You are here

Christian Values and Public Policy

admin's picture

One of the regular complaints that we hear when a person with Christian views offers an opinion on a matter of public policy is that they are “imposing” their views on everyone else. Sometimes this is accompanied by a vague reference to the “separation of church and state”. If I am someone who holds a view about matters of public policy or law, which is derived from other convictions I hold about religion, is it legitimate for me to argue that this view ought to be accepted as a principle in Australian society at large? Or, since my view is “religious”, should I either not say anything at all about it, or indeed, go even further and set up a “compartment” in my opinions in which I don’t agitate for any law reform or policy issue that is based on that religious view? And is the answer to those questions affected by whether I am a private citizen or am acting in a “public” role, such as a Member of Parliament or a judge?

Author: 
Associate Professor Neil Foster, Law, University of Newcastle
Full text: 

One of the regular complaints that we hear when a person with Christian views offers an opinion on a matter of public policy is that they are “imposing” their views on everyone else. Sometimes this is accompanied by a vague reference to the “separation of church and state”.

If I am someone who holds a view about matters of public policy or law, which is derived from other convictions I hold about religion, is it legitimate for me to argue that this view ought to be accepted as a principle in Australian society at large? Or, since my view is “religious”, should I either not say anything at all about it, or indeed, go even further and set up a “compartment” in my opinions in which I don’t agitate for any law reform or policy issue that is based on that religious view? And is the answer to those questions affected by whether I am a private citizen or am acting in a “public” role, such as a Member of Parliament or a judge?

There are those who very strongly argue that religion should play no role at all in public decision-making. Myerson makes an argument of this sort.[1] Others are suspicious when a politician refers to religious matters in putting forward a point of view. An article by Crabb presents what the author says is a disturbing tendency of politicians in Federal Parliament to increasingly use “religious language” in their speeches. A statistical analysis of Hansard speeches of “prominent politicians” revealed that between 2000 and 2006 the percentage of speeches using variants of “Christian terms” increased from 9.1% to 21.7%.[2]

A strong suspicion of Christian attempts to influence public policy may also be seen in the sharp rebuke offered by the senior English judge Laws LJ in the UK decision of McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 (29 April 2010).

The case involved a “relationship counselor” who had been dismissed for not being willing to counsel same sex couple. A former Archbishop of Canterbury, Lord Carey, had filed a witness statement giving strong support for Mr McFarlane. The thrust of Lord Carey’s statement (some of which is quoted in the judgment of Laws LJ) was to suggest that a special panel of appeal judges be appointed which did not include (among others) the Master of the Rolls, Lord Neuberger, who had given the lead judgment in an earlier case.[3]

The decision would no doubt have been disposed of fairly quickly had it not been for Lord Carey’s comments. Laws LJ chose to respond to the statement, partly at least on the ground that it revealed, as he said at [16], a “misunderstanding of the law”. In what way, then, did Lord Carey’s comments misunderstand the law? One aspect of this misunderstanding is that he painted decisions of the court that find that there is “discrimination,” as equivalent to a finding of disreputable behaviour and bigotry. He then charged that the courts were wrongly accusing Christians in general of being bigoted.

Laws LJ was correct to remind Lord Carey at para [19] that, in effect, “discrimination” is a legal construct, and that a finding of discrimination (particularly the complex issue of indirect discrimination) does not mean that such conduct “falls to be condemned as disreputable or bigoted”. But Laws LJ went on into much deeper waters when he engaged with what he saw as a call from Lord Carey to support the doctrines of the Christian faith as such. It must be said that Lord Carey’s statement did indeed move in this direction at some points. At para [12] of his statement (quoted in para [17] of the judgment of Laws LJ) he said that “the highest development of human spirituality is acceptance of Christ as saviour and adherence to Christian values.” This was clearly an affirmation of Christianity as the preferable religion.

But in the rest of the statement Lord Carey was not really urging that members of the judiciary support the Christian faith as such; he was instead saying that recent decisions had, in his view, flowed from a misunderstanding of Christianity, and he pointed out that it is likely that judges may well be even more mistaken about religions other than Christianity.[4]

The response of Laws LJ, however, was to the perceived claim that the judges ought to give preference to Christianity. In doing so his Lordship correctly pointed out the difference between the law protecting Christians’ “right to hold and express a belief” on the one hand, and on the other hand “the law’s protection of that belief’s substance or content”. In his Lordship’s view, the legal system cannot weigh in on the side of one faith or another.

With respect, this is perfectly reasonable. But it is a matter of concern that his Lordship felt it necessary to support his view of the “even-handedness” of the legal system, not (as could have been done) by reference to convention obligations or general principles of religious freedom, but by comments denigrating religion in general.

