as the duty to explain positions in publicly understandable lan- guage the willingness to listen to others fair-mindedness and readiness to accept reasonable accommoclat~ons or alterations In ones own view (see below)

Priority for Democracy versus Religious Challenges

The priority o f democracy has to be defended against five well-known untenable challenges from religious or theological imperialists

( i )Many religious believers and some theologians still think that a person cannot be solidly moral without being religious (Audi 1989 290f contra William Bennett) implicitly or explicitly they hold that secular morality In general is impossible Kulananda from a Buddhist perspective demonstrates

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

614 POLITICAL THEORY 1October 1999

truth have eventually learned to accept the notion that when it comes to pub- lic democratic decision making error has the same rights as The authoritative sources of this Truth-be it God the Pope the Ayatollah priests or mullahs however important they may be inside the churches or the community o f believers-add nothing to its persuasive force in the arena o f public reason public deliberation and public scrutiny This is what all churches have to learn under conditions o f a modern constitution They all have to find their own ways to solve the fundamentalist dilemma (Casa- nova 1994 165)

I f this is clear about religion it is less well known and often forgotten that the same holds for all types o f secular truths While many modern religions and churches have tried to resolve this dilemma many prominent modern philosophers have not even addressed it properly This is not only evident for some o f the recently fashionable prominent continental philosophers such as Nietzsche Carl Schmitt and Heidegger To a lesser degree many Anglo- Saxon liberal moral philosophers are also guilty o f such an elitist conquest o f democratic politics (Barber 1988) The history o f modern social science is full o f scientistic ideology (from Saint-Simons scientistic religion via scientific racism to recent conquests o f democratic politics by neoclassical economic ideology) and the practices o f many experts (scientists techni- cians medical practitioners architects economists ecologists pedagogues psychologists sociologists judges etc) are rife with illegitimate scien- tocracy or expertocracy All o f them still have to learn how to resolve the fun- damentalist dilemma-namely that in democratic deliberation and decision making their truths are no more than opinions among 0the1-s~ Instead o f trying to limit thecontent o f public reason by keeping all contested compre- hensive doctrines and truth-claims out one has to develop the duties o f civility such as the duty to explain positions in publicly understandable lan- guage the willingness to listen to others fair-mindedness and readiness to accept reasonable accommoclat~ons or alterations In ones own view (see below)

Priority for Democracy versus Religious Challenges

The priority o f democracy has to be defended against five well-known untenable challenges from religious or theological imperialists

( i )Many religious believers and some theologians still think that a person cannot be solidly moral without being religious (Audi 1989 290f contra William Bennett) implicitly or explicitly they hold that secular morality In general is impossible Kulananda from a Buddhist perspective demonstrates

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

Bader RELIGIOUS PLURALISM 615

that they betray their lack o f respect for humanist ethics with assertions like secular morality is no morality In other words they fear that in the absence o f divine sanction and divine authority ethical life is impossible (quoted in Modood 199668) Without further argument I take this to be an untenable claim that has been convincingly refuted Morality does not struc- turally depend on re~igion~

(ii)A related but analytically different challenge from religious believers states that even i f secular morality would be possible secularism would inevitably lead to consumerism egotism materialism emotivism or moral decisionism It is remarkable that these charges are shared by sophisticated theorists such as Parekh Thiemann and ~ol ters tor f f ~ he claim that in the absence o f at least some albeit weak religious influence in civic affairs Brit- ish society would rapidly degenerate into a mire o f intolerant secular materi- alism is convincingly refuted by Kulananda (in Modood 199668) Jim Her- rick Audi and others50

(iii)It is argued that religious appeals to a higher divine sovereignty in general and some form o f religious establishment in particular are needed to prevent unlimited state sovereignty and secularist myths and practices o f unlimited politics and rationality So we are told by Hastings Rosser- wen^ and even Parekh that

religion also provides a valuable counterweight to the state Just as we need opposi- tion parties to check the government of the day we need powerful non-state institutions to check the statist manner of think~ng including the glorification of the state If religion is prone to the vice of fundamentalism the state is prone to theequally undesirable evil of nationalism (Modood 199621)

Such claims are not convincing for three reasons First all secularist anti- statists be they liberals anarchists or-most outspokenly-pluralists would certainly agree that we need powerful nonstate institutions This how- ever is certainly no argument in favor o f the constitutional establishment o f one or many churches Second historically speaking both strong and weak establishments have contributed a great deal to the evil o f nationalism which they are now supposed to hold in check Churches still have trouble combin- ing the universalism o f Christendom with the particularism o f community cults and civil religions in a morally permissible way52 Third all reasonable reminders o f the limits o f Reason are welcome be they conservative (Oakeshott) liberal (Hayek) pragmatist (Rorty) or republican (Barber) Religious critics may join secular critics o f statism and o f the hybris o f con- structivist rationalism but they certainly deserve no monopoly or a privileged voice in this choir Nonreligious self-reflective criticism o f the limits o f

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

616 POLITICAL THEORY 1 October 1999

rationality of the state and of politics is at least as strong and-in my view-more convincing5 than prima facie deep religious safeguards The latter seem to lie beyond any human control and manipulation but as the bad historical record-at least of their Christian Jewish and Islamic versions- shows they have always been tempted to install some earthly representatives of the Supreme Sovereign pretending to speak with a higher authority far beyond our human reasons

(iv) Principles and practices of liberal democracy emerged in Western societies whose background culture is deeply molded by Christianity The historical origin of human rights has often been used to mask two imperialist anti-secularist claims First an exclusivist claim that only Judeo-Christian religions are compatible with human rights but not other religions particu- larly not Islam Second a cultural genetic claim historically religion has been the source of morality (vd Haag 1988 quoted in Audi 1989 291) and thus morality cannot be decoupled from religion (history is destiny)4 Both claims have been thoughtfully refuted by Heiner Bielefeldt (1998 chap 5)

(v) Religious fundamentalists complain that the principles and practices of liberal democracy in general and of public morality and public education in particular are not pluralistic multicultural or universal but show a particu- larist bias toward a specific way of life by favoring reason toleration free choice individual autonomy and so f ~ r t h ~ Quite correctly they recognize that modern states constitutions public morality and public education can- not be completely neutral and that this inevitable nonneutrality also sets lim- its to possible accommodations in favor of fundamentalist dissenters par- ticularly if they do not want to insulate themselves or cannot live a more or less autarkic life In some cases this may be reason for a profound sense of sadness (Judge Boggs quoted in Stoltenberg 1993 584) In all cases it points to the price to be paid for living in modern societies and under liberal- democratic constitutions

Iriority f i r Democracy versus Philosophical Challenges

The priority for democracy radicalizes some basic notions of Rawlsian political liberalism against different vaneties of philosophical ~mperialism

(i) It radicalizes the idea of a freestanding conception of public morality and political justice Rawls came to realize that principles and practices of liberal democracy are more Important than the whole variety of conflicting meta-ethical philosophical foundations of human rights in transcendental (Kant ~ewirth)~uasi-transcendental (Apel) or un~versal-pragmatic

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

Bader 1 RELIGIOUS PLURALISM 617

(Habennas) strategies all of which try to find deep guarantees for civil and political rights in human nature reason or language or in thick moral con- cepts of personal autonomy These foundational strategies are at least as con- tested as our ordinary understanding of liberal-democratic principles and rights Perhaps it is even worse we may be burdened with a bunch of rotten theories intended to justify what are really a set of wonderful practices and institutions as Bernard Yack (1986) has put it The validity of human rights does not depend on the truth of competing theories of rights (natural rights theories deontological contractarian theories consequentialist theories needs theories) This could be called the thesis of the priority of rights over theories of rights not to be confused with the Rawlsian priority of the right over the good In this sense priority for democracy implies a commitment to nonfoundationalism not to anti-theory but to modest theories Rawlss (1993) own version in Political Liberalism is admittedly one of many possi- ble versions

(ii) The priority for democracy should not only be freed of secularist rem- nants which can be found even in the conception of deliberative democracy by Gutmann and Thompson (1990)~but it should also explicitly allow for all religious or theological arguments compatible with liberal democracy be they Christian Jewish Buddhist or whatever It should also be critical against attempts to smuggle in secularism via the backdoor by a rigorous and exclusivist specification of what reason means in public reason All attempts to regulate the content of public reasons have to apply standards of rationality and reason such as logical and conceptual consistence infer- ence cognitive adequacy (theoretical truth and objective empirical validity) and normative or practical validity Even if these standards are taken in a soft sense and not applied rigidlym this filter sorts out admissible from inadmissi- ble reasons and favors theoreticism and elitism Audis (1989) principles of secular rationale and of theo-ethical equilibrium require that reasons are transparent propositionally articulated and cognitively balanced to achieve reflective equilibrium Audi still privileges a very specitic understanding of mature rational people and a very specific understanding of knowledge neglecting or discounting practical knowledge and of course passions His principle of secular motivation requires secular reasons to be motivationally sufficient It seduces him Into a very subtle treatment of the relationship between motives reasons and actions (see Audi 198928 1fT vs rationaliza- tions etc) Standards of admissibility inevitably presuppose intellectual elites that are sufficiently educated dispassionate rational and competent to judge which (kinds of) reasons are allowed in public discourse and which are not

(iii) There are two ways in which liberal philosophers attempt to regulate discipline control or at least guide public reason to prevent chaotic unruly

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

618 POLITICAL THEORY October 1999

heated contentious public debate either by excluding whole issues from the publicconstitutional agenda (Ackermans 1989 conversational restraints) or by the idea of limits to the content of public reason (Rawls 1993) of admissible or inadmissible kinds of reasons (Audi 1989 Gutmann and Thompson 1990) The latter strategy can be more or less exclusivist it is only fair to mention that Rawlss proposal to exclude any reference to the plain truth of comprehensive doctrines is sensitive and fair enough to include not only religious metaphysical moral doctrines but also secular ideologies such as elaborate economic theories of general equilibrium say if these are in dispute (Rawls 1993225) However his recommendation that if we want to achieve orderly public debate we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense and the meth- ods and conclusions of science when these are not controversial (p 224) are seriously flawed in three regards First it is plainly utopian Even if it were desirable it could only be achieved by oppressive means incompatible with freedoms of political comm~nication~ Second the recommendation would not leave much to refer to in public talk because most of what moral and political philosophers tell us is seriously contested and most of the truths of social scientists are seriously contested as well These controversies become plain if scientists go public under democratic conditions And the thin principles of political justice that Rawls takes as part of the initial agree- ment are so indeterminate that we would be unable to decide what to do in most cases Third the-perhaps unintended-result would be a dreary and conservative public discourse freed of all fundamental challenges (a sleepy liberal version of Hegels end of history) Instead of trying to present ever softer and more inclusive versions of this strategy like Gutmann and Thomp- son (1990) we had better drop the whole idea Instead we should try to tell the whole truth as we see it on whatever topic and whenever it makes sense accept that others do the same on an equal footing tell it in understandable language and discuss it in a civilized way

(iv) If the idea of limiting the content of public reason is seriously flawed we should disconnect the Rawlsian link between civic virtues and limits of reason We should not hope for too much consensus in common sense in the sciences in moral philosophy or even on aRawlsian political conception ofjustice Rather we should focus on civilized and decent ways of living with disagreement liberal-democratic culture attitudes or habits virtues and tra- ditions of good judgment and good practice are crucial This is the core of (theories of) deliberative strong associative and empowered democracy Procedures and institutions are indeed not enough They have to be comple- mented not replaced by virtues such as civic integrity (consistency in speech and between speech and action integrity of principle) and civic

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

Bader 1 RELIGIOUS PLURALISM 619

magnanimity (acknowledgment o f the equal moral status o f opponents in speech and action open-mindedness economy o f moral di~a~reement) ~ Habits virtues and good practices are achieved in two ways directly by socialization and education and indirectly by living and practicing in appro- priately structured democratic institutions The institutional dimension (learning democracy by doing) has too long been neglected in recent liberal philosophy we can hope and to some extent see that the public use o f reason the participation in public discourse under conditionsM that are not too unfair does more to make debate orderly than liberal philosophers criteria for excluding certain kinds o f reasons The domesticating and civilizing effect o f liberal-democratic institutions may not just make for more decent citizens It may also contribute-together with internal democratization o f churches-to make more decent priests and eventually it may make even elitist philosophers and scientists more democratic i f their philosophical and scientific communities get democratized internally and are put under demo- cratic scrutiny from outside publics6n

( v )In the tradition o f liberal political philosophy Rawls has opened the road from a priority for moral philosophy to a freestanding conception o f political justice and public morality independent o f philosophical founda- tions in competing moral or meta-ethical theories The priority for democ- racy also includes ontological and epistemological nonfoundationalism there is no need to look for any o f the competing ontological or epistemologi- cal philosophical foundations o f liberal democracy In exploring this per- spective however one should avoid two recent nonfoundationalist alterna- tives In the first place nonfoundationalism and priority for democracy are central theses in Richard Rortys pragmatism But his antiphilosophical phi- losophy has at least two odd consequences ( 1 ) it explicitly blurs the differ- ences between philosophical scientific and literary discourse and ( 2 ) its postmodernist philosophy is admittedly at odds with his particularist eth- nocentric political commitment to human rights and democracy 1n the sec- ond place postmodernist discourse theory also blurs the differences between types o f discourse It is far less outspoken in its commitment to the priority o f democracy even in the rare cases where it addresses practical philosophy or political theory at all7

CONCLUSION

Liberal political theory responds to religious pluralism by restating the moral principles o f state-neutrality and secularism and by defending the

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

620 POLITICAL THEORY 1October 1999

complete separation of state from organized religion as the preferred or even the only morally legitimate institutional solution In this article I have criti- cized liberalisms moral principles by showing that the leading moral intui- tions can be better articulated by my proposed principles of relational neu- trality fairness as evenhandedness and priority for democracy If one shifts the focus from the discussion of principles toward constitutional rights and institutional settings my first claim is that my proposed principles enable a more productive understanding of inherent tensions between constitutional rights and also a more balanced practical adjudication My second claim is that these reformulated principles enable a more informed and context- sensitive discussion of relevant institutional options The institutionalized relationship between state and organized religions should not be reduced to the dichotomy of either complete separation (which should be read as nonestablishment combined with fighting all other forms of institutional pluralism) or strong establishment but include also weak establish- ment constitutional pluralism and nonconstitutional pluralism I am convinced that nonconstitutional pluralism is preferable for moral ethical prudential and realistic reasons To substantiate these two claims however requires another article How to institutionalize religious pluralism

NOTES

1 Throughout this article I use (organized) religions as an umbrella concept covering churches denominations and sects as well as religions that are even less formally organized I refer to the traditional distinction between churches (requiring either strong or weak establish- ment) and denominations only when necessary

2 Audi (1997 61) misleadingly thinks that his position is less restrictive than Rawlss in Politicirl Libercllism because reliance on cornprehens~ve views may figure crucially both evi- dentially and motivationally and both in general public discussion and in advocacy and support of laws and public policies provided (evidentially) adequate secular reasons play a sufficiently important role In fact however his identification of public reasons with secular reasons is more restrictive as far as I can see it is not shared by Kawls at least not terminologically (see below) Whereas Gutrnann and Thompson (1990) indicate changes in the paperback edition of Political Libercrlism (Rawls 1996371 explicitly revises) Weithman (l997b 12) sees no significant change

