What Is Special about Religion?

What Is Special about Religion?Author(s): Anthony EllisSource: Law and Philosophy, Vol. 25, No. 2 (Mar., 2006), pp. 219-241Published by: SpringerStable URL: http://www.jstor.org/stable/27639429 .

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Law and Philosophy (2006) 25: 219-241 ? Springer 2006

DOI 10.1007/sl0982-005-8706-z

ANTHONY ELLIS

WHAT IS SPECIAL ABOUT RELIGION?

(Accepted 9 May 2005)

I. INTRODUCTION

Constitutions not infrequently mark out religion as special. What is presumably the most famous example, the US Constitution,

prohibits the government from "substantially" restricting reli

gious belief or practice, at least without having a "compelling" reason. In addition, it prohibits any governmental regulation,

which constitutes an "establishment of religion", any regulation that promotes (or hinders) religion

- or, on a somewhat different

understanding, any regulation that shows favoritism, or the

opposite, to religion. The effect of this is to immunize religion against the normal democratic decision-making procedure. Here,

majorities, unless they are large enough and persistent enough to

get a constitutional amendment, cannot have their way. The US Constitution, of course, also immunizes other areas

against the majority will. But many things that are enormously important to many people are not thus singled out in the way that the "Free Exercise Clause" of the First Amendment singles out religion. There is, for instance, no specific guarantee of the

right to dance, or play sports, or do science; yet these activi

ties play a tremendously important role in the lives of many citizens

- considerably more important, in some cases, than does

religion in the lives of many who benefit from the "free exercise" clause of the First Amendment. Of course, these activities have some protection in the Constitution. Dancing as a public enter

tainment has been given some First Amendment protection, though not dancing as recreation.1 Some scientific activities have also been protected under the First Amendment. And if a state

were to ban recreational dancing or sports, this might trigger a

1 Dallas v. Stanglin 490 U.S. 19 (1989).



220 ANTHONY ELLIS

valid constitutional challenge, though, unless it were based on

religious doctrine, the ban would probably have to pass only a

relatively low level of judicial scrutiny, unlike a ban on a reli

gious practice. But though activities such as these are indirectly

given some protection in the Constitution, they are not singled out for protection in the way that religion is.

It should also strike us that though the Establishment Clause of the First Amendment makes it unconstitutional for public schools to teach as true the religious doctrines of the majority church - even if those doctrines are held by an overwhelming

majority of citizens, or by an overwhelming majority of phi losophers and theologians

- we allow them to teach as the truth

those scientific doctrines which are supported by a consensus of the scientific community; the place of evolutionary theory in

biology is only the most dramatic example. Teaching as the truth the religious doctrines of the majority church would be an

unconstitutional "establishment" of religion; but there is no

prohibition on a similar "establishment" of science or many

other activities.

Religion, then, is marked out as special in the US Consti

tution, and immunized against the normal democratic decision

making machinery. What is so special about religion as to

justify this?

II. RELIGION

There are two different ways in which we might define "reli

gion". One way is by reference to the content of the beliefs, which it involves; the other is by reference to the manner in which the beliefs are held.2 On the first way, we might

- for instance

- say that a religion involves "recognition on the part

of man of some higher unseen power as having control of his

destiny, and as being entitled to obedience, reverence, and

worship" (OED). On the second, we might say that any belief

2 Cf., for instance, Ronald Dworkin Life's Dominion. An Argument About

Abortion, Euthanasia, and Individual Freedom (New York: Alfred A. Knopf,

1993), pp. 163ff.



WHAT IS SPECIAL ABOUT RELIGION? 221

can count as a religious belief so long as it is of sufficient

subjective importance to its possessor.3 I shall assume, for the moment, that we should adopt a

content-based definition. Its precise shape need not concern us;

anything that is plausible will suffice. Our question is then why it is that beliefs with a certain content, and their associated

practices, should be marked out for special treatment.

III. ESTABLISHMENT

Let us start with the prohibition on establishing a religion. What counts as an establishment of religion is, of course,

a matter of great dispute in American constitutional law. In

particular, and very roughly, there is a broad difference between two understandings, which are in sharp tension. On

one understanding, what the Establishment Clause requires is that any governmental regulation must be neutral as be

tween different religions and between religion and non-reli

gion. However, a quite different understanding has it that what the Establishment Clause requires is that a govern mental regulation must not promote or hinder religion. In

1971, the latter understanding predominated when the US

Supreme Court decided that a government regulation would be an unconstitutional establishment of religion if its pur pose, or primary effect were to promote (or hinder) religion, or if it fostered an "excessive entanglement" between gov

ernmental and ecclesiastical bodies.4 In recent years, the

former understanding has been gaining greater currency. But

for present purposes, we need not concern ourselves with

this dispute, for there are many types of governmental reg ulation, which would generally be understood to violate the Establishment Clause on either understanding. Here are

some examples:

A regulation, which required that the doctrines of a

particular religion should be taught as the truth in schools,

3 But the OED regards this - "devotion to some principle"

- as a trans

ferred sense. 4

Lemon v. Kurtzman 403 U.S. 602 (1971).



