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Over the years, I’ve studied political philosophy, theology, history, and law – all of course in the context of Western Civilization.  There can be no doubting that my worldview is thus fertilized by Western thought.  The consistent “actor” that runs throughout such study is the Christian religion and its effect upon societal constructs – of which law is but one in the complex maze of interconnectivity that is the West.  Despite the recent influx of immigration from non-Christian countries and cultures, Canadians are nevertheless the recipients of a Christian influenced milieu.  Our legal tradition still maintains the trappings of such influence – from the use of the Bible to take an oath to a host of legal doctrines that originated from a Christian conceptual framework.

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Even the debate over the definition of marriage had lawyers pondering historical legal definitions of Christian origin.  I represented the Seventh-day Adventist Church in the Marriage Reference case at the Supreme Court of Canada and made note of this in the factum.  The Court’s decision was quick to expunge any notion of Christian normative influence in the modern context when it stated:

The reference to “Christendom” is telling. Hyde spoke to a society of shared social values where marriage and religion were thought to be inseparable. This is no longer the case. Canada is a pluralistic society. Marriage, from the perspective of the state, is a civil institution. The “frozen concepts” reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life. [1]

The need to state the above is itself “telling” of our legal metamorphosis – from “Christendom” (the term “Christendom” is itself problematic as it brings forth the idea of religious conquest in the literal military sense – something that many of the faith (including me) have no sympathy for; however, it was the term used by the court) with shared values to a “pluralistic society” that rejects religious norms as having any legitimate basis for legal norms. The Marriage Reference is the culmination of liberal political thought of the late Twentieth Century as evidenced by the thinking of such people of stature as John Rawls and his contemporaries.  Their “political liberalism” maintained that religion has no place in the public sphere – it is relegated to the private.  In this atmosphere of “privatized religion” we have become “a secular age” which, strangely enough had its genesis in the Protestant Reformation.[2]

It has long been the project of liberalism to protect civil society from the ravages of religious bigotry, persecution, and bloodshed that unfolded during the Reformation era and continued for several centuries.  The humanist strain of the Enlightenment stressed that reason provided the surest way for the affairs of man.  Of greatest importance was that reason must triumph over religion and superstition.  While religion was not disavowed entirely it was certainly put in a place where it could not control the power of the state to enforce its dogmas – its place was in the affairs of the individual, not of the state.  Before addressing the liberal project of privatizing religion in greater detail it is necessary to discuss the concept of liberalism.

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 Liberal Theory

Liberalism is “the principal philosophical tradition that underlies the Western concept of a liberal democracy.”[3]  It seeks to provide a basis for civil peace amongst the political cauldron bubbling with different ideas – allowing for the maximum participation of individuals in society.  Charles Larmore describes it thus:

Liberalism has been the hope that, despite [the] tendency toward disagreement about matters of ultimate significance, we can find some way of living together that avoids the rule of force.  It has been the conviction that we can agree on a core morality while continuing to disagree about what makes life worth living.[4]

Defining liberalism with any great certainty is a precarious prospect – as there are many philosophers who make up the liberal community to which each has added a significant dimension.  For example, John Rawls uses the term “anti-perfectionist” to distinguish his version of liberalism from the “perfectionist” views of Immanuel Kant and John Stuart Mill.  Rawls does not permit “comprehensive views” or general philosophical moral doctrine of the good life into his “political liberalism,” unlike Kant and Mill.[5]  All three are considered among the greats of liberal political theory but all three make their own unique contributions to liberalism.

There are however, some recognizable characteristics of liberalism that are the basis of continual debate and discussion amongst liberal philosophers.  John Gray has outlined four – individualistic, egalitarian, universalist, and meliorist.[6]  Robert Sharpe adds freedom, and neutrality.[7]  Ahdar and Leigh further suggests rationalistic.[8]

In reality, all of these characteristics have a degree of overlap on the core concerns of liberal theory.  It is suggested that the primary focus of liberal theory is a quest to discover the rational explanation for the most effective relationship between the individual and the state that permits the greatest potential for self-realization in an atmosphere of civil peace.  It is a quest that has all kinds of permutation yet, I suggest, there are three core concerns of liberal theory – the rational argument, the individual, and the state.

 The Rational Argument

Liberalism was conceived in tragedy.  The Reformation and the struggle for religious freedom brought much bloodshed.  The exhaustion of violence led political thinkers to develop a basis for governance that was free from emotion or religion – a rational basis.  It was the Age of the Enlightenment that gave liberalism its birth.