3 Audis (1989274) institutional principle of political neutrality may do no harm in ide- ally well-ordered societies but it works completely counterproductive if applied under condi- tions of structural incquality among (organized) religions Audi always asks how the develop- ment of discrimination exclusion and so on can be prevented given free and democratic societ~es He never addresses the problem of how to achieve higher degrees of relational neu- trality and fairness given structural inequalities See also the maln point of Weithmans (1991 5 5 0 criticism completely neglected in Audis lengthy reply in 1991 This reproduces a general weakness of liberal theories of justice (see for similar general criticism Beitz 1989

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

Bader RELIGIOUS PLURALISM 621

Cunningharn 1987 Gutmann and Thompson 1996) Cornpared with liberal philosophers it is remarkable that many legal constitutional theorists extensively address issues of majority ver- sus minority religions and the continuation of structural inequalities under the guise of neutrality (see the excellent papers by Galanter 1966 and Note 1987)

4 Religious organizations are assigned the normative task of developing responsible and virtuous citizens by Rawls Audi Weithman and others If institutional citizenship is dealt with at all (see Audi 199764 n 39 as a remarkable exception) it is not to challenge otherwise safely fortified positions of majority religions in culture civil and political society and the state but to demand ecclesiastical political neutrality See critical remarks by Tushnet (1986730ff) on the lack of concern for intermediate institutions in the liberal tradition and in the constitu- tional scheme See also Stoltenberg (1993 644ff 654)

5 See Habermas (1992) following Giinther(1988) See my criticism (Bader 199353ff) 6 See Wolterstorff (1997 174) 1 submit that no matter what those resultant principles of

justice may be the reasonable thing for her to expect 1s not that all reasonable people who use their common human reason will agree with her results but that not all reasonable people will agree It would be utterly unreasonable for her to expect anything else than disagreement The contested fate of Rawls own principles ofjustice is an illustrative case in point See also Tay- lors (1 998 51f) first critical remark against Rawlss own version of the overlapping consensus model

7 As precluding a more differentiated picture of private society civil society political soci- ety and the state (see Casanova 1994) or as reproducing the twin ideology of the powerlessness of property and the propertylessness of power The introduction of public privacy by Crep- pel1 (1996227ff) in her interpretation of Locke also indicates though in a helpless way the need to overcome these conceptual limitations

8 See Weithman (1997b 31) Colemann (1997) Hollenbach (1997) Neuhauss Naked Public Square and Bradley (see Note 1987171 30 Thiernann (199696ff 135ff) Reichley and Mooney (see Note 1987 1619) and Tushnet (1986 733-38) (in defense of republicanism) Associative democracy has a better record as a Seedbed of Virtues and for the Transformation of Politics (see Cohen and Rogers 1992 Hirst 1994 Schrnitter 1994 Bader 1998b 1999b)

9 See critically Barber (1988) Gutrnann and Thornpson (1996) versus Kawls (1993 231 ff) See Ella van Domrnelen (1999) fora more democratic resolution of the anti-majoritarian paradox

10 Two explications of my use of liberal democracy seem important (1) if not specified the term always refers to the complex whole of principles constitutional rights institutions cul- tures att~tudes or habits virtues and traditions of pract~cal judgment and actlon (see Bader 1997b 783ff) (2) 1 distinguish between constitution state and society I oppose two reductions very often found in the American context first many liberals and all libertarians try to undo the historical compromise of liberal democracy in favor of liberty versus democracy Second many liberal democrats s k ~ p the dimension of social rights and arrangements If one focuses on rights and constitution liberal democracy should always be read as the democratic and social constitutional state (dernokrutischer und soziuler Rechrssruar)

1 1 Wolterstorff (1997 1660 nationalism of many sorts communism fascism patriotism of various sorts economic hegemony See Martin (197847Ff) for Marxism-Leninism as asecu- lar religion but also for examples of liberal or secularist intolerance in the United States (Martin 197850 139 174)

12 For sex and gender see Minow (1990) for race see Gotanda (1991) and for ethnicity see Bader (l998a)

13 If one takes language as the most significant aspect of ethnic culture it is possible fora state to have at the very lcast more than one established language The weak version of deism

622 POLITICAL THEORY I October 1999

which goes hand in hand with constitutional separation in the United States can be compared with the necessary partial establishment of culture At the very least the differences between religion and culture would be less sharp than Kymlicka (1997) assumes (see for a broader criticism of Kymlickas concept of societal culture Carens 1998) For the tricky two-way rela- tionship of linguistic ethnic and religious cultures and identities see Martin (1978 304043 52f 77-82) See Parekh (19942040 fortwo dangers of assimilationist liberalism the religioni- zation of culture andor the ethnicization of culture Hollinger (1996 123) opposes the appli- cation to religious affiliations of the ethnic-minority paradigm because it leads to institutional separation and is based on ascriptive instead of voluntary membership His proposal to apply to ethno-racial affiliations a religious paradigm however uncritically takes for granted that in religious affairs state and church are neatly separated and that religions belong to the private and not the public sphere (p 124)

14 In my discussion I focus on the last two conjectures the contested meta-rules because the other points have been raised by other critics more or less extensively

15 Among critics too the terminology is ambiguous For Wolterstorff (1997) the neutrality-principle has two sides the impartiality or separation myth and the independent-basis3thesisThiernann (1996SSff) discusses separation accornrnodation neu- trality as three distinct but closely related suspect concepts

16For the three stages of this disestablishment see Casanova (1994 chap 6) See also Mar- tin (1978 2128 3670284) and Macedo (1998)

17 See Note (1987) for extensive documentation of the respective cases 18 For this perplexing legacy see Thiemann (1996440 For the neutrality principle see

Galanter (19662920 Tushnet (1986701f) Note (1987) and Stoltenberg (1993) See also Tay- lor (1998 35) In the actual chequered history of the American separation both models have been in play with the cornrnon ground justification being paramount in the early days and the independent ethic outlook gaining ground in more recent times

19 See Thiemann (1996 57) and Note (1987) Galanter (1966 296) The lack of a single comprehensive principle for responding to all claims for religious freedoms may not be entirely a disadvantage The existence of competing and overlapping principles can give courts and legislatures flexibility Case law after all is among other things a way of getting along with a plurality of principles which need not be integrated in the abstract See also Nussbaum (1997 980 for this tension

20 See Thiemann (1996 45-55) For the quite similar case of Lynch v Donelly see Note (1987 1655f0 See also Tushnet (1986727ff)

21 Compare the extensive discussion of the three principles of separation neutrality and accommodation used in unification strategies in Note (1987 1635ff)

22 Thiernmn ( 1 99665) See Galanter (1 966268 279296) and Note (1987 1609 162 1 1636 and throughout)

23 Criticism of the desire to strip American history and culture of Christianity could also be directed against the attempt to strip patriotic values and republican culture of their particu- larity (see Parekh 1998 Bader 1997b) Secular purpose and strict neutrality positions provide ample evidence for the impossibility of both these abstractions

24 See Bader (1997b) and Carens (1997) for the example of holy days For Sunday closing law cases see Galanter (1966222f 238f0 and Note (1987) See also Audi (19892632700 for Christmas carols

25 See Galanter (1966) and Note (1987 1610 1637f 1640-46) 26 The history of the jurisdiction of the Supreme Court using and elaborating the three-

prong test developed in Lemon v Kurrzmn-41) secular purpose (2) direct and indirect effect and (3) entanglement-shows clearly its inadequacy (see extensively Note 1987)

Bader 1 RELIGIOUS PLURALISM 623

Contrary to liberal philosophers who recognize difficulties of neutrality of consequences but accept justificatory neutrality without problems jurisdiction of the Supreme Court reveals the enormous difficulties of secular purpose as well Casanova (199455f0 gives a slightly differ- ent interpretation of these three positions and adds a fourth ( I ) a strict separationist reading rejecting both government support of religion and any government regulation of religion (this reading is preferred by radical sects and by libertarian or liberal defenders of strict neutrality) (2) a benevolent separationist reading that argues in favor of general government support of religions and rejects governmental regulation (this reading is defended by original intent theo- rists and by theorists who see a positive societal function for religions) (3) a secularist reading that denies any government support of religions and favors government regulation out of suspi- cion of negative functions of religions and (4) a statist interpretation that accepts constitutional separation only formally and still defends some ceasaropapist arrangements arguing forgovern- mental support and for far-reaching governmental control of religion

27 See Bader (1998a) for moral and legal paradigms following Habermas and Selznick See also Richards (1986 chap 2) using Dworkins equal respect and concern or Thiemanns fairly general principles of liberty equality and respect From both Galanters and Notes dis- cussions emerge second-order principles such as anti-majoritarianism (Note 1987 1610ff 17020 perspective-dependence (Note 1987 1647f0 and the recognition of biases as a neces- sary precondition to transcend them rather than remaining in their thrall (Note 1987 1631) that have informed my principle of relational neutrality

28 See Galanter (1966) and Note (1987 1610 and see pp 1648f for a comparison with sex inequalities)

29 See the excellent discussion in Note (1987 17380 Compare Habermass similar criti- cism of Rawlss original position (Habermas 1990 66-68 see Rawlss 1995 reply)

30 See Thiemann (1996 125f on reasonable disagreement and public deliberation) less than universality more than mere subjectivity in public spaces (misleadingly as a criticism of Gutmann and Thompson [1990] who make exactly the same point) See Bader (1998a 4360 This argument should be elaborated in a critical discussion with moral philosophers such as Nagel Scanlon Barry and with feminist and critical realist philosophers such as Hardin or Bhaskar but this would be another story It is important to recognize that Rawls does not like Audi ernploy the term neurraliryeven in the purely justificatory sense (see Kymlicka 1997205 233) because some of its connotations are highly misleading while others suggest altogether impracticable principles (Rawls 1993 191) His concept of political justice does not emerge from some imagined place of neutral transcendence (Thiemann 199682) It is embedded in the background culture of modern societies which is the historical and social basis of both his methodological devices of an overlapping consensus and of a critical reflexive equilibrium Rainer Baubock (1998) also opposes strict neutrality and the private-public split the essential divide is between social and political (spheres) or between civil society and the state (p 1O) which does not rule out various forms of public recognition (p I I )

31 In his Modes of Secularism Charles Taylor comes close to such a position Philoso- phers like Pufendorf Locke and Leibniz followed a Common Ground Strategy to justify the public domain They aimed at a state which is even-handed between religious communities equidistant from them rather than one where religious reasons play no overt role (Taylor 1998 35) Its principal weakness is revealed with the widening band of religious and metaphysical commitments in society In those circumstances the ground originally defined as common becomes that of one party arnong others The model however can be adapted to ever new con- texts Its common ground develops from Christian theism to Judeo-Christian deism to the inclu- sion of Muslirns Hindus and Buddhists The second strategy the Independent Political Ethic (Grotius Spinoza Hobbes) associated with privat~zation of religion and strict neutrality as well

- - -

624 POLITICAL THEORY October 1999

as strict separation of state and church also has severe diff~culties in corning to terms with increasing religious diversity It may turn out to be rather Christian in spirit (elsi Deus not1 dcirerur) particularly if real live atheists suspicious of religious believers (potential trai- tors) push farther the process of making religion irrelevant in the public sphereengaging in Kulturkumpf (p 36) It will be perceived as a gratuitous extrusion ofreligion in the name of a rival metaphysical belief and in non-western countries as imperialist import of Western secu- larism See also vd Veer (1997) Under colonial circumstances the secular state created its opposite a society in which religion had more rather than less political consequences one of which being a decline of tolerance of religious difference Richards (1986 120 and throughout) connects common ground and independent ethics strategies in a very arnbiguous way and does not recognize the lirnits of independent political ethics Taylors third hybrid model of Overlapping Consensus can be usefully followed we should better say reinvented-almost anywhere compared with my approach however much less attention is paid to serious ine- qualities between religious communities

32 Criticism of benign neutrality is shared by many As far as I can see my criticism of second-order secularism and my replacement of it by priority for democracy are fairly original

33 See also Macedo (199868ff) for a less outspoken identification of public with secular reason

34 As a careful check on the terrns used in Lecture VI of his Poliricul Libercilism shows 35 See for Lockes arnbiguous exclusion of Catholics and atheists Macedo (1998 63-65)

Creppel1(19962360 Gutmann and Thompson (l99065ff) and Richards (1 986 89- 102) 36 FortheSupremeCourt see Note(198716091685 [Muellerv Allen] 1730 [Brurlleyund

Lynch v Dot~elly]) A practical example may demonstrate this Southallians have developed different rnodels for school assemblies (single-faith assemblies multi-faith assemblies and interfaith assemblies) The civic discourse of secularism was effectively countered by the discourse of multi-culturalism equally civic in origin (Baumann 1996 182-86)

37 See the short and illuminating treatment in Thiemann (1996 19-27) 38 Weithman (l997b) rightly stresses that it is important to take circumstances (contexts)

and issues into account 39 Obviously the meaning ofseculur depends on and changes with the meaning of its oppo-

site the religious (see next note) As long as the religious is identified with fundamentalist reli- gions claiming absolute truth and trying to enforce it in all matters the modem state public morality and public education seem to be inevitably secular In cornmon ground strategies (see note 32) the exclusive link between state and theestablished church is weakened but tol- eration is still limited the public is still a public of competing Christian religions and inde- pendent political ethics is explicitly secular (and sometimes anti-religious or hostile to reli- gions) When fundamentalist religions have learncd to brackct the truthquestion and when it is increasingly recognized that secular civil or public morality very much resembles (civic) reli- gion the opposition between religious and secular arguments (theories etc) loses force Public should no longer be opposed to religious it is better conceived as the sphere or arena where secular and religious arguments and actions compatible with liberal democracy take place Even if (more or less militant anti-religious) secularism has played an important role in the origin of the rnodern state rnodern constitutions public morality and education the same need not be the case for their existence and reproduction (see for the importance of this distinc- tion Rader and Renschop 198945)

40 The Supreme Courts mounting difficulties to find defensible definitions of religion under conditions of increasing religious diversity are excellently analyzed by Galanter (1966 235ff 260ff) and Note (1987 1622-31 1647ff) Originally the Courts decisions showed an unreflective and unrestricted bias in favor of (Protestant) Christianity (eg in the famous anti-

Bader RELIGIOUS PLURALISM 625

polygamy rulings against Mormons see Galanter 196623 1ff 257) This concept of religion has been theistic (God Supreme Being) dogmatic (favoring derivative theological articulation over religious activity) belief centered (the distinction belief vs action discriminated against ritual-centered religions) and content centered (highkivilized vs lowbarbarian) The perspec- tive of the dominant religious majority implicitly or explicitly endorsed by the Court has been disguised as an objective standard Aftera long learning process that is still going on most essen- tial parts of this definition have been dropped In recent cases the Court uses very broad permis- sive subjective definitions of the religious focusing on the perspective of the claimant and applying an uneasy rnix of criteria such as sincerity (Galanter 1966 271) centrality (Galanter 1966274f not to all religions but to the particular religion in question) time and some measure of shared public understanding (The One and the Many p 271) to prevent the paradoxical results of the new latitudinarianism (especially in exemption cases)

41 See the excellent documentation by Stoltenberg (I 993) see alsoGalanter ( 19662890 42 See Raz (1986) Carens (1997 1998) Kymlicka (1997) Rawls (1993) Macedo (1998

