September 26, 2005

Justice as fairness and limits to religion

In response to an earlier posting, Jake took issue with my assertion that a secular society in which religion stayed in the private sphere was least likely to create friction amongst different religious beliefs.

He invoked the first amendment to the US constitution to imply that it would be unconstitutional to prevent Christianity from the public sphere. He also made the argument that there seemed to be no good reason to even try to do so since Christianity in the US had always been benign and that it seemed wrong to restrict it to the private sphere out of a sense of fairness. He felt that there was nothing sacrosanct about 'fairness' that made it worth exalting to a position of a primary organizing principle for society. He said that "there is no law demanding that the majority make the minority feel like everything is fair? No, they [i.e. people who argue for a secular public sphere] religiously believe that fairness is the highest ideal."

Constitutional provisions are important but applying them consistently has not been easy. For example, the First Amendment does not allow any and all religious practices. Polygamy amongst Mormons and the smoking of peyote among some Native American groups have both been disallowed even though both groups claimed a religious basis for their actions.

Christian Scientists also have faced restrictions on whether they can withhold medication from their children, but here the issue becomes more complicated because of the issue of the extent to which children should be subjected to their parents' beliefs. It is not unreasonable to argue that children should not have to risk sickness and death because of the religious beliefs of their parents.

But polygamy and peyote smoking are acts involving freely consenting adults, the people that I assert should have the least restrictions on their behavior, but the state still seemed to find reasons for restricting such acts. Similarly, I am not sure what interest the state has in preventing, say, the use of marijuana for medicinal purposes or forcing people to use seat belts. I always wear my seat belt because it seems to me to be silly not to and I am fully convinced of its benefits. But when I was in a car with a colleague, someone whom I consider to be extremely sensible, he did not buckle up. When I asked him why, he said it was because he resented being forced to do something "for his own good." If it was for his own good, he felt that he should be the one making the decision.

The First Amendment does not provide a blanket guarantee of religious freedom but draws lines concerning what religious groups can and cannot do. And it is deciding where to draw the lines that things can become messy. Saying that other religions have nothing to fear from Christianity does not completely address the issue because all it takes is one conflict somewhere for things to turn acrimonious. Suppose that a small community somewhere in the US happens to develop a Muslim majority. Would people be amenable to having the crescent symbol in city hall or to start meetings with a Muslim prayer facing Mecca?

My point is that as the US becomes more and more multi-religious, such scenarios become more and more likely. Allowing religion in the public sphere would result in a multitude of religious voices competing for space in it, and adjudicating those disputes is bound to be complicated and cause bad feeling. The alternative would be to grant one religion (obviously in the US it would be Christianity) special privileges in the public sphere not granted to others. It is not clear to me whether the US Supreme Court would decree that the First Amendment allows that but if it did, then the US becomes legally like Muslim countries that give a special place to Islam or like Sri Lanka in giving pride of place to Buddhism.

It is true that I elevate 'justice as fairness' to a primary organizing principle for structuring the institutions of society. In this, I agree with John Rawls in his A Theory of Justice where he argues that the desire for justice as fairness is an almost intuitive need of humans. Even little children, long before they are aware of abstract concepts such as liberty and freedom and even religion, have an understanding of fairness. "It's not fair" is perhaps one of the most common complaints voiced by children. It is the one principle that is rigidly incorporated into all our games and sports.

Of course, how this principle of 'justice as fairness' manifests itself in concrete ways is something that needs to be worked out, and Rawls' 'veil of ignorance' suggests a procedural method although it is not always obvious how to apply this. (See here for an earlier posting on this and links to other posts.)

So we seem to have three options: (1) we have a secular state for the public sphere with wide religious freedom in the private sphere or (2) we have every religious belief having equal access to the public sphere or (3) we give access in the public sphere to only one religion.

Those who believe that one particular religious tradition is right and the others wrong, or that one religious tradition is inextricably identified with this country, most likely will support the third option. But given that religious beliefs are presumably freely chosen, it is not inconceivable that there could come a time in the future when, say, Islam is the majority religion in the US. Would the people currently supporting option three still hold to that position in that event?

My own position argues against assigning any specific religion pride of place in the public sphere, thus ruling out option three. This leaves me with options one or two. But I also feel that option two, while 'fair', is likely to be awkward in actual implementation since the question of what constitutes a legitimate religion is hard to adjudicate.

This leaves me thinking that only the first option, of having a secular public sphere and wide religious freedom in the private sphere, allows for harmonious co-existence.

POST SCRIPT: Massive antiwar rallies last weekend

Saturday, September 24 saw a massive antiwar rally in Washington DC and other cities around the world. Crowd estimates are notoriously unreliable but it seems like between 100,000 and 200,000 people turned up in Washington. See here for more articles and photos.


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A great presentation of a tough topic. I think the "veil of ignorance" and "imagine a future where Christianity is the minority" lines are very effective.

So now let me nitpick: mandatory seatbelt use is perfectly logical and constitutional. Don't think of it as your colleague does, "for his own good", it's not. It's for the good of the other people in your car, and especially for the people in the car you hit in an accident. Using a seat belt greatly reduces the chance of being fatally injured. If you fail to wear your seat belt and die in an accident, the other driver is legally responsible in ways that do not apply if nobody is killed. I think insurance companies impose a similar, but financial, penalty.
The case for mandatory helmet wearing for motorcycles is similar. From the point of view of the motorcyclist, she is consciously making a "personal choice" of greater risk when she refuses to wear a helmet. From the point of view of the motorist who hits/is hit by her, her "personal choice" has opened the motorist to greater legal and financial liability.
So pick another example to make your (otherwise excellent) point. Marijuana use is fine, if it is accompanied by DUI laws as for alcohol which punish actions that endanger others. Pornography containing consenting adults is another example that would make the same point.

Posted by Graeme on September 26, 2005 06:10 PM

I liked your article. It's indeed a great presentation of a harsh topic. I think as well that the veil of ignorance and imagine a future where Christianity is the minority lines touched me.

Posted by Dan on April 7, 2007 05:26 AM

Why not let the women decide? What about if some wome prefer to share one alpha male than being the only one for a loser?

Posted by Jim Thio on September 18, 2007 11:06 AM