Chapter 1

Religious thought is typically introduced to new individuals as a vehicle of social indoctrination, by parents who wish to instill morality and respect for tradition in their children. Religion is a social phenomenon first and philosophical one second--we are all born atheists in that we have no need for a specific religion until it is introduced to us at a young age. For this reason, it is prudent first to analyze the cultural impact of religion, to place it as part of a larger pluralist system of believers and nonbelievers, and to evaluate its interaction with the political institutions of a democratic society.

Following the political ascendancy of the religious right during the Reagan administration, religious reasoning has become a widely-accepted and oft-cited vernacular in the national discourse. The right of gays to marry, for example, has been overwhelmingly rejected by voters who grounded their reasoning in Biblical terms, arguing that their religious beliefs held homosexuality to be sinful and thus not equal in weight to straight marriages. Given religious pluralism and a system of democratic discourse, is this an appropriate justification? Does the right to freedom of worship include the utilization of religious principles as justification, or does the public sphere require a secular rationale for a political action? The dichotomy between secular and religious morality can be viewed through the lens of the moral argument between communitarians and Rawlsian liberals, which can be summarized by the following question: "Is rationality attainable, and does this answer excuse irrationality?"

In this chapter, it will be established that because significant portions of the population are nonreligious or subscribe to divergent belief systems, participants will not be able to reciprocally agree on a set of valid premises, and thus no progress can be made within a deliberative dialogue which incorporates religious reasoning. Because all voters ultimately utilize secular thinking to some degree in making political decisions, such reasoning is guaranteed to find acceptance as a valid premise. Therefore it is necessary for those who wish to take part in a pluralistic democratic discourse to frame their arguments in ways which do not rely solely on a particular religious precept.

"People say you can't legislate morality. Absolutely wrong. All laws assert somebody's values. We say, for example, you can't kill somebody."

"Everyone has a right to religious beliefs. But how much of that right should I be able to impose on others?"

These quotes, both from Florida politicians, serve well enough as a snapshot of the author's local political milieu and illustrate the wide spectrum of opinions about the role of belief in the public sphere. Representative Baxley paraphrases the religionist argument which holds that no laws are valueless--even the most basic and common precepts, such as laws against murder, are built upon a particular moral conception (a communitarian argument^²), and so citizens are fully empowered to justify political decisions based on their moral ideology (or religion). Conversely, Representative Cusack's statement speaks to the tension between the right to religious expression and the freedom to pursue one's idea of happiness without undue interference from the public or private spheres, a tension exacerbated by the widespread rhetorical use of principles which will not be shared by everyone (according to thinkers in opposition to the communitarians, liberals such as John Rawls).

This argument has found expression within the ongoing dispute between the Rawlsian liberals and the communitarians, within which the concept of "self" plays an important role.^³Michael Sandel, a prominent communitarian, summarizes the position of Rawlsian liberals: "The antecedent unity of the self means that the subject, however heavily conditioned by his surroundings, is always, irreducibly, prior to his values and ends, and never fully constituted by them."^⁴In essence, Rawlsian liberals argue that the community does not play an indelible role in the formation of an individual's political outlook, but can be surmounted by separating the self from its ends. This radical separation of the self from its prior conditions is necessary to establish a sufficient degree of freedom of thought for the hypothetical Rawlsian "original position" to be realistically attainable. In order to think in an objective and hence fair way, we must forget our place in society or be forever prejudiced by it--if the rich, for example, cannot forget that they are rich, they may be less likely to support higher taxation to provide a social safety net for the poor. If they can forget that they are rich (and thus, could be poor), they will be sympathetic to the plight of the lower class. Within this "original position" thought experiment, rational actors come together to establish the basic principles by which their society will function, under a "veil of ignorance" of their eventual place within that society.^⁵Given that they are unaware of their social position (including such factors as race, sex, economic status, physical health, and intelligence) within the resultant system, they will come to a free and equal agreement which will be fair for all and minimize inequality (they will, in summary, be unlikely to gamble that they will emerge from the original position as a power holder if there is a possibility that they will be subjected to appalling conditions should they instead emerge as a pauper). Rawls considers fair terms of cooperation to be those which are unanimously accepted by all: "given the assumption of reasonable pluralism, citizens cannot agree on any moral authority, say a sacred text or a religious institution or tradition...So what better alternative is there than an agreement between citizens themselves reached under conditions that are fair for all?"^⁶Sandel argues that this concept of the self is impossible to achieve, and thus the basis from which Rawls builds his theory is faulty: "Justice cannot be primary in the deontological [pertaining to duties or ethics that override all other concerns] sense, because we cannot coherently regard ourselves as the kind of beings the deontological ethic - whether Kantian or Rawlsian - requires us to be."^⁷Here the disagreement hinges on the potential attainment of rationality. This is a common theme in religious debate: if it is not possible to achieve rationality, then the irrationality of religion is less objectionable. What is meant by "rationality" (what is required to attain it) is a crucial aspect of this dialogue and will be addressed in subsequent chapters.

Moral issues in American politics are frequently the most difficult to resolve. This is illustrated by the current controversies surrounding abortion, censorship, capital punishment, gay marriage, and intelligent design in science classes (among many others).^⁸Each issue represents a tension between freedom of conscience and the notion of popular sovereignty: in a democratic system, there is a delicate balance between one's right to pursue his or her conception of the good (to borrow Rawls's term which approximates the constitutional "pursuit of happiness") and the collective right to shape public policy in accordance with the community's interests.^⁹The issue of gay marriage (and the overarching phenomenon of sexual prejudice against homosexuals) is especially illustrative, given the nature of the consensual relationship in question: one which has a minimal impact on those outside of it.^¹⁰Other controversial issues, such as abortion, censorship, and capital punishment, may be interpreted to have certain consequences for those outside of any freely agreed upon contract (in the issue of abortion, the fetus; in censorship, the children exposed to what are considered harmful images). Gay marriage, however, is unique: it consists only of the government recognition of the union of two members of the same sex, equivalent to that which is already afforded straight couples, and carries no attendant ramifications for anyone outside of the relationship.

Popular opposition to gay marriage is widespread, though scattered. In 2008, voters in California, Arizona, and Florida voted to explicitly ban gay marriage via ballot initiatives, and Arkansas voted to ban gay adoption. Reverend Ed Bacon, pastor of the All Saints Church in Pasadena, attributed the measure's passing in California to religious campaigns: "It's very unfortunate and embarrassing that the (Christian religion) is in large part responsible for this act of bigotry," he said, referring to the misinformation campaigns (which charged that the amendment's failure would normalize gay marriage and result in its introduction into grade school curricula) headed by religious organizations such as Rick Warren's Saddleback Church.^¹¹The success of Proposition 8 has spawned proactive protest in California: the artistic director of the California Musical Theater, Scott Eckern, a Mormon whose church played a role in the campaign to pass the proposition (Eckern himself donated $1,000), found himself on the receiving end of a local boycott. A newspaper article quotes his church spokeswoman's reaction:

"It's disheartening that he is being singled out," said Lisa West, spokeswoman for the church in the Sacramento area. "We had hoped there would be more tolerance for different viewpoints."^¹²

Others have been singled out, including Dave Leatherby, whose family ice cream business had been targeted by bloggers. Leatherby, a Catholic who donated $20,000 toward the passage of Prop 8 (citing his religion as motivation), said, "I always told my children that once a rule was made, you have to abide by it. I think it should be the same in this circumstance." Perhaps most revealing was this particular reaction:

"Protesting is a time-honored American tradition," said Ned Dolejsi, executive director of the California Catholic Conference. Catholic leaders were active in the Yes on 8 campaign. "But it's unfortunate when it steps over into religious bigotry or harassment."^¹³

These quotes reveal an exceptionalist (the view that one's own group is unique and--quite often--above the rules to which others remain bound) character in the religionist, who is quick to cry victim in reaction to popular opprobrium (fully legal protesting and peaceful boycotting at that), relying on the liberal vernacular (calls for tolerance^¹⁴) and legalist ex post facto justifications (Mr. Leatherby's statement) to explain their own rallying of popular opprobrium at the ballot boxes. Newt Gingrich, former Speaker of the House, said on The O'Reilly Factor that

there is a gay and secular fascism in this country that wants to impose its will on the rest of us, is prepared to use violence, to use harassment. I think it is prepared to use the government if it can get control of it. I think that it is a very dangerous threat to anybody who believes in traditional religion.^¹⁵

On the other hand, these adherents of traditional religion are by Gingrich's argument permitted to impose their will through the use of the government; it is only gays and secularists whom are expected to effect change through the private sector alone. The exceptionalist outlook held by Gingrich and other supporters of the gay marriage ban is a recurring theme in American politics and reaches far beyond the realm of religiously-derived bigotry. It will be more deeply dissected throughout the course of this work.

According to an earlier 2003 Pew Forum on Religion and Public Life poll, the top two reasons given for opposition to gay marriage were: at 28%, "Morally wrong / A sin / The Bible says," and, at 17%, "Against my religious beliefs."^¹⁶Another 12% said that "It's just wrong / I just don't agree with it," which indicates that a majority of the respondents offered reasoning couched in moral terms. Rather than utilize a pragmatic line of reasoning, such as the legalist argument that marriage is explicitly defined as the union between a man and a woman, the respondents appealed to a moral sense of right and wrong. The top two answers, which add up to 45% of the respondents, are explicitly religious, and several others are undoubtedly influenced by religious thinking, although the language used did not make it explicit.^¹⁷Exit polls from the 2008 election revealed that 65% of Protestants and 64% of Catholics voted to ban gay marriage, compared to just 10% of those who claimed to have no religion.^¹⁸

This sort of prejudice extends beyond the issue of gay marriage into the realm of general prejudice against homosexuals, which is widespread in America. Polls indicate that roughly half of Americans consider homosexual relations to be immoral. In 30 U.S. states, the firing of employees due to open homosexuality is legal (for both state and private employees). A January 2009 California court case found that lesbian students can be expelled from private schools, provided the rationale is religious and the school is not run as a business.^¹⁹Additionally, homosexual spouses are not allowed to visit their hospitalized partners: in 2007, a Miami woman was kept from seeing her partner of 17 years, only gaining admittance after the patient had expired, a decision later reinforced by a district judge, who dismissed the woman's lawsuit against the hospital (other partnership benefits, such as health insurance and end-of-life decision making rights are also denied to gays).^²⁰Sparse legal protection for homosexuals is only recently emerging (it was not until 2009 that hate crime legislation was expanded to cover sexual orientation, and this was via a clause in a defense appropriations bill^²¹), but the question remains: what is the existing rationale for denying gays equal rights, aside from the legalist answer that gays are not yet widely accepted as a protected class?^²²