60) Gutmann (1987) Gutmann and Thornpson (1995) and Stoltenberg (1993) See also Hirst (1 994) and particularly Unger (1987 1998) for a strong perfectionist ideal of context-smashing empowerment

43 Stephen Macedo (199869) rightly points out that the educative agenda inscribed in the value patterns of liberal-democratic institutions and practices as a whole cannot and should not be neutral but he reproduces the myth of a complete separation of church and state (pp 680 he addresses only religious (especially Protestant and Catholic) fundnrnentalism in tension with fundamental liberal-democratic commitments w~thout paying attention to secular fundamen- talists and consequently he identifies public reason with secular reason (see note 55) If we fully realized that we deeply disagree not only with regard to our particular conceptions of reli- gious truth but also with regard to our highest or deepest secular ideals we would see that the values and reasons that we can publicly share are neither religious nor secular they are public This liberal myopia results in a one-sided criticism of Levinsons charges against liberal exclu- sivism privatization and unfairness I agree with Flathmans (1998) response that Macedo unnecessarily restricts diversity though for different reasons Macedos secularism is unfair against nonfundamentalist religious believers Flathmans own version of a more radical form of diversity self-enacting individuality is itself misleading for two reasons (1) it introduces a particularist deep moral theory of thick personal autonomy (like the later Rawls Raz Kym- licka and Richardson) instead of a thin concept of political autonomy (Kukathas see for an interesting case Saharso 1999) In this regard it is too restrictive (2) Self-enacting individual- ity has its Nietzschean elitist varieties In this regard it is not restrictive enough and at odds with the nonneutrality of liberalism and priority for democracy -

44 In his Religion as a Conversation-Stopper (1997) Rorty joins political liberalism in most essential points ( I ) He favors exclusion of religions from public discourse in two ways As regards content religious arguments should be restricted to private spheres and reference to reli- gious sources and authorities should be precluded Both restrictions are misleading and counter- productive Priority for democracy does not require that we abstain from religious arguments in public discourse (restructure our arguments in purcly secular terms see Carter 19935) or that we abstain from references to God to Reason or to Science What it requires is that religious philosophical or scientific arguments and authority claims are put on a par with everybody elses voices (p 4) This is not secularism but just priority for dernocracy (2) He thinks that principles and practices of liberal dernocracy would require the privatization of religion He agrees with conternporary liberal philosophers that we shall not be able to keep a democratic political community going unless the religious believers remain willing to trade privatization for a guarantee of religious liberty (p 3 see pp 2 s for this so-called Jeffersonian compromise

626 POLITICAL THEORY October 1999

to pay a reasonable price for religious liberty (3) He reproduces traditional secularist suspi- cions that religions in principle cannot accept to see their eternal truths treated as opinions in public discourse (religions inevitably seem to be fundamentalist-no protestantization of religions allowed) And he reproduces to a lesser degree secularist myopia with regard to secu- larist intolerance-connected to the standard view that sciences such as ahysics are uncontrover- -sial (their arguments both justified and true) whereas morals are always contested-thereby (4) neglecting that theepistemology suitable for such a democracy requires a lot from scientists as well

45 The inescapability of secularism (Taylor 199838) flows from the nature ofthe modem democratic state which has to guarantee to all equal and autonomous members adirect nonex- clusionary access to democratic deliberation and decision making This is why secularism in some form is a necessity for the democratic life of religiously diverse societies (pp 464749) In our context three different questions concerning modem secularism need to be more clearly distinguished (1) whether the principles and practices of liberal democracy should have secular foundations (Rawls 1993 Taylor 1998 and Richards 1986 are quite outspoken in their critique of this kind of secularism) (2) whether public or political arguments should he secular (Rawls and Rorty clearly advocate this Taylor does not address the issue) and (3) whether liberal- democratic states or regimes are inevitably secular regimes Taylor treats democratic and secular regimes as synonymous opposed to non-secular or exclusionary regimes (p 47) But in opposition to both Rawls and Rorty he insists that the separation of church and state that centerpiece of secularism should not be confused with one formula the complete disentangle- ment of government from any religious ~nstitutions To insist on one formula as the only one consistent with liberal principles is precisely to erect one background justification as supreme and binding on all thus violating the essential point of overlapping consensus The US provides an unfortunate example of this (p 52) Taylor comes closest to my own position but I think it is less misleading to call priority for liberal democracy just priority for liberal democracy

46 See Casanova (1 994 182) versus the thesis of the conservative catholic bishops in the 1880s that the ideal situation could only be an established church in a confessional state The Americanists defending the anti-thesis that thc principles of the Church are in thorough harmony with the interests of the Republic could not offer a theological rationale for democ- racy freedom of religion and disestablishment which has only been delivered with Catholic Aggiornamento (Vatican 11) and is still vigorously contested by Cardinal Ratzinger cs See also Rawls (199360ff) See Weithman (1997b 7 [have been shaped]) Galanter (19662890 and Macedo (1 998) for the transformative effects of American constitutionalism on religions in gen- eral and the American Catholic Church in particular Not all secularists believe these transfonna- tions to be real or principled rather than merely strategic thus prolonging the long-standing secu- larist suspicion of all religions that even characterizes Michael Walzers (1997 66-71 81) treatment of religions in On Toleration (as if they possessed this virtue)

47 See my short treatment in Bader (1991 14051) and Bader (1997a 158-70) SeeTaylor (1998) for secularist intolerance See Falk (1995 68242) versus secular fundamentalism

48 See Audi (1989 2900 Frankena (1986) and Inany others 49 Secularism nurtures moral positivism and cynical politics undermines the wholeness of

peoples lives fails to mobilize their moral and spiritual energies and homogenizes public dis- course (Parekh 199421) See Wolterstorff (1997 1780 Culture of Disbelief (with Stephen Carter) and secular economic self-interest privatism nationalism private and group ego- ism and so on See Habcrmas (1990) for convincing criticism of the Inore sophisticated version of this charge by Alisdair Maclntyre

50 Secular humanists share a concern for moral values and a moral society and might join with Christians in criticism of a consumerist society in which getting and spending is seen as

- -

Bader 1 RELIGIOUS PLURALISM 627

the central human activity Secular humanists do not wish to destroy religions They seek to cre- ate a tolerant pluralistic society in which diverse believers and nonbelievers can live side by side and in which religious ideas can be debated rigorously (Henick in Modood 1996480

51 Weak establishment simply makes the wielders of secular sovereignty a little more aware of the reality of a different sovereignty This independent sovereignty challenges the secularist monism It reminds us as a public symbol of the limits of Cesars sovereignty by the assertion of higher values (Haqtings in Modood 1996 41ff) See Rosser-Owen (in Modood 1996 83) See Richards (198695 11 If) for a similar defense of the multiple estab- lishment in Virginia 1776 by Patrick Henry and Richard Henry Lee (to preserve public moral- ity in the state) See Note (1987 1613-19)

52 Rousseau has convincingly argued that none of the three old forms of religion satisfy the conditions for a good polity (see Casanova 199458ff) (I) The Roman Catholic religion of the priest internally produces subjects while externally the transnational ecclesiastic institution transcends the political community of citizens and the normative sovereignty of the nation- state Hence they cannot produce loyal subjects (2) The classical republican religion of the citizen produces loyal subjects through the sacralization of the nation-state but is an evil founded in error and falsehood It leads to intolerant national chauvinism and sanguinary jin- goism This particularism of an ethnical community which integrates all citizens into a politi- cal cult coextensive with the political community has to compete with allegiances to either more primordial or more universalistic forms of community Soteriological religions corrode republican civil religions because they liberate the individual from absolute allegiance to the political community whereas universalist religions tend to transcend the particularism of the political community be it a city state or a nation state (p 59) The latter is also true for (3) the religion of man which according to Rousseau is holy sublime and true but is politically use- less since it has no particular connection with the body politic and therefore cannot add any- thing to the great bonds of particular societies It tends to undermine republican virtues Rousseau himself solves the dilemma by affirming simultaneously and inconsistently the mod- ern right of religious freedom and the need for apurely civil profession of faith According to Casanova Durkheim and Bellah merely reproduce the old unresolved tensions in a new socio- logical language Casanova himself thinks that one cannot resolve these tensions either politi- cally at the state level as a force integrating normatively the political community or sociologi- cally at the societal level as a force integrating normatively the societal community because in both regards such a civil religion is unlikely to reappear in modem societies (p 60) The con- cept of civil religionought to be reformulated from the state or societal community level to the level of civil society (p 61 see 21 80 To me it remains unclear how the tension between par- ticularism and universalism is resolved by a civil religion at the level of civil society It seems to be only reproduced in the confrontation between national and transnational versions of civil society itself For a critical treatment of this tension see also Bader (1999a)

53 See Bader (1997a) and Scott (1998309ff) Reasonable criticism of constructivist ration- alism unlimited state sovereignty and an unconditional enthronement of politics are in my view also preferable to postmodern criticism of the Dialectics of Enlightenment (which Casa- nova seems to adhere to see Caqanova 1994 31 and throughout)

54 This is an often unrecognized bias in secularization perspectives 55 Mere exposure already changes ways of life and thinking See Nomi Stoltenbergs (I 993)

excellent analysis of the paradigmatic case Mozert gt Huwkins County Public Schools Her criti- cism of the inability of our traditional philosophical resources to resolve (p 647) these ques- tions however suffers from one central weakness priority for democracy indeed requires the bracketing of the truth question (p 665) but this does not condemn us to subjectivism or historicism (p 666) Notes (1987 1668ff) analysis of Secular Education as Hostility to

Bader 1 RELIGIOUS PLURALISM 623

Contrary to liberal philosophers who recognize difficulties of neutrality of consequences but accept justificatory neutrality without problems jurisdiction of the Supreme Court reveals the enormous difficulties of secular purpose as well Casanova (199455f0 gives a slightly differ- ent interpretation of these three positions and adds a fourth ( I ) a strict separationist reading rejecting both government support of religion and any government regulation of religion (this reading is preferred by radical sects and by libertarian or liberal defenders of strict neutrality) (2) a benevolent separationist reading that argues in favor of general government support of religions and rejects governmental regulation (this reading is defended by original intent theo- rists and by theorists who see a positive societal function for religions) (3) a secularist reading that denies any government support of religions and favors government regulation out of suspi- cion of negative functions of religions and (4) a statist interpretation that accepts constitutional separation only formally and still defends some ceasaropapist arrangements arguing forgovern- mental support and for far-reaching governmental control of religion

27 See Bader (1998a) for moral and legal paradigms following Habermas and Selznick See also Richards (1986 chap 2) using Dworkins equal respect and concern or Thiemanns fairly general principles of liberty equality and respect From both Galanters and Notes dis- cussions emerge second-order principles such as anti-majoritarianism (Note 1987 1610ff 17020 perspective-dependence (Note 1987 1647f0 and the recognition of biases as a neces- sary precondition to transcend them rather than remaining in their thrall (Note 1987 1631) that have informed my principle of relational neutrality

28 See Galanter (1966) and Note (1987 1610 and see pp 1648f for a comparison with sex inequalities)

29 See the excellent discussion in Note (1987 17380 Compare Habermass similar criti- cism of Rawlss original position (Habermas 1990 66-68 see Rawlss 1995 reply)

30 See Thiemann (1996 125f on reasonable disagreement and public deliberation) less than universality more than mere subjectivity in public spaces (misleadingly as a criticism of Gutmann and Thompson [1990] who make exactly the same point) See Bader (1998a 4360 This argument should be elaborated in a critical discussion with moral philosophers such as Nagel Scanlon Barry and with feminist and critical realist philosophers such as Hardin or Bhaskar but this would be another story It is important to recognize that Rawls does not like Audi ernploy the term neurraliryeven in the purely justificatory sense (see Kymlicka 1997205 233) because some of its connotations are highly misleading while others suggest altogether impracticable principles (Rawls 1993 191) His concept of political justice does not emerge from some imagined place of neutral transcendence (Thiemann 199682) It is embedded in the background culture of modern societies which is the historical and social basis of both his methodological devices of an overlapping consensus and of a critical reflexive equilibrium Rainer Baubock (1998) also opposes strict neutrality and the private-public split the essential divide is between social and political (spheres) or between civil society and the state (p 1O) which does not rule out various forms of public recognition (p I I )

31 In his Modes of Secularism Charles Taylor comes close to such a position Philoso- phers like Pufendorf Locke and Leibniz followed a Common Ground Strategy to justify the public domain They aimed at a state which is even-handed between religious communities equidistant from them rather than one where religious reasons play no overt role (Taylor 1998 35) Its principal weakness is revealed with the widening band of religious and metaphysical commitments in society In those circumstances the ground originally defined as common becomes that of one party arnong others The model however can be adapted to ever new con- texts Its common ground develops from Christian theism to Judeo-Christian deism to the inclu- sion of Muslirns Hindus and Buddhists The second strategy the Independent Political Ethic (Grotius Spinoza Hobbes) associated with privat~zation of religion and strict neutrality as well

- - -

624 POLITICAL THEORY October 1999

as strict separation of state and church also has severe diff~culties in corning to terms with increasing religious diversity It may turn out to be rather Christian in spirit (elsi Deus not1 dcirerur) particularly if real live atheists suspicious of religious believers (potential trai- tors) push farther the process of making religion irrelevant in the public sphereengaging in Kulturkumpf (p 36) It will be perceived as a gratuitous extrusion ofreligion in the name of a rival metaphysical belief and in non-western countries as imperialist import of Western secu- larism See also vd Veer (1997) Under colonial circumstances the secular state created its opposite a society in which religion had more rather than less political consequences one of which being a decline of tolerance of religious difference Richards (1986 120 and throughout) connects common ground and independent ethics strategies in a very arnbiguous way and does not recognize the lirnits of independent political ethics Taylors third hybrid model of Overlapping Consensus can be usefully followed we should better say reinvented-almost anywhere compared with my approach however much less attention is paid to serious ine- qualities between religious communities

32 Criticism of benign neutrality is shared by many As far as I can see my criticism of second-order secularism and my replacement of it by priority for democracy are fairly original

33 See also Macedo (199868ff) for a less outspoken identification of public with secular reason

34 As a careful check on the terrns used in Lecture VI of his Poliricul Libercilism shows 35 See for Lockes arnbiguous exclusion of Catholics and atheists Macedo (1998 63-65)

Creppel1(19962360 Gutmann and Thompson (l99065ff) and Richards (1 986 89- 102) 36 FortheSupremeCourt see Note(198716091685 [Muellerv Allen] 1730 [Brurlleyund

Lynch v Dot~elly]) A practical example may demonstrate this Southallians have developed different rnodels for school assemblies (single-faith assemblies multi-faith assemblies and interfaith assemblies) The civic discourse of secularism was effectively countered by the discourse of multi-culturalism equally civic in origin (Baumann 1996 182-86)