In his essay, “What is Enlightenment?”  Kant maintained, “Enlightenment is man’s leaving his self-caused immaturity.  Immaturity is the incapacity to use one’s intelligence without the guidance of another….  Have the courage to use your own intelligence!  is therefore the motto of the enlightenment.”[9]

Liberalism is not comfortable with feelings or emotions; it distrusts tradition, mystery, and superstition.  Every natural occurring event must have a rational explanation.  Indeed it is the language we most commonly associate today with science.  However, even in political affairs thinkers have sought a rational argument to explain what happens and what should happen.  In its very essence liberalism is at odds with religion as noted by Anthony Cook,

Conceptually, liberalism – given its emphasis on the rational, empirical, and factual – sees questions of religious faith as a set of speculative assertions incapable of rational verification or disproof.  Liberalism has, then, a structural bias against religious knowledge.  The empirical orientation of the former has deemed the trans empirical faith of the latter irrational from the start.[10]

The advance of liberal rationalism has had a profound impact on our society and its institutions – including, of course, the law.  With the rejection of the religious framework, or the religious “comprehensive view” as Rawls would suggest, the rational mind has taken precedence.  The quest of seeking the rational argument – the “courage” as Kant noted to use one’s own intelligence without the aid of a belief system has led to a philosophical shift from “the intellect (as a means of understanding the world) to the will (as a means of changing the world).”[11]  Law then, like any other endeavour, is not a reflection of reality (what is), as the natural law theorists would have us believe, rather it is a means of creating a new world (what can be).  Of course, this view is not without its critics.[12]

Observers conclude that we have lost the pre-Enlightenment ability to think as a whole person.  In essence, citizens are called upon to bifurcate their thought and public manifestations of such thought into the private sphere and the public sphere.  It leads to a problem noted by Pascal who recognized the two extremes, “to exclude reason, to admit nothing but reason.”[13]  When we have rejected intuition and feeling – the metaphysical realities – in favour of what can be counted, weighed, and measured we have lost a whole dimension of our being.

Nicholas Miller rejects the notion that the Enlightenment was a godless turn from religion to the secular or rational thought.  His research has shown the prominent role that the Protestant experience had in laying the foundation for the Western (American) experience of religious freedom.  “It was not religion versus secularism, but rather one kind of medieval-like church/state arrangements versus various kinds of “enlightened” ideologies that promoted the idea of a state that was neutral in matters of religion.”[14]  Amongst the “enlightened” were those who sought a separation of church and state that recognized different “spheres of sovereignty.”  Miller seeks to show that “secularism does not need to mean anti-religious.”[15]  In his presentation of the ideas of Samuel Pufendorf, John Locke and Pierre Bayle, he argues that it was the thinking of John Locke that was persuasive to the founders of the American republic.  Church and state had distinctive roles – the church to protect the individual rights both as a member of the spiritual world and as a citizen of the temporal world.  The move toward the American concept was the result of a religious view and not simply the non-religious “Enlightenment” view.  The point is “that a “secular” version of government that has a healthy and robust freedom of religion can exist in a highly religious community.”[16]

 The Individual

The individual is the primary concern of liberalism.  The individual is the basis of society.  Liberal thinkers such as Michael Sandel use the term, ‘the unencumbered self’ to describe the individual:

 rights-based liberalism begins with the claim we are separate, individual persons, each with our own aims, interests and conceptions of the good, and seeks a framework of rights that will enable us to realize our capacity as free moral agents, consistent with a similar liberty for others…  The priority of the self over its ends means I am never defined by my aims and attachments, but always capable of standing back to survey and assess and possibly to revise them.  This is what it means to be a free and independent self, capable of choice.[17]

Liberalism sees the individual person “as worthy as any other, that each must be treated with equal concern according to some coherent conception of what that means.”[18]

The individual must be free to make up his or her own mind about what constitutes the good life.  It is not acceptable for liberalism that individual freedom be taken away if there is no harm to another – as was postulated by John Stuart Mill.[19]  Increasingly liberal thinkers are not only demanding the state not interfere with individual choice but current thought is also arguing that civil institutions such as churches not interfere with the individual choice – even if those individuals are volunteer members of such organizations.[20]

 The State

The liberal envisions a state that is neutral on the issue of what constitutes the good life.  Such matters are for the individual not the state.  Ronald Dworkin says:

government must be neutral on what might be called the question of the good life…political decisions must be, so far as is possible, independent of any particular conception of the good life, or of what gives value to life.  Since the citizens of a society differ in their conceptions, the government does not treat them as equals if it prefers one conception to another, either because the officials believe that one is intrinsically superior, or because one is held by the more numerous or more powerful group.[21]

The state has no role when it comes to religion – it does not favour one religion over another nor does it promote religion.  Liberalism sees itself “as a procedural theory – a mechanism or process for doing justice among individuals with differing conceptions of the good – rather than as a substantive conception of the good in its own right.”[22]

 The Problem of Religion in Liberal Theory

“The learned have their superstitions, prominent among them a belief that superstition is evaporating,” noted Garry Wills, “Since science has explained the world in secular terms, there is no more need for religion, which will wither away.”[23]  The problem, of course, is the fact that religion has not withered away.  Religion is seen as the negation of the liberal rationalistic goal – the antagonist to the liberal quest.  Lucinda Peach argues that there are at least four reasons why religious influence in public policy (she calls “religious lawmaking”) is problematic:  the character of law; the character of religion; the effect of the interaction of law and religion in a morally and religiously pluralistic polity; and interaction of law and religion in a gender-biased society.[24]

 The Character of Law

“Because of the coercive character of the law itself, religious influences on lawmaking carry special risks of being coercive that are not evident in the context of religious influences on other aspects of public life.”[25]

“Laws that are based on or influenced by religious considerations,” Peach argues, “carry the potential for alienating and coercing citizens who do not subscribe to the religious beliefs that underlie them and thus risk fostering political divisiveness among citizens of different religious (or nonreligious) affiliations.”[26]

If a person is unable to access the reasons behind the coercive legislation, because they are not familiar with the religious understanding that undergirds such legislation, they are not capable of participating in the public discussions regarding its imposition.  The law would have no efficacy or legitimacy in such a situation.

The Character of Religion


 Public Inaccessibility of Religious Beliefs

Religion is a metanarrative that seeks to explain the deep issues of human existence – meaning of life; the purpose of creation, life, and death; the understandings of nature; how one ought to live life personally and in relationship to others.  Most claim to have the “truth” leading to a sense amongst its followers that their faith perspective is binding and authoritative.  “Adherence to the teachings of their faith,” Peach notes, “may take precedence over a commitment to democratic values, including a respect for religious pluralism or the constitutional rights of others.”[27]  A written text or the sayings of a spiritual leader may be accessible to the follower but not to the general public.

Some faiths may have no “reference points” by which the outsiders may be able to assess their beliefs’ validity.  Without a common ground there is an inability to converse.  For this reason, it will be remembered that John Rawls argued for “public reason” to which all would have access.  Peach points out, “Even if as a matter of epistemology, religious beliefs ultimately are not any less publicly accessible than secular beliefs, as a symbolic matter religious beliefs are more likely to be perceived to be inaccessible by nonbelievers and disbelievers than are secular ones.”[28]

Peach claims that when religion is taken seriously, its followers “lend themselves to zealousness, intolerance, and even persecution of those with different views or practices, as history has amply demonstrated.”[29]  Thus, in her view, religion leads to the coercion, conflict and political divisiveness.

 Gender Bias in Traditional Religion

Peach notes that most religions have gender bias and discriminate against women.  They see women as inferior to men.  They limit women’s control over sexuality, reproduction, marital choices, property ownership, and access to social resources.  “These characteristics of traditional religions,” she writes, “make their influence on law likely to perpetuate the oppression and secondary status of women in society.  This result is both morally and constitutionally problematic.”[30]

 Interaction of Law and Religion in a Gender-Biased Society

For Peach the gender bias against women was used in past court decisions to prevent women from voting and that divine origin required the woman to be in the home bearing and raising children.  “Because women have been excluded from participation in the formulation of religious beliefs and practices in most traditional and institutional religions,” she argues, “it is likely that laws based on beliefs and values rooted in religious traditions will fail to incorporate women’s self-determined interests.”[31]

 Interaction of Law and Religion in a Morally and Religiously Pluralistic Society

Peach writes in the American context but her discussion on this point is equally applicable to Canada – perhaps more so.  While America is primarily made up of those of the Christian faith, as is Canada, there is a significant amount of diversity.  Such diversity has meant that there is a wide range of views on the major social issues – there is no “moral agreement or religious consensus.”[32]

She sums up her argument:

The reality of religious pluralism in America makes laws based on or influenced by religious convictions (which are likely to be those of a majoritarian church) inevitably in tension if not outright conflict with the views of at least some nonbelievers and disbelievers.  Permitting religious views to influence lawmaking in a context of religious pluralism enhances the effect of government giving official sanction to certain religious convictions at the expense of others.  At a minimum, nonrepresented groups are bound to feel resentful.  In extreme situations, they may be angered enough to rebel.[33]

 The Liberal Solution:  Keep Religion Private

Recognizing that civil peace is contingent on providing religious freedom, traditional liberal thought placed religion in the private sphere.  Public policy simply could not be held captive to religious argument because such argument could only be understood by the religious.  Efficacious arguments must be legitimate in the eyes of the reasonable public.  They cannot be shrouded in mystery.  This section will review the argument of keeping religion private and then discuss the recent criticism of the position.

 John Rawls

John Rawls, by far the most influential person in recent times to have advocated this position, maintains that in a liberal society appeals to a “comprehensive view” whether religious, philosophical, or moral, cannot be used for the interpretation of the political relationship – that of the state and the individual.  “Citizens realize that they cannot reach agreement or even approach mutual understanding on the basis of their irreconcilable comprehensive doctrines.”[34]

Rawls argues for the use of “public reason” to solve the dilemma of how citizens communicate their political ideas.  Public reason is “the basic moral and political values that are to determine a constitutional democratic government’s relation to its citizens and their relation to one another.”[35]  It specifically applies to those actors in the “public forum” – the judiciary; the government officials – especially the chief executives and legislators; and to those candidates running for public office.  It is the reasoning of free and equal citizens concerning the issues of fundamental political justice.

The ideal of public reason is obtained when the public actors “act from and follow the idea of public reason and explain to other citizens their reasons for supporting fundamental political positions in terms of the political conception of justice they regard as the most reasonable.”[36]

Rawls allows for an ‘overlapping consensus’ of political beliefs among those with different comprehensive views.  There is naturally some common ground between religious, moral, and political views that is to be expected, however their justification is not to be based on those views but rather on views:

presently accepted general beliefs and forms of reasoning found in common sense, and the methods and conclusions of science when these are not controversial….  As far as possible, the knowledge and ways of reasoning that ground our affirming the principles of justice…are to rest on the plain truths now widely accepted, or available, to citizens generally.[37]

The reformulation of liberalism to “political liberalism” by Rawls generated a significant amount of criticism – especially the idea of eliminating those with “comprehensive views” from being involved in the political debate.  Later Rawls revised his thinking somewhat to allow “comprehensive views” some involvement in the public discussions of political ideas – however he made a proviso that such participation was on the understanding that they present a ‘secular’ reason for the position they take:

 reasonable comprehensive doctrines, religious or nonreligious, may be introduced in public political discussion at any time, provided that in due course proper political reasons – and not reasons given solely by comprehensive – are presented that are sufficient to support whatever the comprehensive doctrines introduced are said to support.[38]

So, for example, the Rawls compromise has been labeled by some as an “inclusive” view.[39]  It is very similar to that of Greenawalt,[40] and Audi,[41] who see the exclusive position of silencing religious advocates in the public square as discriminatory and counter-productive.[42]  However, it can be seen that the inclusiveness has a limit – no such limit is required of the rational arguments.  As will be discussed below it still leads to a coercive state imposing its own view of the good life.

Greenawalt argues that “citizens of extremely diverse religious views can build principles of political order and social justice that do not depend on particular religious beliefs.”[43]  Thus the religious arguments are exposed to the policy makers, the politicians, and judges but they are not relied upon for the decisions made – the non-religious or secular arguments would still be conclusive.

On the other hand, others maintain that the only way to protect modern liberal democracy from the destabilizing forces of religious conflict is to secularize politics and privatize religion – “keeping religion out of politics and politics out of religion.”[44]  As a result religiously based arguments, while permitted, are not an acceptable basis for public policy. Religion is thus removed from the public sphere – it has no place – only “secular,” “common,” “reasonable,” arguments can be made. It would be bad taste, according to Richard Rorty, “to bring religion into discussions of public policy.”[45]  “We shall not be able to keep a democratic political community going,” he argues, “unless the religious believers remain willing to trade privatization for a guarantee of religious liberty.”[46]

 The Religious Problem with Liberalism

As noted above, the liberal quest’s focus is on the rational argument, the individual and the state.  The religious argument counters the liberal position noting that the rational argument is important but insufficient – ideas of tradition and virtue also need to be discussed; as opposed to making the individual the centre of attention, religion argues that the individual has a responsibility to the community; and finally the state is not neutral it has been taking sides all along – what is needed is the ability for all positions to have an opportunity for dialogue.

 The Transcendent Realities of Tradition and Virtue

The liberal quest is indeed laudable.  Finding a means to bring about a relationship between the state and the individual that maximizes self-realization in civil peace is a superior concept.  However to limit that quest by means solely of rational arguments is the fundamental breaking off point of liberalism and religion. It fails to give credence to the most basic understandings of the religious as to whom they are – it infringes on and even violates their sense of identity.[47]  Daniel Conkle notes that “religious beliefs, by their very nature, form a central part of a person’s belief structure, his inner self.  They define a person’s very being – his sense of who he is, why he exists, and how he should relate to the world around him.”[48]

Further, it behoves liberal democracies to maintain a humble spirit of what is considered correct and true for the common good.  The relationship between the state and the individual cannot be confined solely to what is measurable or rational.  The sense of virtue will always be subject to transcendent understanding beyond the ballot box.  Majority opinion, in and of itself, can never be taken by the individual as the basis of determining virtue, simply because “the substance of what the majority propose is often less important than the fact that it is supported by a majority.”[49]

Virtue is not the sole domain of the rational.  One only has to consider the work of Martin Luther King, Jr. who credited his religious faith for his stand on civil rights.  His religious conviction was not held in check because of its failure to meet the requirements of public reason.  In the 1965 march from Selma to Alabama he exclaimed:  “Let us march on ballot boxes, until we send our city councils, state legislatures, and the United States Congress men who will not fear to do justice, love mercy, and walk humbly with their God.”[50]

Michael Perry notes that most people are religious in that they see life as being meaningful.  Religion is a “a vision of final and radical reconciliation, a set of beliefs about how one is or can be bound or connected to the world – to the ‘other’ and to ‘nature’ – and, above all, to Ultimate Reality in a profoundly intimate and ultimately meaningful way.”[51]

 The Individual’s Right of Expression

As noted by others, religion is not against liberal ideas of representative democracy, individual rights or the right to be left alone to pursue one’s own conception of the good life.[52]  In truth, religion probably would not have survived the tumultuous centuries since the Reformation if it were not for the political liberal ideas of toleration and the protections of individual conscience.  It will be remembered that such ideas were the result of the Protestant theology that advocated the freedom of conscience for the individual and equality rights of all believers against the state church.  God did not force conscience.

Eliminating the expression of deeply held concepts of transcendent understanding during the discussion of public policy does not do the citizen justice.  The citizen is torn between maintaining a “private religiosity alongside a public secularity, and it is hard to believe that this kind of religious schizophrenia can be maintained indefinitely.”[53]

It is argued that the religious individual ought to be given the same right of freedom to express his or her views on political morality as is afforded those who are non-religious. After all should the source of an idea change the value of the idea?  It is only then that those arguments can be tested under public scrutiny and at the same time, the mere expression of those ideas by the religious will educate the population on the specific religious understandings.  As Jeremy Waldron explains:

Even if people are exposed in argument to ideas over which they are bound to disagree – and how could any doctrine of public deliberation preclude that? – It does not follow that such exposure is pointless or oppressive.  For one thing, it is important for people to be acquainted with the views that others hold.  Even more important, however, is the possibility that my own view may be improved, in its subtlety and depth, by exposure to a religion or a metaphysics that I am initially inclined to reject… I mean to draw attention to an experience we all have had at one time or another, of having argued with someone whose world view was quite at odds with our own, and of having come away thinking, “I’m sure he’s wrong, and I can’t follow much of it, but, still it makes you think….”  The prospect of losing that sort of effect in public discourse is, frankly, frightening – terrifying, even, if we are to imagine it being replaced by a form of “deliberation” that, in the name of “fairness” or “reasonableness” (or worse still, “balance”) consists of bland appeals to harmless nostrums that are accepted with-out question on all sides.  This is to imagine open-ended public debate reduced to the formal trivia of American television networks.

… [This] might apply to any religious or other philosophically contentious intervention.  We do not have (and we should not have) so secure a notion of public consensus, or such stringent requirements of fairness in debate, as to exclude any view from having its effect in the marketplace of ideas.[54]

Throughout the history of this country religious people spoke out about matters that concerned them and effected public change. They freely participated in the public policy debates of the age – whether it was John Robson, of British Columbia, advocating Christian morals in the public school system, women’s suffrage, and reforms “for the moral and intellectual improvement of the people,”[55] Leonard Tilley, of New Brunswick, giving the title “Dominion of Canada” after reading Psalm 72 just before the fathers of Confederation deliberated in December 1866,[56] or Nellie McClung using her pulpit as a Methodist lay person speaking out against the subjugation of women in politics and one of the plaintiff’s in the famous “Person’s Case”.[57]  Even in more modern times Canada has had the benefit of such Christians as Tommy Douglas, a Baptist minister from Saskatchewan, who revolutionized Canadian healthcare.[58]

 The Not-So-Neutral State

Liberalism hides under the mantle of being a “neutral” philosophy – neither supporting nor prohibiting religious faith.  It claims only to be interested in the relationship between the state and the individual – never interested in the metaphysical claims of religious or non-religious people.  It sees itself simply as a procedural concept not a substantive concept.  One must question the accuracy of this assessment.

Joseph Raz points out that the religious view is a ‘rival’ view to the liberal pluralistic view of a modern liberal democracy.  However, though it may be inconsistent with liberalism, such views, he maintains, ought to be accepted for their ‘value’ “because it recognizes the value of ways of life which it (partly) disagrees with, pluralism is committed to a society in which conflicting ideologies and beliefs are accepted, and tolerated.”[59]

The reality, for the most part, is that when individuals express rationales based on religious principles they are informed that it is unacceptable. As Bonat noted,

 …it is not clear why a conception of the good based on religious conviction should be foreclosed while other conceptions of the good, based on “rational” foundations, should not.  The principle of state neutrality toward conceptions of the good as well as the rights of individuals to express their views, “rational” and non-“rational,” on public policy would seem to foreclose any such restriction.[60]

It appears paradoxical that liberal theory would proclaim its neutrality by stating that all discussions of the public good is permitted except for the one based on religion – or a “comprehensive view.” By doing so it is obvious that it is no longer neutral but, in fact biased.  Even “to the point that where they do violence to the fundamental liberal value of toleration (as well as to fairness and equality).  Secular arguments based on reason remain unchecked while faith-based arguments, as non-rational, are not tolerated.”[61]

The ultimate result is that the liberal state is no longer neutral but simply a coercive state that imposes its own view of what is good in its quest.  The state then becomes uncompromising with religion and friction is bound to take place.

Critics have noted that liberalism’s anti-religious bias has been used to cut off debate over controversial issues such as abortion and sexual equality.  Frederick Gedicks argues that the ‘public’ and ‘private’ labels are themselves subjective constructs “and socially contingent categories, rather than the attributes of a self-existent world.”  It is an exercise of power controlling the ways of naming and knowing:  “The confinement of religion to private life reflects the exercise of contingent power, not the disinterested discovery of essential meaning or self-existent reality.”[62]

Similar thoughts have been expressed by Stanley Fish.  Fish argues that modern liberal society pretends to have a neutral process to adjudicate between the different groups on the basis of a common ground.  The fact is, no common ground exists “and we don’t want to admit it doesn’t exist.”[63]  Toleration is a question of who is tolerating whom.  As Hunter Baker summarizes Fish:

 once the very first move of separating the civil from the religious has been made, ‘the claim of a religion to have precedence in every aspect of one’s life will seem prima facie absurd.’  The next move is to simply draw ‘a line around religion, supposedly to protect it from state interference, but actually to constrain its exercise in ways the state finds comfortable.’[64]

 “There is a very fine line,” says Fish, “and sometimes no line at all, between removing religion from the public battlefield and retiring it to the sidelines where it is displayed only on ceremonial occasions marked by the pomp and circumstance we often accord to something we have trivialized.”[65]  Fish states:

If you are looking to ground your beliefs and convictions in some norm or principle or rule of authority independent of them and independent, too, of the beliefs and convictions in some norm or principle or rule or authority independent of them and independent, too, of the beliefs and convictions of anyone else, you are bound to fail.[66]

From Fish’s point of view we carry with us baggage – our beliefs, intuitions, experiences, traditions and education – no “neutral authority is capable of proclaiming victories and defeats through appeal to abstract principle.”[67]  Cordoning off religion to the private sphere simply removes one orthodoxy from interacting with another including the secular.

The opposing views of the “religious” and the “secular” are simply that – opposing views.  Both views, says Fish, are very rational – they simply come from a different perspective – “…while two persons proceeding within opposing faiths might perform identical operations of logical entailment, they will end up in completely different places because it is from different (substantive) places that they began.”[68]  Of course, it is possible, that they could end up at the same place for differing reasons.

For Fish even the Constitution cannot be seen as authoritative since it must be interpreted and “in the process will fall prey to some partisan agenda.”[69]  In the end Fish argues, “The religious person should not seek an accommodation with liberalism; he should seek to rout it from the field, to extirpate it, root and branch.”[70]

It does not take too much imagination to see where Fish’s idea of “rout it from the field” might lead.  Obviously such a view would not bring about the desired result of the liberal quest.  If Fish is taken seriously his view would lead us right back to the wars immediately following the Reformation.

Conclusion:  The Conflict Exposed

Liberal political theory has provided Western democracies unprecedented individual freedom.  Religion, as we have seen, has been part of a political bargain where the locus of its autonomy was granted in the private sphere in exchange for its silence in public policy discussion. For the most part, it has been a relatively quiet co-existence of the sacred and the secular.

However, the fundamental limitation of that bargain (being the quieting of all religious viewpoints from the public conversation) becomes exposed when public policy strays into areas of religious practice.  As Roland Bainton points out religious freedom “has come to depend upon a diversion of interest.”[71]  As long as the religious concern is of a lesser importance than other issues of state – the liberal state will leave religions unhindered.  However the moment the religious issues become politically salient to the affairs of state one can always expect the liberal state to interfere in its own self-interest.

[1] Reference re Same-Sex Marriage [2004] 3 S.C.R. 698, at para. 22.

[2] Charles Taylor, A Secular Age (Belknap Press: Cambridge, 2007), p. 772.  Luther and Calvin’s “…Reformation has helped to produce, via another stage of “reform”, today’s secular world….”

[3] Rex Ahdar and Ian Leigh, Religious Freedom in the Liberal State (Oxford: OxfordUniv. Press, 2005), at 38.

[4] Charles Larmore, “Political Liberalism,” (1990) 18 Political Theory 339, 357 as quoted by Ahdar & Leigh, at 39.

[5] See John Rawls, Political Liberalism expanded edition (Columbia University Press: New York, 2005), 78, 145, 196-200.

[6] J. Gray, Liberalism, 2nd ed. (Buckingham, 1995), p. ix as quoted in Ahdar & Leigh, at 39:

Common to all variants of the liberal tradition is a definite conception, distinctly modern in character, of man and society.  What are the several elements of this conception?  It is individualistic, in that it asserts the moral primacy of the person against the claim on any social collectivity; egalitarian, inasmuch as it confers on all men the same moral status and denies the relevance to legal or political order of differences in moral worth among human beings; universalist, affirming the moral unity of the human species and according a secondary importance to specific historic associations and cultural forms; and meliorist in its affirmation of the corrigibility and improvability of all social institutions and political arrangements.  It is this conception of man and society which gives liberalism a definite identity which transcends its vast internal variety and complexity.

[7] Robert Sharpe, “New Ways of Thinking – Liberalism,” in F. McArdle (ed.) The Cambridge Lectures 1991 (Cowansville, 1991), ch. 24, 265-6, as noted by Adhur & Leigh at 40.  Freedom is the idea that the state’s role is to maximize the human dignity, self-fulfillment and autonomy while minimizing the interference with individual moral choice; neutrality – the state and law is to be neutral as to the conception of the good life.

[8] Ahdar & Leigh, at 40.  Rationalistic – favouring of reason over emotion.

[9] Immanuel Kant, “What is the Enlightenment?”, 145 as quoted by Conyers, at 174.

[10] Anthony Cook, “God-Talk in a Secular World,” (1994) 6 Yale J Law & Hum 435, 436, as quoted by Adhar & Leigh, at 41.

[11] Conyers, at 173.

[12] See for example Robert P. George, The Clash of Orthodoxies: Law, Religion, and Morality in Crisis (Wilmington: ISI Books, 2001), in discussing the “public reason” concept of Rawls states:

If Rawls is to successfully defend a conception of “public reason” narrow enough to exclude appeals to natural law theory, he must show that there is something unfair about such appeals.  And he must, of course, demonstrate that this unfairness without appeal to comprehensive liberalism or any other comprehensive conception of justice that competes with the natural law conception.  In other words, he must avoid smuggling into the defense of his claim that “only a political conception of justice…can serve as a basis of public reason and justification” principles or propositions that are themselves in dispute among adherents to reasonable comprehensive doctrines (including, of course, Catholicism and natural law theory).  This, it seems to me, he has not done and, I believe, cannot do.

[13] Pascal, Pensées (New York:  Penguin Books, 1983) at 85 as quoted by Conyers, at 185.

[14] Nicholas P. Miller, “Between Secularism and Religiosity:  America’s Founding Protestant Philosophy,” Fides et Libertas, 2011, p. 59.

[15] Miller, p. 60.

[16] Miller, p. 68.

[17] Michael Sandel (ed.), Liberalism and its Critics (New York, 1985) at 4-5, as quoted by Ahdar & Leigh, at 40.

[18] Ronald Dworkin, Law’s Empire (Cambridge, MA: Belknap Harvard, 1986), at 213.

[19] John Stuart Mill, Three Essays: On Liberty, Representative Government, The Subjection of Women (Oxford: Oxford University Press, 1975) at 69:  “The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people.”

[20] Ahdar & Leigh, at 51.

[21] Ronald Dworkin, “Liberalism,” in S. Hampshire (ed.), Public and Private Morality (Cambridge, 1977), ch. 6, 127, as quoted by Ahdar & Leigh, at 42.

[22] Ahdar & Leigh, at 43.

[23] Garry Wills, Under God:  Religion and American Politics (New York:  Simon & Schuster, 1990), at 15.

[24] Lucinda Peach, Legislating Morality:  Pluralism and Religious Identity in Lawmaking (Oxford:  Oxford University Press, 2002), see 16-36.

[25] Lucinda Peach, at 16.

[26] Peach, at 7.

[27] Peach, at 18.

[28] Peach, at 18.

[29] Peach, at 19.

[30] Peach, at 20.

[31] Peach, at 25.

[32] Peach, at 26.

[33] Peach, at 27.

[34] John Rawls, “The Idea of Public Reason Revisited,” (Summer 1997) 64 U. Chi. L. Rev. 765 at 766.

[35] Rawls, “The Idea of Public Reason Revisited,” at  766.

[36] Rawls, “The Idea of Public Reason Revisited,” at 769.

[37] Rawls, Political Liberalism, p. 224-5, as quoted by Ahdar & Leigh, at 48.

[38] Rawls, “The Idea of Public Reason Revisited,” at 783-84.

[39] Jonathon Chaplin, “Beyond Liberal Restraint:  Defending Religiously Based Arguments in Law and Public Policy,” (2000) 33 U.B.C. Law Rev. 616.

[40] Kent Greenawalt, “Religious Convictions and Lawmaking” (1985) Michigan Law Review, Vol. 84 at 352; Religious Convictions and Political Choice (New York: Oxford University Press, 1988); “Religious Convictions and Political Choice: Some Further Thoughts” (1990) DePaul L. Rev. Vol. 39 at 1019; “The Role of Religion in a Liberal Democracy: Dilemmas and Possible Resolutions” (1993b) J Church State Vol. 35 at 503; Private Consciences and Public Reasons (New York: Oxford University Press, 1995); “1996 Siebenthaler Lecture:  Religious Liberty and Democratic Politics” (1996a) N Ky L. Rev. Vol. 23 at 629; “Religious Expression in the Public Square – The Building Blocks for an Intermediate Position” (1996b) Loy. L.A. L. Rev. Vol. 29 at 1411.

[41] R. Audi, N. Wolterstorff, Religion in the Public Square:  The Place of Religious Convictions in Political Debate (Lanham:  Rowman & Littlefield, 1997); Robert Audi, “The Separation of Church and State and the Obligations of Citizenship,” Philosophy and Public Affairs, Vol. 18 (1989), pp. 259-308; “Religion and the Ethics of Political Participation,” Ethics, Vol. 100 (1990), pp. 386-97; “The Place of Religious Argument in a Free and Democratic Society,” San Diego Law Review, Vol. 30 (1993), pp. 677-702.

[42] Chaplin at 616.

[43] Greenawalt (1993b: 513) as quoted by Peach, at 98.

[44] Chaplin at 626.

[45] R. Rorty, Philosophy and Social Hope (London:  Penguin, 2000) at 169.

[46] R. Rorty, at 170.

[47] Peach, at 33.

[48] Daniel Conkle, “Toward a General Theory of the Establishment Clause” Nw. U. L. Rev. (1988) 82: 1113 at 1165 as quoted by Peach at 33.