222 ANTHONY ELLIS

though with no sanction attached to disbelief. (This was, in

principle, the position in the United Kingdom until 1988).5 A regulation requiring public schools to organize and conduct daily prayers.

A regulation requiring that governmental employees express belief in a certain religion.

Governmental prohibitions on certain activities on the

ground that these activities are forbidden by God.

Why should these things be regarded as sufficiently objec tionable to justify removing them from the normal processes of democratic decision-making?

There are a number of familiar answers to this question; I shall suggest that none of them is adequate.

A. Civil Strife

The first suggestion we need not dwell on for long: religious establishments lead to "turmoil, civil strife, and persecutions".6

It is often said that opponents of the establishment of reli

gion speak as if we still lived in the 17th century, and reliance on this argument might certainly suggest that. Many countries have an established religion, including a good many European countries; most of them, at least the European ones, are not

characterized by turmoil, civil strife or religious persecution. And where they have been

- Northern Ireland, for instance, or

the former Yugoslavia - it would be na?ve to think that religion

5 It was required by the 1944 Education Act. This was overruled by the

1988 Education Act. Pursuant to the 1993 Education Act, which required Local Education Authorities to review their religious education every 5 years, Circular 1/94 requires that schools "develop pupils' knowledge,

understanding and awareness of Christianity, as the predominant religion in

Great Britain, and the other principal religions represented in the country; to encourage respect for those holding different beliefs; and to help promote

pupils' spiritual, moral, cultural and mental development". (Attendance at

religious education is not compulsory). 6 Everson v. Board of Education 330 U.S. 1 (1947). Justice Black, in this

passage, was describing the conditions that led the framers to adopt the

religion clauses; he does not suggest that an establishment of religion would have these results in modern America, though others have. The argument, in one form, occurs in Madison's Memorial and Remonstrance, ?11.




generally played anything but a subsidiary, supporting role, or

that a separation between church and state would have made

any significant difference to those conflicts. Fundamentalist Islamic movements of recent years may seem to provide an

exception. But the problem with them is not that they are

religious movements, but that they are fundamentalist and

fanatical; but fanatical fundamentalism is not characteristic of

religion any more than of other movements such as national

ism, for instance.

A more modest version of the argument may be urged. As Robert Audi puts it, "religious disagreements are likely to

polarize government. .. .Granted that secular disputes can also

polarize, other thing equal they have less tendency to do this or at least to produce irreconcilable differences".7 But there seems

little reason to believe this. Given the definition of religion with which we are presently working, the question is, of course, an

empirical one. But disputes do not seem to be more polarized in, say, Denmark, which has an established religion, than in France,

which does not, or in the United Kingdom, which has an established religion, than in the United States, which does not.

B. Coercion

A second suggestion starts from the thought that beliefs can be formed only on the basis of evidence or argument and so cannot be induced by coercion. In the words of Jefferson, quoted by

Madison in his famous Memorial and Remonstrance, "[T]he opinions of men depending only on the evidence contemplated by their own minds, ...

Religion ... can be directed only by

reason and conviction, not by force or violence".8 Let us accept that this is true, though some might think it controversial. We

might also accept a corollary. Jefferson again: "Almighty God hath created the mind free; ... all attempts to influence it by temporal punishments or burdens, or by civil incapacitations,

7 Robert Audi, Religious Commitment and Secular Reason (Cambridge:

Cambridge University Press), p. 39. 8

James Madison, Memorial and Remonstrance, ? 1.



224 ANTHONY ELLIS

tend only to beget habits of hypocrisy and meanness".9

But, given the sort of establishment that we are concerned with -

and the sort that Madison was concerned with when he fa

mously gave this argument - all of this is irrelevant, because

establishments of religion need not involve an attempt to coerce

people into religious belief (as indeed the particular type of establishment that Madison was arguing against did not). None of the sorts of establishment I listed involve this.

One of the examples I gave involved teaching religious doctrines as true. This may involve an attempt to get people to believe the doctrines, though it need not do so; but in any case such an attempt need not involve coercion, and in the example I

imagined coercion was explicitly ruled out. It would be per fectly possible for the instruction to proceed by way of reasoned

argument,10 leaving students - as is anyway inevitable

- to

assess the worth of these arguments themselves; this may or

may not be objectionable, but it is not coercion. No doubt it is true that many students would be influenced

by the authority of the teacher rather than by the worth of the

arguments presented. This is not coercion, properly speaking, and so is not strictly relevant at the moment. But it is worth

remarking that this is the way that most education is acquired. We teach, say, a roughly Darwinian theory of evolution and,

present the students with arguments for its truth. The argu ments are no doubt compelling, but there is little doubt that the students are much more influenced by the authority of the teacher and the school setting than by the quality of the

arguments. We perhaps think it would be better if this were not

so, but we do not regard this as a reason for prohibiting the

teaching of the theory of evolution. Why should it be thought different in the case of religion?