37 See the short and illuminating treatment in Thiemann (1996 19-27) 38 Weithman (l997b) rightly stresses that it is important to take circumstances (contexts)

and issues into account 39 Obviously the meaning ofseculur depends on and changes with the meaning of its oppo-

site the religious (see next note) As long as the religious is identified with fundamentalist reli- gions claiming absolute truth and trying to enforce it in all matters the modem state public morality and public education seem to be inevitably secular In cornmon ground strategies (see note 32) the exclusive link between state and theestablished church is weakened but tol- eration is still limited the public is still a public of competing Christian religions and inde- pendent political ethics is explicitly secular (and sometimes anti-religious or hostile to reli- gions) When fundamentalist religions have learncd to brackct the truthquestion and when it is increasingly recognized that secular civil or public morality very much resembles (civic) reli- gion the opposition between religious and secular arguments (theories etc) loses force Public should no longer be opposed to religious it is better conceived as the sphere or arena where secular and religious arguments and actions compatible with liberal democracy take place Even if (more or less militant anti-religious) secularism has played an important role in the origin of the rnodern state rnodern constitutions public morality and education the same need not be the case for their existence and reproduction (see for the importance of this distinc- tion Rader and Renschop 198945)

40 The Supreme Courts mounting difficulties to find defensible definitions of religion under conditions of increasing religious diversity are excellently analyzed by Galanter (1966 235ff 260ff) and Note (1987 1622-31 1647ff) Originally the Courts decisions showed an unreflective and unrestricted bias in favor of (Protestant) Christianity (eg in the famous anti-

Bader RELIGIOUS PLURALISM 625

polygamy rulings against Mormons see Galanter 196623 1ff 257) This concept of religion has been theistic (God Supreme Being) dogmatic (favoring derivative theological articulation over religious activity) belief centered (the distinction belief vs action discriminated against ritual-centered religions) and content centered (highkivilized vs lowbarbarian) The perspec- tive of the dominant religious majority implicitly or explicitly endorsed by the Court has been disguised as an objective standard Aftera long learning process that is still going on most essen- tial parts of this definition have been dropped In recent cases the Court uses very broad permis- sive subjective definitions of the religious focusing on the perspective of the claimant and applying an uneasy rnix of criteria such as sincerity (Galanter 1966 271) centrality (Galanter 1966274f not to all religions but to the particular religion in question) time and some measure of shared public understanding (The One and the Many p 271) to prevent the paradoxical results of the new latitudinarianism (especially in exemption cases)

41 See the excellent documentation by Stoltenberg (I 993) see alsoGalanter ( 19662890 42 See Raz (1986) Carens (1997 1998) Kymlicka (1997) Rawls (1993) Macedo (1998

60) Gutmann (1987) Gutmann and Thornpson (1995) and Stoltenberg (1993) See also Hirst (1 994) and particularly Unger (1987 1998) for a strong perfectionist ideal of context-smashing empowerment

43 Stephen Macedo (199869) rightly points out that the educative agenda inscribed in the value patterns of liberal-democratic institutions and practices as a whole cannot and should not be neutral but he reproduces the myth of a complete separation of church and state (pp 680 he addresses only religious (especially Protestant and Catholic) fundnrnentalism in tension with fundamental liberal-democratic commitments w~thout paying attention to secular fundamen- talists and consequently he identifies public reason with secular reason (see note 55) If we fully realized that we deeply disagree not only with regard to our particular conceptions of reli- gious truth but also with regard to our highest or deepest secular ideals we would see that the values and reasons that we can publicly share are neither religious nor secular they are public This liberal myopia results in a one-sided criticism of Levinsons charges against liberal exclu- sivism privatization and unfairness I agree with Flathmans (1998) response that Macedo unnecessarily restricts diversity though for different reasons Macedos secularism is unfair against nonfundamentalist religious believers Flathmans own version of a more radical form of diversity self-enacting individuality is itself misleading for two reasons (1) it introduces a particularist deep moral theory of thick personal autonomy (like the later Rawls Raz Kym- licka and Richardson) instead of a thin concept of political autonomy (Kukathas see for an interesting case Saharso 1999) In this regard it is too restrictive (2) Self-enacting individual- ity has its Nietzschean elitist varieties In this regard it is not restrictive enough and at odds with the nonneutrality of liberalism and priority for democracy -

44 In his Religion as a Conversation-Stopper (1997) Rorty joins political liberalism in most essential points ( I ) He favors exclusion of religions from public discourse in two ways As regards content religious arguments should be restricted to private spheres and reference to reli- gious sources and authorities should be precluded Both restrictions are misleading and counter- productive Priority for democracy does not require that we abstain from religious arguments in public discourse (restructure our arguments in purcly secular terms see Carter 19935) or that we abstain from references to God to Reason or to Science What it requires is that religious philosophical or scientific arguments and authority claims are put on a par with everybody elses voices (p 4) This is not secularism but just priority for dernocracy (2) He thinks that principles and practices of liberal dernocracy would require the privatization of religion He agrees with conternporary liberal philosophers that we shall not be able to keep a democratic political community going unless the religious believers remain willing to trade privatization for a guarantee of religious liberty (p 3 see pp 2 s for this so-called Jeffersonian compromise

626 POLITICAL THEORY October 1999

to pay a reasonable price for religious liberty (3) He reproduces traditional secularist suspi- cions that religions in principle cannot accept to see their eternal truths treated as opinions in public discourse (religions inevitably seem to be fundamentalist-no protestantization of religions allowed) And he reproduces to a lesser degree secularist myopia with regard to secu- larist intolerance-connected to the standard view that sciences such as ahysics are uncontrover- -sial (their arguments both justified and true) whereas morals are always contested-thereby (4) neglecting that theepistemology suitable for such a democracy requires a lot from scientists as well

45 The inescapability of secularism (Taylor 199838) flows from the nature ofthe modem democratic state which has to guarantee to all equal and autonomous members adirect nonex- clusionary access to democratic deliberation and decision making This is why secularism in some form is a necessity for the democratic life of religiously diverse societies (pp 464749) In our context three different questions concerning modem secularism need to be more clearly distinguished (1) whether the principles and practices of liberal democracy should have secular foundations (Rawls 1993 Taylor 1998 and Richards 1986 are quite outspoken in their critique of this kind of secularism) (2) whether public or political arguments should he secular (Rawls and Rorty clearly advocate this Taylor does not address the issue) and (3) whether liberal- democratic states or regimes are inevitably secular regimes Taylor treats democratic and secular regimes as synonymous opposed to non-secular or exclusionary regimes (p 47) But in opposition to both Rawls and Rorty he insists that the separation of church and state that centerpiece of secularism should not be confused with one formula the complete disentangle- ment of government from any religious ~nstitutions To insist on one formula as the only one consistent with liberal principles is precisely to erect one background justification as supreme and binding on all thus violating the essential point of overlapping consensus The US provides an unfortunate example of this (p 52) Taylor comes closest to my own position but I think it is less misleading to call priority for liberal democracy just priority for liberal democracy

46 See Casanova (1 994 182) versus the thesis of the conservative catholic bishops in the 1880s that the ideal situation could only be an established church in a confessional state The Americanists defending the anti-thesis that thc principles of the Church are in thorough harmony with the interests of the Republic could not offer a theological rationale for democ- racy freedom of religion and disestablishment which has only been delivered with Catholic Aggiornamento (Vatican 11) and is still vigorously contested by Cardinal Ratzinger cs See also Rawls (199360ff) See Weithman (1997b 7 [have been shaped]) Galanter (19662890 and Macedo (1 998) for the transformative effects of American constitutionalism on religions in gen- eral and the American Catholic Church in particular Not all secularists believe these transfonna- tions to be real or principled rather than merely strategic thus prolonging the long-standing secu- larist suspicion of all religions that even characterizes Michael Walzers (1997 66-71 81) treatment of religions in On Toleration (as if they possessed this virtue)

47 See my short treatment in Bader (1991 14051) and Bader (1997a 158-70) SeeTaylor (1998) for secularist intolerance See Falk (1995 68242) versus secular fundamentalism

48 See Audi (1989 2900 Frankena (1986) and Inany others 49 Secularism nurtures moral positivism and cynical politics undermines the wholeness of

peoples lives fails to mobilize their moral and spiritual energies and homogenizes public dis- course (Parekh 199421) See Wolterstorff (1997 1780 Culture of Disbelief (with Stephen Carter) and secular economic self-interest privatism nationalism private and group ego- ism and so on See Habcrmas (1990) for convincing criticism of the Inore sophisticated version of this charge by Alisdair Maclntyre

50 Secular humanists share a concern for moral values and a moral society and might join with Christians in criticism of a consumerist society in which getting and spending is seen as

- -

Bader 1 RELIGIOUS PLURALISM 627

the central human activity Secular humanists do not wish to destroy religions They seek to cre- ate a tolerant pluralistic society in which diverse believers and nonbelievers can live side by side and in which religious ideas can be debated rigorously (Henick in Modood 1996480

51 Weak establishment simply makes the wielders of secular sovereignty a little more aware of the reality of a different sovereignty This independent sovereignty challenges the secularist monism It reminds us as a public symbol of the limits of Cesars sovereignty by the assertion of higher values (Haqtings in Modood 1996 41ff) See Rosser-Owen (in Modood 1996 83) See Richards (198695 11 If) for a similar defense of the multiple estab- lishment in Virginia 1776 by Patrick Henry and Richard Henry Lee (to preserve public moral- ity in the state) See Note (1987 1613-19)

52 Rousseau has convincingly argued that none of the three old forms of religion satisfy the conditions for a good polity (see Casanova 199458ff) (I) The Roman Catholic religion of the priest internally produces subjects while externally the transnational ecclesiastic institution transcends the political community of citizens and the normative sovereignty of the nation- state Hence they cannot produce loyal subjects (2) The classical republican religion of the citizen produces loyal subjects through the sacralization of the nation-state but is an evil founded in error and falsehood It leads to intolerant national chauvinism and sanguinary jin- goism This particularism of an ethnical community which integrates all citizens into a politi- cal cult coextensive with the political community has to compete with allegiances to either more primordial or more universalistic forms of community Soteriological religions corrode republican civil religions because they liberate the individual from absolute allegiance to the political community whereas universalist religions tend to transcend the particularism of the political community be it a city state or a nation state (p 59) The latter is also true for (3) the religion of man which according to Rousseau is holy sublime and true but is politically use- less since it has no particular connection with the body politic and therefore cannot add any- thing to the great bonds of particular societies It tends to undermine republican virtues Rousseau himself solves the dilemma by affirming simultaneously and inconsistently the mod- ern right of religious freedom and the need for apurely civil profession of faith According to Casanova Durkheim and Bellah merely reproduce the old unresolved tensions in a new socio- logical language Casanova himself thinks that one cannot resolve these tensions either politi- cally at the state level as a force integrating normatively the political community or sociologi- cally at the societal level as a force integrating normatively the societal community because in both regards such a civil religion is unlikely to reappear in modem societies (p 60) The con- cept of civil religionought to be reformulated from the state or societal community level to the level of civil society (p 61 see 21 80 To me it remains unclear how the tension between par- ticularism and universalism is resolved by a civil religion at the level of civil society It seems to be only reproduced in the confrontation between national and transnational versions of civil society itself For a critical treatment of this tension see also Bader (1999a)

53 See Bader (1997a) and Scott (1998309ff) Reasonable criticism of constructivist ration- alism unlimited state sovereignty and an unconditional enthronement of politics are in my view also preferable to postmodern criticism of the Dialectics of Enlightenment (which Casa- nova seems to adhere to see Caqanova 1994 31 and throughout)

54 This is an often unrecognized bias in secularization perspectives 55 Mere exposure already changes ways of life and thinking See Nomi Stoltenbergs (I 993)

excellent analysis of the paradigmatic case Mozert gt Huwkins County Public Schools Her criti- cism of the inability of our traditional philosophical resources to resolve (p 647) these ques- tions however suffers from one central weakness priority for democracy indeed requires the bracketing of the truth question (p 665) but this does not condemn us to subjectivism or historicism (p 666) Notes (1987 1668ff) analysis of Secular Education as Hostility to

- - -

624 POLITICAL THEORY October 1999

as strict separation of state and church also has severe diff~culties in corning to terms with increasing religious diversity It may turn out to be rather Christian in spirit (elsi Deus not1 dcirerur) particularly if real live atheists suspicious of religious believers (potential trai- tors) push farther the process of making religion irrelevant in the public sphereengaging in Kulturkumpf (p 36) It will be perceived as a gratuitous extrusion ofreligion in the name of a rival metaphysical belief and in non-western countries as imperialist import of Western secu- larism See also vd Veer (1997) Under colonial circumstances the secular state created its opposite a society in which religion had more rather than less political consequences one of which being a decline of tolerance of religious difference Richards (1986 120 and throughout) connects common ground and independent ethics strategies in a very arnbiguous way and does not recognize the lirnits of independent political ethics Taylors third hybrid model of Overlapping Consensus can be usefully followed we should better say reinvented-almost anywhere compared with my approach however much less attention is paid to serious ine- qualities between religious communities

32 Criticism of benign neutrality is shared by many As far as I can see my criticism of second-order secularism and my replacement of it by priority for democracy are fairly original

33 See also Macedo (199868ff) for a less outspoken identification of public with secular reason

34 As a careful check on the terrns used in Lecture VI of his Poliricul Libercilism shows 35 See for Lockes arnbiguous exclusion of Catholics and atheists Macedo (1998 63-65)

Creppel1(19962360 Gutmann and Thompson (l99065ff) and Richards (1 986 89- 102) 36 FortheSupremeCourt see Note(198716091685 [Muellerv Allen] 1730 [Brurlleyund

Lynch v Dot~elly]) A practical example may demonstrate this Southallians have developed different rnodels for school assemblies (single-faith assemblies multi-faith assemblies and interfaith assemblies) The civic discourse of secularism was effectively countered by the discourse of multi-culturalism equally civic in origin (Baumann 1996 182-86)

37 See the short and illuminating treatment in Thiemann (1996 19-27) 38 Weithman (l997b) rightly stresses that it is important to take circumstances (contexts)

and issues into account 39 Obviously the meaning ofseculur depends on and changes with the meaning of its oppo-

site the religious (see next note) As long as the religious is identified with fundamentalist reli- gions claiming absolute truth and trying to enforce it in all matters the modem state public morality and public education seem to be inevitably secular In cornmon ground strategies (see note 32) the exclusive link between state and theestablished church is weakened but tol- eration is still limited the public is still a public of competing Christian religions and inde- pendent political ethics is explicitly secular (and sometimes anti-religious or hostile to reli- gions) When fundamentalist religions have learncd to brackct the truthquestion and when it is increasingly recognized that secular civil or public morality very much resembles (civic) reli- gion the opposition between religious and secular arguments (theories etc) loses force Public should no longer be opposed to religious it is better conceived as the sphere or arena where secular and religious arguments and actions compatible with liberal democracy take place Even if (more or less militant anti-religious) secularism has played an important role in the origin of the rnodern state rnodern constitutions public morality and education the same need not be the case for their existence and reproduction (see for the importance of this distinc- tion Rader and Renschop 198945)

40 The Supreme Courts mounting difficulties to find defensible definitions of religion under conditions of increasing religious diversity are excellently analyzed by Galanter (1966 235ff 260ff) and Note (1987 1622-31 1647ff) Originally the Courts decisions showed an unreflective and unrestricted bias in favor of (Protestant) Christianity (eg in the famous anti-