[49] Samuel Gregg, On Ordered Liberty: A Treatise on the Free Society (Oxford: Lexington Books, 2003) at 92.

[50] Martin Luther King, Jr., “Our God is Marching On,” in James M. Washington ed., A Testament of Hope:  The Essential Writings and Speeches of Martin Luther King, Jr. (1986), at 229 as quoted in Bonat, at 413.

[51] Michael Perry, Love and Power:  The Role of Religion and Morality in American Politics (New York:  Oxford University Press, 1991), at 75, as quoted by Peach, at 122.

[52] Christian M.L. Bonat, “Your Reason Isn’t Reasonable:  An Analysis of the Legitimacy of Faith-Based Arguments in the Public Debate” (2003) 1 Geo. J.L. & Pub. Pol’y 403 at 407.

[53] Daniel Conkle, “Different Religions, Different Politics: Evaluating the Role of Competing Religious Traditions in American Politics and Law” (1993) J.L. & Relig. 10:1 at 31 as quoted by Peach at 34.

[54] Jeremy Waldron, “Religious Contributions in Public Deliberation” (1993) 30 San Diego L. Rev. 817 at 841-42, as quoted by Michael Perry, “The Religious Voice In The Public Square: Religious Arguments in Public Political Debate” (1996) 29 Loy. L.A. L. Rev. 1421 at 1436-7.

[55] Bob Burkinshaw, “Honest John:  John Robson,” from Michael D. Clarke, Editor, Canada:  Portraits of Faith (Chilliwack, B.C.: Reel to Real, 1998) at p. 53.

[56] Michael Clarke, “He Shall Have Dominion:  Leonard Tilley,” from Michael D. Clarke, Editor, Canada:  Portraits of Faith (Chilliwack, B.C.: Reel to Real, 1998) at 61.

[57] Randi Warne, “Using Literature as a Pulpit:  Nellie McClung,” from Michael D. Clarke, Editor, Canada:  Portraits of Faith (Chilliwack, B.C.: Reel to Real, 1998) at 95.

[58] Thomas H. McLeod and Ian McLeod, Tommy Douglas:  The Road to Jerusalem (Edmonton: Hurtig, 1987).

[59] Joseph Raz, Ethics in the Public Domain (Oxford, 1994), at 152, as quoted by Ahdar and Leigh, at 44.

[60] Bonat, at 408.

[61] Bonat, at 413.

[62] Frederick Gedicks, “Public Life and Hostility to Religion” (1992) 78 Virg L Rev 617 at 681 as quoted by Ahdar & Leigh, at 51.

[63] Hunter Baker, at 105.

[64] Hunter Baker, at 105.

[65]Stanley Fish, “Mission Impossible:  Settling the Just Bounds Between Church and State,” 97 Colum. L. Rev. 2258 (Dec. 1997), at 2269.  As quoted in Hunter Baker, at 105.

[66] Stanley Fish, “A Reply to Judd Owen,” 93 Am. Political Sci. Rev. 925 (Dec. 1999) at 926.  As quoted in Hunter Baker, at 107.

[67] Hunter Baker, at 107.

[68] Stanley Fish, “Stanley Fish replies to Richard John Neuhaus,” First Things, February 1996, at 35.

[69] Hunter Baker, “Competing Orthodoxies In The Public Square:  Postmodernism’s Effect On Church-state Separation,” (2004-2005) J. of Law and Rel. XX:1, 97 at 108.

[70] Stanley Fish, “Why We Can’t All Just Get Along,”  First Things, February 1996, at 21.

[71] Roland H. Bainton, The Travail of Religious Liberty (New York:  Harper, 1958) at 15.

Thoughts on Liberal Democracy and Religion

  1. Radi Manfried

    Dear Sir/Madam
    Regarding your institutional interest, I would like to introduce a new book which gives an innovative empirical insight to the relationship between religion and democracy. “Religion, Religiosity, and Democratic Values” sets out to investigate the relationship between religion, specifically Islam, and attitudes towards a free market economy and civil society organizations as non-political foundations of democracy. To achieve a comprehensive understanding of this topic, the effects of both individual religiosity as well as religious context have been taken into account, using multilevel analysis. The contextual effect of religion was compared in 60 societies around the globe with different historical religious traditions, namely predominantly Islamic, predominantly Christian, and finally predominantly Buddhist, Hindu, and folk-religion societies. Furthermore, in addition to the comparison of Sunni and Shia countries, the impact of socioeconomic development and of a democratic political system was gauged along with other macro-level factors.
    You can find this book here:
    and here:,+Religiosity,+and+Democratic+Values&source=bl&ots=3pWmTeOQkj&sig=2PhaQ80MnBgxyo7DI2WkPvVUv2E&hl=en&sa=X&ved=0CDoQ6AEwBGoVChMI0s-zjcr3xwIVx5YsCh1B2QgH#v=onepage&q=Religion, Religiosity, and Democratic Values&f=false

    Best whishes

    1. ccccBarry W. Bussey Post author

      Radi – thanks for sharing your resource to us and our readers of this blog. It does sound like a tremendous contribution to our ongoing discussion of religion and its role in democratic societies.

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