Compatible with Liberal Democracy?
Marc D. Stern
The word democracy means only that the people rule. Other than,
perhaps, requiring freedom of speech and equal access to the ballot, indispensable
requirements of self-rule, the notion of democracy sets no limits on what the people may
do in their sovereign capacity.
Our constitutional tradition is not one of pure democracy. The
Constitution imposes limitsnotably in the Bill of Rights, but not only thereon
what democratic government may decide. More generally, the broad American political
tradition, viewed over the perspective of more than 200 years, imposes other,
non-constitutional, limits on what government may regulate.
In this, the United States is not unique. All liberal constitutional
democracies impose restrictions on what private activity government may and should
regulate, including, of course, religious behavior, and what values it may assimilate, and
enforce, as its own.
There are several broad generalizations that can be made about the role
and place of religion in liberal democracies. First, in a liberal democracy, citizenship
is not dependent on adherence to an official religion or even a state approved religion.
Religion, therefore, is not a constitutive element of citizenship.
This principle is today accepted universally in the Western world.
Equally well accepted is that in a liberal democracy the government may not penalize
citizens (or more correctly, if less succinctly, persons within the jurisdiction) because
they profess a faith that is not shared by a majority of their fellow citizens. It is also
settled that in a liberal democracy citizens enjoy the freedom to express their religious
views, and to form institutions consistent with those views, without fear of punishment or
It is likewise universally accepted that liberal democracies cannot
compel the doing of religious acts or attendance at worship services, although there is
less than full agreement over the extent of this principle as it applies to children in
state-run schools. Whether the state can compel participation in some form of prayer
services, and, even if not, what constitutes coercion to participate in religious
activities, are sharply disputed questions.
Liberal democratic theory assumes the importance of a sharp demarcation
between state and the private sector, although this is probably more important in the
United States constitutional tradition than elsewhere. This demarcation
distinguishes the liberal democracy from fascism or totalitarianism. This division of
society into governmental and non-governmental sectorsin American constitutional law
known as the problem of state actionmeans that citizens are permitted to order their
own values and act in ways that government may not.
The point is not merely the technical one that private activities are
not subject to the restraints of the Constitution. It means that, either as a matter of
law or political tradition, much private activity is shielded from public scrutiny or
regulation. This principle suggests, among other things, that citizens action in a
non-governmental capacity may create communities in which religion is the constitutive
element, and which are in every way permeated by religious values, even as government is
barred from creating such communities.
There is, however, a further complication, one which limits the scope
of this protection of the private sector. Liberal democracies generally mandate equal
treatment of citizens even in purely private economic and social activities. Broad,
enforceable prohibitions on racial, religious, and sexual discrimination by private actors
who serve as gatekeepers to important economic benefits are universal features of liberal
It is assumedquite soundlythat substantial inequalities of
social and economic opportunity are fundamentally inconsistent with a society where
individual decision-makers are regarded as having equal worth, a principle undergirding
liberal democracy. Not only is the reality of equal worth important, but a citizens
self perception of equal worth is also essential to the well being of a liberal democratic
society. Without it, individual autonomythe sense of self essential to informed
decision-making by the citizenrycannot exist.
Liberal democracies also assume that citizens should not be lightly
prevented from practicing their faith and that the government ought not to interfere with
the religious decisions of citizens or their institutions. This last principle is not
always observed, at least as a matter of enforceable legal principle. In the United States
the principle means only that the government may not single out religious practices for
regulation. In the name of equal treatment of religious and nonreligious citizens, the
courts have increasingly refused to recognize a special right to exemption from ostensibly
neutral government regulation for religious practice, even though the constitutional text
surely sounds as if one were intended. However, the principle still enjoys wide, but, I
think, rapidly diminishing, popular political support.
Curiously, many civil libertarians who usually pride themselves on the
broadest possible reading of the Bill of Rights, insist on a narrow reading of its
provisions regarding religious liberty. They fear that protecting religious liberty will
allow religion, and religious people, to be above the law. Part of what is at work is a
notion of equal treatment trumping liberty. Equal treatment is seen as more important than
individual liberty, liberty requiring unequal treatment. But also at work is the notion
that government should take no notice of religion, for religion should be a private matter
with no public implications.