Bader RELIGIOUS PLURALISM 625

polygamy rulings against Mormons see Galanter 196623 1ff 257) This concept of religion has been theistic (God Supreme Being) dogmatic (favoring derivative theological articulation over religious activity) belief centered (the distinction belief vs action discriminated against ritual-centered religions) and content centered (highkivilized vs lowbarbarian) The perspec- tive of the dominant religious majority implicitly or explicitly endorsed by the Court has been disguised as an objective standard Aftera long learning process that is still going on most essen- tial parts of this definition have been dropped In recent cases the Court uses very broad permis- sive subjective definitions of the religious focusing on the perspective of the claimant and applying an uneasy rnix of criteria such as sincerity (Galanter 1966 271) centrality (Galanter 1966274f not to all religions but to the particular religion in question) time and some measure of shared public understanding (The One and the Many p 271) to prevent the paradoxical results of the new latitudinarianism (especially in exemption cases)

41 See the excellent documentation by Stoltenberg (I 993) see alsoGalanter ( 19662890 42 See Raz (1986) Carens (1997 1998) Kymlicka (1997) Rawls (1993) Macedo (1998

60) Gutmann (1987) Gutmann and Thornpson (1995) and Stoltenberg (1993) See also Hirst (1 994) and particularly Unger (1987 1998) for a strong perfectionist ideal of context-smashing empowerment

43 Stephen Macedo (199869) rightly points out that the educative agenda inscribed in the value patterns of liberal-democratic institutions and practices as a whole cannot and should not be neutral but he reproduces the myth of a complete separation of church and state (pp 680 he addresses only religious (especially Protestant and Catholic) fundnrnentalism in tension with fundamental liberal-democratic commitments w~thout paying attention to secular fundamen- talists and consequently he identifies public reason with secular reason (see note 55) If we fully realized that we deeply disagree not only with regard to our particular conceptions of reli- gious truth but also with regard to our highest or deepest secular ideals we would see that the values and reasons that we can publicly share are neither religious nor secular they are public This liberal myopia results in a one-sided criticism of Levinsons charges against liberal exclu- sivism privatization and unfairness I agree with Flathmans (1998) response that Macedo unnecessarily restricts diversity though for different reasons Macedos secularism is unfair against nonfundamentalist religious believers Flathmans own version of a more radical form of diversity self-enacting individuality is itself misleading for two reasons (1) it introduces a particularist deep moral theory of thick personal autonomy (like the later Rawls Raz Kym- licka and Richardson) instead of a thin concept of political autonomy (Kukathas see for an interesting case Saharso 1999) In this regard it is too restrictive (2) Self-enacting individual- ity has its Nietzschean elitist varieties In this regard it is not restrictive enough and at odds with the nonneutrality of liberalism and priority for democracy -

44 In his Religion as a Conversation-Stopper (1997) Rorty joins political liberalism in most essential points ( I ) He favors exclusion of religions from public discourse in two ways As regards content religious arguments should be restricted to private spheres and reference to reli- gious sources and authorities should be precluded Both restrictions are misleading and counter- productive Priority for democracy does not require that we abstain from religious arguments in public discourse (restructure our arguments in purcly secular terms see Carter 19935) or that we abstain from references to God to Reason or to Science What it requires is that religious philosophical or scientific arguments and authority claims are put on a par with everybody elses voices (p 4) This is not secularism but just priority for dernocracy (2) He thinks that principles and practices of liberal dernocracy would require the privatization of religion He agrees with conternporary liberal philosophers that we shall not be able to keep a democratic political community going unless the religious believers remain willing to trade privatization for a guarantee of religious liberty (p 3 see pp 2 s for this so-called Jeffersonian compromise

626 POLITICAL THEORY October 1999

to pay a reasonable price for religious liberty (3) He reproduces traditional secularist suspi- cions that religions in principle cannot accept to see their eternal truths treated as opinions in public discourse (religions inevitably seem to be fundamentalist-no protestantization of religions allowed) And he reproduces to a lesser degree secularist myopia with regard to secu- larist intolerance-connected to the standard view that sciences such as ahysics are uncontrover- -sial (their arguments both justified and true) whereas morals are always contested-thereby (4) neglecting that theepistemology suitable for such a democracy requires a lot from scientists as well

45 The inescapability of secularism (Taylor 199838) flows from the nature ofthe modem democratic state which has to guarantee to all equal and autonomous members adirect nonex- clusionary access to democratic deliberation and decision making This is why secularism in some form is a necessity for the democratic life of religiously diverse societies (pp 464749) In our context three different questions concerning modem secularism need to be more clearly distinguished (1) whether the principles and practices of liberal democracy should have secular foundations (Rawls 1993 Taylor 1998 and Richards 1986 are quite outspoken in their critique of this kind of secularism) (2) whether public or political arguments should he secular (Rawls and Rorty clearly advocate this Taylor does not address the issue) and (3) whether liberal- democratic states or regimes are inevitably secular regimes Taylor treats democratic and secular regimes as synonymous opposed to non-secular or exclusionary regimes (p 47) But in opposition to both Rawls and Rorty he insists that the separation of church and state that centerpiece of secularism should not be confused with one formula the complete disentangle- ment of government from any religious ~nstitutions To insist on one formula as the only one consistent with liberal principles is precisely to erect one background justification as supreme and binding on all thus violating the essential point of overlapping consensus The US provides an unfortunate example of this (p 52) Taylor comes closest to my own position but I think it is less misleading to call priority for liberal democracy just priority for liberal democracy

46 See Casanova (1 994 182) versus the thesis of the conservative catholic bishops in the 1880s that the ideal situation could only be an established church in a confessional state The Americanists defending the anti-thesis that thc principles of the Church are in thorough harmony with the interests of the Republic could not offer a theological rationale for democ- racy freedom of religion and disestablishment which has only been delivered with Catholic Aggiornamento (Vatican 11) and is still vigorously contested by Cardinal Ratzinger cs See also Rawls (199360ff) See Weithman (1997b 7 [have been shaped]) Galanter (19662890 and Macedo (1 998) for the transformative effects of American constitutionalism on religions in gen- eral and the American Catholic Church in particular Not all secularists believe these transfonna- tions to be real or principled rather than merely strategic thus prolonging the long-standing secu- larist suspicion of all religions that even characterizes Michael Walzers (1997 66-71 81) treatment of religions in On Toleration (as if they possessed this virtue)

47 See my short treatment in Bader (1991 14051) and Bader (1997a 158-70) SeeTaylor (1998) for secularist intolerance See Falk (1995 68242) versus secular fundamentalism

48 See Audi (1989 2900 Frankena (1986) and Inany others 49 Secularism nurtures moral positivism and cynical politics undermines the wholeness of

peoples lives fails to mobilize their moral and spiritual energies and homogenizes public dis- course (Parekh 199421) See Wolterstorff (1997 1780 Culture of Disbelief (with Stephen Carter) and secular economic self-interest privatism nationalism private and group ego- ism and so on See Habcrmas (1990) for convincing criticism of the Inore sophisticated version of this charge by Alisdair Maclntyre

50 Secular humanists share a concern for moral values and a moral society and might join with Christians in criticism of a consumerist society in which getting and spending is seen as

- -

Bader 1 RELIGIOUS PLURALISM 627

the central human activity Secular humanists do not wish to destroy religions They seek to cre- ate a tolerant pluralistic society in which diverse believers and nonbelievers can live side by side and in which religious ideas can be debated rigorously (Henick in Modood 1996480

51 Weak establishment simply makes the wielders of secular sovereignty a little more aware of the reality of a different sovereignty This independent sovereignty challenges the secularist monism It reminds us as a public symbol of the limits of Cesars sovereignty by the assertion of higher values (Haqtings in Modood 1996 41ff) See Rosser-Owen (in Modood 1996 83) See Richards (198695 11 If) for a similar defense of the multiple estab- lishment in Virginia 1776 by Patrick Henry and Richard Henry Lee (to preserve public moral- ity in the state) See Note (1987 1613-19)

52 Rousseau has convincingly argued that none of the three old forms of religion satisfy the conditions for a good polity (see Casanova 199458ff) (I) The Roman Catholic religion of the priest internally produces subjects while externally the transnational ecclesiastic institution transcends the political community of citizens and the normative sovereignty of the nation- state Hence they cannot produce loyal subjects (2) The classical republican religion of the citizen produces loyal subjects through the sacralization of the nation-state but is an evil founded in error and falsehood It leads to intolerant national chauvinism and sanguinary jin- goism This particularism of an ethnical community which integrates all citizens into a politi- cal cult coextensive with the political community has to compete with allegiances to either more primordial or more universalistic forms of community Soteriological religions corrode republican civil religions because they liberate the individual from absolute allegiance to the political community whereas universalist religions tend to transcend the particularism of the political community be it a city state or a nation state (p 59) The latter is also true for (3) the religion of man which according to Rousseau is holy sublime and true but is politically use- less since it has no particular connection with the body politic and therefore cannot add any- thing to the great bonds of particular societies It tends to undermine republican virtues Rousseau himself solves the dilemma by affirming simultaneously and inconsistently the mod- ern right of religious freedom and the need for apurely civil profession of faith According to Casanova Durkheim and Bellah merely reproduce the old unresolved tensions in a new socio- logical language Casanova himself thinks that one cannot resolve these tensions either politi- cally at the state level as a force integrating normatively the political community or sociologi- cally at the societal level as a force integrating normatively the societal community because in both regards such a civil religion is unlikely to reappear in modem societies (p 60) The con- cept of civil religionought to be reformulated from the state or societal community level to the level of civil society (p 61 see 21 80 To me it remains unclear how the tension between par- ticularism and universalism is resolved by a civil religion at the level of civil society It seems to be only reproduced in the confrontation between national and transnational versions of civil society itself For a critical treatment of this tension see also Bader (1999a)

53 See Bader (1997a) and Scott (1998309ff) Reasonable criticism of constructivist ration- alism unlimited state sovereignty and an unconditional enthronement of politics are in my view also preferable to postmodern criticism of the Dialectics of Enlightenment (which Casa- nova seems to adhere to see Caqanova 1994 31 and throughout)

54 This is an often unrecognized bias in secularization perspectives 55 Mere exposure already changes ways of life and thinking See Nomi Stoltenbergs (I 993)

excellent analysis of the paradigmatic case Mozert gt Huwkins County Public Schools Her criti- cism of the inability of our traditional philosophical resources to resolve (p 647) these ques- tions however suffers from one central weakness priority for democracy indeed requires the bracketing of the truth question (p 665) but this does not condemn us to subjectivism or historicism (p 666) Notes (1987 1668ff) analysis of Secular Education as Hostility to

Bader RELIGIOUS PLURALISM 625

polygamy rulings against Mormons see Galanter 196623 1ff 257) This concept of religion has been theistic (God Supreme Being) dogmatic (favoring derivative theological articulation over religious activity) belief centered (the distinction belief vs action discriminated against ritual-centered religions) and content centered (highkivilized vs lowbarbarian) The perspec- tive of the dominant religious majority implicitly or explicitly endorsed by the Court has been disguised as an objective standard Aftera long learning process that is still going on most essen- tial parts of this definition have been dropped In recent cases the Court uses very broad permis- sive subjective definitions of the religious focusing on the perspective of the claimant and applying an uneasy rnix of criteria such as sincerity (Galanter 1966 271) centrality (Galanter 1966274f not to all religions but to the particular religion in question) time and some measure of shared public understanding (The One and the Many p 271) to prevent the paradoxical results of the new latitudinarianism (especially in exemption cases)

41 See the excellent documentation by Stoltenberg (I 993) see alsoGalanter ( 19662890 42 See Raz (1986) Carens (1997 1998) Kymlicka (1997) Rawls (1993) Macedo (1998

60) Gutmann (1987) Gutmann and Thornpson (1995) and Stoltenberg (1993) See also Hirst (1 994) and particularly Unger (1987 1998) for a strong perfectionist ideal of context-smashing empowerment

43 Stephen Macedo (199869) rightly points out that the educative agenda inscribed in the value patterns of liberal-democratic institutions and practices as a whole cannot and should not be neutral but he reproduces the myth of a complete separation of church and state (pp 680 he addresses only religious (especially Protestant and Catholic) fundnrnentalism in tension with fundamental liberal-democratic commitments w~thout paying attention to secular fundamen- talists and consequently he identifies public reason with secular reason (see note 55) If we fully realized that we deeply disagree not only with regard to our particular conceptions of reli- gious truth but also with regard to our highest or deepest secular ideals we would see that the values and reasons that we can publicly share are neither religious nor secular they are public This liberal myopia results in a one-sided criticism of Levinsons charges against liberal exclu- sivism privatization and unfairness I agree with Flathmans (1998) response that Macedo unnecessarily restricts diversity though for different reasons Macedos secularism is unfair against nonfundamentalist religious believers Flathmans own version of a more radical form of diversity self-enacting individuality is itself misleading for two reasons (1) it introduces a particularist deep moral theory of thick personal autonomy (like the later Rawls Raz Kym- licka and Richardson) instead of a thin concept of political autonomy (Kukathas see for an interesting case Saharso 1999) In this regard it is too restrictive (2) Self-enacting individual- ity has its Nietzschean elitist varieties In this regard it is not restrictive enough and at odds with the nonneutrality of liberalism and priority for democracy -

44 In his Religion as a Conversation-Stopper (1997) Rorty joins political liberalism in most essential points ( I ) He favors exclusion of religions from public discourse in two ways As regards content religious arguments should be restricted to private spheres and reference to reli- gious sources and authorities should be precluded Both restrictions are misleading and counter- productive Priority for democracy does not require that we abstain from religious arguments in public discourse (restructure our arguments in purcly secular terms see Carter 19935) or that we abstain from references to God to Reason or to Science What it requires is that religious philosophical or scientific arguments and authority claims are put on a par with everybody elses voices (p 4) This is not secularism but just priority for dernocracy (2) He thinks that principles and practices of liberal dernocracy would require the privatization of religion He agrees with conternporary liberal philosophers that we shall not be able to keep a democratic political community going unless the religious believers remain willing to trade privatization for a guarantee of religious liberty (p 3 see pp 2 s for this so-called Jeffersonian compromise

626 POLITICAL THEORY October 1999

to pay a reasonable price for religious liberty (3) He reproduces traditional secularist suspi- cions that religions in principle cannot accept to see their eternal truths treated as opinions in public discourse (religions inevitably seem to be fundamentalist-no protestantization of religions allowed) And he reproduces to a lesser degree secularist myopia with regard to secu- larist intolerance-connected to the standard view that sciences such as ahysics are uncontrover- -sial (their arguments both justified and true) whereas morals are always contested-thereby (4) neglecting that theepistemology suitable for such a democracy requires a lot from scientists as well

45 The inescapability of secularism (Taylor 199838) flows from the nature ofthe modem democratic state which has to guarantee to all equal and autonomous members adirect nonex- clusionary access to democratic deliberation and decision making This is why secularism in some form is a necessity for the democratic life of religiously diverse societies (pp 464749) In our context three different questions concerning modem secularism need to be more clearly distinguished (1) whether the principles and practices of liberal democracy should have secular foundations (Rawls 1993 Taylor 1998 and Richards 1986 are quite outspoken in their critique of this kind of secularism) (2) whether public or political arguments should he secular (Rawls and Rorty clearly advocate this Taylor does not address the issue) and (3) whether liberal- democratic states or regimes are inevitably secular regimes Taylor treats democratic and secular regimes as synonymous opposed to non-secular or exclusionary regimes (p 47) But in opposition to both Rawls and Rorty he insists that the separation of church and state that centerpiece of secularism should not be confused with one formula the complete disentangle- ment of government from any religious ~nstitutions To insist on one formula as the only one consistent with liberal principles is precisely to erect one background justification as supreme and binding on all thus violating the essential point of overlapping consensus The US provides an unfortunate example of this (p 52) Taylor comes closest to my own position but I think it is less misleading to call priority for liberal democracy just priority for liberal democracy