Donald Saucier and Audrey Cawman write in the Journal of Homosexuality that "Much of the negativity toward homosexuals may be rooted in the perception that homosexuality is immoral and violates Judeo-Christian religious teachings."^²³This prejudice may also be rooted in a preexisting homophobia, which then influences one's interpretation of the bible, rather than vice versa (the chicken and egg question^²⁴). Another Pew Forum poll from 2003 finds the homosexuality-as-sin viewpoint common:

Most Americans (55%) believe that homosexual behavior is a sin, while 33% disagree. Strongly religious people are far more likely to see homosexual behavior as sinful than are the less religious. Nearly nine-in-ten (88%) highly committed white evangelicals say homosexual behavior is sinful, and 64% of committed white Catholics agree. Nearly three-quarters of black Protestants (74%) see homosexual conduct as sinful. But just 18% of secular respondents feel this way.^²⁵

Moral issues such as gay marriage are occasionally settled, always controversially, by the judiciary.^²⁶Ted Jelen offers a summary categorization of the legal schools of thought regarding the traditional wall of separation, a milieu comprised by the "accomodationists" and the "separationists." Accomodationists believe that government is only prohibited from favoring one religion over another, and is empowered to encourage religion as a whole given the benefits it carries for society.^²⁷Thus Alexis de Tocqueville, who saw American Christianity as monolithic and spoke of a religious consensus that formed the foundation of American morality,^²⁸would be an accomodationist. Seperationists, on the other hand, argue that any government assistance to religion itself (in addition to any particular one) is a violation of the separation of church and state--thus religion must be entirely depoliticized. Supreme Court Justice Hugo Black, who wrote in Everson v. Board of Education that governments can give direct aid neither to a particular religion nor to all of them as a whole, would be a separationist.^²⁹The degree to which one would allow a democratic government to aid and abet religion forms a central piece of the current debate about the propriety of prayer in schools, religious monuments on public property, censorship, gay marriage, and other moral issues.

The general opposition of the courts to the intermingling of religion and politics has been a recurring, though sometimes wavering, theme in American law. In evaluating such cases, judges use the litmus test developed in Lemon v. Kurtzman, which, according to Jelen, holds that "policies that assist religious institutions, or advance religious beliefs, are unconstitutional."^³⁰Recently, however, the Supreme Court has been moving toward a more accomodationist perspective: in 1993, for example, it ruled that public schools must allow religious groups to use the grounds after the school day ends, provided other groups are allowed the same privilege.^³¹It has also ruled, in a unanimous decision, that the use of sacramental hallucinogenic tea in a New Mexico church was constitutional, on the basis of the 1993 Religious Freedom Restoration Act. This law states that religious practices should be allowed in the absence of a compelling reason to limit them.^³²It was enacted to reverse the previous decision of the Court in Employment Division v. Smith, in which the court ruled that "Native Americans who used the hallucinogenic drug peyote during a religious ritual were not entitled to legal protection under the free exercise clause."^³³In 2005, the Supreme Court threw out a death penalty conviction because jurors had utilized the Bible during their deliberation; however, a separate instance of this occurred in Texas in 1999, during which jurors cited such Bible quotes as "And if he smite him with an instrument of iron, so that he die, he is a murderer: the murderer shall surely be put to death" in arguing for capital punishment in the case of Khristian Oliver. In 2008, an appeals court judge ruled that, while the Bible should not have been present during the deliberation, its use did not unduly influence the jury; the Supreme Court refused to hear the case (Oliver is set to die in November, the victim of Biblical teaching).^³⁴

More recently, the case of the Summum religion in Utah established a government right to host religious monuments on public land without requiring that officials accept monuments from all faiths, suggesting a move beyond mere accomodationism. The Summum practitioners of Utah had sought to place a monument in a Pleasant Grove City park which at the time hosted a Ten Commandments statue, but was turned down by the city, which cited the historical relevance of the preexisting monuments as sufficient reason to refuse the Summum monument. A federal appeals court initially ruled that the city's decision was a violation of free speech protections, but the decision was reversed in a unanimous yet contentious Supreme Court ruling which held that government's ability to select what is said on public monuments (compared to speeches or assemblies held in public places) legitimates such discrimination as rightful government speech--it is not an unconstitutional abrogation of citizens' right to free speech because it is the government, rather than the citizens, speaking. The justices avoided the Establishment Clause issue by arguing that the Ten Commandments' message is subject to interpretation, and therefore not explicitly religious (the motto "In God We Trust" was ruled constitutional for a similar reason: that it has, over many centuries, lost its original religious significance and is now little more than a slogan). Justice Souter, in a concurring but hesitant opinion, argued that the city should take steps to accept competing monuments in order to avoid the appearance of a declaration of official religion.^³⁵

Many district courts have not been particularly supportive of overt church-state intermixing: in 2003, U.S. District Judge Myron Thompson ordered Alabama Chief Justice Roy Moore, an open homophobe and conservative jurist, to remove a monument to the Ten Commandments which he had placed in the rotunda of the state judicial building, stirring up controversy among conservative Christians who argued alongside Moore that the Commandments formed the basis of American law (Moore refused to comply with the order, and was eventually removed from office).^³⁶This follows the 2002 decision by the Ninth Circuit Court of Appeals that the phrase "under god" was an unconstitutional addition to the Pledge of Allegiance, a ruling upheld by several other district courts but overturned on procedural grounds by the Supreme Court (which was thus able to avoid commenting on the constitutionality of the phrase). The salient factor of these and other cases (including two June 27, 2005 Supreme Court decisions: Van Orden v. Perry, in which the court ruled without a majority that a Ten Commandments monument in Texas was constitutional because it contained both a religious and secular message, and McCready County v. A.C.L.U. of Kentucky, in which it ruled that the lack of an integrated secular message resulted in an Establishment Clause violation^³⁷) has been one of explicit religiosity versus implied religiosity: an explicitly religious intention in the monument's display is tantamount to a violation of the First Amendment prohibition on state favoritism toward a specific religious creed, whereas an implicitly religious message--that is, one which is left, at least to a minimal degree, to the reading of the viewer--is permissible because there is a possible interpretive secular basis to the monument. Such a compelling secular purpose is often found in the notion that religious messages have been integrated into secular ones and have thus lost their distinctly religious dimension. It must be immediately asked, though: if the religious slogans and monuments have lost their meaning and are now little more than rote recitations, why is there a fight to keep them in place over equivalent secular messages? The Ten Commandments are especially instructive, given the dubiousness of their connection to modern law (in particular, the Commandments concerning the worship of god). Indeed, it is only because the Ten Commandments are included as a whole (rather than simply the few Commandments which were in fact integrated into Western legal traditions) that the religious edicts remain--as merely a stylistic concession. What compelling secular basis is there for the inclusion of several edicts on a monument if such are explicitly religious and thus can only be plausibly included if they are to be construed as regrettable hangers-on which the viewer is urged to ignore? If anything, this is an explicitly anti-Christian message: the secular and rational Commandments are on display only because they are not religious and are thus worthy of consideration.

With respect to establishment issues, the courts are often in disagreement with Congress, which has reflected the more accomodationist perspective of the majority of their constituency.^³⁸The issue of school prayer, for example, has in recent decades been highly popular with most Americans, and has been the subject of several hundred introduced bills in the House and Senate.^³⁹One recent bill which seeks to weaken the church-state barrier is the Constitution Restoration Act of 2005, which has been drafted "to limit the jurisdiction of Federal courts in certain cases and promote federalism." The "cases" referred to in the legislation are those which pertain to a public official's "acknowledgment of God as the sovereign source of law, liberty, or government."^⁴⁰The bill, which would have hampered judicial oversight of constitutional matters pertaining to the separation of church and state, was referred to the Committee on the Judiciary but has not moved further.

According to Jelen, the nature of the American political sphere itself (which is built around the principles of Lockean liberalism) causes those moral conceptions built around religious precepts to "require translation into the Lockean vernacular before they can be argued plausibly in the highly pluralistic public square."^⁴¹Where unable to argue from the hegemony of Christianity in America, the religious right has been able to construct arguments that do not rest on their religious ideology, utilizing instead the language of family values, individual liberty, or some similar vernacular.^⁴²As Jelen writes, attempts to thwart opposition to religious intrusion in politics using political or rights language are not uncommon:

Most frequently, religious conservatives have used the language of rights to justify some of their policy preferences…The rights of homosexuals to non-discrimination, or of women to terminate pregnancies, or research done on "human" embryos in stem-cell research, are often characterized as violations of the rights of others.^⁴³

Even so, the bedrock of these rights arguments is commonly a religious one--for example, the idea that life begins at conception (and that fetuses then have a right to life) is rooted in Biblical precepts. Of particular importance to the idea of public deliberation is the nature of the justification offered by the Christian right. Rather than offer strictly religious reasoning, there has been an increasing tendency to

invoke more general and consensual political values when defending their political positions. Warrants such as federalism (the division of power between national and sub national governments), self-governance, strict construction of the U.S. Constitution, and judicial restraint have frequently been employed to provide possibly common bases by which culturally conservative positions can be justified.^⁴⁴

Such "general and consensual political values" are founded on the idea of reciprocity, a central tenet of Rawls's theory, which holds that a political deliberation should be built upon a mutual understanding that the benefits for following the rules of public justification should be available and desirable to all.^⁴⁵This standard is echoed in similar form by Amy Gutmann and Dennis Thompson, whose conception of the principle of reciprocity provides a method of mutual justification within which the reasoning behind a political decision (such that would utilize the coercive power of the state) should be agreeable to both parties, provided that both are free and equal decision makers and are unencumbered by any coercive factors.^⁴⁶

In order to specify what sort of reasoning constitutes an appropriate justification under the reciprocity principle, the authors propose a set of four criteria. In order for justification to be considered reciprocal, it must be: accessible (reasoning which is comprehensible and not based merely on an authority),^⁴⁷moral (reasoning which does not crassly serve the interests of particular groups or individuals at others' expense),^⁴⁸respectful (reasoning which recognizes of the worth of the opponent's position insofar as theirs recognizes the worth of others'),^⁴⁹and revisable (reasoning which acknowledges that its position may at some point be proven incorrect, given the worth of the opposing party's reciprocal opinion).^⁵⁰Within a representative government, these principles guide a political actor's decision and ensure that the underlying justification offered (if not the law itself) is acceptable to those whose freedoms have been limited as a result of that decision.^⁵¹