The insistence on religious equality both in governmental
activitiesand in the age of the regulatory and welfare state, government occupies a
far larger sphere than it did when the Constitution was writtenand in the larger
society suggests real limitations on religious liberty. On the one hand, liberal democracy
assumes freedom of religion; on the other, it assumes restrictions on that freedom, not
because a particular religious practice is too dangerous to tolerate (all agree
religiously motivated child sacrifice can be banned), but because the very success of free
religion is seen as antithetical to liberal democracy. It is from this perception that the
frequently heard view that religion is a purely private affair stemsa view heard
frequently from liberals, but from libertarian conservatives as well.
The more or less universal acceptance of the liberal democratic
attitude towards religion in the Western world has in historical terms come in
astoundingly short time. Little more than 200 years ago, these ideas were accepted
principally in some parts of the United States and Hollandand some of the states
(including Connecticut) did not accept all of these principles until well into the 19th
In Europe, these developments came still later and not without
substantial resistance by a variety of religious and political forces. The newly formed
democracies of Eastern Europe even today are struggling with the question of the extent to
which the national church should have a constitutive role in public life. The debate is
made more difficult because the "national" church is often the only institution
to have survived communism relatively intact.
The breadth of the achievement is quite stunning. It has contributed
substantially to the well being of both individuals and the churches, although it must be
acknowledged that the latter have not always been quick to acknowledge it.
It is important to bear in mind how new the consensus about the role of
religion in a liberal democracy is, because the relative newness of the idea should serve
as a caution against insisting with puritanical rigidity on an ideal model of liberal
democracy, one that risks alienating the many citizens who are deeply religious and who
would be inclined to abandon the project altogether if it were in irreconcilable conflict
with their religious commitments. But we must be equally certain not to overestimate the
resilience of liberal democracy, and to think that small, incremental departures from
principle will not cumulatively harm the public weal.
As I have noted, many have concluded that in a liberal democracy
religion is a purely private affair. Persons are, and should be, free to believe and
practice what they please, the argument goes, but as the price of that liberty, they may
not make religion a public affair, whether public encompasses the government or large
social institutions. Surely, public in this context means that the government may not
involve itself in religion, or alter its practices and policies to advance religious
interests. But the idea that religion should be privatized often means, as well,
restrictions on religion in various other non-governmental settings.
The emphasis on individual, not social or communal religion, fits well
with the general individualistic themes of contemporary democratic theory and, more
broadly, American life. It also is compatible with a long-standing trend in American
religious life, which is to emphasize individual over institutional religion.
As a legal matter, the Supreme Court has rejected the most extreme
forms of the no-public-role-for-religion position. It recognizes a right to
associateand, more importantly, to refuse to associatealong religious lines.
For better or worse, however, when push comes to shove, the right is not often vindicated.
The Supreme Court has also made it clear that as a legal matter
religious leaders and institutions have the right to participate fully in political
activities. It judges that such participation is not likely to undermine the
constitutionally required separation of church and state. Moreover, a ban on political
speech by religious institutions would be difficult to square with the secular value of
freedom of speech.
This theoretical liberty is, however, limited by a practical reality.
Congress has denied tax exemption to religious and other not-for-profit institutions that
endorse or oppose candidates for election to office, a restriction that as a practical
matter has minimized open religious involvement in political campaigns. Without tax exempt
status, most religious groups cannot survive, and thus most are forced to either limit or
disguise their direct political involvement.
The United States has no tradition of political parties organized along
religious lines, although religion has played a pivotal role in several great social
struggles. Those include slavery, equal rights for women, temperance, labor, civil rights,
as well as abortion and gay rights. Alexander Hamilton once suggested creation of a
religious party for purposes of thwarting Jeffersonian democracy, and the Know-Nothing
Party of the mid-19th century came close. We certainly have had nothing resembling
European Christian Democratic parties or the religious (and anti-religious) parties in
Israel. This non-tradition, too, has minimized the extent of religious involvement in
partisan electoral politics.