46 See Casanova (1 994 182) versus the thesis of the conservative catholic bishops in the 1880s that the ideal situation could only be an established church in a confessional state The Americanists defending the anti-thesis that thc principles of the Church are in thorough harmony with the interests of the Republic could not offer a theological rationale for democ- racy freedom of religion and disestablishment which has only been delivered with Catholic Aggiornamento (Vatican 11) and is still vigorously contested by Cardinal Ratzinger cs See also Rawls (199360ff) See Weithman (1997b 7 [have been shaped]) Galanter (19662890 and Macedo (1 998) for the transformative effects of American constitutionalism on religions in gen- eral and the American Catholic Church in particular Not all secularists believe these transfonna- tions to be real or principled rather than merely strategic thus prolonging the long-standing secu- larist suspicion of all religions that even characterizes Michael Walzers (1997 66-71 81) treatment of religions in On Toleration (as if they possessed this virtue)

47 See my short treatment in Bader (1991 14051) and Bader (1997a 158-70) SeeTaylor (1998) for secularist intolerance See Falk (1995 68242) versus secular fundamentalism

48 See Audi (1989 2900 Frankena (1986) and Inany others 49 Secularism nurtures moral positivism and cynical politics undermines the wholeness of

peoples lives fails to mobilize their moral and spiritual energies and homogenizes public dis- course (Parekh 199421) See Wolterstorff (1997 1780 Culture of Disbelief (with Stephen Carter) and secular economic self-interest privatism nationalism private and group ego- ism and so on See Habcrmas (1990) for convincing criticism of the Inore sophisticated version of this charge by Alisdair Maclntyre

50 Secular humanists share a concern for moral values and a moral society and might join with Christians in criticism of a consumerist society in which getting and spending is seen as

- -

Bader 1 RELIGIOUS PLURALISM 627

the central human activity Secular humanists do not wish to destroy religions They seek to cre- ate a tolerant pluralistic society in which diverse believers and nonbelievers can live side by side and in which religious ideas can be debated rigorously (Henick in Modood 1996480

51 Weak establishment simply makes the wielders of secular sovereignty a little more aware of the reality of a different sovereignty This independent sovereignty challenges the secularist monism It reminds us as a public symbol of the limits of Cesars sovereignty by the assertion of higher values (Haqtings in Modood 1996 41ff) See Rosser-Owen (in Modood 1996 83) See Richards (198695 11 If) for a similar defense of the multiple estab- lishment in Virginia 1776 by Patrick Henry and Richard Henry Lee (to preserve public moral- ity in the state) See Note (1987 1613-19)

52 Rousseau has convincingly argued that none of the three old forms of religion satisfy the conditions for a good polity (see Casanova 199458ff) (I) The Roman Catholic religion of the priest internally produces subjects while externally the transnational ecclesiastic institution transcends the political community of citizens and the normative sovereignty of the nation- state Hence they cannot produce loyal subjects (2) The classical republican religion of the citizen produces loyal subjects through the sacralization of the nation-state but is an evil founded in error and falsehood It leads to intolerant national chauvinism and sanguinary jin- goism This particularism of an ethnical community which integrates all citizens into a politi- cal cult coextensive with the political community has to compete with allegiances to either more primordial or more universalistic forms of community Soteriological religions corrode republican civil religions because they liberate the individual from absolute allegiance to the political community whereas universalist religions tend to transcend the particularism of the political community be it a city state or a nation state (p 59) The latter is also true for (3) the religion of man which according to Rousseau is holy sublime and true but is politically use- less since it has no particular connection with the body politic and therefore cannot add any- thing to the great bonds of particular societies It tends to undermine republican virtues Rousseau himself solves the dilemma by affirming simultaneously and inconsistently the mod- ern right of religious freedom and the need for apurely civil profession of faith According to Casanova Durkheim and Bellah merely reproduce the old unresolved tensions in a new socio- logical language Casanova himself thinks that one cannot resolve these tensions either politi- cally at the state level as a force integrating normatively the political community or sociologi- cally at the societal level as a force integrating normatively the societal community because in both regards such a civil religion is unlikely to reappear in modem societies (p 60) The con- cept of civil religionought to be reformulated from the state or societal community level to the level of civil society (p 61 see 21 80 To me it remains unclear how the tension between par- ticularism and universalism is resolved by a civil religion at the level of civil society It seems to be only reproduced in the confrontation between national and transnational versions of civil society itself For a critical treatment of this tension see also Bader (1999a)

53 See Bader (1997a) and Scott (1998309ff) Reasonable criticism of constructivist ration- alism unlimited state sovereignty and an unconditional enthronement of politics are in my view also preferable to postmodern criticism of the Dialectics of Enlightenment (which Casa- nova seems to adhere to see Caqanova 1994 31 and throughout)

54 This is an often unrecognized bias in secularization perspectives 55 Mere exposure already changes ways of life and thinking See Nomi Stoltenbergs (I 993)

excellent analysis of the paradigmatic case Mozert gt Huwkins County Public Schools Her criti- cism of the inability of our traditional philosophical resources to resolve (p 647) these ques- tions however suffers from one central weakness priority for democracy indeed requires the bracketing of the truth question (p 665) but this does not condemn us to subjectivism or historicism (p 666) Notes (1987 1668ff) analysis of Secular Education as Hostility to

626 POLITICAL THEORY October 1999

to pay a reasonable price for religious liberty (3) He reproduces traditional secularist suspi- cions that religions in principle cannot accept to see their eternal truths treated as opinions in public discourse (religions inevitably seem to be fundamentalist-no protestantization of religions allowed) And he reproduces to a lesser degree secularist myopia with regard to secu- larist intolerance-connected to the standard view that sciences such as ahysics are uncontrover- -sial (their arguments both justified and true) whereas morals are always contested-thereby (4) neglecting that theepistemology suitable for such a democracy requires a lot from scientists as well

45 The inescapability of secularism (Taylor 199838) flows from the nature ofthe modem democratic state which has to guarantee to all equal and autonomous members adirect nonex- clusionary access to democratic deliberation and decision making This is why secularism in some form is a necessity for the democratic life of religiously diverse societies (pp 464749) In our context three different questions concerning modem secularism need to be more clearly distinguished (1) whether the principles and practices of liberal democracy should have secular foundations (Rawls 1993 Taylor 1998 and Richards 1986 are quite outspoken in their critique of this kind of secularism) (2) whether public or political arguments should he secular (Rawls and Rorty clearly advocate this Taylor does not address the issue) and (3) whether liberal- democratic states or regimes are inevitably secular regimes Taylor treats democratic and secular regimes as synonymous opposed to non-secular or exclusionary regimes (p 47) But in opposition to both Rawls and Rorty he insists that the separation of church and state that centerpiece of secularism should not be confused with one formula the complete disentangle- ment of government from any religious ~nstitutions To insist on one formula as the only one consistent with liberal principles is precisely to erect one background justification as supreme and binding on all thus violating the essential point of overlapping consensus The US provides an unfortunate example of this (p 52) Taylor comes closest to my own position but I think it is less misleading to call priority for liberal democracy just priority for liberal democracy

46 See Casanova (1 994 182) versus the thesis of the conservative catholic bishops in the 1880s that the ideal situation could only be an established church in a confessional state The Americanists defending the anti-thesis that thc principles of the Church are in thorough harmony with the interests of the Republic could not offer a theological rationale for democ- racy freedom of religion and disestablishment which has only been delivered with Catholic Aggiornamento (Vatican 11) and is still vigorously contested by Cardinal Ratzinger cs See also Rawls (199360ff) See Weithman (1997b 7 [have been shaped]) Galanter (19662890 and Macedo (1 998) for the transformative effects of American constitutionalism on religions in gen- eral and the American Catholic Church in particular Not all secularists believe these transfonna- tions to be real or principled rather than merely strategic thus prolonging the long-standing secu- larist suspicion of all religions that even characterizes Michael Walzers (1997 66-71 81) treatment of religions in On Toleration (as if they possessed this virtue)

47 See my short treatment in Bader (1991 14051) and Bader (1997a 158-70) SeeTaylor (1998) for secularist intolerance See Falk (1995 68242) versus secular fundamentalism

48 See Audi (1989 2900 Frankena (1986) and Inany others 49 Secularism nurtures moral positivism and cynical politics undermines the wholeness of

peoples lives fails to mobilize their moral and spiritual energies and homogenizes public dis- course (Parekh 199421) See Wolterstorff (1997 1780 Culture of Disbelief (with Stephen Carter) and secular economic self-interest privatism nationalism private and group ego- ism and so on See Habcrmas (1990) for convincing criticism of the Inore sophisticated version of this charge by Alisdair Maclntyre

50 Secular humanists share a concern for moral values and a moral society and might join with Christians in criticism of a consumerist society in which getting and spending is seen as

- -

Bader 1 RELIGIOUS PLURALISM 627

the central human activity Secular humanists do not wish to destroy religions They seek to cre- ate a tolerant pluralistic society in which diverse believers and nonbelievers can live side by side and in which religious ideas can be debated rigorously (Henick in Modood 1996480

51 Weak establishment simply makes the wielders of secular sovereignty a little more aware of the reality of a different sovereignty This independent sovereignty challenges the secularist monism It reminds us as a public symbol of the limits of Cesars sovereignty by the assertion of higher values (Haqtings in Modood 1996 41ff) See Rosser-Owen (in Modood 1996 83) See Richards (198695 11 If) for a similar defense of the multiple estab- lishment in Virginia 1776 by Patrick Henry and Richard Henry Lee (to preserve public moral- ity in the state) See Note (1987 1613-19)

52 Rousseau has convincingly argued that none of the three old forms of religion satisfy the conditions for a good polity (see Casanova 199458ff) (I) The Roman Catholic religion of the priest internally produces subjects while externally the transnational ecclesiastic institution transcends the political community of citizens and the normative sovereignty of the nation- state Hence they cannot produce loyal subjects (2) The classical republican religion of the citizen produces loyal subjects through the sacralization of the nation-state but is an evil founded in error and falsehood It leads to intolerant national chauvinism and sanguinary jin- goism This particularism of an ethnical community which integrates all citizens into a politi- cal cult coextensive with the political community has to compete with allegiances to either more primordial or more universalistic forms of community Soteriological religions corrode republican civil religions because they liberate the individual from absolute allegiance to the political community whereas universalist religions tend to transcend the particularism of the political community be it a city state or a nation state (p 59) The latter is also true for (3) the religion of man which according to Rousseau is holy sublime and true but is politically use- less since it has no particular connection with the body politic and therefore cannot add any- thing to the great bonds of particular societies It tends to undermine republican virtues Rousseau himself solves the dilemma by affirming simultaneously and inconsistently the mod- ern right of religious freedom and the need for apurely civil profession of faith According to Casanova Durkheim and Bellah merely reproduce the old unresolved tensions in a new socio- logical language Casanova himself thinks that one cannot resolve these tensions either politi- cally at the state level as a force integrating normatively the political community or sociologi- cally at the societal level as a force integrating normatively the societal community because in both regards such a civil religion is unlikely to reappear in modem societies (p 60) The con- cept of civil religionought to be reformulated from the state or societal community level to the level of civil society (p 61 see 21 80 To me it remains unclear how the tension between par- ticularism and universalism is resolved by a civil religion at the level of civil society It seems to be only reproduced in the confrontation between national and transnational versions of civil society itself For a critical treatment of this tension see also Bader (1999a)

53 See Bader (1997a) and Scott (1998309ff) Reasonable criticism of constructivist ration- alism unlimited state sovereignty and an unconditional enthronement of politics are in my view also preferable to postmodern criticism of the Dialectics of Enlightenment (which Casa- nova seems to adhere to see Caqanova 1994 31 and throughout)

54 This is an often unrecognized bias in secularization perspectives 55 Mere exposure already changes ways of life and thinking See Nomi Stoltenbergs (I 993)

excellent analysis of the paradigmatic case Mozert gt Huwkins County Public Schools Her criti- cism of the inability of our traditional philosophical resources to resolve (p 647) these ques- tions however suffers from one central weakness priority for democracy indeed requires the bracketing of the truth question (p 665) but this does not condemn us to subjectivism or historicism (p 666) Notes (1987 1668ff) analysis of Secular Education as Hostility to

- -

Bader 1 RELIGIOUS PLURALISM 627

the central human activity Secular humanists do not wish to destroy religions They seek to cre- ate a tolerant pluralistic society in which diverse believers and nonbelievers can live side by side and in which religious ideas can be debated rigorously (Henick in Modood 1996480

51 Weak establishment simply makes the wielders of secular sovereignty a little more aware of the reality of a different sovereignty This independent sovereignty challenges the secularist monism It reminds us as a public symbol of the limits of Cesars sovereignty by the assertion of higher values (Haqtings in Modood 1996 41ff) See Rosser-Owen (in Modood 1996 83) See Richards (198695 11 If) for a similar defense of the multiple estab- lishment in Virginia 1776 by Patrick Henry and Richard Henry Lee (to preserve public moral- ity in the state) See Note (1987 1613-19)

52 Rousseau has convincingly argued that none of the three old forms of religion satisfy the conditions for a good polity (see Casanova 199458ff) (I) The Roman Catholic religion of the priest internally produces subjects while externally the transnational ecclesiastic institution transcends the political community of citizens and the normative sovereignty of the nation- state Hence they cannot produce loyal subjects (2) The classical republican religion of the citizen produces loyal subjects through the sacralization of the nation-state but is an evil founded in error and falsehood It leads to intolerant national chauvinism and sanguinary jin- goism This particularism of an ethnical community which integrates all citizens into a politi- cal cult coextensive with the political community has to compete with allegiances to either more primordial or more universalistic forms of community Soteriological religions corrode republican civil religions because they liberate the individual from absolute allegiance to the political community whereas universalist religions tend to transcend the particularism of the political community be it a city state or a nation state (p 59) The latter is also true for (3) the religion of man which according to Rousseau is holy sublime and true but is politically use- less since it has no particular connection with the body politic and therefore cannot add any- thing to the great bonds of particular societies It tends to undermine republican virtues Rousseau himself solves the dilemma by affirming simultaneously and inconsistently the mod- ern right of religious freedom and the need for apurely civil profession of faith According to Casanova Durkheim and Bellah merely reproduce the old unresolved tensions in a new socio- logical language Casanova himself thinks that one cannot resolve these tensions either politi- cally at the state level as a force integrating normatively the political community or sociologi- cally at the societal level as a force integrating normatively the societal community because in both regards such a civil religion is unlikely to reappear in modem societies (p 60) The con- cept of civil religionought to be reformulated from the state or societal community level to the level of civil society (p 61 see 21 80 To me it remains unclear how the tension between par- ticularism and universalism is resolved by a civil religion at the level of civil society It seems to be only reproduced in the confrontation between national and transnational versions of civil society itself For a critical treatment of this tension see also Bader (1999a)

53 See Bader (1997a) and Scott (1998309ff) Reasonable criticism of constructivist ration- alism unlimited state sovereignty and an unconditional enthronement of politics are in my view also preferable to postmodern criticism of the Dialectics of Enlightenment (which Casa- nova seems to adhere to see Caqanova 1994 31 and throughout)