His Lordship’s remarks at [23]-[24] are worth noting:

 

23… But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled. It imposes compulsory law, not to advance the general good on objective grounds, but to give effect to the force of subjective opinion. This must be so, since in the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may of course be true; but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society. Therefore it lies only in the heart of the believer, who is alone bound by it. No one else is or can be so bound, unless by his own free choice he accepts its claims.

24 The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified. It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary. {emphasis added}

 

These comments were completely unnecessary for resolution of the issues in this decision, or indeed even for a calm and measured response to Lord Carey’s admittedly somewhat unwise comments. Far from simply maintaining a position of even-handedness on the merits of a religious point of view as opposed to a “secular”, his Lordship brought the full force of his office to bear in favour of a secularist perspective. All religious faith, of whatever description, was written off as not worthy of any serious consideration, because it is “subjective”. It is “incommunicable”, not susceptible of “any kind of proof or evidence”. In other words, for the law to support such a view is “irrational”.[5]

It is not entirely clear how Laws LJ arrived at his view that all religion is subjective and not based on evidence. Is this now to be regarded as a matter of judicial notice? Is this a matter on which it would be possible to offer evidence? Suppose there were a religion that presented the claims of its founder by the early preachers producing evidence that he had risen from the dead;[6] whose proponents went about in an attempt to “persuade” and “reason” with others;[7] where the founding documents of that religion indicated that if a particular historical event were found on analysis not to have happened, then the religion would be “in vain”?[8] But perhaps even this would not be sufficient to convince his Lordship, who seems effectively to “define” religious faith as completely a matter of private and incommunicable opinion.[9]

More recently there has been a broad statement that courts in the UK must be “secular” by another senior judge, Lord Munby:

 

Although historically this country is part of the Christian west and, although it has an established church which is Christian, we sit as secular judges serving a multi-cultural community of many faiths, sworn to do justice ‘to all manner of people’. We live in this country in a democratic and pluralist society, in a secular State not a theocracy.[10]

 

None of this is objectionable. But it does leave up in the air the question, is it legitimate for specifically religious views, or for views derived from religious views, to be argued for in the public forum?

One of the most helpful discussions of this issue can be found in Kent Greenawalt, Religion and the Constitution: vol 2- Establishment and Fairness (Princeton: Princeton University Press, 2008), especially ch 23 “Religiously Based Judgments and Religious Discourse in Political Life”.

 

Greenawalt suggests that views which have been adopted on this topic can be grouped into three main categories: “exclusivist”, “inclusivist”, and a position he adopts which is a “mixed” view and depends on the role being played in public life by the person concerned.

(i) The Exclusivist View

What Greenawalt calls the “exclusivist” view is that usually identified with John Rawls. Broadly, this view would exclude religious considerations both from the grounds of decision making about laws, and also from the justifications that are offered for laws.

Rawls does not single out “religion” alone for exclusion from public reasoning- he would argue that any “comprehensive world view” is unsuited to the task of justifying and explaining public policy and legislation, since there is no general agreement on such “comprehensive” views. But in society together we can agree on a position which says that our public policies will be determined based on grounds we can all agree on.

 

I propose that in public reason comprehensive doctrines of truth or right be replaced by the idea of the politically reasonable addressed to citizens as citizens.[11]

 

So arguments put forward for public policies must not be drawn from, or refer to, “comprehensive” world views such as religion (or indeed, atheism), but must be justified on the basis of a minimal set of shared values.

 Of course one objection that could be made is that this sort of “liberalism”, the view that everyone should be free to do whatever they like so long as it doesn’t harm someone else, sounds like a comprehensive doctrine itself! But as Myerson points out, Rawls says this is not so.

 

Rawls calls attention to the fact that there are certain shared, uncontroversial moral ideas which are implicit in the public political culture of contemporary democracies… By drawing on these shared ideas, a liberal conception of justice can be presented as a relatively modest, ‘political’ view, whose moral assertions are confined to the domain of the political and which does not rely for its justification on the validity or truth of any comprehensive doctrine.[12]

 

Chaplin in his article calls this position “exclusive justificatory liberalism”- the view that “any kind of religiously based reasoning [is] morally inadmissible in public political debate in principle”.[13]

It is important to realise what this position is not saying, however. As Greenawalt notes:[14]

·         Proponents are not arguing that religion should be completely excluded from public discussion altogether, simply that it should not be invoked or discussed in “political” or “legal” areas.

·         While accepting that people will in fact be influenced by their religious commitments, the view is that both public discussion of policy and also private thinking about policy should exclude religious perspectives.