The debate over whether religion has any "public" role in a
liberal democracy is not limited to the question of electoral and legislative involvements
by religious groups. Consider the following examples, most from the United States, but
some from elsewhere. Note that some few involve government; many do not.
A town in Missouri refused to lease school buildings for privately
sponsored social dancing, in recognition of religiously based community sentiment that
regarded social dancing as immoral.
States refuse to fund abortion because many citizens object to being
taxed to fund a procedure they consider (as a matter of religious teaching) murder.
The Boy Scouts insist that every scout assert a belief in God. The
Scouts also reject homosexual scoutmasters because their acceptance would be inconsistent
with traditional morality. Both policies have been repeatedly challenged as violations of
civil rights laws.
Yale Law School refuses to allow the Christian Legal Society to
recruit on campus because it discriminates in its hiring, hiring only believing
Christians. Yale also refused to accommodate Orthodox Jewish students who seek an
exemption from a requirement that they live in a coed dorm, which they claim violates
their faith. It readily accommodates the dietary and Sabbath observance requirements of
France and Turkey refuse to allow Muslim girls to attend public
schools (or appear in public) wearing religiously mandated scarves, defending their
decision on grounds of preserving a secular society.
In Israel, daylight savings time ended somewhat earlier than usual in
order to facilitate the practice of Sephardic Jews of reciting early morning penitential
prayers before the Jewish New Year. The change brought sharp criticism from secular Jews
complaining of religious coercion. One remarked that the change made it more difficult for
her to swim at the beach after work.
In a similar vein, religious and secular Jews fight over street
closings that make it more difficult for those wishing to drive on the Jewish Sabbath to
reach their destinations, but which promote a "Sabbath atmosphere" in
neighborhoods in which the overwhelming number of residents are Sabbath observers. In
commenting on these disputes, a retired Israeli judge insists that religion is purely a
private matter that should be allowed no public expression.
Private landlords in various states refuse to rent to unmarried
cohabiting couples, insisting that they should not be required to facilitate sin. Civil
rights and civil liberty organizations insist that when one enters the commercial
marketplace, he or she can no longer insist on observing religious precepts which
disadvantage anyone else. By and large, the courts have been receptive to these arguments,
which have created a furious reaction among more traditionally religious communities, who
object to being told that they must leave their religious beliefs behind in the economic
Georgetown University is in the middle of a battle between students
who support the hanging of crucifixes in each classroom, and (priest!) administrators who
oppose such displays because they will discourage recruitment of non-Catholic faculty and
Some of these cases involve governmental decision making based on
religion. None of the cases involves coercing anyone to abandon his or her own faith and
none involves coercion by government or anyone else to perform a religious act. Some,
indeed, involve coercing religious people with conservative views to abandon their
Take the housing discrimination cases. The cohabiting couple remains
free to cohabit. Alternative housing will generally be available in the same town. The Boy
Scout oath requirement denies a conscientious atheist access to the Scouts, but that
hardly denies access to an opportunity without which one cannot succeed in life.
Yale willingly accommodates private religious observance. What it is
not willing to accommodate is communal religion, religion that departs from the principle
of non-discrimination and that allows the creation of separate religious communities.
Allowing the Christian Legal Society to recruit only Christians would be an acknowledgment
that essential differences between believers and nonbelievers justifies discrimination in
access to economic benefits. Nobody would require the NAACP Legal Defense and Education
Fund to hire lawyers opposed to affirmative action. Why cannot the Christian Legal Society
hire lawyers who share its religious views?
Allowing students to excuse themselves from coed dormitories on grounds
that they are a breeding ground for "immoral" behavior would imply again that
egalitarian principles are not acceptable to all and that there are some religious groups
that cannot or will not meet on common ground with fellow students, and that students who
hold such beliefs must be permitted to create their own religious communities.