The problem of reconciling freedom of worship with religious pluralism within a democratic system has found expression in a variety of philosophical traditions, from the Rawlsian form of liberalism, in which political rights are seen as independent of moral or religious doctrines, to the Communitarian critique of this disconnect offered by authors such as Michael Sandel. The concept of public justification and the right's priority to the good, two crucial elements of Rawls's theory, heavily informs this debate. The public justification concept hinges on the existence of a consensual agreement that the underlying principles which shape political institutions are just; although individuals are free to disagree on the outcome of the political process, they should agree that the basis for the system is just. In explaining a political position in this way, one utilizes a form of "public reason" which rests upon this shared consensus, the premises of which should be reasonable to all regardless of their religion or moral philosophy.^⁵²In order to fulfill such a requirement, the basis for which the political rights are formulated must be independent of any particular moral conception ("the good") which will not be held by all within a pluralistic (heterogeneous) society.^⁵³

John Stuart Mill writes in Three Essays on Religion about the viability of religion as an instrument for favorable social change. He notes the inextricable influence of religion on public thought throughout history: "The effect of religion has been immense in giving a direction to public opinion."^⁵⁴However, this is not a one-way street: public sentiment can also determine the course of religious development in a particular community.^⁵⁵In this way, religious influence on morality is incidental: by this stage in the development of the human race, such morals as those which happen to be contained within a religious doctrine should be seen as sufficiently removed from its origins and arguable through other means. Religion, he writes, is a vestigial remnant of humankind's savage past, in which mysticism was the only available explanation for the workings of the world and the only viable transmitter of social order. Although it has at times been used to procure rights for previously disenfranchised, according to Mill, the source of civil disobedience could have been found elsewhere, such as in public opinion or the writing of established thinkers.^⁵⁶

The liberal delineation of public and private spheres removes religious doctrines from the social milieu and restricts them to the private level, to what John Stuart Mill refers to as a "personal affair between an individual and his Maker, in which the issue at stake is but his private salvation."^⁵⁷Liberal theory holds that citizens should be entirely free to practice their beliefs within the private sphere--that religion, for example, ought to be left up to the individual and unrestricted by the government or community.^⁵⁸In the American political tradition, which is built upon these theoretical frameworks, the separation of church and state as it is presently understood began with Thomas Jefferson's letter to the Danbury Baptists, who had requested a guarantee from Jefferson that their rights as a religious minority would not be threatened by the larger, more established churches; hence the separation was meant to ensure mutual non-interference.^⁵⁹Religion is thus wholly removed from the political, functioning instead as a private institution underpinning society which, as noted by de Tocqueville, can channel and sublimate political impulses.^⁶⁰James Madison, on the other hand, viewed the pluralism of American religion (found both within Christianity and in other religions) as a dangerous source of factionalism.^⁶¹Thomas Paine wrote as well of the dangers of religious ingress upon the political system in his essay "The Age of Reason":

The adulterous connection of church and state, wherever it had taken place, whether Jewish, Christian, or Turkish, had so effectively prohibited, by pains and penalties, every discussion upon established creeds, and upon first principles of religion, that until the system of government should be changed, those subjects could not be brought fairly and openly before the world: but that whenever this should be done, a revolution in the system of religion would follow. ^⁶²

An alternate theory, offered by the communitarians, charges that the Rawlsian view is unrealistic: the right and good are inseparable. Sandel argues that the deontological liberal notion that one can rise above his or her particular circumstances (what Rawls refers to as contingencies) and approach questions of political justice from a transcendental perspective is false: we are inextricably linked to our conception of the good and develop within a social framework which has an undeniable impact on our selves.^⁶³For this reason, any attempt to create a political conception of justice, far from being impartial or agreeable to all, will be colored by the various beliefs of the participants, including religious doctrines and moral philosophies. In short, the Rawlsian veil of ignorance, which hinges on this conception of the self, cannot be fully realized.^⁶⁴If political actors are incapable of rising above their contingencies and acting as impartial arbiters of social justice, then attempting to create a theory of justice in which the right is independent to the good is at best futile and at worst dishonest.

InRejecting Neutrality, Respecting Diversity: From "Liberal Pluralism" to "Christian Pluralism," Jonathan Chaplin offers a dissenting perspective on religious political influence: "Vigorously defending directional plurality and consciously shaping the state in a Christian direction are not only compatible, but - from a Christian directional standpoint - mutually implicative."^⁶⁵Chaplin argues that liberal pluralism itself is not the neutral encouragement and acceptance of diversity its supporters hold it to be, and for this reason, "Christians should be unapologetic about the fact that the variety of pluralism they seek is not mere pluralism, but Christian pluralism."^⁶⁶A Christian pluralist state would incorporate many of the liberal pluralist principles, but would focus on creating a state in which emphasis was placed on recognizing and working for the "public good," a term with which communitarians like Sandel would be familiar and supportive,^⁶⁷but which would give Rawlsians pause. In another parallel to the communitarians, Chaplin argues that states cannot avoid showing preference to one particular conception of the good.^⁶⁸Peter Berkowitz of Symposiumargues similarly that Rawls misapplies the concept of directionless "public reason" in his argument against the pro-life viewpoint, extending the principle beyond its intended use by employing it to reject pro-life arguments:

Indeed, the idea of public reason fails to compel or inspire Rawls to examine, or recognize a need to examine, claims made on behalf of the key competing political value, 'due respect for human life' in the form of the life of the fetus or unborn child.^⁶⁹

In order to ascertain the validity of religious justification in the public sphere, an illustrative hypothetical is hereby proposed. Within it, passengers on a cross-country train carry out an intuitive dialogue about relevant political issues, such as gay marriage. This discussion is framed as a microcosm of political discourse on a larger scale, which takes place between free and equal actors in a pluralistic society. En route to their destination, two passengers, an atheist and a Christian, strike up a conversation about rights and philosophy, which leads to the issue of homosexual marriage (or that of homosexual activity itself, which is equally applicable), and the question of the government's rightful ability to stop the formation of such a contract. The atheist is opposed, feeling that it is within the rights of individuals to enter into a freely derived contract, and that allowing straight couples to enjoy the legal recognition of this contract while denying it to gays is discriminatory. The Christian takes exception to this, and argues that it is his right as a Christian to oppose practices which he considers sinful. When the atheist asks why Christianity compels him to harbor a dislike for homosexual behavior, the Christian cites the righteous destruction of Sodom and Gomorrah. But the atheist does not feel compelled to accept the religious justification of the other because he does not share his religious beliefs--to him, Sodom and Gomorrah is a fable, not an undeniable source of morality. An argument ensues.

First, the passengers must specify what is meant by gay marriage. Those who oppose it on religious grounds often conflate the two distinct elements of any marriage: the religious ceremony and the legal union. Gay marriage will be defined here as the equivalent government recognition of the union between two members of the same sex as that which is currently given to heterosexual couples. This would not entail any mandate for religious organizations to carry out ceremonies for gay couples if they do not wish to--thus the churches would retain sovereignty over their own spheres, and the legalization of gay marriage would not engender any government encroachment on their right to practice their religion as they see fit. Because the legal covenant of marriage is viewed as a consensual agreement between two free and equal adults, there are no attendant ramifications for parties outside the agreement. Provided that both participants are free from undue coercion and pressure, gay marriage can be considered a freely sought contract which is accorded government recognition and protection (and all the benefits which go along with it). This speaks to the distinction between public and private restrictions, of which gay marriage is the former. Rawls writes: "So understood, the political is distinct from the associational, say, which is voluntary in ways that the political is not; it is also distinct from the familial and the personal, which are affectional, again in ways the political is not."^⁷⁰Churches would thus be considered an associational group, outside of the regular purview of the political. Freedom of worship provides a protection of the right of churches to exclude members from certain practices, because this exclusion is wholly contained to the private sphere and does not impact one's ability to enjoy his or her rights as a citizen (as Rawls says, "while churches can excommunicate heretics, they cannot burn them").^⁷¹

A crucial issue here is the principle of harm, which is defined for the purposes of this work as: any action which has measurable and definite^⁷²negative consequences for a fellow rights holder against his or her will. Thus gay marriage and sexual activity, for our purposes, is harmless, because it takes place between rational, consenting actors who are informed of any risks associated with the activity. One is also unable to harm oneself in this sense, because the action is then either intended or accidental, neither of which would necessitate government restrictions.^⁷³For harm to be a useful principle, it must restrict itself to measurable and verifiable repercussions, including demonstrable physical, mental, and financial harm.

Returning to the established hypothetical situation, the two passengers begin to discuss their philosophical beliefs. The atheist argues that homosexuality, as long as it is practiced between two consenting free and equal adults, is not harmful. The Christian disagrees, drawing on Biblical scripture to argue against the practice, which he feels is harmful to god. The atheist need only request proof for the existence of this deity to nullify the Christian's argument, which is effectively an appeal to (a higher) authority: because the burden of proof rests on the party making a positive claim, it would fall on the Christian to prove the existence of god (and to prove that this god opposes homosexuality). As Thomas Paine wrote,

Revelation, therefore, cannot be applied to any thing done upon earth of which man is himself the actor or witness; and consequently all the historical and anecdotal part of the Bible, which is almost the whole of it, is not within the meaning and compass of the word revelation, and is therefore not the word of God.^⁷⁴

The Christian, seeing that the nature of god cannot be proven (indeed, such proof would negate the faith component of his chosen religion), must then provide some secular justification if the atheist is to be convinced. He may then argue that homosexuality leads to a higher rate of H.I.V. infection, contributes to social decay, or in some other way produces measurable repercussions for parties outside of the consensual relationship.^⁷⁵The atheist can then field such objections, drawing on his social and scientific knowledge to debunk such claims, and the conversation can continue in such a fashion.