An answer that is often given should be rejected: "religious beliefs worthy of respect are the product of free and voluntary choice of the faithful."11 But religious beliefs cannot be the

"product of free and voluntary choice" any more than any other

9 Preamble to the Virginia Bill for Religions Liberty. 10 Not necessarily good argument, of course.

11 Justice John Paul Stevens, in Wallace v. Jaffree All U.S. 38 (1985).




type of belief can. (And if they could, then Madison's original argument would fail, because a belief that can be the result of a

free choice can also be the result of a coerced choice). If the

general point is not already obvious, it might be worth reminding ourselves that those who most object to the idea of teaching

religious doctrines in the schools usually do so not because they wish to leave their children to acquire their beliefs by free choice but because they wish to nurture their own children's beliefs themselves. It is not clear, except from the perspective of a con

troversial position about the rights of parents, which would be irrelevant here, why this is any better; it is certainly no different.12

Let me emphasize here that I am not suggesting that public schools should be required or allowed to teach any religious doctrines as true. My point is merely that this need not be a

form of coercion, and need not result in beliefs, which, if they were true, would not be worth having.

More generally, the attempt to coerce people into religious belief is not a normal feature of religious establishments. Of

course, almost any establishment of religion must involve coer

cion, if only in the way in which taxes are spent. But that - by itself - cannot be problematic for any governmental action must in

volve that. What has to be shown is that it is particularly trou blesome when this particular piece of coercion favors religion; and the argument we have just looked at does not support that.

C. Equality

It is often supposed that an establishment of religion must violate the requirement that a government should treat its citizens

12 Those who support this view about parents' rights will not find this

remark of Robert Audi congenial: "if one's ideal is a free and democratic

society, one wants a social (presumably constitutional) framework to

guarantee ...

religious liberty ... understood to prohibit... anyone ... from

forcibly inculcating religious beliefs ... by early education of children"

{Religious Commitment and Secular Reason, p. 34). Perhaps the word

"forcibly" is the crucial one here, since Audi goes on to require the right to

teach one's religion to one's children. If so, the word has never been asked to

do more work, because it would be extraordinarily difficult to distinguish "forcible inculcation" from other forms of inculcation in the case of small

children.



226 ANTHONY ELLIS

equally. But, if so, this will need to be argued. Of course, in

establishing a religion the government is favoring one set of cit izens against another; their interests are promoted in a way that

those of other citizens are not. But that by itself cannot violate the

requirement of equality, for governments do this all the time.

They subsidize the arts, for instance, when many citizens do not

regard this as promoting their interests, and we assume that if the decision to do so is the result of acceptable democratic proce dures, then this does not amount to unequal treatment.

What needs to be shown is that the unequal treatment in volved in establishing a religion is somehow objectionable. Let us first distinguish between intrinsic and extrinsic inequality. Intrinsic equality is where the action in question, in itself, dis criminates unfairly against some citizens. Extrinsic inequality is

where an action, though not itself discriminatory, leads to

inequality of some objectionable sort, or has a tendency to do so.

We shall deal with the latter first. Robert Audi has focused on it:

Any governmental religious preference ... creates some tendency for greater

power to accrue to the preferred religion. ... [Even if this does not directly restrict anyone's liberty], concentration of power in a religious group as such

easily impairs democracy, in which citizens should have equal opportunities to exercise political power on a fair basis. ...

Moreover, where a state

establishes or prefers a given religion, we may anticipate (though it is per

haps not inevitable) that certain laws will significantly reflect the world view associated with that religion.13

First, even if Audi's claim is true, it does not establish much. As he says, the danger he mentions is not inevitable. Second, and

more important for present purposes, all sorts of things have the tendency to skew political power in the direction of certain

people as opposed to others, and we do not prohibit them on that basis alone. We ask instead whether they contribute suf

ficiently to the public good to justify the resulting inequality. For instance, we allow prospective politicians to fund their own election campaigns; this obviously skews political power in the direction of the rich - as indeed do a host of other social

13 Religion in the Public Square (Lanham, MD: Rowman and Littlefield,

1996), p. 6; cf. Religious Commitment and Secular Reason, p. 36.




phenomena. Even those who favor campaign spending limits do not object to this.

Let us turn, then, to the second type of argument, that which

focuses on intrinsic inequality. By intrinsic inequality I mean discrimination based on a

distinction that is irrelevant to any legitimate governmental purpose. But establishments of religion do not usually involve this. For instance, they may be based on majority preferences, preferences which may themselves not be ignoble. They may be

part of a preference for a given way of life to which the majority of citizens are deeply attached, for instance. Promoting the interests of the majority of its citizens in such circumstances is

surely in itself a legitimate governmental purpose. Of course, it could be overridden if promoting those interests violated the basic rights of a minority. And if it could be argued that

establishing a religion did indeed do that, then the argument would be over, because appeals to majority opinion would then have no force. But that is what we have yet to see.

Differently, it may be suggested that an establishment of

religion forces some, but not others, to support something that

they do not believe in. But, again, unless there is something special about religion, this cannot be much of an argument.