Consider as well the scarf cases. It is hard to credit the fear that
the personal act of covering ones head from a sense of modesty threatens the
creation of a theocracy, even given the decidedly anti-clerical understanding of
church-state separation in France. In the case of France, certainly, anti-Moslem prejudice
cannot be excluded. Accommodating scarves would, however, threaten the notion (read
broadly) of religion as a purely private matter. And what are we to make of the Israeli
daylight savings case? Is it really true that religious forms of human activity cannot be
given any consideration by government?
I think something revealing is at work in these cases. It is the notion
that religion is purely a private affair that has no place in the larger public arena,
even where its appearance does not threaten any of the principles I outlined before as
essential to a liberal democracy. The people who advocate a private role for religion are
not necessarily bigoted. They do not necessarily sanction, and might well, and often do,
protest efforts to punish believers because of their beliefs. They may even be quite
religious themselves. Still, the forced confinement of religion to purely private and
intimate settings is inconsistent with liberal democracy, at least that much of it that
depends on the existence of a vibrant private sector where citizens are free to put into
practice their own vision of the good life. It does not follow that there should be no
limits on "public" religion.
Let me expand, first, on a controversy over the role of religion in
politics. The dispute is largely confined to academics, though it does surface from time
to time in public debate. Are citizens or legislators permitted to cast votes based on
religious beliefs? As to citizens at least, this is not a legal question, since citizens
are legally free to cast their votes for any reason they choose.
The question is whether there is a moral duty of citizenship in a
liberal democracy to act as a citizen without regard to ones religious beliefs.
Professor Bruce Ackerman thinks that such a duty exists. John Rawls thinks it exists at
least as to crucial constitutive decisions. Others are not so sure. After much hesitation,
Professor Michael Perry of Wake Forest University has now concluded that no such duty
exists. Professor Robert Audi, in an essay in a book entitled Religion in the Public
Square, has suggested that such a rule should apply only to coercive legislation, but
not otherwise. Professor Kent Greenawalt of Columbia Law School believes citizens should
make political decisions based on rational secular reasons, but that in those cases where
decisions involve ethical values not given to rational resolutionabortion or animal
rightsreligious reasons are as acceptable as any other ones.
I am plainly not going to resolve this dispute. There is much to be
said for a rule that requires citizens to at least try to carve out a secular space, not
too closely tied to particular religious views, in making decisions about how their
government should act. On the other hand, I am skeptical of rules that are wholly
unenforceable, even by individuals sitting in judgment on their own consciences. I know it
is impossible for the deeply religious person to ever be sure that his or her views on
some civic issue are unaffected by religious teachings. And I am not certain they should
be required to do so. But for present purposes, it is revealing that so many prominent
thinkers are prepared to exclude religion from having any impact on the community.
Consider again abortion. Many Catholics insist that the Churchs
opposition to abortion is not religious and is not based on revealed truth but on natural
reason. Some years ago, Ronald Dworkin wrote a book in which he claimed that no rational
person could believe the fetus was human and that therefore restrictive abortion laws were
necessarily religious, and hence unconstitutional. Who decides, with regard to the
proposed duty to use secular reasons only, who is right about whether a view is secular or
religious? At least on the American scene there is hardly a disputed church-state issue
that cannot be recast in arguably secular terms.
The question is not so easily avoided elsewhere. One can easily argue
that the debate in Israel over recognition of marriages not sanctioned by Jewish law can
have no secular justification. But that would be wrong, for a secular justification is
that recognizing civil marriage would inexorably lead to the birth of children who many
other citizens would regard (on religious grounds) as illegitimate and refuse to marry.
Can one not argue in secular terms that a nation has an interest in not encouraging the
birth of such children? This may or may not be a sufficient argument to justify the
restrictionand one could easily challenge the morality of a rule of religious law
that visits the sins of the parents on the childrenbut it is assuredly a secular
argument. In short, I think the arguments for a rule of secular citizenship would not
accomplish much, and it would come at the price of limiting the political autonomy of
citizens with particular religious views, itself of questionable validity in a democracy
where decisions flow from the people.