54 This is an often unrecognized bias in secularization perspectives 55 Mere exposure already changes ways of life and thinking See Nomi Stoltenbergs (I 993)

excellent analysis of the paradigmatic case Mozert gt Huwkins County Public Schools Her criti- cism of the inability of our traditional philosophical resources to resolve (p 647) these ques- tions however suffers from one central weakness priority for democracy indeed requires the bracketing of the truth question (p 665) but this does not condemn us to subjectivism or historicism (p 666) Notes (1987 1668ff) analysis of Secular Education as Hostility to

628 POLITICAL THEORY 1October 1999

Religion suffers from the usual identification of public with secular education See Galanter (1966285ff) Neutrality then does not mean a regime equally congenial to all this would be a self-contradictory ideal so long as religions differ in their view of a good regime (p 290)

56 Heiner Bielefeldt (1998 10) accepts the challenge posed by deep cultural pluralism for defenders of universal human rights In his Kantian defense of the unifying ideal of human rights against both cultural relativism (Rorty) and cultural imperialism he admits that Kant himself did not clearly recognize the historical variability of the particular shapes of communi- ties (Bielefeldt 1997b 357) but he does not seem to notice that this variability may also mold basic concepts of self personality moral agency and autonomy At this point there seem to be inherent limits to all transcendental strategies (see Bielefeldt 1997a)

57 Like Bernard Williams 1 would defend the priority of morality over ethical theories (see Williams 1985) without however accepting his anti-theoretical conclusions The general idea that institutions and practices are more important than foundational theories is common ground in Hegelianism Marxism hermeneutics and pragmatism (see Bader 1990 see also Taylor 1998) 1 fully agree with Henry Shue (199527) that practice now is far ahead of theory The idea of rights responds to common moral intuitions and accepted political principles Human rights arc not the work of philosophers but of politicians and citizens and philosophers have only begun to try to build conceptual justifications for them The international expression of rights themselves claim no philosophical foundation nor do they reflect any clear philosophical assumptions (Henkin 1990 6 quoted in Shue 1995 27)

58 Obviously pr~ority for democracy should also be defended against scientistic imperial- ism (mainly in the form of genetic psychological ideologies and economic sociological ones declaring democracy to be an impossible utopia)

59 See Gutmann and Thompson (199661) as liberal society [sic] excludes religion from thejurisdiction of political action because citizens could never agree on religious truth seep 159 versus legislating religion and the requirement of a mundane completely secularjustifica- tion Thiemann (1996 150) opposes this restriction and accepts theological arguments besides secular ones in favor of the core values of liberal democracy

60 See Rawls (1993 55ff) Audi (1997 55 n 25) also tries to water down the criteria for adequate secularreasons They should be well-grounded not ill-grounded but this should not mean that they have to be objectively correct true propositions False propositions are admissible too if they are sufficiently well-justified If it is not truth but justificatory suffi- ciency (whatever that may be) how can he nevertheless invoke error (false premise or invalid inference p 56) as a criterion for exclusion Gutmann and Thompson (1 99656) try to moderate the standards of exclus~on of reasons even more they should not be imperv~ous to the standards of logical consistency or to reliable methods of inquiry In the empirical dimension admissible reasons should be consistent with relatively reliable methods of inquiry or at least not be implausible claims need not be completely verifiable but they should not conflict with claims that have been confirmed by the most reliable methods (p 56 false)

61 Rawls (19933761 f) If the borderline between comprehensive doctrines and public reason cannot be drawn in the way Rawls thinks it can his arguments apply against his own pro- posal to limit the content of public reason See Macedo (1998)

62 See also Quinn (1997) too weak to single out 63 This charge should not to be directed against the basic idea of an overlapping consensus

and of reflective equilibrium (asWolterstorff 1997 does with his accusation of circularity) It is directed against the specific limits of the content of public reason and the resulting consensus populi

64 Their attempt to regulate public reason (p 55) is more inclusive than Rawlss and Audis stresses more the limits of cognitive and normative consensus (see Gutmann and

Bader RELIGIOUS PLURALISM 629

Thompson 1996370) focuses on actual debate (p 373 see also Habermass 1990 1995 criti- cism) and invites us more openly and directly to learn to live with moral deliberative disagree- ment Their principle of reciprocity still refers to the kinds of reasons The moral requirement to offer each other mutually acceptable normative reasons is more moderate because it points out the aim to find fair terms for social cooperation and the obligation to seek agreement on sub- stantive moral principles but it clearly recognizes that we often do not reach agreement and thus have to live with moral disagreement and find ways of accommodation based on mutual respect The empirical requirement that our reasons should not be implausible may go together with much disagreement among scientists about concepts theories methods empirical evidence and so on As aconsequence in my view theircriteriaof exclusion resolve in attitudes virtues and good practices Reciprocity too is in the end less aprinciple than a virtue uncertainty about the truth of their own position as opposed to rigidity dogmatism and arrogance (p 77) See Benhabib 1991 82-9 for a similar criticism of conversational restraints

65 Gutmann and Thompsons (1990) short list See Rawls (1993 217 253) Macedo (1998) Galston (1991) Barber (1988) and many others See Bader (1997b 7860 for my own short list From apractical perspective institutions and regimes of toleration are more important than principles of tolerance and more important than attitudes (as Michael Walzer has shown extremely well regimes of toleration are compatible with a variety of attitudes of tolerance see Walzer 1997 10-13) To preclude misunderstandings of my position I add two short remarks (I) I do not opt for a replacement of principles and rights by virtues but for aproductive comple- mentarity OnoraONeill(1996 154-212) has demonstrated what such a complementarity may look like (2) The relationship between principles institutions culturesvirtues and practices should not be thought of as one-way traffic (neither from principles to practices as in most lib- eral rights-ethics nor from practices to principles as in conservative theories) but as two-way progressive dialectics

66 Jane Mansbridge (1990) has forcefully criticized the neat distinctions between power and persuasion so typical for Habermasian discourse ethics and many theories of deliberative democracy

67 My criticism of constraints on the content of religious speech should not be misunder- stood as a plea for no constraints at all Quite the contrary (1) if such constraints should apply to religious speech they should be exactly the same as thedontested-constraints on all free speech (such as libel clear and present danger and so on see for an excellent critical treat- ment of the Supreme Court jurisdiction Frankenberg and Rodel 198195-2353 19-35 see also Richards 1986 pt 111) (2) Constraints of religious actions bydontested-ther constitu-tional rights and by compelling public interests remain in place (critical comments by Govert den Hartogh prompted me to state this more explicitly)

68 See Macedo (1998) and Creppell (1996) for this socializing and civilizing effect on (organized) religions See more generally Elias (1976) and Pekelharing (1999) There may be a selective affinity between democracy and truth (as pointed out by Mill Popper Feyerabend Habermas see Estlund 1993 and Copp 1993 on the cognitive superiority of democracy) but the -

actual democratization of scientific communities took a long time and required strong pressure against entrenched bulwarks of German Mandarins both from within and from general demo- cratic publics

69 See Rorty (1989 1997) See sharp criticism by Roy Bhaskar (1989 146-79) 70 This is also an essential weakness in Thiemanns (1996) attempt to undermine the dis-

tinction between faith and reason or truth In the tradition of the historical critical method of modem biblical scholarship (see Stoltenberg 1993 626) he treats religioustheologicaI dis- course as well as philosophical and scientificdiscourse as belief systems In this way he blurs the crucial distinction between hermeneutics of understanding and modes of legitimation or

630 POLITICAL THEORY I October 1999

justification (see I32ff and I54ff) between Genesls und Geltung cheerfully referring to con- temporary cultural analysts (p 156) For lucid criticism of this shift from philosophy to sociol- ogy and history of science see Bhaskar (1986) and Nonis (1997)

71 If one looks for a philosophical underpinning of the practices of liberal democracy it is better in my view to start from the results of the critical realist analysis of the practices of (social) sciences (Bha~kar 1986 and others) and try to develop a similar analysis in the field of practical reason Traditional and recent meta-ethics of moral realism suffer from most flaws of empiricist philosophy of science The attempt to develop a critical realist approach to morality by Roy Bhaskar (1996 169-21 I 1993) remains unfortunately more than disappointing

REFERENCES

Ackerman B 1989 Why dialogue Journal c~jPhilosophy 86 (1) Audi R 1989 The separation of church and state and the obligations of citizenship Philosophy

and P ublic Affairs 18259-96 1991 Religious commitment and secular reason A reply to Prof Weithman Philoso-

phy and Public Affuirs 20 (I) 66-76 1997 The state the church and the citizen In Religion and contemporary liberalism

edited by P Weithman 38-75 Notre Dame IN University of Notre Dame Press Bader V M 1989 UngleichheirenOpladen Leske und Budrich (together with Benschop A)

1990 Proto-theory of a political philosophy of liberal-democratic socialism Paper pre- sented at the APA Eastern Section January Boston

1991 Kollekfive~Handeln Opladen Leske und Budrich

1993 Viel Geltung und immer weniger Faktizitat In Produkrion Klassentheorie edited by H Ganamann and S Kriiger 50-78 Hamburg VSA

1997a The arts of forecasting and policy making In Citizenship and exclusion edited by V M Bader 153-72 London Macmillan

1997b The cultural conditions of trans-national citizenship Polirical Theory 25 (6) 771-813

1998a Dilemmas of ethnic affirmative action Benign state-neutrality or relational eth- nic neutrality Citizenship Studies 2 (3) 435-73

1998b Problems and prospects of associative democracy revisited Unpublished manuscript Amsterdam

1 9 9 8 ~ Unity and stability in modem societies and recent political philosophy In Indi-vidualism civil society and civil religion edited by A V Harskamp and A W Musschenga Leuven Peters

19993 For love of country Political Theory

1999b Institutions culture and identity of trans-national citizenship How much inte- gration and communal spirit is needed In Citizenship markers and rhe srate edited by K Eder and C Crouch Oxford UK Oxford University Press

Barber B 1988 The conquest of politics Princeton NJ Princeton University Press Bany B 1995 Justice as impartiality Oxford UK Clarendon Press Baubock R 1998 Cultural minority rights in public education Religious and language educa-

tion for immigrant communities in Westem Europe Unpublished manuscript Bellah R et al 1985 Habits of the heart Berkeley University of California Press

Bader I RELIGIOUS PLURALISM 63 1

Beitz C R 1989 Political equality Princeton NJ Princeton University Press Bhaskar R 1986 Scient~fic realism cmd humcm emancipation London Verso

1989 Reclaiming reality London Verso Bielefeldt H 1997a Autonomy and republicanism Immanuel Kants philosophy of freedom

Political Theory 25 (4) 524-58 1997b Towards a cosmopolitan framework of freedom The contribution of Kantian

universalism to cross-cultural debates on human rights Annual Review of l ~ w and Ethics 534962

1998 Philosophie der Menschenrechte Grundlagen eines weltweiten Freiheitsethos Damlstadt Wissenschaftliche Buchgesellschaft

Carens J 1997 Two conceptions of fairness A response to Veit Bader Political Theory 25 (6) 8 14-20

1998 Culture citizenship and community Oxford UK Oxford University Press Carter S 1993 The culture of disbelief New York Basic Books Casanova J 1994 Public religions in the modern world Chicago University of Chicago Press Cohen J and J Rogers 1992 Secondary associations and democratic governance Politics and

Society 20 (4) 391-472 Colemann J A 1997 Deprivatizing religion and revitalizing citizenship In Religion and con-

temporary liberalism edited by P Weithman 264-90 Notre Dame IN University of Notre Dame Press

Copp 01993 Could political truth be a hazard for democracy In The idea of derrrocracy edited by D Copp G Hampton and J Roemer 71-100 Cambridge UK Cambridge Uni- versity Press

Creppell 1 1996 Locke on toleration Political Theory 24 (2) 200-40 Cunningham F 1987 Democratic theory and socialism Cambridge UK Cambridge Univer-

sity Press Dommelen E van 1999 Moralisering of Democratisering van de Rechtspraak Unpublished

manuscript University of Amsterdam Elias N 1976 iiber den ProzeJ der Zivilisation Frankfurt Suhrkamp Estlund D 1993 Making truth safe fordemocracy In The idea ofdemocrcrcy edited by D Copp

G Hampton and 1 Roemer 101-18 Cambridge UK Cambridge University Press Flathman R A 1998 It all depends Political Theory 26 (1) 81-84 Frankenberg G and U Rodel 1981 W)n der Volkssouveranitut zum Minderheitenschutz

Frankfurt EVA Frankena W K 1986 Morality and religion In Dictioncrry of Christian ethics edited by J Chil-

dress and J Maquanie Philadelphia PA Westminster Galanter M 1966 Religious freedoms in the United States A turning point Wisconsin Law

Review217-96 Galston W 1991 Liberal purposes Cambridge M A Cambridge University Press Gotanda N 1991 A critique of Our constitution is color-blind Stanford Law Review 44 (1)

1-68 Giinther K 1988Der Sinrz fiir Angemessenheir Frankfurt Suhrkamp Gutmann A 1987 Democrcrtic education Princeton NJ Princeton University Press Gutmunn A and D Thompson 1990 Moral conflict and political consensus Ethics 101

64-88 1996 Democrcrry and discrgreement Cambridge MA Haward University Press

Habermas J 1990 Discourse ethics Notes on cr program ofphilosophiccrl justificcrtion Cam-bridge MIT Press

Bader RELIGIOUS PLURALISM 629

Thompson 1996370) focuses on actual debate (p 373 see also Habermass 1990 1995 criti- cism) and invites us more openly and directly to learn to live with moral deliberative disagree- ment Their principle of reciprocity still refers to the kinds of reasons The moral requirement to offer each other mutually acceptable normative reasons is more moderate because it points out the aim to find fair terms for social cooperation and the obligation to seek agreement on sub- stantive moral principles but it clearly recognizes that we often do not reach agreement and thus have to live with moral disagreement and find ways of accommodation based on mutual respect The empirical requirement that our reasons should not be implausible may go together with much disagreement among scientists about concepts theories methods empirical evidence and so on As aconsequence in my view theircriteriaof exclusion resolve in attitudes virtues and good practices Reciprocity too is in the end less aprinciple than a virtue uncertainty about the truth of their own position as opposed to rigidity dogmatism and arrogance (p 77) See Benhabib 1991 82-9 for a similar criticism of conversational restraints

65 Gutmann and Thompsons (1990) short list See Rawls (1993 217 253) Macedo (1998) Galston (1991) Barber (1988) and many others See Bader (1997b 7860 for my own short list From apractical perspective institutions and regimes of toleration are more important than principles of tolerance and more important than attitudes (as Michael Walzer has shown extremely well regimes of toleration are compatible with a variety of attitudes of tolerance see Walzer 1997 10-13) To preclude misunderstandings of my position I add two short remarks (I) I do not opt for a replacement of principles and rights by virtues but for aproductive comple- mentarity OnoraONeill(1996 154-212) has demonstrated what such a complementarity may look like (2) The relationship between principles institutions culturesvirtues and practices should not be thought of as one-way traffic (neither from principles to practices as in most lib- eral rights-ethics nor from practices to principles as in conservative theories) but as two-way progressive dialectics