After all, it is routine for governments to do this. As I have

said, many people object to governmental support for the arts,

but are required to support it nevertheless. Governments even

do it in matters of the deepest conscience. For instance, liber

tarians may object to redistributive taxation, but they are

forced to pay their taxes nonetheless.14 In Australia, where

14 It may perhaps be replied, as the Supreme Court replied to the Old Order

Amish when Mr. Lee objected to withholding social security taxes from his

Amish employees {United States v. Lee, 455 U.S. 252 (1982)) that taxation is a

necessity, and that it would be impossible for the government to exempt

particular people from particular taxes. But this reply would miss the point. The relevant question here is not whether taxation is a necessity, but whether

redistribution, or state support for the arts, for instance, is a necessity.

Clearly, neither is so in any appropriate sense, and neither depends for its

justification on the claim that it is. We use taxation for these purposes because

there is, we assume, general support for them, or at least support for the

general system under which it was legitimately decided to do this. Why would

it be different if there were general support for an establishment of religion?



228 ANTHONY ELLIS

voting in general elections is compulsory, committed anarchists are compelled to support a system that they abhor.

A further argument is that an establishment of religion would send out a message that some citizens are outsiders, and

that this is in itself unequal treatment.15 This is a peculiar argument unless, again, it can be shown that there is something

special about religion. Governments identify themselves with all sorts of policies and ideals with which some citizens identify and others do not. They promote certain conceptions of

equality or freedom, for instance. One who favors extensive

social welfare rights is, in the United States, as likely to feel at least as much of an outsider as is an atheist in the United

Kingdom, where there is an established church. A further argument concerning equality we shall come to

later. For now, let us turn to a different argument.

D. Public Reason

It is sometimes said that a state should act only in ways that can be justified by reasoning which should have appeal to all of its

citizens; and that, because of wide and deep differences in

religious belief, state action that is based upon religious beliefs cannot meet this requirement.

The most famous version of this argument is, of course, that

of Rawls. He requires that, when we are arguing about the

constitution, or about the basic requirements of justice, whether

as private citizens, or prospective holders of public office, or as

elected politicians, or as supreme court justices, we must appeal

only to what can be cast in terms of what he calls "public reason". That is, we must appeal only to what he calls "inde

pendent" or "free-standing" political justifications. Just what Rawls means by this is not, in my view, very clear. However, it

is clear that justifications in terms of what he calls "compre hensive doctrines", whether religious or secular, are ruled out.

In his later writing Rawls conceded that in fact we may appeal

15 Justice Sandra Day O'Connor is most famously associated with this

idea; see, for instance, her concurring opinion in Lynch v. Donnelly 465 U.S.

668 (1984).




to such reasons if we wish - reasons drawn from our religion,

for instance. But the concession, despite the importance he seems to attach to it, is really nugatory because it is still

required that, if we do so, we must be able and prepared to

appeal to justifications cast in terms of public reason "in due course".

Rawls thinks that this requirement should have appeal for all

of those he is addressing, namely those who are committed to

"constitutional democracy". A constitutional democracy is a

governance which recognizes society as a cooperative under

taking between citizens who are free and equal. They are free in

the sense that they have capacities for a sense of the good and a sense of justice. They are equal in the sense that they all possess these capacities to a minimum degree.16 In such a system,

coercion must be justified by reasons that, as Rawls often puts it, one could reasonably expect that all other citizens might reasonably accept, for this is part of the virtue of citizenship.

We have a moral duty - the duty of civility

- to coerce others

only the basis of a constitution whose basics they could accept "as reasonable and rational" people.17

As Rawls himself is at pains to point out, this does not

immediately preclude arguments for an establishment of reli

gion,18 for it is possible to mount arguments for, say, teaching religion in schools, that appeal only to "public reason". Rawls

obviously thinks that most of the ones he canvasses - taken

from Patrick Henry's debate with Madison - are fairly feeble. So indeed they are, though I myself think the arguments on the other side fairly feeble too. However, Rawls does not mention that one could, when the facts justify it, argue for an estab lishment simply on the ground that a decision must be made one way or the other, and that it is the preferred view of the

majority of citizens that religion be taught in the schools.

Generally speaking, in a constitutional democracy this is not a

feeble type of argument, but a very strong one. Even here, of

16 Political Liberalism (New York: Columbia University Press, revised

paperback edition, 1996), p. 19. 17

Political Liberalism, p. 217. 18

Cf. the discussion of'School Prayer', in Collected Papers (Boston, MA:

Harvard University Press, 1999), pp. 601-604.



230 ANTHONY ELLIS

course, there may be some reason why it should not be

appealed to in the case of an establishment of religion, but that reason is precisely what we are looking for and not, so far,

finding. Policy proposals are not, however, usually backed by a direct

appeal to majority opinion, but by appeal to the alleged virtues

of the proposed policy. Here, the Rawlsian requirement may seem to have some bite, for the virtues of religious education

might, in the minds of some, be simply that some religious claims are true and important; according to Rawls, however,

this could not be accepted by reasonable people as an ultimate

justification for the policy in question. But it is not obvious that reasonable people, that is to say

people with a commitment to fairness, could not accept a

constitution that allowed decision-makers to base their deci sions on "comprehensive doctrines" which, though themselves

reasonable, could also be reasonably rejected. So long as the

constitution also sufficiently protects important rights, it is hard to see why they must necessarily reject this. The com

prehensive doctrines by which they are coerced might be,

though not ones they accept, nonetheless doctrines they could

respect. And, as in the imagined case of religious education, there may be no direct or significant coercion. Of course, they are coerced into paying taxes that support a religion which they

may not believe in, and they might find this irksome; but it is not clear why this should be more irksome than having to

support other things that they do not believe in, which is

inevitable in any modern state. And the benefits of accepting the constitution might well outweigh the (moral) costs involved in having to support something they do not believe in. To think

that the coercion's stemming from a "comprehensive doctrine", a view about the whole nature and meaning of human life,

would make the trade-off impossible, or necessarily ignoble, seems like a form of moral fanaticism. But at the least it surely

needs a substantial argument. Rawls is not, of course, here primarily concerned about the

self-interested perspective. His point is rather that, if it is rea

sonable to reject a comprehensive doctrine, then it is unrea

sonable to be prepared to coerce on its basis those who do not




accept it; to do so would be to fail to treat them as free and

equal. But this surely presumes - at least

- that those who

would be coerced could not reasonably accept the constitution

themselves; and, as I have suggested, it is not necessarily unreasonable to accept a constitution knowing that it involves the possibility of being coerced on the basis of a comprehensive

doctrine that one rejects.

E. Secular Reason

Robert Audi has put forward a different requirement, what he calls the Principle of Secular Rationale. Like Rawls's view, this does not necessarily preclude an establishment of religion, because that might be supported by secular reasons, though Audi no doubt thinks that such reasons will rarely be strong enough to carry the day. Again, however, one form of

establishment would be prohibited, namely basing public policy on religious reasons: "One has a prima facie obligation not to advocate or support any law or public policy that restricts human conduct, unless one has, and is willing to

offer, adequate secular reason for this advocacy of sup

port".19 As stated, this applies to the behavior of citizens. Audi does not quite say it, but I presume that it precludes governmental regulation, which cannot be supported by sec ular reason.

Audi's reasoning is quite different from that of Rawls.

According to Audi, liberal democracies restrict the justification of coercion to a particular type, justification consistent with

what Audi calls a "surrogacy conception of justified coercion": this conception holds, roughly, that coercion is justified only if

19 Religious Commitments and Secular Reason, p. 86. This requirement is,

according to Audi, part of the virtue of democratic citizenship, and that is the ground of the obligation it imposes (ibid., p. 85f; cf. also Ch. 6.). That

being so, one has a right to ignore it, just as one has a right to be, say, a

coward or a miser. And the duty is only prima facie, and can be overridden

by other considerations; indeed, Audi even seems to suggest that even the

strength of one's religious convictions can sometimes be sufficient to over

ride it (ibid., p. 95). Despite these qualifications, he clearly regards the

principle as doing considerable, and important, work.



232 ANTHONY ELLIS

(a) the action to be prohibited is one that one has an obliga tion not to perform and

(b) one who is fully rational and adequately informed would

know this and act accordingly because of it.

And, according to Audi, only secular reasons - that is to say,

roughly, reasons that give one justification for a proposition independently of having justification for believing any religious

proposition - conform with this requirement.20

I shall raise two questions about this.

First, the surrogacy conception belongs to a celebrated, and

problematic, family of views: coercion is justified only if the

person to be coerced would anyway perform the action in some

circumstances or other. The problem, of course, lies in trying to

specify those circumstances.

By any normal criteria of rationality and informedness, the

surrogacy conception would plainly justify too little coercion, because it prohibits coercion whenever fully rational and in formed people do not know what their moral requirements are.

That is a common enough phenomenon; they may be unsure

about them, or confident but wrong. Surely that alone cannot

preclude coercion? The example of redistributive taxation is an

obvious example: since rational and well-informed people cer

tainly differ about whether one has an obligation to promote the ends that this is supposed to promote, some at least of them

do not know what their moral requirements are. But that alone

could surely not be a reason for prohibiting redistributive taxation.

No doubt the surrogacy conception envisages circumstances,

rationality and informedness in particular, that are ideal in some way. Audi defines rationality, at least in part, as involving a willingness "to imagine a reversal of positions or roles between oneself and others".21 Does this make the requirement

more plausible? Why a willingness to imagine a role reversal should be thought to be part of what it is to be rational - as

opposed, say, to an ability to do so - is not clear. Probably

20 For a fuller account of the notion of a secular reason, see Religious

Commitments and Secular Reason, p. 89. 21

Religious Commitments and Secular Reason, p. 66.




Audi has in mind anyway something more demanding: not just a willingness to imagine a role reversal, but the ability to see the result of so doing as bearing in some way on the permissibility of the action in question. But now we need a much fuller

account, and I doubt whether it is available. The wealthy opponent of redistributive taxation is presumably to imagine himself as one of those who would benefit from it. What does he see when he does so? That he would then favor it, perhaps?