Matters are more complicated with regard to legislators. They are
plainly not just citizens but citizens who exercise governmental powers. May they exercise
those powers with religious motivations? Here the question is not only one of what should
be, but law. If it can be shown that a legislator (or a majority of legislators) acted out
of a religious motive, should the result be invalidated? My impression is that most
legislators make the attempt to legislate only for secular reasons, although the Alabama
legislature frequently tests my faith.
But what if they do not? The Supreme Court is of two minds on the
subject. On the one hand it has been reluctant, for reasons not peculiar to religion, to
question legislative motivation. On the other, it has said that where there is clear proof
of a religious motivation (or purpose-the Court is not clear which it means) it will
invalidate the resulting legislation. Justices Rehnquist and Scalia have written scathing
criticisms of this rule, but it remains the law. Justice OConnor has defended the
rule, pointing to the importance in a secular democracy of insisting that government act
only for secular reasons. Several considerations support that view.
Advocates of a private role for religion insist that for a liberal
democracy to function there must be the possibility of shared "political" and
social conversations. That is, discussions of public policies must be accessible to all.
An argument in a democracy about which of two flatly contradictory things God said cannot
be resolved. What God said cannot be debated in a meaningful way in a secular legislative
body or by a pluralistic community acting in corporate fashion.
Unless we are to allow ourselves to dissolve into separate faith
communities, held together by only God knows what, we must forge a common ground where a
common language can be employed and common values can be implemented. Moreover, religious
views often cannot easily be compromised, for religious arguments, reflecting absolute
truths revealed (in Western religious thought) by God himself, do not lend themselves to
resolution, debate, or compromise. But (moral) compromise is both essential to a
functional democracy and quite difficult for many religions to accept.
Again, consider the intractable abortion debate. In over 25 years since
Roe v. Wade, we are about where we were the day after the decision was handed down.
Relief is not on the horizon. The Republic can withstand one or two debates on the scale
of the abortion debate, but it could not survive many such debates. It certainly could not
survive if most contested issues were contested primarily on theological grounds.
Abortion raises fundamental issues of morality, of the role and place
of women, and the permissible role and scope of government. In a democracy, liberal or
otherwise, I know of no way to exclude such issues from public debate. And, as Professor
Greenawalt of Columbia has argued persuasively, the arguments for choice are no more
subject to scientific verification than those in opposition. But even as to abortion, it
would be good for the well-being of the Republic if the arguments were, to the extent
possible, cast in secular terms, accessible to all, and subject to the constraints
applicable to more ordinary debates.
Second, and here I refer to those issues that do not necessarily
implicate direct government action (i.e., the discrimination in the rental of
housing, or discrimination by the Boy Scouts), we should not underestimate the impact on
the equality norm so essential, perhaps indispensable, for a liberal democracy. It has
been only a generation, or at most two, since the elimination of the gross social
inequalities that relegated certain religious groupsCatholics, Jews, and everyone
not a Protestantto de facto second class status. The problem was not formal
legal restrictions, but social and economic ones.
The Constitution prohibits religious tests for public office, and that
proscription plainly applied to protect the candidacies of both Al Smith and John Kennedy.
But success was by no means a realistic possibility for John Kennedy until he persuaded
Protestants that the Republic would not collapse if the President were Catholic. It was
arguably denied to Al Smith because he did not make that case. The problem was social, not
Jews, and to a lesser extent, Catholics, until the end of World War II,
faced any number of social and economic restriction in employment, housing, education, and
access to various social amenities. The demise of those restrictions, both by action of
law and, more importantly, by changes in social thought, has greatly empowered the Jewish
(and Catholic) communities. That occurred not only because government became more active
in protecting civil rights, but because religion became less salient in screening access
to important social and economic institutions.
The restrictions the Boy Scouts impose do not look terribly
threatening. But would we feel the same way if those restrictions were race-based? And
what if it were not just the Boy Scouts that imposed religion based restrictions? Does it
matter if the restriction is limited to a belief in God? What if the Boy Scouts insisted
on an acceptance of Christian or Muslim or Jewish beliefs?
On the other hand, it should not be denied that some
"secular" decision makers regard religiously constituted communities as uniquely
dangerous. Thus, the courts have allowed racial boycotts, but not religious ones. It is
hard to explain the decision on any ground other than an exaggerated fear of organized
expression of religious power, or the view that communal religious expressions are
inherently illegitimate. History does teach that religion can lead to dangerous excess,
but religious critics are equally right to point to the dangers of a discourse that is
devoid of binding moral values.
A third objection to a public role for religion is that in a diverse
society there is no religion that predominates to the point where it is acceptable to
impose one religious view on everyone. Although this is a matter of principle, it is also
a question of prudence. It is fair to demand that religious groups consider whether it is
prudent to impose their views on others when so many others do not share the faith, and
are certain to deeply resent efforts by other religious groups to have their way.
Religious leaders and religious believers generally tend to greatly
undervalue the resentment felt by other believers or nonbelievers when they are
compelledor believed they are compelledto observe the religious views of
others. Although this is most plainly true when government compels "observance,"
it is not much mitigated when the compulsion comes from other important social
institutions, even if private.
A fourth objection to religious intervention in public affairs,
particularly political affairs, is that religious folk are thought to defer to religious
leaders, to the point where they are not exercising independent judgment. Western liberal
democracy assumes the autonomy of the citizen; religion, or at least most Western
religions, assume that the believer is not fully autonomous, that he or she is obligated
by Gods command. Short of abolishing religious liberty, however, the sense of being
commanded cannot be outlawed, or even directly challenged.
In any event, this argument is singularly unpersuasive. There are
relatively small numbers of believers in the United States who blindly follow their
religious leaders dictates. And as long as the likes of Rush Limbaugh, Jerry
Springer, Oprah, and Matt Drudge command a high level of loyalty from mass audiences, and
politicians actively seek endorsements from Hollywood or athletic celebrities, one is hard
pressed to defend a rule against listening to religious leaders.
Finally, in a democracy, which ought to be controlling here, a
priori restrictions on what or whom a citizen may base his or her vote are especially
doubtful. Still, both because they often dont have the expertise, and because ex
cathedra religious endorsements smack of imposed religion, it is wisest if religious
leaders generally refrain from them.
I hope by now many of you dont know what my answer to the
question posed by the title of my lecture is. As you know by now, I find myself pulled in
different directions. Since I am only a scholar for this week, I do not feel the need for
an overarching, theoretically complete, answer to the question.
I think that by and large, the situation in the United States is
healthy and a good approximation of where we ought to be, even if it is not ideal in every
The principles I would lay down are as follows:
Government may not use religion (by which I include atheism) as a
constitutive device for holding society together. Religion cannot be used as a
prerequisite for citizenship, exercise of the franchise, government benefits, or official
Private groups may use religion as a constitutive device, even beyond
the confines of the church for purposes of worship, so long such discrimination does not,
in either the individual case or taken in gross, threaten the creation of religious
castes. In judging whether a particular private discrimination is acceptable, we may
assume neither that any discrimination threatens secular democracy, nor that religious
liberty cannot ever be bounded by civic needs. And we must keep firmly in mind that the
creation of unregulated private space is an affirmative value in a liberal democracy.
Government may not coerce the doing of religious acts, nor should it
restrainabsent compelling reasonprivate performance restraints of religious
acts. On the last, current law falls far short.
There should be a strong prejudice against making religion the
organizing principle of political or governmental life. It is for this reason that the
Hassidic school district in Kiryas Joel, New York, is so objectionable. As a practical
matter, it makes religion the central organizing principle of political life, albeit on a
small scale, and in pursuit of a good cause.
Religious groups should generally refrain from advancing purely
religious arguments for governmental action, but they are free to do so, if they choose.
This restriction should not be legally enforced.