Had the Christian refused to pursue a secular line of reasoning, the conversation would have abruptly ended because no common ground could be reached. The Christian may argue that the atheist is obliged to take up the faith because Christians far outnumber atheists as a demographic. However, because both men inevitably think in secular terms, and because these terms would also include the perspectives of all other passengers on the train (religious or not), secular reasoning is more inclusive. Had the atheist instead been forced to take up his faith in order to argue with the Christian, the introduction of a third man, this one a Muslim, would also result in an impasse, as it would be impossible for the atheist to fully adopt the perspective of a Muslim and Christian at the same time. While all three are rational to some degree, their religious views are irreconcilable. A Christian can think in secular terms; an atheist cannot think in Christian terms (religious thought being incompatible with secular thought by very definition).^⁷⁶This reinforces Gutmann and Thompson's argument that, concerning reciprocity, "It would not be acceptable, for example, to appeal only to the authority of revelation, whether divine or secular in nature."^⁷⁷In much the same way, a Hindu would be unable to convince either the Christian or the atheist of the sanctity of the cow using only the Vedas. As Gutmann and Thompson write, this does not apply only to religious thought--a communist would also fail if he or she accepted Marx's works as dogma and refused to interpret them as anything other than self-evident truisms.

If religious precepts accurately reflect a politically useful principle, convincing secular arguments would flow from them, and religionists would not need to rely on textual evidence to support their contentions (this rephrasing in secular terms is already widely done, as Jelen argues above). For example, if homosexuality was indeed worth restricting, there would be some compelling secular argument for its prohibition. The lack of any persuasive data to this end suggests that homosexuality is not actually harmful, by the definition established herein (the act takes place between consenting adults in privacy, so no one outside that relationship is negatively impacted). The Christian may argue that homosexual behavior is harmful to god, but this again would require proof of the deity's existence, since any politically useful definition of harm restricts itself to that which is measurable in some way and excludes vague references to illusory concepts or beings. The Christian may then assert that homosexuality is harmful to the traditional social mores of the nation. However, as Mill argues, the intersection of religion with various political and moral values is incidental: it is true that religion has played an incidental role in the development of the American political tradition, but tradition is not by definition correct, and must often be broken.^⁷⁸Thus if the Christian utilized the oft-cited argument that Christianity is an inextricable element of American political culture, the atheist need only point out that at one time, institutionalized racism was as well.^⁷⁹It is as ineffective to appeal to tradition as it is to appeal to god, because an appeal to tradition assumes its validity as a conception in the same way that appealing to god as an authority assumes its existence. Tradition in actuality only ever works to retard progress--were there compelling reasons to continue a practice, the veneration of such as a tradition would be entirely unnecessary. This is true as well for religious rhetoric: only those practices which struggle for a compelling secular rationale are well served by the existence of a religious one. Thus while religion appears to propagate both homophobia (which has a compelling religious rationale and no compelling secular rationale) and charity (which has both a compelling religious rationale and a compelling secular rationale), it is collusion in the former case and strange bedfellows in the latter.

Worse, this religious tradition is one which does not exist: by the Treaty of Tripoli, unanimously approved in 1796, America was not founded on Christian principles. Article 11 of that treaty begins with the phrase "As the Government of the United States of America is not, in any sense, founded on the Christian religion…"^⁸⁰Furthermore, there is no monolithic or consensual Christian tradition from which to derive precedent. Jelen writes: "As an empirical matter, it is difficult to specify the content of a religio-moral consensus in a society in which issues such as abortion, homosexuality, stem cell research, and gender equality are contested among and within American faith traditions."^⁸¹Christianity as a whole may constitute the vast majority of American religious belief, but any single sect or interpretation of its doctrine remains much smaller in number, and so appeals to majority should concern those who employ them--in one aspect or another, all are minorities.

The 2006 Supreme Court case Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, which established the freedom of churches to use hallucinogenic tea in religious rituals, illustrates the importance of the principle of harm in American law. The court legalized the use of this tea in closed ceremonies, asserting that the government does not have a compelling reason to stop its use--the tea does not cause those who ingest it to harm others, and is taken in a secure setting.^⁸²Had the church decided instead to sacrifice several of its members, as religious cults have done in the past, a compelling reason would have existed and the government would have rightly stepped in. It is then prudent to ask: what is the relevant difference between engaging in homosexual behavior and ingesting hallucinogenic substances in a controlled environment? There is no significant moral distinction between the two (no one outside of the consensual relationship is adversely impacted), and yet until only recently, sodomy was illegal in Texas (the same law also illegalized some sex toys and the act of oral sex). Importantly, the majority opinion in Lawrence v. Texas, the 2003 case which overturned this law, emphasized the private and consensual nature of the sex act performed by the defendants:

The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

Justice Sandra Day O'Connor, in the concurring opinion in Lawrence v. Texas, writes that moral disapproval alone does not constitute a legitimate reason to limit the legality of an action under the Equal Protection Clause of the 14^thAmendment:

A State can of course assign certain consequences to a violation of its criminal law. But the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects homosexuals to "a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass … cannot be reconciled with" the Equal Protection Clause.

Justice O'Connor is arguing that the government must employ a form of reasoning which does not simply assert a particular moral conception. In this case, the moral conception that homosexuality is wrong (colored largely by religious belief) cannot provide a compelling interest for the government to supersede the general right to privacy (a right found in Griswold v. Connecticut, in which the court cited a general constitutional privilege, suggested by the Ninth and Fourteenth Amendments, of individuals to exercise freedom of private choice absent a harm dimension to their actions); thus the court cannot uphold the prohibition of homosexual activity. If the politicians' sole reliance on the "moral disapproval" rationale constitutes a violation of the Equal Protection Clause, it is reasonable to argue that an explicitly religious rationale for any law would similarly violate the Lemon Test and constitute an attempt at church establishment, because such a justification fails to provide a compelling harm-related rationale. Constitutional rights repeatedly return to the harm doctrine as a source of social and private freedom (economic freedom is another matter entirely, as we will see); its importance in the American legal tradition cannot be understated, and its importance in the American moral tradition is lacking, to the detriment of all.

Had the Texas legislators made an additional argument that such private, consensual activity was harmful in some other way, the Supreme Court may have considered this argument (from the Lawrencedecision: "Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage"). It seems here that religious expression is protected not because it is religious expression, but because its use in certain instances can be considered harmless (in that it is not used to attempt to assert government disapproval where none is merited; neither is it used to harm others privately--see the hallucinogenic tea case). Scalia alludes to the real-world ramifications of the Lawrencedecision in his dissenting opinion, in which he argues that the ruling will effectively call into question the previous holding in Bowers v. Glen Theater (here, the court held that a public decency law in Indiana was constitutional, as it worked to uphold "order and morality.") The Lawrence decision, he writes, would set a wide-reaching precedent to limit other forms of moral statutes, including "state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." Scalia writes:

The impossibility of distinguishing homosexuality from other traditional "morals" offenses is precisely why Bowersrejected the rational-basis challenge. "The law," it said, "is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed."^⁸³

He makes a communitarian argument in asserting that the law is an expression of morality, but the question remains: if the government has no compelling interest in stopping the use of hallucinogenic drugs to communicate with god, why then would it have a compelling interest in stopping one from practicing homosexual behavior? Or, to incorporate Scalia's above list of morally worrisome behaviors, why would it have a compelling interest in stopping someone from masturbating or fornicating? Qualitatively, his listed activities (save prostitution and bestiality) are equivalent to homosexuality in that no one outside of a consenting relationship is harmed. As O'Connor argued, laws which apply to a specific group must be based on a compelling state interest and not simply the moral preferences of a majority state legislators or voters--such a legally enforced moral opprobrium is essentially discrimination.

A compelling state interest for regulative policy may be found in Texas's high rate of teen pregnancy: although it receives more federal abstinence education funding than any other state, Texas has one of the highest teen pregnancy rates in the nation.^⁸⁴A February 2009 Texas Freedom Network study found that more than 94% of Texas school districts "do not give students any human sexuality instruction beyond abstinence," with an additional 2% not including any sex-ed curricula to speak of.^⁸⁵Abstinence-only education has proven to be highly ineffective at reducing teen pregnancy rates, but the Texas system goes beyond mere failure of inaction: teaching materials used in 40% of Texas secondary schools contain factual errors regarding condoms and sexually transmitted diseases, and many more leave out crucial information in a potentially misleading way.^⁸⁶Though a vast majority of Texans are generally supportive of a more comprehensive mode of sex education,^⁸⁷administrators most often cited the controversy surrounding sex education and the perceived religious, conservative outlook of their community as an explanation for the lack of instruction (lax education standards in Texas also play a role).^⁸⁸Indeed, dozens of school districts violate the Establishment Clause by utilizing explicitly Christian teaching materials by forcing students to learn, for example, that god must approve of their dating partners (the teaching materials assert that god's approval can be discerned by asking such questions as "Is Jesus their first love?").^⁸⁹Such a widespread, unconstitutional, and clearly harmful practice as abstinence-only sexual education warrants proactive government action (yet abstinence–only programs received $50 million in government funding in 2009, despite Obama's attempts to eliminate it); private sexual liaisons among consenting adults does not.

The communitarian argument which holds that one can never fully leave behind his or her conception of the good is immaterial for the purposes of deliberative discourse, for discourse does not ask this of its participants. Deliberation deals with the reasoning given, not with the internal reckoning which directed the initial formulation of that opinion. If discourse required a full understanding of the myriad psychological and chemical factors which informed another's position (or even of that which influenced one's own), nothing short of omniscience would legitimate any form of coercive government power. Asking of us a fullseparation of the self disparages the very real, very attainable provisional separation which allows thinkers to move beyond the baser instincts of self-interest and understand (and thus empathize with) another individual. In order to understand one another, participants must be willing to relate, in some form of discourse, that which is desired. This requires only a foundation of reciprocal guidelines, not a Rawlsian level of detachment from one's ends. If the consequences of any governmental force engendered by this dialogue are minimal and non-fatal, and more importantly revisable, they are provisional in the same way a dialogue-based detachment is and are thus tolerable. In essence, the inability to achieve transcendent rationality is destructive only to the rightful enforcement of deadly, irreversible laws--those which are intuitively minimal do not demand platonic certainty (traffic laws, for example, do not require 100% certainty that a fatal wreck would occur in their absence).