·         The view does not of itself assume that religion is foolish and wrong (though no doubt that may be a view shared by many of its proponents.)

·         Nor is this a view about what it should be lawful to do in the public sphere- exclusivists are not arguing that it should be illegal to present religious view for public policy, simply that there is a moral duty not to do so.

 

While there are careful and reasoned versions of exclusivism, then, it is worth noting that “popular” versions are not always so. One argument objects to “religious views being imposed on others”. But of course any law is an imposition on behaviour- that is what it does. An objection against a religiously motivated law cannot simply be its “coercive” nature- it must be against the reasons that motivated it.

(ii) The “Inclusivist” Position

What is usually seen as the opposing view argues that religious views, just like other views based on a range of other considerations, should be allowed to be presented and weighed up when public policy is being presented.

Greenawalt sums this view up as follows:

 

The competing “inclusivist” position is that citizens and officials should be able to rely on whatever sources of understanding seem to them most reliable and illuminating…People do not feel whole if they try to divorce their deepest sources of insight from their political stances… Indeed, the ability to rely on one’s religious convictions is part of the free exercise of religion. A full airing of all those views will enrich everyone’s understanding. (at 499-500)

 

An inclusivist view would certainly allow believers to reach a view on a policy issue for themselves based on their comprehensive view of the universe. Indeed, this seems to be the position taken by Rawls, who acknowledges that many of those whom we admire in history for having achieved great things for human liberty were clearly subjectively motivated by their own religious views: Abraham Lincoln, Martin Luther King Jr, William Wilberforce, to name but a few.[15]

Rawls goes further and would concede that believers may also present their religious justifications in the public sphere to argue for change- but with the important proviso that they must also be prepared, along with the religious reasons, to offer “proper public reasons” which all can agree with.[16]

Chaplin, in his article, offers three arguments which he suggests could be made against even this broader form of “justificatory liberalism”. He attacks the liberal view that excluding religious reasons from the public sphere will reduce public conflict. He cites evidence countering the common view that free religious discussion engenders violence- on the contrary, there seems to be evidence that where people are allowed to be open about their commitments, this may reduce some conflict. Secondly, he warns that requiring religious persons to conceal or suppress their true convictions is to harm their consciences. If in fact the reason that people adopt certain views is their religion, why should society demand that they either change or not say so?

Thirdly, Chaplin suggests that problem that religiously motivated views may be “incomprehensible” is far too over-stated. Believers are able to articulate their views in ways that, while others might not share them, can be comprehended. He cites the example of a Christian Environmental Council, which argues for defence of endangered species because ‘the earth is the Lord’s and all that dwells within it’ (Psalm 24:12) and because human beings have been placed on the earth to “tend and care for” it as stewards (Genesis 2:15).

 

(iii) The “Mixed” position: Free representative speech, constrained official justification

The view that Greenawalt and Chaplin both prefer has some elements of both of the above positions. Both argue that it matters in which context public reasoning is necessary. Greenawalt suggests that citizens in general public debate should be free to offer whatever reasons they feel are appropriate. (Of course, if they are seeking to persuade fellow members of society to adopt their view, they may find that religious arguments are not very persuasive as a pragmatic strategy. But they are entitled to, and perhaps it could be argued, obliged to, be honest about the reasons why they have come to the view that they hold.)

On the other hand, where someone is exercising public authority in the community, then it seems reasonable that they should do so in a way that can be accepted by as many rational members of the community as possible. So a Parliament passing a law should not use religious justifications in formulating the law. Nor should a judge deciding a case do so, unless the body of law the judge is applying requires reference to religious perspectives. As Greenawalt puts it:

 

Although judicial opinions are rarely completely candid about the strength of competing arguments, one expects judges to rely on arguments they believe should have force for all judges. In our culture, this excludes arguments based on particular religious premises. (at 506)

 

Similarly, he argues that legislators should rely on “public reason” for enacting laws. They may form their opinions, of course, as other members of the community may, on the basis of their religious beliefs; but in arguing in the legislature, should use generally accepted public reasons.

Chaplin generally agrees with this approach, except that he sees a difference for a Parliamentarian between their “representative” role and their “decision-making” role. In representing their constituency, for example, it seems reasonable that an MP should take into account a strong religious view shared by the majority in his or her constituency (ie may present such views as one side of an argument in a debate). It seems reasonable, too, that an MP be allowed to disclose his or her own religiously formed views in debate. But Chaplin argues that when it comes to making a final decision about legislation, public reasons must be provided and must form the basis for decision-making.