Not necessarily; there are those who would benefit from redistributive taxation but nonetheless do not favor it - they

may, for instance, have moral objections to it. In any case, what

would be supposed to follow from the fact that those who would benefit from a policy tend to favor it?22

Audi adds to the requirement that one be fully rational, that one also be adequately informed. Does this improve the situa

tion? I think that "adequately informed" here must be read

sufficiently strongly to require that one know everything that is relevant to an issue (including all of its moral dimensions). Any

weaker reading will be too weak, yielding justification for too little coercion, because however well informed someone may

be, if he yet does not know his moral obligations, or will not act on them, we are surely justified in restraining him from his crimes. On the stronger reading, however, the first part of

(b) - coercion is justified only if a fully rational and adequately

informed person would know that he had an obligation to

perform the action in question - is a tautology and may be

ignored. We would then be left with the claim that coercion is

justified only if those who knew that the behavior in question is

wrong would act upon that knowledge. But if internalism about ethical motivation is true, if, that is to say, moral beliefs nec

essarily motivate, then this too is tautological. If, on the other

hand, internalism is false, then the requirement is again too

strong, because it seems to imply that we must not coerce

people if they would otherwise act from akrasia or wickedness.

22 There is, of course, an immense literature concerned with the role of

adopting the position of others when making moral decisions, and I cannot

deal with it here. I shall simply say that I do not believe that it has ever been

shown to have any theoretical value. (Of course, it has always been known

to be a useful heuristic device.)



234 ANTHONY ELLIS

I said that I would raise two questions about Audi's thesis. Here is the second. Why should it be thought that only secular reasons could satisfy the requirement he puts forward? The answer seems to be that a reason for a coercive policy must be

such that "a normal rational person can [... ] understand it"; it

must not be "esoteric"; it must be able to "motivate" "a ra

tional informed person"; it must be "suitably accessible (say, with some explanation and perhaps some instruction) to nor

mal rational persons".23 These things all mean something different, but none of them

seems to explain why only secular reasons can satisfy the gen

eral requirement. A strong reading of these phrases, on which

some measure of acceptance of the reason in question is in

cluded, might indeed preclude religious reasons. But it would

preclude much else besides; in particular, it would preclude moral reasons, for, on this construal, just as there is no guar antee that any religious chain of reasoning will sway a rational,

informed person, so there is no guarantee that any moral chain

of reasoning will do this either. But a weaker reading will surely also leave moral and reli

gious reasons in the same position. In the sense that "a normal

rational person can [ ...

] understand" a moral claim without

accepting it or being motivated by it, so too he can understand a religious claim.24

Here is an example. Let us say that, somehow, the question were raised whether we should re-institute some form of slav

ery. Here, no-one - citizen, lawmaker, the government

- need

offer any better reason for resisting this than that slavery is

wrong. But if this reasoning will pass muster according to Audi's criteria, then, surely, so will the reasoning that slavery is

forbidden by God. We could, perhaps, accept this, and claim that moral reasons

must not be used to justify coercion. Audi, however, could not

23 All from Religious Commitments and Secular Reason, p. 67.

24 I am of course ignoring as irrelevant here the possibility that religious

statements are simply meaningless whereas moral statements are perfectly

meaningful. The argument for the specialness of religion should presumably not rest upon that claim!




accept this, because he insists that, "A liberal democracy may

properly appeal to moral considerations, both at the constitu

tional level and in making and interpreting laws and policies within a constitutional framework".25 He is surely right to do so.

IV. FREE EXERCISE

I have argued so far that the reasons generally given for a con

stitutional bar on the establishment of religion are not sound. Let us turn now to the free exercise of religion. This involves

three parts: freedom of belief, freedom to express those beliefs and freedom to participate in the associated practices.

A. Coercion

Here it may seem that the argument about coercion that we

dismissed earlier is more promising. As far as belief"is concerned, the fundamental point was that

it is impossible to coerce belief. This needs elaboration, but I shall assume that, suitably understood, it is basically correct.

Assuming that, it yields two arguments:

(1) Since believing can be induced only by evidence, it is not,

directly, within one's voluntary control. Only what is

within one's voluntary control can be required. Therefore

belief cannot be required. Therefore we have a (Hohfeldian claim-) right to believe as the evidence guides us. Therefore the Government may not require any religious belief.

(2) Since belief cannot be controlled, no legitimate purpose could be served by requiring people to believe anything.

The general conclusion is that people should have a right to believe as the evidence guides them. But, as should be clear, this has nothing to do with religion in particular, but applies to all beliefs equally.

As for expression, here, of course, coercion is not impossible. And Jefferson's argument about this seems correct: requiring

expressions of faith - as a prerequisite for employment, or quite

25 Religious Commitments and Secular Reason, p. 34.



236 ANTHONY ELLIS

generally -

is probably worse than pointless, since it encourages

"habits of hypocrisy and meanness". But again, this has

nothing to do with religion specifically.26 There can also be coercion when we are talking about

practice. And, if we are talking about requiring a religious

practice, then again the argument about meanness and

hypocrisy will often be to the point, and will generally be suf ficient to settle the matter. When we are talking about prohib iting a religious practice, on the other hand, we must remember

that some religious practices are sufficiently harmful, to justify prohibiting them even at the cost of hypocrisy. Here again, however, I think it should be clear that we have not yet said

anything about religion specifically, but about social (and non

social) practices generally. The general point, then, is that the argument about coercion

does not support the freedom of religion especially. What it shows is that the government must not require people to believe

anything, nor to profess belief in anything, nor prohibit them from practicing any conduct unless, to put it roughly, the

prohibition would be, in some relevant way, more harmful than the conduct. There is nothing special about religion here.

It may perhaps be replied that coercion in the area of reli

gious belief or practice is more serious than coercion in other areas of human life, because religious beliefs are more central to

one's self-identity than other beliefs -

sufficiently so as to

generate a right that other sorts of belief do not. The fashionable talk of "self-identity" gives this argument

rhetorical edge to which it is not entitled. One's religious beliefs are not part of who one is, unless one thinks that an object

possesses all of its attributes necessarily. Nor are they even,

except in a trivial sense, part of the sort of person one is: when

people lose their religious beliefs they typically do not change very radically (though they may if their religion is of a special sort, say fundamentalist, or intensely evangelical).

26 So called "oaths of allegiance" are routinely administered in the US.

These are not generally best understood as expressions of faith; they are

usually, for the most part, commitments to undertake certain activities, and

they have something of the force of a contract.




Of course, religious belief may be a central focus of a be liever's life. But this can hardly be to the point, since any sort of belief can be central to a person's life. A much stronger claim than that will be needed.

Perhaps it might be argued that religious beliefs are partic ularly apt to be central to the believer's life. They are, it might be said, essentially normative, so that it is a criterion of sin

cerely holding a religious belief that it make a certain sort of difference to one's life. By contrast, it might be said, this is not true of other sorts of belief. But here we must remember that we are defining religious belief merely by its content, and on that

conception, this contrast would be hard to sustain, because any

pressure to accept this sort of internalism about religious belief would surely push us towards holding it about, for instance, ethical and political beliefs too. So we could not uphold the

specialness of religious belief on this basis. And there must be considerable doubt about whether religious belief, defined by its

content, is essentially normative, because the appearances tell

very strongly against it. Religious belief, which did not

appropriately motivate the believer has surely been a com

monplace throughout history. Of course, it is always open to us to say that such belief has not been real, or sincere. But we

would have to have some strong reason to say this, and it is

hard to see what the reason would be.27

But perhaps a weaker claim may suffice: though the mere

content of religious belief cannot guarantee its centrality to the believer's life, in conjunction with some truisms about human

preferences, it may perhaps generate a strong tendency for it to be so.

Again, this claim, if true, would not serve to mark out reli

gion as special, because it will be at least as plausible to hold it in the case of many other sorts of belief. Nor does it seem

especially plausible unless restricted to a fairly narrow range of

religions. Those that promise the believer everlasting punish ment in return for certain behavior, for instance, will generally

27 The same might be said about internalism in ethics. I suspect that the

main reason for holding internalism in ethics is an inchoate acceptance of some sort of non-cognitivism, a non-cognitivism, which is then supposed to

be supported by the internalism. But that is another story.



238 ANTHONY ELLIS

bite more deeply into the believer's life than ones that do not -

though even here the psychological phenomena are obviously much more complicated than this would suggest. But many

religions offer no prospect of either rewards or punishment,

temporary or everlasting. A different claim would be that the very content of religious

beliefs makes it appropriate for them to be central in one's life in a way that other beliefs need not be; whether or not they tend to

be so would then be another question. But this imports an evaluative contrast that does not seem

compelling. Granted, if I believed in, say, the Christian God, I should think that this required a certain whole-heartedness in the way that this belief were realized in my life (a whole heartedness not, it must be admitted, evident in the lives of

many believers). Coercing me here, prohibiting a practice cen

tral to my religion, say, would then be particularly problematic. But the same is true of many moral and political beliefs too. If

religious beliefs are special here, it must be for some reason

other than their content.

V. THE SUBJECTIVE-IMPORTANCE CONCEPTION

I conclude that the content of religious beliefs cannot make them worthy of special protection (though it can, on the other

hand, justify restrictions on their practice). Can the special place of religion be defended if we move to the other conception of religion, the subjective-importance conception? Whether it is

linguistically proper to use the word in this way (except as a

metaphor) may be doubted (cf. the OED); I believe that a

proper understanding of the word requires a definition based

upon content (though not making reference to a god).28 But we

should not argue about the definition of the word "religion". Our question should, instead, be: Is there anything that should

28 Robert Audi also seems to adopt this sort of understanding; cf. Reli

gious Commitment and Secular Reason (Cambridge University Press, 2000), p. 35. Dworkin also embraces this conception: a subjective-importance definition, he says, "is plainly inadequate by itself to distinguish religious from other forms of conviction", whereas a content-based definition is both

necessary and sufficient to do this.




be especially favored and burdened in the way that "religion" is in our constitution? Not, presumably, subjectively important

beliefs merely as such. All sorts of things are subjectively

important to people, which we do not think should be specially

protected from the democratic process: hobbies such as pigeon breeding, for instance, and, in most countries, the ownership of

firearms. But a close relative may be a plausible candidate:

conscientious belief and practice. These are beliefs and prac tices, which are not merely important to people, but important because, in light of their content, they are regarded as somehow demanded of them. This would extend to moral, political and,

perhaps, some aesthetic beliefs as well as religious ones.

One could then refer to such beliefs as "religious", if one

wished. "Religion" would then demand a special place in our

constitution; but this mode of speaking would be obfuscation, and have little in its favor other than political expediency.29 In

29 Something of this sort happens in the following: "Among religions in

this country which do not teach what would generally be considered a belief

in the existence of God are Buddhism, Taoism, Ethical Culture, Secular

Humanism, and others" (Justice Black in Torcaso v. Watkins 367 U.S. 488

(1961)). Compare this curious, though laudable, ruling: "What is necessary under Seeger for a registrant's conscientious [398 U.S. 333, 34] objection to

all war to be "religious" within the meaning of 6 (j) is that this opposition to

war stem from the registrant's moral, ethical, or religious beliefs about what

is right and wrong and that these beliefs be held with the strength of tra

ditional religious convictions" {Welsh v. United States 398 U.S. 333 (1970)). This can only mean that, for the issue at hand, a "religious" belief does not

have to be a (traditional?) religious belief. Chief Justice Burger was more

honest in Wisconsin v. Yoder 406 U.S. 205 (1972): "Thoreau's choice was

philosophical and personal rather than religious, and such belief does not

rise to the demands of the Religion Clauses." (Justice Douglas pointed out

in his dissent that this was not consistent with the ruling in Seeger.) That, it seems to me, has been the predominant understanding of the Religion

Clauses. Cp. David Richards {Identity and the Case for Gay Rights (Chicago: Chicago University Press, 1999, p. 88f.): "By the 20th century, consistent

with an even wider understanding of the diverse sources of ethical convic

tion, the scope of conscience includes a wide range of religious and irreli

gious views protected by both the Free Exercise and Establishment Clauses

of the First Amendment." Much as this may suit Richards's otherwise

laudable argument, it is, as far as "irreligious views" are concerned surely

false. Of the ten cases he cites, only two - Welsh and Seeger - could be held

to suggest otherwise.



240 ANTHONY ELLIS

what remains, I shall use "religion" in what I think its proper sense.

Why should conscientious beliefs and their associated prac tices be specially protected? There are at least three reasons.

The first, and perhaps most important, stems from the nat

ure of the relation between the believer and the belief. For some

purposes, conscientious beliefs and the practices that go with them may properly be regarded simply as preferences. But they are special preferences because of the sort of constraint they place on those who have them. It is not simply difficult for such

people to abandon them, as it may be difficult for a pigeon fancier to give up his hobby. The sacrifice involved is of a quite different sort, a sort that it is reasonable to wish to be immune from the normal process of weighing interests. That wish is realized in constitutional protection, which gives precisely that

immunity. This would surely be sufficient reason, but we may add to it

another. A liberal democracy will wish to foster on the part of its citizens a serious, reflective attitude to important matters of

principle. It can hardly do this and at the same time accept that commitments reached in the light of such reflection may be

submerged at any time in the calculus of interests on which decisions about the public good are normally based.30

A third reason, perhaps less strong, is that prohibitions on

conscientious practice are particularly prone to be disobeyed. Reflective citizens will not see such prohibitions as merely imposing irksome sacrifices, but as causing moral dilemmas,

which will typically be resolved against obedience to the law. This is not something to be welcomed by a society, which values the rule of law.

What should this protection amount to in constitutional terms?

First, as to free exercise, we should of course expect a pro

hibition on the state's requiring anyone to believe anything, or to profess belief in anything, though this has nothing to do with the sort of belief that is at issue; conscientious beliefs are not

30 Cf. Dworkin, Life's Dominion.




special in this regard. And, as far as associated practices are

concerned, we should expect some guarantee of "free exercise"

and "reasonable accommodation" for them.

Second, we could dispense with the Establishment Clause.

Indeed, if we define "religious belief, as conscientious belief, or

subjectively important belief, we have already done so. Despite occasional Supreme Court dicta to the contrary, nobody thinks

that the government may not favor certain beliefs over others,

even when they are the subject of strong commitments (with the

exception, of course, of beliefs that have a religious content). It

does so when, for instance, it uses capital punishment, or when

it forbids its use on moral grounds. It follows that there should be no constitutional objection to

an establishment of religion. But it is important remember here that there are many ways in which a state can have an estab

lished religion - on any plausible conception of an establish

ment of religion. It can do so without, for instance,

"prescribing what people should think,"31 or requiring their attendance at Church. It may, for instance, simply teach a

certain set of religious doctrines as true in the public schools,32 support a particular Church with tax revenue, and require that state ceremonies be centered on the practices of that Church. I do not favor such an establishment, for I think that the central claims of all Churches are false, and that, on balance, religious institutions generally exert a harmful influence on public life; I

simply suggest that the question is one for normal democratic

decision-making.

Department of Philosophy

Virginia Commonwealth University P.O. BOX 842025

Richmond, VA, 23284-2025

USA E-mail: [email protected]

31 Dworkin, Life's Dominion, p. 164.

32 Which does not, of course, amount to "prescribing what people should

think". I teach my students certain things as the truth, but I do not prescribe that they think them.



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What Is Special about Religion?