66 Jane Mansbridge (1990) has forcefully criticized the neat distinctions between power and persuasion so typical for Habermasian discourse ethics and many theories of deliberative democracy

67 My criticism of constraints on the content of religious speech should not be misunder- stood as a plea for no constraints at all Quite the contrary (1) if such constraints should apply to religious speech they should be exactly the same as thedontested-constraints on all free speech (such as libel clear and present danger and so on see for an excellent critical treat- ment of the Supreme Court jurisdiction Frankenberg and Rodel 198195-2353 19-35 see also Richards 1986 pt 111) (2) Constraints of religious actions bydontested-ther constitu-tional rights and by compelling public interests remain in place (critical comments by Govert den Hartogh prompted me to state this more explicitly)

68 See Macedo (1998) and Creppell (1996) for this socializing and civilizing effect on (organized) religions See more generally Elias (1976) and Pekelharing (1999) There may be a selective affinity between democracy and truth (as pointed out by Mill Popper Feyerabend Habermas see Estlund 1993 and Copp 1993 on the cognitive superiority of democracy) but the -

actual democratization of scientific communities took a long time and required strong pressure against entrenched bulwarks of German Mandarins both from within and from general demo- cratic publics

69 See Rorty (1989 1997) See sharp criticism by Roy Bhaskar (1989 146-79) 70 This is also an essential weakness in Thiemanns (1996) attempt to undermine the dis-

tinction between faith and reason or truth In the tradition of the historical critical method of modem biblical scholarship (see Stoltenberg 1993 626) he treats religioustheologicaI dis- course as well as philosophical and scientificdiscourse as belief systems In this way he blurs the crucial distinction between hermeneutics of understanding and modes of legitimation or

630 POLITICAL THEORY I October 1999

justification (see I32ff and I54ff) between Genesls und Geltung cheerfully referring to con- temporary cultural analysts (p 156) For lucid criticism of this shift from philosophy to sociol- ogy and history of science see Bhaskar (1986) and Nonis (1997)

71 If one looks for a philosophical underpinning of the practices of liberal democracy it is better in my view to start from the results of the critical realist analysis of the practices of (social) sciences (Bha~kar 1986 and others) and try to develop a similar analysis in the field of practical reason Traditional and recent meta-ethics of moral realism suffer from most flaws of empiricist philosophy of science The attempt to develop a critical realist approach to morality by Roy Bhaskar (1996 169-21 I 1993) remains unfortunately more than disappointing

REFERENCES

Ackerman B 1989 Why dialogue Journal c~jPhilosophy 86 (1) Audi R 1989 The separation of church and state and the obligations of citizenship Philosophy

and P ublic Affairs 18259-96 1991 Religious commitment and secular reason A reply to Prof Weithman Philoso-

phy and Public Affuirs 20 (I) 66-76 1997 The state the church and the citizen In Religion and contemporary liberalism

edited by P Weithman 38-75 Notre Dame IN University of Notre Dame Press Bader V M 1989 UngleichheirenOpladen Leske und Budrich (together with Benschop A)

1990 Proto-theory of a political philosophy of liberal-democratic socialism Paper pre- sented at the APA Eastern Section January Boston

1991 Kollekfive~Handeln Opladen Leske und Budrich

1993 Viel Geltung und immer weniger Faktizitat In Produkrion Klassentheorie edited by H Ganamann and S Kriiger 50-78 Hamburg VSA

1997a The arts of forecasting and policy making In Citizenship and exclusion edited by V M Bader 153-72 London Macmillan

1997b The cultural conditions of trans-national citizenship Polirical Theory 25 (6) 771-813

1998a Dilemmas of ethnic affirmative action Benign state-neutrality or relational eth- nic neutrality Citizenship Studies 2 (3) 435-73

1998b Problems and prospects of associative democracy revisited Unpublished manuscript Amsterdam

1 9 9 8 ~ Unity and stability in modem societies and recent political philosophy In Indi-vidualism civil society and civil religion edited by A V Harskamp and A W Musschenga Leuven Peters

19993 For love of country Political Theory

1999b Institutions culture and identity of trans-national citizenship How much inte- gration and communal spirit is needed In Citizenship markers and rhe srate edited by K Eder and C Crouch Oxford UK Oxford University Press

Barber B 1988 The conquest of politics Princeton NJ Princeton University Press Bany B 1995 Justice as impartiality Oxford UK Clarendon Press Baubock R 1998 Cultural minority rights in public education Religious and language educa-

tion for immigrant communities in Westem Europe Unpublished manuscript Bellah R et al 1985 Habits of the heart Berkeley University of California Press

Bader I RELIGIOUS PLURALISM 63 1

Beitz C R 1989 Political equality Princeton NJ Princeton University Press Bhaskar R 1986 Scient~fic realism cmd humcm emancipation London Verso

1989 Reclaiming reality London Verso Bielefeldt H 1997a Autonomy and republicanism Immanuel Kants philosophy of freedom

Political Theory 25 (4) 524-58 1997b Towards a cosmopolitan framework of freedom The contribution of Kantian

universalism to cross-cultural debates on human rights Annual Review of l ~ w and Ethics 534962

1998 Philosophie der Menschenrechte Grundlagen eines weltweiten Freiheitsethos Damlstadt Wissenschaftliche Buchgesellschaft

Carens J 1997 Two conceptions of fairness A response to Veit Bader Political Theory 25 (6) 8 14-20

1998 Culture citizenship and community Oxford UK Oxford University Press Carter S 1993 The culture of disbelief New York Basic Books Casanova J 1994 Public religions in the modern world Chicago University of Chicago Press Cohen J and J Rogers 1992 Secondary associations and democratic governance Politics and

Society 20 (4) 391-472 Colemann J A 1997 Deprivatizing religion and revitalizing citizenship In Religion and con-

temporary liberalism edited by P Weithman 264-90 Notre Dame IN University of Notre Dame Press

Copp 01993 Could political truth be a hazard for democracy In The idea of derrrocracy edited by D Copp G Hampton and J Roemer 71-100 Cambridge UK Cambridge Uni- versity Press

Creppell 1 1996 Locke on toleration Political Theory 24 (2) 200-40 Cunningham F 1987 Democratic theory and socialism Cambridge UK Cambridge Univer-

sity Press Dommelen E van 1999 Moralisering of Democratisering van de Rechtspraak Unpublished

manuscript University of Amsterdam Elias N 1976 iiber den ProzeJ der Zivilisation Frankfurt Suhrkamp Estlund D 1993 Making truth safe fordemocracy In The idea ofdemocrcrcy edited by D Copp

G Hampton and 1 Roemer 101-18 Cambridge UK Cambridge University Press Flathman R A 1998 It all depends Political Theory 26 (1) 81-84 Frankenberg G and U Rodel 1981 W)n der Volkssouveranitut zum Minderheitenschutz

Frankfurt EVA Frankena W K 1986 Morality and religion In Dictioncrry of Christian ethics edited by J Chil-

dress and J Maquanie Philadelphia PA Westminster Galanter M 1966 Religious freedoms in the United States A turning point Wisconsin Law

Review217-96 Galston W 1991 Liberal purposes Cambridge M A Cambridge University Press Gotanda N 1991 A critique of Our constitution is color-blind Stanford Law Review 44 (1)

1-68 Giinther K 1988Der Sinrz fiir Angemessenheir Frankfurt Suhrkamp Gutmann A 1987 Democrcrtic education Princeton NJ Princeton University Press Gutmunn A and D Thompson 1990 Moral conflict and political consensus Ethics 101

64-88 1996 Democrcrry and discrgreement Cambridge MA Haward University Press

Habermas J 1990 Discourse ethics Notes on cr program ofphilosophiccrl justificcrtion Cam-bridge MIT Press

630 POLITICAL THEORY I October 1999

justification (see I32ff and I54ff) between Genesls und Geltung cheerfully referring to con- temporary cultural analysts (p 156) For lucid criticism of this shift from philosophy to sociol- ogy and history of science see Bhaskar (1986) and Nonis (1997)

71 If one looks for a philosophical underpinning of the practices of liberal democracy it is better in my view to start from the results of the critical realist analysis of the practices of (social) sciences (Bha~kar 1986 and others) and try to develop a similar analysis in the field of practical reason Traditional and recent meta-ethics of moral realism suffer from most flaws of empiricist philosophy of science The attempt to develop a critical realist approach to morality by Roy Bhaskar (1996 169-21 I 1993) remains unfortunately more than disappointing

REFERENCES

Ackerman B 1989 Why dialogue Journal c~jPhilosophy 86 (1) Audi R 1989 The separation of church and state and the obligations of citizenship Philosophy

and P ublic Affairs 18259-96 1991 Religious commitment and secular reason A reply to Prof Weithman Philoso-

phy and Public Affuirs 20 (I) 66-76 1997 The state the church and the citizen In Religion and contemporary liberalism

edited by P Weithman 38-75 Notre Dame IN University of Notre Dame Press Bader V M 1989 UngleichheirenOpladen Leske und Budrich (together with Benschop A)

1990 Proto-theory of a political philosophy of liberal-democratic socialism Paper pre- sented at the APA Eastern Section January Boston

1991 Kollekfive~Handeln Opladen Leske und Budrich

1993 Viel Geltung und immer weniger Faktizitat In Produkrion Klassentheorie edited by H Ganamann and S Kriiger 50-78 Hamburg VSA

1997a The arts of forecasting and policy making In Citizenship and exclusion edited by V M Bader 153-72 London Macmillan

1997b The cultural conditions of trans-national citizenship Polirical Theory 25 (6) 771-813

1998a Dilemmas of ethnic affirmative action Benign state-neutrality or relational eth- nic neutrality Citizenship Studies 2 (3) 435-73

1998b Problems and prospects of associative democracy revisited Unpublished manuscript Amsterdam

1 9 9 8 ~ Unity and stability in modem societies and recent political philosophy In Indi-vidualism civil society and civil religion edited by A V Harskamp and A W Musschenga Leuven Peters

19993 For love of country Political Theory

1999b Institutions culture and identity of trans-national citizenship How much inte- gration and communal spirit is needed In Citizenship markers and rhe srate edited by K Eder and C Crouch Oxford UK Oxford University Press

Barber B 1988 The conquest of politics Princeton NJ Princeton University Press Bany B 1995 Justice as impartiality Oxford UK Clarendon Press Baubock R 1998 Cultural minority rights in public education Religious and language educa-

tion for immigrant communities in Westem Europe Unpublished manuscript Bellah R et al 1985 Habits of the heart Berkeley University of California Press

Bader I RELIGIOUS PLURALISM 63 1

Beitz C R 1989 Political equality Princeton NJ Princeton University Press Bhaskar R 1986 Scient~fic realism cmd humcm emancipation London Verso

1989 Reclaiming reality London Verso Bielefeldt H 1997a Autonomy and republicanism Immanuel Kants philosophy of freedom

Political Theory 25 (4) 524-58 1997b Towards a cosmopolitan framework of freedom The contribution of Kantian

universalism to cross-cultural debates on human rights Annual Review of l ~ w and Ethics 534962

1998 Philosophie der Menschenrechte Grundlagen eines weltweiten Freiheitsethos Damlstadt Wissenschaftliche Buchgesellschaft

Carens J 1997 Two conceptions of fairness A response to Veit Bader Political Theory 25 (6) 8 14-20

1998 Culture citizenship and community Oxford UK Oxford University Press Carter S 1993 The culture of disbelief New York Basic Books Casanova J 1994 Public religions in the modern world Chicago University of Chicago Press Cohen J and J Rogers 1992 Secondary associations and democratic governance Politics and

Society 20 (4) 391-472 Colemann J A 1997 Deprivatizing religion and revitalizing citizenship In Religion and con-

temporary liberalism edited by P Weithman 264-90 Notre Dame IN University of Notre Dame Press

Copp 01993 Could political truth be a hazard for democracy In The idea of derrrocracy edited by D Copp G Hampton and J Roemer 71-100 Cambridge UK Cambridge Uni- versity Press

Creppell 1 1996 Locke on toleration Political Theory 24 (2) 200-40 Cunningham F 1987 Democratic theory and socialism Cambridge UK Cambridge Univer-

sity Press Dommelen E van 1999 Moralisering of Democratisering van de Rechtspraak Unpublished

manuscript University of Amsterdam Elias N 1976 iiber den ProzeJ der Zivilisation Frankfurt Suhrkamp Estlund D 1993 Making truth safe fordemocracy In The idea ofdemocrcrcy edited by D Copp

G Hampton and 1 Roemer 101-18 Cambridge UK Cambridge University Press Flathman R A 1998 It all depends Political Theory 26 (1) 81-84 Frankenberg G and U Rodel 1981 W)n der Volkssouveranitut zum Minderheitenschutz

Frankfurt EVA Frankena W K 1986 Morality and religion In Dictioncrry of Christian ethics edited by J Chil-

dress and J Maquanie Philadelphia PA Westminster Galanter M 1966 Religious freedoms in the United States A turning point Wisconsin Law

Review217-96 Galston W 1991 Liberal purposes Cambridge M A Cambridge University Press Gotanda N 1991 A critique of Our constitution is color-blind Stanford Law Review 44 (1)

1-68 Giinther K 1988Der Sinrz fiir Angemessenheir Frankfurt Suhrkamp Gutmann A 1987 Democrcrtic education Princeton NJ Princeton University Press Gutmunn A and D Thompson 1990 Moral conflict and political consensus Ethics 101

64-88 1996 Democrcrry and discrgreement Cambridge MA Haward University Press

Habermas J 1990 Discourse ethics Notes on cr program ofphilosophiccrl justificcrtion Cam-bridge MIT Press

Bader I RELIGIOUS PLURALISM 63 1

Beitz C R 1989 Political equality Princeton NJ Princeton University Press Bhaskar R 1986 Scient~fic realism cmd humcm emancipation London Verso

1989 Reclaiming reality London Verso Bielefeldt H 1997a Autonomy and republicanism Immanuel Kants philosophy of freedom

Political Theory 25 (4) 524-58 1997b Towards a cosmopolitan framework of freedom The contribution of Kantian

universalism to cross-cultural debates on human rights Annual Review of l ~ w and Ethics 534962

1998 Philosophie der Menschenrechte Grundlagen eines weltweiten Freiheitsethos Damlstadt Wissenschaftliche Buchgesellschaft

Carens J 1997 Two conceptions of fairness A response to Veit Bader Political Theory 25 (6) 8 14-20

1998 Culture citizenship and community Oxford UK Oxford University Press Carter S 1993 The culture of disbelief New York Basic Books Casanova J 1994 Public religions in the modern world Chicago University of Chicago Press Cohen J and J Rogers 1992 Secondary associations and democratic governance Politics and

Society 20 (4) 391-472 Colemann J A 1997 Deprivatizing religion and revitalizing citizenship In Religion and con-

temporary liberalism edited by P Weithman 264-90 Notre Dame IN University of Notre Dame Press

Copp 01993 Could political truth be a hazard for democracy In The idea of derrrocracy edited by D Copp G Hampton and J Roemer 71-100 Cambridge UK Cambridge Uni- versity Press

Creppell 1 1996 Locke on toleration Political Theory 24 (2) 200-40 Cunningham F 1987 Democratic theory and socialism Cambridge UK Cambridge Univer-

sity Press Dommelen E van 1999 Moralisering of Democratisering van de Rechtspraak Unpublished

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