Hence Chaplin takes some issue with the way that Laws LJ formulated his comments. It may be recalled that at [24] his Lordship said: “The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified.” Chaplin suggests that it may be legitimate for members of Parliament or others to argue for and support a policy position based in part on their religious commitments; but at the point of a law being made (or enforced by a Judge), then public reasons must also be offered. He suggests a better principle would be:

 

It is impermissible for a state official to publicly justify the promulgation of any law purely on religious grounds. (at 336 n 69)

 

To sum up- there seems to me to be a plausible argument for saying that religious persons, like other citizens, may take their deep commitments about the nature of the world and the universe into account in adopting views about public policy, and (if they choose to do so) in arguing for such views to be adopted as a policy or a law. To require religious people to conceal their religious justifications would be both dishonest and counter-productive.

But it seems that in general, both in principle and also as a pragmatic advocacy strategy, a religious person ought to be prepared to also, where possible, offer arguments based on generally shared values. And when a person with religious commitments is involved in law making or judging, they ought always be prepared to justify their decisions on these type of “public reasons”. (For further exploration of some of the nuances of “religious reasons” and “political issues” see the recent paper by March.)[17]

I have attempted to apply this principle in a paper on same sex marriage.[18] Whether or not it is persuasive, I endeavour to offer reasons based on shared values such as proper use of language, and what is best for families and children; but I acknowledge in the course of the paper that my own views have also been shaped by my religious commitments (see para 18).

In short, Christians should not shy away in our liberal democracy from engaging in public debate on important issues.

 

 

Neil Foster

Associate Professor

Newcastle Law School

University of Newcastle, NSW

 

July 2014

 

 


[1] Myerson, D “Why religion belongs in the private sphere, not the public square”, in P Cane et al (eds) Law and Religion in Theoretical and Historical Context (Cambridge: CUP, 2008), 44-71.

[2] Crabb, at 263. The “Christian terms” used were “Christ, church, faith, pray, Jesus, Bible, spiritual, God, religion”. As she notes at n 6, however, “some of these terms also relate to religions other than Christianity”. There is no indication in the data of how the terms were used: for example, “we are a secular country and don’t pray to Jesus or read the Bible” would be counted in this analysis. Still, the use of the terms may well indicate at least a willingness to engage with religious issues, even if it is not clear evidence of an attempt to sway public policy by Christian arguments.

[3] Lord Carey’s witness statement concluded with the following words: “The Judges engaged in the cases listed above should recuse themselves from further adjudication on such matters as  they have made clear their lack of knowledge about the Christian faith.”

[4] See the comment at para [18] of his statement that “it is difficult to see how it is appropriate for other religions to be considered by the Judiciary where the practices are further removed from our traditions”.

[5] For a recent devastating critique of similar comments that have been offered in US decisions about the “irrational” nature of religious perspectives, see S Holzer & J Fuqua “Courting Epistemology: Legal Scholarship, the Courts and the Rationality of Religious Belief” (2014) 3 Oxford Jnl of Law and Religion 195-211.

[6] Acts 2:22-36, 13:23-41, 17:30-31.

[7] Acts 9:20-22, 17:2-4 (“reasoned”, “explaining and proving”), and many other examples in Acts.

[8] 1 Corinthians 15:12-19.

[9] J Chaplin “Law, Religion and Public Reasoning” (2012) 1 Oxford Jnl of Law and Religion 319-337, at 320 n 3 notes that Laws LJ “espouses a wholly subjectivist understanding of religious faith which is very dated and would be contested by many prominent theologians and philosophers”.

[10] Munby, the Right Hon Lord “Law, Morality and Religion in the Family Courts” (Address to the Law Society’s Family Law Annual Conference, ‘The sacred and the secular: religion, culture and the family courts’, London 29 October 2013), at p 9; see http://www.judiciary.gov.uk/media/speeches/2013/LawMoralityReligionFamilyCourts.

[11] John Rawls, “The Idea of Public Reason Revisited” (1997) 64 Univ of Chicago Law Review 765, 765-766, quoted in W Cole Durham Jr & B G Scharffs Law and Religion: National, International and Comparative Perspectives (Aspen/Wolters Kluwer, NY, 2010) at 552.

[12] Myerson, above n 1 at 49.

[13] Chaplin, above n 9 at 321.

[14] At 499.

[15] See Chaplin, above n 9 at 323.

[16] Ibid, 323.

[17] March, Andrew F., “Rethinking Religious Reasons in Public Justification” (February 14, 2013). American Political Science Review, Forthcoming; Yale Law School, Public Law Research Paper No. 275. Available at SSRN: http://ssrn.com/abstract=2217691 .

[18] Neil J Foster  (2011) "Opposing same-sex marriage is not discrimination" Available at: http://works.bepress.com/neil_foster/40 .

Photo: