Democratic legitimacy, legal expressivism, and religious establishment

I argue that some instances of constitutional religious establishment can be consistent with an expressivist interpretation of democratic legitimacy. Whether official religious endorsements disparage or exclude religious minorities depends on a number of contextual considerations, including the philosophical content of the religion in question, the attitudes of the majority, and the underlying purpose of the official status of the religious doctrine. Keywords: legitimacyreligiondemocracyexpressivism Acknowledgements An earlier version of this paper was presented at Tulane University during my tenure as a fellow at the Center for Ethics and Public Affairs in 2010–2011. I am grateful to the audience members on that occasion for their remarks and to the Center itself for providing a wonderful research environment. I am also grateful to Shaun Bockert, Emanuela Ceva, Andrew Garland and Enzo Rossi for their written comments on an earlier draft. Notes 1. I take up the formulation and defence of a principle of secular public justification in a separate project. A third question, in addition to the problems of political legitimacy and public justification, concerns whether the ethics of democratic citizenship precludes essentially religious argumentation in public deliberation. 2. It follows that the right to rule is a complex instance of the right to do wrong (Waldron Citation1981). I defend this claim in a separate project, and simply acknowledge here that it is not uncontroversial. 3. Although it is implausible that citizens have a very strong duty to obey every legitimate law, there are clearly some strong moral duties correlative to the right to rule. If the general staff of the military forces refused to allow a democratically elected politician to be inaugurated as president, they would violate a moral duty they owe to both her and to the electorate. The president-elect has acquired a right to take office, and this right includes a strong moral claim against others that they not prevent her from doing so. 4. I have criticised Rawls's liberal principle in May (Citation2009). For another substantive theory of legitimacy that includes reciprocity as a core democratic value, in addition to equality and political autonomy, see Brettschneider (Citation2007). 5. A more permissive Establishment Clause test finds expression in Lee v. Weisman, a 1992 case concerning the constitutionality of a religious invocation and benediction at a public high school graduation ceremony. Writing for the majority, Justice Anthony Kennedy found that the school in effect compelled participation in a religious exercise (Lee v. Weisman [Citation1992], 594–596, 598). What matters for Kennedy's coercion test is not whether the state places its imprimatur on religion, but whether public officials exploit the intimidating power of the state to proselytise. 6. Nussbaum (Citation2008) also accepts the argument from disparagement. She claims that Christian establishment would degrade non-Christians (p. 92) and that the public display of the Ten Commandments denigrates Hindus, Buddhists, and other non-monotheists (p. 269). 7. Eisgruber and Sager (Citation2007) also accept the argument from exclusion (pp. 122–123). They write that public endorsements of religion contain a 'message of exclusion' (p. 156) and define minorities as outsiders (pp. 126, 130, 163). 8. In a separate work, Nussbaum (2000, pp. 210–211) claims that it is a 'contingent contextual question' whether the various important capabilities of citizens are best protected through a secular state or 'a regime of limited establishment with sufficient safeguards for citizen equality and free exercise.' I endorse a similar contextual approach to the evaluation of the legitimacy of religious establishment, so it may seem as if I am arguing against the wrong target. Such an objection would be misplaced, however. First, my concern in this paper is simply with the implications of the arguments from disparagement and exclusion, and not with the overall views of any particular theorist as such. Second, Nussbaum's claim is that religious establishment may be better than the only available secular alternatives, if these would violate the equality of religious minorities in more egregious ways. For instance, she claims that India's 'limited plural establishment' forestalls a threat to the religious liberty and equality of Muslim citizens, and that 'total nonestablishment would be de facto a type of Hindu establishment' (pp. 211, also pp. 214–230). There is no claim here that the constitutional establishment of a majority religion could be just as legitimate as an entirely innocuous secular regime. 9. Anderson and Pildes (2000, pp. 1565–1570) reject the conflation of expressive meaning with linguistic meaning present in Matthew Adler's critique of expressivism (Adler Citation2000). Actions can clearly express attitudes without the agent having any intention to communicate these attitudes. 10. My account here departs somewhat from the account of collective attitudes presented by Anderson and Pildes. They claim that a group has a mental state if and only if its members are jointly committed to expressing that mental state as a body (Anderson and Pildes Citation2000, p. 1517). As Simon Blackburn observes, however, this stipulation is in tension with the claim that agents need not be consciously aware of the attitudes they express (Blackburn Citation2001, pp. 474–476). 11. This example draws on one I have advanced in May (Citation2009). 12. In some cases, a moral norm may even be mixed. The religion might assert that all people should help the poor, but that this is especially incumbent upon followers of the true faith.