Rawlsian Public Reason and Religious Leadership of Public Officials
M. Christian Green
On May 30, 2019, Louisiana Governor John Bel Edwards—the only Democratic governor of a deep-south state—signed into law a “heartbeat bill” banning abortion after six weeks. In defending his decision, which contravenes the national Democratic Party’s platform plank on securing reproductive health and rights, Edwards repeatedly cited his Catholic faith. The Catholic Church maintains long-standing opposition to abortion, and Edwards contended that the rest of Louisiana was on his side. Another Democratic Party leader, once governor and then Senator Tim Kaine of Virginia, likewise addressed his moral discomfort with reconciling his Catholic faith’s opposition to the death penalty in the face of Virginia citizen’s support for capital punishment. Kaine affirmed his commitment to uphold state law, his personal religious preferences notwithstanding: “Look,” he said, “this is my religion. I’m not going to change my religious practice to get one vote. But I know how to take an oath and uphold the law. And if you elect me I will uphold the law.”
At the federal level, two public officials, Secretary of State Mike Pompeo and Attorney General William Barr, recently delivered public addresses on Christian leadership and religious freedom. Both Pompeo and Barr’s comments have raised questions about whether, where, when, and how religious views of public officials should be admitted to the public square, and about whether, where, when, and how such views can or should be made an explicit or implicit basis for public policy.
Though it has been nearly two decades since John Rawls’s death, these recent incursions of religious sentiment into the public sphere suggest that Rawlsian dilemmas about public reason are very much alive. Rawls developed his “idea of public reason” over several decades, first in his A Theory of Justice (1971) and later in Political Liberalism (1993 and 1996). During that time, critics led Rawls to address how the “well-ordered society” he envisioned in his early writings on justice might address competing—and in some cases incompatible and irreconcilable—religious, political, and moral beliefs in pluralistic societies.
In an article written toward the end of his life, entitled “The Idea of Public Reason Revisited,” Rawls specifically addressed the question of what kinds of reasons and rhetoric public officials might employ on fundamental political questions in the public sphere. There, Rawls wrote of a duty of civility and criterion of reciprocity that should bind public officials and the citizenry on political questions and basic liberties. According to Rawls, the duty of civility, includes both a duty of public officials to justify their political decisions according to public values and standards and a duty of the citizenry to repudiate public officials and candidates for public office who violate public reason.1John Rawls, 64 The Idea of Public Reason Revisited, University of Chicago Law Review 769 (1997).
What kinds of rationales and acts by public officials might violate public reason? This is where the duty of reciprocity comes into play. Accepting pluralism, Rawls’s theory of political justice permits reliance on a wide range of religious, political, and moral values in public discourse, so long as these are compatible with basic principles of democracy. However, Rawls argued that the articulation of such principles by public officials could still fall afoul of justice if applied indiscriminately in a pluralistic society. Specifically, Rawls prescribed that “reciprocity requires that when those terms are proposed as the most reasonable terms of fair cooperation, those proposing them must also think it at least reasonable for others to accept them, as free and equal citizens, and not as dominated or manipulated, or under the pressure of an inferior political or social position.”
What this might mean in a political context is that a pro-life politician should enjoy wide freedom to inform the public of his religious beliefs about abortion, perhaps even in ways that seek to persuade other citizens to adopt such beliefs. The politician may even advocate broader policies to support a pro-life agenda, such as advocating for health care and education for children, support for families who raise them, and adoption for those who cannot. But the idea of public reason might rebel over the extension of the religious beliefs of a particular politician, a religious majority, or religion per se in ways that threaten fundamental human rights, such as bodily integrity and reproductive autonomy, over those who disagree.
Secretary Pompeo’s speech, “Being a Christian Leader” was given to an association of Christian pastoral counselors with no obvious connection to his official responsibilities as the chief executive of U.S. foreign policy. It was, however, posted on the official State Department website. Addressing the gap between his duties and those of his audience, Pompeo explained, “We’re both in very people-intensive lines of work, and we’re both appealing to the hearts and minds to change behaviors. As believers, we draw on the wisdom of God to help us get it right, to be a force for good in the life of human beings.” Very interestingly from a Rawlsian perspective, Pompeo delineated the focus of his speech and conception of Christian leadership as having to do with “disposition,” “dialogue,” and “decisions.” On decision making, a key concern of Rawls’s in the area of public reasoning by public officials, Pompeo summarized the issue as coming down to: “How do we make choices? Upon what basis? What do we use as our bedrock to get to those decisions?”
Ultimately, the principles of stewardship and prioritization that Pompeo describes as governing his decision making do not seem all that different from the values that would inform most non-Christian or even non-religious leaders. But these rationales come at time in which the State Department is said to be considering ways to frame decisions in terms of heavily Christian notions of natural law, to select recipients of foreign aid and humanitarian aid on the basis of their religion, and to drastically reduce the number of asylum petition grants to would-be immigrants—all of which could result in religious discrimination by public officials. Pompeo’s rather anodyne remarks about leadership may not make a full case for violation of public reason, but neither do they allay fears of such violation.
In his Notre Dame address on religious freedom, also posted on the Department of Justice website, Attorney General William Barr recounted an American tradition of religious liberty premised on what he described as the Founders’ “strong consensus about the centrality of religious liberty in the United States,” including a “belief that religion was indispensable to sustaining our free system of government.” An entire genre of literature has developed in ensuing centuries dedicated to interpreting what the nation’s Founders believed, diversely at times, about the place of religion in the new republic. The weight of these understandings, however, seems more in the direction of liberty, with varying degrees of mutual accommodation by religion and state, than indispensability. Characterizing the nation’s current challenge as a manifestation of the Founders’ preeminent concern about “whether the citizens in such a free society could maintain the moral discipline and virtue necessary for the survival of free institutions,” Barr sketched a fundamental vision in which “social order must flow up from the people themselves—freely obeying the dictates of the inwardly-possessed and commonly-shared moral values.”
In fact, Barr, again speaking through the language of the Founders, recommended consulting “the guidance of natural law—a real, transcendent moral order which flows from God’s eternal law—the divine wisdom by which the whole of creation is ordered” in making political decisions. Here we see shades of recommendations of the natural-law approach recently recommended by Secretary Pompeo and a new State Department Commission on Unalienable Rights. But Barr went further in proclaiming that “Judeo-Christian moral standards are the ultimate utilitarian rules for human conduct.” Barr also lamented “the steady erosion of our traditional Judeo-Christian moral system and a comprehensive effort to drive it from the public square.” Blaming modern “moral chaos” on “forces of secularism” and “progressivism,” Barr asked, “But what has replaced the Judeo-Christian moral system? What is it that can fill the spiritual void in the hearts of the individual person? And what is a system of values that can sustain human social life? The fact is that no secular creed has emerged capable of performing the role of religion.” The speech ended with Barr’s pledge to marshal the resources of the Department of Justice to “to fight for the most cherished of our liberties: the freedom to live according to our faith.”
Clearly, the debate over Rawlsian public reason and how far public officials may go in their public reliance on and recommendation of religion continues. But the remarks of leading national public officials, such as Secretary Pompeo and Attorney General Barr seem to be pushing the boundary. And they come at a time when the United States is increasingly secular and when the Establishment Clause of the U.S. Constitution is said to be narrowing and under assault. The “idea of public reason” and its duties of civility and criteria of reciprocity seem also to be falling by the wayside. A reread of Rawls may be the order of the day.
M. Christian Green is a senior editor and senior researcher at the Center for the Study of Law and Religion. Her areas of scholarly expertise are law, religion, human rights, and global ethics.