The frequently expressed view that religion is a matter of purely
private, individual belief with no legitimate communal role must be understood as having a
basis in a desire to limit the role of religion, often itself rooted in a denial of the
possibility of ascertaining religious truth. It is surely not consonant with much of the
Jewish tradition and assuredly not with the Catholic tradition, both of which, at least
historically, accepted the use of compulsion to enforce religious norms and emphasized the
importance of group adherence to religious norms. Neither of the latter groups (and Islam
appears to fit here as well) accepts the prevailing American individualistic view of the
role of faith. Historically, even leading Protestant figures such as Calvin were perfectly
prepared to use the state to enforce religious norms.
The Constitution clearly bars the enforcement of purely religious
norms (i.e., kosher food laws). Americans cannot conceive of such enforcement in
any event. We are much less agreed on whether the state has any role to play in enforcing
purely moral norms (i.e., against adultery, prostitution, or homosexuality). But
what of the creation or sanction of larger religious communities in the public sphere?
This, it seems to me, is one of the hardest questions Americans face today in ordering
church-state relations. Consider, again, abortion. One of the current abortion disputes
concerns the right of those who object to abortion to refrain from performing, assisting,
advising, or subsidizing it. Pro-choice groups concede that no individual can be compelled
to directly participate in an abortion, or, grudgingly, at best, they concede that
religious hospitals cannot be forced to provide abortions. How, they ask, can an
institution have a consciencea question that betrays amazing ignorance of religious
behavior. But they are completely unwilling to concede that, for example, a Catholic
employer should have the right to refuse to pay for health insurance coverage. This, they
say, is forcing the employers belief on the employee. It eludes them that forcing
the coverage of abortion forces the employees religious faith on the employer. It
may be that compelling employers to provide insurance covering abortion or contraception
is a just result, or the most just possible result, but it is not because the employer has
no claim at all. The fact that pro-choice groups simply miss the point is reflective of an
individualistic understanding of religion, one that grants no legitimate social or
corporate role to public, nongovernmental, religion. On the other hand, it is not clear
that we would allow religious groups with substantial economic power to use that power to
impose religious views on others. Too much of that, and the autonomy and equality that are
essential for a liberal democracy are destroyed.
Those who favor a greater role for public religion sometimes do so
because they conceive of the world in monochromatic fashionthere is religion and
there is anti-religion. Their world outlook leaves no room for secular society, which
neither favors nor limits religion. This view, which is held by some, but not many,
Americans, and by many other conservative religious people around the world, is
inconsistent with liberal democracy as we know it, for it leaves no room for a
secularnot secularist, but seculargovernment.
To the extent that we insist on separation of church and state
in the governmental sphere, and that we refuse to allow government to coerce moral
behavior in the population by the coercive power of law, we should be prepared to allow
religious individuals and institutions a very substantial measure of freedom to create
their own religious communities, in which they may put their religious and moral visions
I dont think that our society could withstand unlimited efforts
to insist on communal religious observance, at least where these observances impact
others. As difficult as it is, and at a substantial price for religious believers, I think
religious groups in a modern democracy must be chary of insisting on creating religious
communities that will adversely impact the broader community. But liberals must recognize
that a ban on such communities is both intolerant and inconsistent with the importance of
a shielded private sector.
I cannot conceive of a truly liberal democracy that did not tolerate
private religious communities, even at the expense of other values. But if too many such
communities exist, and touch on too many areas of life, the common ground essential to a
well functioning liberal democracy will cease to exist.
The signs of a revolt against the efforts to confine religion to the purely private in
the name of liberal democracy are not hard to find. The efforts to amend the Establishment
Clause have become more substantial, the attacks on liberalism more pointed and more
blatant. There is as yet no consensus to change the foundational rules of liberal
democracy. But the portents should not be ignored, nor the discontents brushed aside on
the pious hope that secular democracy will prevail. What is needed is a fair evaluation of
the restrictions imposed on religion in the name of liberal democracy to ensure that it
has not become illiberal.