More importantly, secular justification, whether or not it is ultimately colored by one's moral conception, is yet more inclusive in the democratic sense, and can take into account the whole of human opinion. The following diagram illustrates the dichotomy between secular and religious justification from the Rawlsian perspective:

Here, "public reason" is essentially non-moral secular reasoning, derived by a public consensus. If Rawls is correct, then secular justification can be predicated on moral (influenced by one's secular conception of the good) or public grounds, with preference given to public (consensual) reasoning. If Sandel and the communitarians are correct, on the other hand, then "public reasoning" would disappear and the diagram would appear as follows:

In this way, communitarian thought would hold that all modes of rational justification are moral, and the only qualitative difference would be the source of that morality: religious or secular. Whether or not the communitarians are correct in their conception of the self, there is a clear dichotomy between religious and secular thought, with secular thought being the more inclusive of the two. Even if political actors are unable to rise above their moral conceptions to make reasoned public judgments, they are able to articulate these conceptions in secular terms. Thus while it may or may not be possible to come to a fully public consensus, it is possible to come to a secular one, because all human beings, no matter how religious, ultimately interact with and base at least part of their knowledge on input derived from the material world. A moral conception, so long as it is based on secular principles and observations, can be considered and responded to by one who does not share it; in addition, moral conceptions based on secular reasoning are not so persistent, because their precepts do not rest on faith in an otherworldly concept, but on a particular interpretation of the mundane. To the extent that such interpretations are based on definite ethical or factual assertions, they are falsifiable, whereas interpretations resting on the purported statements of a metaphysical being or concept are not. Secular reason is thus consensual or public reason.

In order to illustrate this, let us suppose then that the Christian adopts a secular moral opposition to homosexual marriage. The atheist asks why he is morally opposed, and the Christian answers that he holds a moral belief that homosexuality is wrong. The atheist asks why he holds this moral conception, and the Christian responds with a variety of concrete falsifiable assertions about homosexual conduct. He may, as noted in the Pew survey, charge that homosexuality is wrong because it is unnatural. The atheist then only needs to cite the many documented instances of homosexuality in nature to definitively disprove this assertion (or he may simply ask why being unnatural is necessarily wrong--heart surgery is unnatural but few would call it a sin).^⁹⁰The Christian may then argue that homosexuals are unfit to raise children, to which the atheist may respond by citing various studies which clearly show that there is no significant difference between the suitability of homosexual and heterosexual couples in raising children.^⁹¹The conversation may continue in this fashion, with the homophobic Christian outlining his reasons for moral opposition to homosexuals, and the atheist responding to them. Provided that the atheist has been honest and the Christian has reason to believe his assertions, he may then choose to reevaluate his stance in light of these new facts. Had his opposition to homosexuality instead been predicated on the opinion of an unperceivable entity, he would have had no cause to reconsider because his god is the ultimate authority, against which facts can have no sovereignty. This is not to suggest that there are no secular moral conceptions that are deeply held and contrary to fact (racism being a primary example;^⁹²there is as well a number of regimes which have adopted nominally secularist rhetoric in the name of short-sighted oppression and destruction), but that they are more amenable to reassessment.

As a more extreme example, the atheist then chooses to engage in explicitly harmful behavior: killing another passenger, for example. He announces his plan to the Christian, who then attempts to stop him using the Biblical verses which oppose murder. But the atheist responds that he will not listen to a man who only refrains from murder because of his fear of divine retribution. There are myriad other reasons to view murder as an unacceptable action, and the atheist only heeds ones that are not founded upon a religious justification. If the Christian truly wants to stop the act, he will quickly adopt a secular argument which the atheist can consider. In the same way, if the Christian truly wants to stop others from engaging in homosexual activity, he will premise his arguments in a way which others can understand (to use the language of reciprocity^⁹³). Thus it is emphasized that, no matter the sort of thought which underpins it, the articulation of a position is more successful if premised in a form of reasoning which everyone shares.

Abortion is a relevant example in this case. It is often argued that the fetus is a separate living entity, and thus the procedure constitutes the taking of an innocent life. Religious reasoning is frequently given in defense of a legal restriction on abortion procedures: because Biblical precept places the beginning of life at conception, it is equivalent to infanticide to terminate the fetus. Using the rubric of harm, it seems at first that the government may have a valid interest in restricting abortion practices if it can be shown that the fetus is indeed "alive" and thus capable of being harmed. However, the nature of the question "When does life begin?" does not lend itself to any definitive answers: in Roe v. Wade, the court noted that "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."^⁹⁴In order to sidestep this thorny issue, the court created the viability classification, whereby abortion can be limited after the fetus has developed to a sufficient degree that it can survive outside of the womb.^⁹⁵This is not, however, equivalent to a declaration that viability constitutes life--the justices instead use the term "potential life":

With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion [410 U.S. 113, 164] during that period, except when it is necessary to preserve the life or health of the mother.^⁹⁶

The absence of an objective scientific criteria by which to judge any particular milestone in the development of the fetus as the most appropriate to call "the beginning of life" renders such a question moot. Because the answer cannot be ascertained empirically, any conceivable criteria one might cite as the point at which life begins (for example, the formation of a heart or brain) would be impossible to universalize, and would be just as useful (and correct) as any other. The question of life's beginning is thus not empirical, but highly subjective. Earlier it was noted that harm against god would not be a valid argument to oppose certain practices, because it would require proof of the deity's existence (to illustrate that it is being harmed). In a similar way, before abortion can be considered harm against the fetus, one would need to show that the fetus is indeed "alive" (and indeed, that even as a living being it is worthy of personhood in the legal sense). As the Roe court noted, such a distinction is impossible, as the current lack of consensus among "the respective disciplines of medicine, philosophy, and theology" indicates (though their inclusion of theology as a discipline alongside medicine and philosophy is troubling).

Further, the nature of this question indicates that it will never be solved with any consensus: the difficulty lies not in the current lack of technology or knowledge, but the nature of the question itself. Short of the discovery of the transcendent essence of life (the religious believe they've already found this, but have not proven it to be the correct one), scientists, philosophers, and theologians will never be any closer to pinpointing a useful definition of the beginning of life. Dawkins echoes the court's logic in The God Delusion: "Never mind whether it is human(what does that even meanfor a little cluster of cells?); at what age does any developing embryo, of any species, become capable of suffering?"^⁹⁷This question may be more readily answered as diagnostic technology increases in capability, but there will still be the (inextricably subjective) follow-up: "At what level of suffering would a prohibition against abortion be necessary?" Other claims of injury which constitute actionable harm against an individual are not fraught with similar unanswerable questions--we would not ask, for example, if a victim of rape has been emotionally and physically traumatized, let alone if he or she is an individual capableof being emotionally and physically traumatized.

Back inside the train cabin, the discussion is interrupted by a jarring bump. One of the passengers was in the process of taking a sip from a hot cup of coffee, and cries out in pain when the scalding hot beverage spills onto his chest. The atheist, who happens to be a trained doctor, hesitates to help the man, citing his travel fatigue. His Christian companion argues that charity and goodwill are essential to the functioning of a proper Christian society, or perhaps even that god has personally told him that one must always be as charitable as possible. The other passengers agree, and force the atheist to devote his time to healing the burned man. Reluctantly he does so, and returns to his seat feeling even more exhausted than before.

Depending on one's perspective, redistributive justice of this kind is either an appropriate policy decision or a waste of state resources to provide a victim of circumstance ("victim of circumstance" itself would likely be disputed, with questions such as "Why was he drinking hot coffee on a moving train?") with assistance mandated by collectivized coercion. For the purposes of this example, though, it can be considered a beneficial program which religion has helped to establish (at least to those who often object to religious persuasion). Similarly, it is often argued that historical struggles against slavery, capital punishment, starvation, and other socials ills are to some degree the result of the application of similar human rights concerns found in the bible; this would seem to create a dilemma for those who support socially progressive programs while opposing the use of religious justification for social policy. Conversely, it may be the case that religion was incidental in these struggles: the Civil Rights movement, for example, found in church what previous movements had found in pubs, a public gathering place relatively free of outside interference, where conversation could flow and community issues could be addressed.

The question, then, is: would the passengers in the cabin have come to a similar conclusion without the guiding light of their religiously-derived morals?^⁹⁸Or, as Mill argues, are religiously-derived principles as they apply to the real world equally likely to have been found elsewhere, such as in Kant's categorical imperative (which exhorts us to ask, in formulating our personal moral outlook, what would transpire if it was adopted by everyone else)? As in the case of rights-limiting initiatives in the hypothetical, the Christians are not being asked to give up their moral conception, but to articulate it in a secular way (which the atheist would be more likely to accept). Accordingly, they could then argue that he has a duty to help others so that others might be more disposed to reciprocate the aid should the situation arise in which the atheist requires it. As was argued when the Christian sought to halt the atheist's murderous intentions, if the Christian truly wanted the burn victim to be aided by the atheist, he would frame his argument in terms that the atheist can understand--that is, the secular and scientific. The Christian has no reason, aside from possible religious edicts forcing him to adopt purely religious argumentation in the political sphere, to balk at doing so. One may suppose that in failing to adhere to a uniquely religious articulation of his arguments, the Christian would then lose the support of his fellow pious. If that is the case, then religiously derived morals are not only exclusive, but fleeting and capricious, ever subordinated to the practice of religion itself (which is in this legalistic analysis its own end--religion for the sake of religion).

If, on the other hand, he does not lose the support of his fellow Christians in adopting a secular argument, then no harm has been done to their cause--in fact, with the addition of allies with concurrent opinions on the matter, it has been strengthened.

If religious justification is acceptable in deliberative discourse, then all religious beliefs must be accepted--this includes all of the major religions, as well as several that can be fabricated on the spot. Thus in the hypothetical, the atheist would be fully empowered to argue against helping the burned man on the basis of his newfound belief in a leprechaun deity which explicitly spurns burn victims. Such a religion is lacking in evidence to the same degree as any other; the only difference is in the number of supporters, which is not relevant to deliberative discourse (the other difference--that it is explicitly hypothetical--is also irrelevant: explicitly hypothetical religions are just as likely to be the correct ones). Suppose then that the atheist, brandishing his new religious screed which lays out the primacy of the leprechaun, is successful in converting a majority of the passengers to his religion. The leprechaun-worshipping majority then decides that no one on the train may ingest caffeine, for this was the drug which originally lead to the death of their Christ figure thousands of years ago (Mormons as well are against the use of drugs, including caffeine). They successfully implement this initiative, and the guards then remove all caffeinated beverages and lock the coffee machines. The remaining Christian coffee-drinkers would then protest that their input was not entertained (because they do not share belief in the leprechaun), and perhaps point out that their ingestion of caffeine was not hurting anyone and so should remain a personal choice. The leprechaun sect leader need only reply: "I submitted to your religious reasoning when you stopped me from engaging in homosexual behavior. Now it is your turn to submit to ours." In so arguing, he would be echoing the salient liberal principle which holds that it is in the interests of each individual to support minority rights because they can never be certain that they will remain a part of the hegemonic majority. Recall that the original wall of separation between church and state was enacted in large part to protect the rights of smaller religions from encroachment by the more established churches.^⁹⁹

It is sometimes argued that religiously motivated atrocities were caused not by genuine religious belief, but rather by mundane, secular concerns. The Crusades, for example, are considered to have been Christian in name only--underlying motivations economic and political were the real causes of the conflict, whereas religion was merely the public justification used to drum up support among the populace. This argument is put forth by Dinesh D'Souza, who argues that atheism is in actuality responsible for the crimes commonly attributed to religion:

The Israeli-Palestinian conflict is not, at its core, a religious one. It arises out of a dispute over self-determination and land. Hamas and the extreme orthodox parties in Israel may advance theological claims – "God gave us this land" and so forth - but the conflict would remain essentially the same even without these religious motives. Ethnic rivalry, not religion, is the source of the tension in Northern Ireland and the Balkans.^¹⁰⁰

Looking past D'Souza's obvious conflation of atheism and ethnic rivalry, his defense is problematic. Even if it is accepted that religion is used merely as a public rallying call and not a motivator in and of itself, it yet remains an important facilitator of the conflict. Without public support in the form of money and soldiers, no military campaign can be waged; thus while there are always several reasons for a confrontation or atrocity, religion still has been uniquely useful in justifying and facilitating them. D'Souza may have been better served by citing a number of recent terrorist attacks (the attacks of September 11^th, for example, was carried out in response to American military and political presence in the Middle East, although it too was publicly justified on religious grounds) and the insurgencies in Iraq and Afghanistan as examples of nominally religious motivations obscuring what are at base political movements, but in either case, religion's use as a justification falls far short of exonerating it.

American support for Israel and its wars (Israel and Iraq are the top two recipients of U.S. foreign aid, much of it military in nature), at the very least, is to a large degree religiously motivated. A 2003 Pew Forum survey found that White American evangelical Protestants (who make up 26% of the U.S. population) were significantly more supportive of Israel than any other demographic group: 55% sympathized more with Israel, compared to 6% who were more sympathetic to the Palestinians. Secularists (defined by the survey as "atheists, agnostics, and those with no religious preferences who rarely, if ever, attend religious services") were the least favorable toward Israel at 24% for Israel versus 20% for the Palestinians. Interestingly, the results also find that 35% of all Americans in total feel the U.S. should "support Israel over Palestinians," while 38% felt that it should not (27% had no opinion). Answering the same question, white evangelical Protestants were 52% in agreement while only 25% answered negatively. The most numerous of the evangelical Protestants, "traditionalist" evangelicals (those whom "are characterized by a high level of orthodox belief and a high level of church attendance" and who comprised 27% of Bush voters in 2004) scored even higher: 64% agreed that the U.S. should favor Israel, while 18% disagreed. Again, secularists are the opposite: 23% answered in the affirmative, 51% replied "no."^¹⁰¹It seems that religious Americans as a whole agree with Republican Senator and leading global climate change skeptic James Inhofe, who in a 2002 Senate floor statement said:

I believe very strongly that we ought to support Israel; that it has a right to the land. This is the most important reason: Because God said so. As I said a minute ago, look it up in the book of Genesis. It is right up there on the desk.

The Lord said to Abram, "Lift up now your eyes, and look from the place where you are northward, and southward, and eastward and westward: for all the land which you see, to you will I give it, and to your seed forever. ..... Arise, walk through the land in the length of it and in the breadth of it; for I will give it to thee."

The Bible says that Abram removed his tent and came and dwelt in the plain of Mamre, which is in Hebron, and built there an altar before the Lord. Hebron is in the West Bank. It is at this place where God appeared to Abram and said, "I am giving you this land,"--the West Bank.

This is not a political battle at all. It is a contest over whether or not the word of God is true.^¹⁰²

Further, Jews in the U.S. are highly supportive of politicians whom they perceive to be the most accommodating toward Israel. While they tend to vote overwhelmingly Democratic, some 30% of the Jewish electorate in the U.S. is considered a swing demographic on the issue of Israel. In 2000, a survey of likely Jewish voters in New York found that 11.8% consider Israel's security and peace the most important issue facing Jewish community, the highest-ranking response (in second place was anti-Semitism, at 8.5%, although this is commonly tied to support for Israel).^¹⁰³In the 2008 election, both candidates were vehement in their support for Israel--Barack Obama maintained that support for Israel is a given in American politics--but Obama's image as a friend of Palestine (or, more odiously, a stealth-Muslim; both attacks were inaccurate, but the use of "Muslim" as a slur, and Obama's reaction--which was little more than an insistence that he was a good Christian--were both clear indicators that prejudice against Muslims is still widely tolerated) initially jeopardized his support among Jews: pre-election polls found Obama's Jewish support at 60%, 15% below John Kerry's total in the previous election. However, a concerted 11^th-hour effort to rebuke the ads questioning Obama's support for Israel (doubtlessly coupled with the economic downturn) resulted in a final total of 78% of the Jewish being cast for Obama. However, the total was still below both the 1992 and 2000 Democrat vote among Jews, and substantially below Obama's gains over Kerry in other demographic groups, such as Catholics and Hispanics.^¹⁰⁴

Finally, religion is intimately tied to Israel's expansionism: the right of Israeli Jews to practice their religion anywhere in Israel has been cited as the justification for restrictions on Arab minorities and laws which protect and encourage settlers. The ongoing imbroglio over the Palestinian-administered (but Israeli-controlled) al-Aqsa Mosque, where Jewish worshippers are escorted by armed guards and Muslims under the age of 50 are often restricted from entering, illustrates the ease with which religion can be cited as the motivation for actions which are intended to subjugate a minority population. Muslim worshippers must go through Israeli checkpoints to enter the mosque; Jewish Israelis, who moved into the area as violent settlers, do not. The Islamic holy place and center of Palestinian identity is often the site of protests and demonstrations, which are quashed by Israeli security forces (generally for little more than rock-throwing), within the building and without. Absolute freedom of worship is named as the motivation for inciting this protest; subsequently, absolute security is named as the motivation for further expansion and crackdown. So the cycle of violence continues, and so the Israeli grip on the land and its people grows stronger.^¹⁰⁵

Compared to the clear, measurable role that religion plays in the public justification for a group's participation in conflict, the role of internal motivations is obscure and impenetrable (economic interests play a large role in U.S. support for Israel as well). It is possible that all aggression is ultimately secular, as D'Souza argues, but requires translation into religious vernacular in order to convince the devout to join the cause (in a reversal of Jelen's argument). It is also possible that nominally secular impulses are transformed at the personal or social level by the ubiquitous and irrational presence of religious justification. If religion is such a commonly accepted pretext for aggression, is this because it has a unique use as a facilitator of violence, or merely because it is ubiquitous? This question has wide ranging implications for morality, and will be more deeply discussed in Chapters 4 and 5.

Within the above thought experiment, religious justification was found to be inappropriate by every conceivable measure. Arguments between faiths, or between one who has faith and one who does not, cannot continue past a certain quickly-reached point if the religionist does not offer secular justification which others can consider--common ground cannot be found. Secular thought provides this common ground, because is the more inclusive of the two--everyone inevitably experiences the mundane, but not everyone experiences the mystical (it will shortly be argued that none do). Additionally, it is possible for the religious to think in secular terms, but nonreligious individuals cannot think in religious terms, because of that ineffable component of religious thought: faith. The inclusion of religious thought in deliberative discourse also opens a Pandora's Box which would allow any numerically significant religious group to assert its views over the general population regardless of the content of (and evidence for) their views. The danger of such a system was made apparent when the new leprechaun sect began to assert its views over the remaining Christian passengers upon achieving a majority, thus illustrating the interest all should have in the protection of minority rights.Finally, religious justification often ignores the principle of harm, seeking to limit one's ability to pursue their conception of the good even if it carries no ramifications for the lives of others, to the detriment of all.^¹⁰⁶

Let us propose then that the passengers on the train come together to vote for the legality of homosexuality in the various cabins. The Christian voters may now agree that the ramifications of their reliance on religious justification are troublesome, but can they remain honest Christians while voting to allow an activity that they feel to be immoral, or is it the Christian duty to act accordingly (intractably) in all things? It would be futile to argue scripturally (such as that Christians should render unto Caesar that which is Caesar's), because Christians are not obliged to accept the entirety of the bible; one could simply counter that their particular interpretation of the bible does not accept that mandate as canon. Jonathan Chaplin argues that it is the Christian's duty to implement their beliefs on a political level, and that it would be an abrogation of freedom of worship to force them to abandon such principles.^¹⁰⁷Therefore, the findings outlined herein refer to a normative principle which will not be enforced by law (enforcement of such would be impossible in the case of individual voters; not so for legislators, however), but expected in deliberative discourse as an issue of mutual respect and empathy. While the religious are naturally free to argue along religious lines, the rest of us are free to ignore and spurn them for it.

These findings also indicate that such initiatives as could only be opposed on religious grounds should not be put up for vote: as Judge Bataillon argued in the case of gay marriage in Nebraska, this is an issue to be decided on a constitutional basis (by asking for a compelling state interest), no more properly left up to public opinion than the question of segregation, or the prohibition of coffee in the above hypothetical. One's sexual preference and consensual sexual relationships are not something to be tolerated; as Thomas Paine wrote in The Rights of Man, "Toleration is not the oppositeof intolerance but thecounterfeitof it. Both are despotisms: the one assumes to itself the right of withholding liberty of conscience, the other of granting it."^¹⁰⁸Importantly, though, the Constitution can be treated as a Bible: if, as the strict constructionist viewpoint holds, the Constitution is little more than a collection of edicts which must be observed at all costs, it loses its power as a functional rights-granting document (the same is true for the founding fathers, who are often deified in American politics despite their support of many now-abandoned practices). Strict constructionism, however, as it has been applied in defense of legal codes which withhold rights from one group while granting them to others, is not consistent; rather, it represents a legalistic flux between the deification of public moral opprobrium and the deification of any body, governmental or otherwise, which would enforce that opprobrium. Indeed, a close reading of the Constitution finds little to indicate that homosexuals are a protected class for the purposes of non-discrimination laws if one restricts one's reading to the 14^thAmendment's explicit definition of such. There is then something beyond mere textual constitutionality which must be used as a guidebook by the judiciary in establishing a meaningful state interest; the courts would be rendered superfluous if their sole function was to locate a relevant statute and apply it to a particular case (in American politics, this would essentially be enforcement, the role of the executive). This is not judicial activism: even the strictest adherence to the letter of law is "activist" within a legal code suffused with such words and phrases as "reasonable, "undue," "excessive," and "cruel and unusual." The search for a compelling government interest by which to judge a law's constitutionality is no more "activist" than a judge's reliance on ever-shifting scientific and technological diagnostics in the service of establishing harm. In any case, a cogent political philosophy does not presuppose that the current political arrangement is necessary or sensible, and as such legalism will be regarded as a religion insofar as it does not provide meaningful justification for its recommendations.

In a similarity to the communitarian argument that all justification is inexorably moral in nature, Stanley Fish in TheNew York Timesargues that nations in the west subscribe to the "religion" of liberalism.^¹⁰⁹A central tenet of this religion is the reverence of freedom of speech and open debate, a belief which Fish argues spurred Danish editor Flemming Rose to print an inflammatory caricature of Muhammad (an image of the prophet wearing a bomb as a turban, a somewhat ham-fisted commentary on suicide bombers). According to Fish, the cartoon was drawn was not out of any prejudice toward Muslims, but rather a desire to foster an open debate and honor the freedom to make derogatory or prejudicial speech. In short, the singular devotion to this openness in the West represents what Fish considers a dogmatic belief comparable to the Muslim faith in the superiority of their religion. He equates this belief in the self-evident truths of liberalism with faith in the cosmic truth of one's religion, effectively broadening the definition of religion to include all ideological creeds tenaciously held by adherents. But this new conception is marked by a similar internal variation to that of the communitarian concept of justification (as inescapably moral, but either secular or religious in nature): there are religions based upon some secular or political philosophy, and mystical religions, such as Islam. To the extent that so-called secular religions are based on internal revision and scientific observation, they are not comparable to mystical religions based on revelation (though, as we will see, to the extent that they are notbased on internal revision and scientific observation, the principles in question can be compared--not favorably--with religion). Labeling all similarly-held ideologies "religions" dilutes the term beyond useful meaning; explicit differentiations can still be drawn within the broad spectrum of ideological belief. Fish then addresses the principle of reciprocity:

But a firm adherent of a comprehensive religion doesn't want dialogue about his beliefs; he wants those beliefs to prevail. Dialogue is not a tenet in his creed, and invoking it is unlikely to do anything but further persuade him that you have missed the point – as, indeed, you are pledged to do, so long as liberalism is the name of your faith. ^¹¹⁰

Reciprocity, however, is not the abandonment of those beliefs per se, but the articulation of them in terms others can understand. Assuming he is correct though, the above statement is a strong argument for the incompatibility of religious justification during deliberative discourse. If, as the author argues, "dialogue is not a tenet in [the adherent's] creed," then it is impossible for this person to take part in any meaningful political process. The dissolution of minority rights is a frequent outcome of a system in which believers assert their creed with the sole aim of achieving dominion, a fact exemplified by the fundamentalist nations cited by Fish. In such a society, it is likely that the principles of deliberative discourse (and very likely the principles of liberal democracy) will naturally not apply. Importantly, though, this designation is not immutable.

Jelen concludes his study with a "bold (and perhaps foolhardy) prediction" that the Christian right will "successfully press their claims on the political system only to the extent that their position on specific political issues can be framed as embodying the value of personal liberty."^¹¹¹He argues that what has sometimes been a useful method of gaining wider acceptance for certain socially conservative viewpoints--couching arguments in nominally secular terms--will become an even more crucial factor in the success of these arguments. In light of the 2008 election, his 1998 prediction has been proven half correct: the Christian right pressed their claims through a religion-based grassroots movement which employed distinctly illiberal religious rhetoric and overt mendacity (the right to deny gay couples equal rights was framed as an issue of religious freedom, but the intra-religious debate concerning homosexuality as sin was far more significant in mobilizing votes--the public vernacular was employed only at a late stage, insincerely, and only to summarily quell any misgivings churchgoers may have had about voting along religious lines); it was only when taken to task for this form of mobilization that they resorted to framing issues as matters of personal liberty.

The authenticity of this shift in rhetoric is questionable. If the principles of deliberative discourse are only applied after the fact (and then in a cynical, non-reciprocal way--see for example the many calls to tolerate what amounts to public intolerance), the religious right will continue to win populist victories which are only occasionally reversed by the courts. And given the Bush administration's politicization of the latter, it is an unreliable fair-weather friend at best.^¹¹²Only a steadfast refusal to accept the intermingling of religion and politics at any level, coupled with the persistent employment of atheistic critiques of religious dogma will suffice. There is no reason that rights cannot be found via the ballot box as well as the bench. But this steadfast refusal to accept religious ingress into the political system must be reinforced by a steadfast and piercing rhetorical invalidation of deeply-held religious principles and the general mysticism which, as Bakunin argued, persistently and unceasingly revives them in their followers' minds.

2Michael Sandel, Liberalism and the Limits of Justice (Cambridge, UK: Cambridge University Press, 1982), 11.

Communitarianism, in essence, holds that a community of individuals is not reducible to its component parts, but becomes a distinct individual in and of itself, much like a corporation is granted provisional personhood for legal purposes. This community has an indelible impact on those who reside within it, and thus its unconscious desires (social norms and customs) must be considered alongside those of its individual members (individuals who are in turn tasked with understanding and recognizing the role played by the community in their development and worldview). Though not strictly majoritarian, communitarianism holds that the community itself defines the parameters of morality (what its adherents term "the good") for its individuals through an historical and not entirely deliberate process, which may be thought of as the collection of generational prejudices and preferences. Because of the community's role, any attempt to place a political right above that of the good (to escape the influence of one's community) is considered futile.

13Ibid.

Later, an L.D.S. apostle compared the treatment of Mormons in the wake of Proposition 8 to that of African Americans in the civil rights era:

Oaks, in a strongly worded defense of the church's efforts opposing same-sex marriage, told students at Brigham Young University-Idaho in Rexburg that Latter-day Saints "must not be deterred or coerced into silence" by advocates for "alleged civil rights."

Last year, the Utah-based Church of Jesus Christ of Latter-day Saints urged its followers to donate money and time to pass Prop 8, the successful ballot measure that eliminated the right of same-sex couples to wed in California. Afterward, protests, including several near LDS temples, erupted along with boycotts of business owners who donated to Prop 8 and even some vandalism of LDS meetinghouses.

"In their effect," Oaks said, "they are like the well-known and widely condemned voter-intimidation of blacks in the South that produced corrective federal civil-rights legislation."

Source: Rosemary Winters and Peggy Fletcher Stack, "LDS Apostle Under Fire for Civil-Rights Analogy," 14 October 2009, accessed on the website of TheSalt Lake Tribune at http://www.sltrib.com/ci_13552589, 14 October 2009.

14For another example of this attempt to co-opt tolerance, see the March 2009 resolution by Oklahoma Representative Todd Thomsen to prevent Richard Dawkins from speaking at the University of Oklahoma due to his "intolerance for cultural diversity and diversity of thinking" in science education (read: his opposition to the teaching of intelligent design in public schools). Further, the legislators alleged that his appearance would "only serve to further the indoctrination engaged in by the Department of Zoology at the University of Oklahoma by presenting a biased philosophy on the theory of evolution to the exclusion of all other divergent considerations rather than teaching a scientific concept." The text of the legislation is available at Richard Dawkins' website: http://www.richarddawkins.net/article,3641,Oklahoma-legislator-proposes-resolution-to-condemn-Richard-Dawkins,Todd-Thomsen.

Following the resolution's failure (and Dawkins' successful speech), Oklahoma State Representative Rebecca Hamilton launched an official investigation into the actions of faculty and administration who facilitated the speech.

Supporters of Proposition 8 even sued to exempt themselves from California finance disclosure laws, which make public the names of donors to ballot initiatives. They argued that the records were being used to coordinate harassment, but a federal judge ruled against their claims. His form of reasoning will become crucial throughout this argument:

He noted that some of the reprisals reported by the Prop. 8 committee involve legal activities such as boycotts and picketing. Other alleged actions, such as death threats, mailings of white powder and vandalism, may constitute "repugnant and despicable acts" but can be reported to law enforcement, the judge said.

Only a widespread, systemic harassment can constitute a valid concern where campaign finance disclosure laws are concerned--the Supreme Court has ruled (1982) that contributors to the Ohio Socialist Worker's Party could legally conceal their identity due to a more pronounced history of violence. Source: Bob Egelko, "Prop. 8 Campaign Can't Hide Donors' Names," 30 January 2009, accessed on the website of The San Francisco Chronicle at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/29/BAJC15JOOR.DTL, 31

January 2009.

Signatories of an Arkansas petition to include on the 2008 ballot an initiative to restrict adoption rights to married couples (thereby excluding gays) made similar complaints after a website was created (KnowThyNeighbor.org) to list their names and addresses. The website also collects names and addresses for signatories of similar petitions in Florida, Massachusetts, and Oregon.

These individuals are in no danger. Conversely, young women who choose to have an abortion in Oklahoma may soon find themselves the target of attacks: in 2009, the Oklahoma House passed a bill which would require doctors to provide information on patients to the state health department (the information would be publicly available to anyone). According to Tulsa World, a lawsuit has challenged the sweeping new law, which requires the reporting of sensitive information:

Information to be reported includes the age, marital status and education level of the woman; the number of previous pregnancies; a reason for the abortion; the method of the abortion and method of payment; the cost of the abortion; the type of medical health insurance; whether an ultrasound was given; and the nature of the mother's relationship with the father.

The lawsuit alleges that the bill covers four subjects, including redefining a number of abortion-related terms used in state law; banning sex-selective abortion; creating reporting requirements; and creating new duties for the Oklahoma State Department of Health, Oklahoma Board of Medical Licensure and Supervision, and state Board of Osteopathic Examiners.

Oklahoma has previously banned the use of public funds for abortions which do not involve cases of rape or incest, and passed a law requiring women to view an ultrasound of the fetus as the abortion was taking place (the doctor would describe the procedure in gory detail as it was carried out); in the latter case, no exceptions could be made for cases of rape or incest. The new law is the latest step toward the state's overarching goal of shaming, marginalizing, and endangering women who seek abortions. Source: Barbara Hoberock, "Abortion Bill is Challenged," 30 September 2009, accessed on the website of Tulsa World athttp://www.tulsaworld.com/news/article.aspx?subjectid=16&articleid=20090930_16_A13_OKLAHO555435, 2 October 2009.

21Congressional Republicans reacted angrily to the tactic of inserting anti-discrimination legislation into a military bill:

But Representative Mike Pence of Indiana, the No. 3 House Republican, said the measure could inhibit freedom of speech and deter religious leaders from discussing their views on homosexuality for fear that those publicly expressed views might be linked to later assaults.

"It is just simply wrong," Mr. Pence said, "to use a bill designed to support our troops to reverse the very freedoms for which they fight."

Democrats, however, noted that the bill would specifically bar prosecution based on an individual's expression of "racial, religious, political or other beliefs." It also states that nothing in the measure should be "construed to diminish any rights under the First Amendment to the Constitution."

We will let Mr. Pence's comment speak for itself. Source: Carl Hulse, "House Votes to Expand Hate Crimes Definition," 8 October 2009, accessed on the website of The New York Times at http://www.nytimes.com/2009/ 10/09/us/politics/09hate.html, 8 October 2009.

71Ibid., 11.

It is important also to note that members of the churches cannot burn heretics, nor can they cite their religious beliefs as a basis for their refusal to perform the (non-harmful) duties of their chosen profession (see the trend of pharmacists refusing to fill prescriptions for birth control pills, and then, in many cases, refusing to transfer prescriptions to other pharmacies which will) or ruin their child's health through inaction (see the Wisconsin parents who in 2008 prayed for their 11-year-old daughter rather than seek medical attention for a complication of her diabetes which ultimately claimed her life, resulting in a second-degree reckless homicide conviction for both mother and father). Regarding this latter transgression, some 300 children have died in the last 25 years due to the withholding of medical care on religious grounds. Wisconsin law holds that medical care can be withheld on religious grounds only if the condition is not life-threatening, but there and in 29 other states there are legal provisions which provide some protection for religiously-motivated parental misconduct. Nonetheless, two recent Oregon cases of parental neglect ended with criminal charges against the parents (one of manslaughter, one of criminally negligent homicide). A May 2009 Minnesota case also ended with a court order to allow a child to receive chemotherapy treatments, in spite of his parents' belief in a religion which favors alternative medicines. Though the law varies by region, religious compulsion is often explicit: Rita Swan, a former Christian Scientist whose son died of meningitis after she postponed a hospital visit (and who, contrite, is now executive director of the Children's Health Care is a Legal Duty advocacy group), speaks of the often-strict compulsion within religious communities to adhere to faith healing: "We knew that once we went to the doctor, we'd be cut off from God." Source: Dirk Johnson, "Trials for Parents Who Chose Faith Over Medicine," 20 January 2009, accessed on the website of The New York Times at http://www.nytimes.com/2009/01/21/us/21faith.html, 22 January 2009.

75Charles Cooper, a lawyer defending Proposition 8 in a California district court in 2009, admitted that he did not know how same-sex marriages would harm heterosexual relationships, instead relying on the (unsubstantiated) potentialfor harm. U.S. District Chief Judge Vaughn Walker, rightly skeptical, pressed the lawyer to describe the real world impact of gay marriage:

The question is relevant to the assertion that Proposition 8 is constitutionally valid because it furthers the states goal of fostering "naturally procreative relationships," Walker explained.

"What is the harm to the procreation purpose you outlined of allowing same-sex couples to get married?" Walker asked.

"My answer is, I don't know. I don't know," Cooper answered.

Moments later, after assuring the judge his response did not mean Proposition 8 was doomed to be struck down, Cooper tried to clarify his position. The relevant question was not whether there is proof that same-sex unions jeopardize marriages between men and women, but whether "the state is entitled, when dealing with radical proposals to make changes to bedrock institutions such as this ... to take a wait and see attitude," he said.

Source: "Judge Refuses to Dismiss Gay Marriage Ban Suit," 14 October 2009, accessed on the website of MSNBCat http://www.msnbc.msn.com/id/33319490/ns/us_news-crime_and_courts/, 16 October 2009.

Ellipses in original.

79This is not to say that racism has ended; rather, it has been privatized. A lack of equal opportunity persists, and it is not merely the legacy of slavery and segregation manifested on an otherwise fair system: the arrangement itself perpetuates inequality, as do a significant number of American businesspeople. A field experiment performed by the National Bureau of Economic Research found that fictitious résumés for applicants with typical African American names were often rejected in favor of résumés for applicants with typical White names. Those with white-sounding names such as Emily and Greg were 50% more likely to receive a callback than were those with typical African American names such as Lakisha and Jamal, independent of the applicant's actual qualifications (a higher quality résumé results in a much greater increase in the likelihood of callback for White applicants than for equally qualified African American applicants). An abstract for the 2003 study, which is titled "Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination," can be accessed at

http://www.nber.org/papers/w9873.

The experiment seems to have accurately reflected a real world prejudice which inhibits the ability of even highly qualified African Americans to achieve success comparable to similarly qualified Whites: African Americans with a four-year degree earned just 78 cents for every dollar a college-educated White worker earned in 2007, the highest level of disparity in nearly a decade. Source: "Racial Disparities in Higher-Paying Jobs," 27 April 2009, accessed on the website of MSNBC at http://www.msnbc.msn.com/id/30437468/, 14 May 2009.

See also white flight--that is, Whites flying out of cities and into suburbs to escape African Americans, a phenomenon which continues to have an impact on inner city poverty and suburban sprawl--and its converse, exploitative gentrification. There is as well as the practice of redlining, which continues to this day. In a 2009 lawsuit, it was revealed that the financial services corporation Wells Fargo routinely targeted qualified African American loan applicants in Baltimore, Maryland with high-risk and high-rate mortgages, in what is known as "reverse redlining":

The affidavits were offered as evidence in a lawsuit filed on behalf of Baltimore last year and amended Monday, alleging "tens of millions" of dollars in losses from racist, predatory lending, known as "reverse redlining"- the targeting of minority borrowers, regardless of credit history, for unfavorable subprime loans. The city says the practice led to increased foreclosures, vacant properties and crime in black communities.

…

Former loan officer Tony Paschal said Wells Fargo targeted black communities for bad loans by focusing on African-American churches, using black employees as its public face, and using software to translate marketing materials into various languages, including something called "African American."

He also said that other employees called subprime loans in predominantly minority neighborhoods "ghetto loans" and used racial slurs, including "mud people."

Similar lawsuits are being filed against dozens of mortgage lenders in other states. Source: Tricia Bishop, "Ex-Employees Claim Racism in Wells Fargo Subprime Loan Push," 4 June 2009, accessed on the website of The Baltimore Sun at http://www.baltimoresun.com/news/local/baltimore_city/bal-md.wellsfargo04jun04,0, 5155910.story, 6 June 2009.

90Elizabeth Adkins-Regan, "Biological Exuberance: Animal Homosexuality and Natural Diversity," Bioscience49.11 (Nov 1999): 926.

Importantly, the observed homosexual behavior is not merely a result of confusion or expression of dominance, but genuine homosexuality, encouraged by the recipient animal and observed in species as diverse as penguins and bonobos. Homosexuality also provides benefits as a diffuser of aggression and strengthener of social bonds within an animal community, suggesting there is an evolutionary benefit for a herd to play host to some number of homosexuals.

In any case, accusations of abnormality or unnaturalness are typically offered in order to insinuate that homosexuality is a choice. If the orientation can be definitively proven to have a place in nature, then the argument over choice becomes irrelevant. However, whether or not the inclination is voluntary, the expression of homosexual tendencies is controllable. This elevates the legal and moral ethical quandary to a question of harm rather than a question of biology. As such, it is the act's harmlessness which results in its classification as a right, not the agency of its underlying causal proclivities.

92It is worth noting though that many forms of racism are essentially religious mythologies, complete with their own creation story and primary antagonist (in Aryanism, for example, Jews are said to be descendants of Satan; see also the widespread Nazi belief in the mythological roots of the Aryan race, as well as the Third Reich's attempts to adopt so-called "Aryan physics," which were distinct from the scientific study of physical relations--far from atheistic, the racism of Hitler's regime was profoundly religious). The current Aryan Nation, part of the Church of Jesus Christ-Christian, preaches a combination of Christianity and Aryanism in order to win converts.

Racism is, however, at least potentiallysecular, in rhetoric if not in actuality. Taken to its logical conclusion, as secularism would require, racialism inevitably leads to a rather dim view of the White race (especially its male members), which, though it may be taken as superior in capability in this outlook, has caused more aggregate suffering in the world than any other. That a racialist outlook does not stand up to thorough rational inquiry is, we will see, sufficient to establish that it is not truly secular.

105An influential Israeli military judge named Adrian Agassi made a similar argument in October 2009. Agassi's motivation is proof that religion plays a powerful role in Israel's behavior:

In an unusually frank interview, which offers insights into the melding of religion, politics and law that underpins land seizures in the occupied territories, Agassi has laid out his belief that Israel has a biblical claim to territory beyond its borders and that he, even as an immigrant, has a right to live on it when those born there do not.

"When we [Israelis] say that this is a political conflict, then we lose the battle," he told the Guardian, adding that it should be remembered that the ancient land of Israel is "given to us by the Bible, not by some United Nations".

Agassi, one of the most important officials in the military courts wielding authority over large parts of the West Bank, says settling Jews on lands that made up ancient Israel stands above all other biblical commandments and only when it is done can they have "a promised land and a promised life".

"You say that these lands 'passed into Jewish hands'. Others would say that they came back into Jewish hands. Others would say that they are obviously ours, inherently," he said. It was, he claims, a mistake to call it the State of Israel. "If we would have named it the State of Jews, the Arabs would have understood that this land belongs to the Jews."

Agassi served in the legal department that oversaw the confiscation of land in the West Bank to build Jewish settlements and was then appointed to the military court that decided Palestinian appeals against the seizure of their property. The Palestinians almost never won. His court also ruled on legal disputes between Jewish settlers and Palestinians.

The author notes that Agassi justifies his use of religion in a political context by noting that Arabs (he does not believe that "Palestinians" exist) also cite religion as a motivation. Source: Meron Rapoport, "West Bank Land Belongs to Jews, Says Israeli Army Judge," 26 October 2009, accessed on the website of The Guardian at

http://www.guardian.co.uk/world/2009/oct/26/west-bank-jews-army-judge, 26 October 2009. Brackets in

original.