I'm not sure I'm seeing the meat of this argument. Does it avoid the problem if evangelicals come up with a joke claim about the negative effects of homosexuality on ...whatever? If so, isn't this a sort of minor problem that is relatively easy to avoid by ginning up some "rational" policy explanation?
Are you merely saying that the legislative history of a law banning homosexual behavior cannot be, in toto, "God hates fags?"
This weblog needs a cheezy catch-phrase. Ex. Sadly, No! has it's famous, "Sadly, No!" I demand you change the title of this post to "Eugene Volokh...unfogged!"
SCMT,
We can't stipulate in advance which arguments will be successful, or even acceptable--so evangelicals, and people of any other religion for that matter, are free to come up with whatever public reasons they like. Whether their arguments will win the day is for public debate to decide. What we can demand in advance is that our interlocuters make a good faith effort to provide reasons to which we can assent even if we don't share a religion--but again, what those will look like can't be determined in advance.
Hey, so I totally agree with that. Public Reasons are just the ones that, in fact, are useful publically. Let me note that under this definition religious arguments are in no way different from any other kind.
religious arguments are in no way different from any other kind
In principle that's true, but I wouldn't say "in no way," because there's a lot of historical and social baggage here. Insofar as religions tend to be absolutist, we should be wary of explicitly religious arguments, and insofar as this is a Christian nation, and therefore more liable to become Christianly intolerant, we should be particularly wary of Christian religious arguments.
If you find that unacceptably discriminatory, I'd agree to a solution in which all religious arguments are subject to greater scrutiny (as opposed to a solution that treats religious reasons like all other reasons).
I think you were more on track earlier, when you suggested that a public reason is just one that works in public. Or at least more on track as a matter of theoretical definition. As a principle of prudence, one can certainly subject certain reasons to more strict scurtiny. And maybe christians reasons should fall in that camp (I have mixed views about that).
What I think is difficult is building that principle of prudence or any other) into *law.* The debate on the correct understanding of "establishment" seems like a good example of how tricky that can be.
I have no interest in building the principle of prudence into law.
This actually used to be part of the Establishment Clause test by the Supreme Court: whether a law had a valid secular purpose, or was motivated solely by religion. It's called the Lemon test. The court is moving away from it, moving towards asking whether the purported establishment "endorses" a religion, and I'm sure Volokh doesn't like it, but he must know of its existence.
Now, I'm not sure it applies fully to abortion. Plenty of atheists oppose abortion because they believe a fetus is a person, or close enough to a person to deserve legal protection. When you get to the questions of life beginning at the moment of fertilization, and wanting to outlaw birth control and the morning after pill, it does start to become harder to explain without reference to religion--but even there, you could simply say, "we don't know when life begins so let's protect it from the earliest possible moment."
I do think it applies to gay marriage--not so strongly that it would be unconsitutional to ban gay marriage under the First Amendment, but there is little question they are trying to impose their religion's version of the sacrament of marriage on the entire population. I mean, Jews don't try to change the civil marriage laws to outlaw intermarriage.
I guess the difference is that in the civil rights movement, abolitionism, and more controversially, abortion, you arguing against something that does real harm to someone--you may make your argument in religious terms, but you wouldn't have to. In cases like gay marriage and opposition to evolution being taught in the schools, you are trying to outlaw something that harms no one, for no other reason than that it offends your religious beliefs.
And this:
"But the trouble with the correspondent's broader notion -- "that it's illegitimate . . . to justify one's decisions about how society should be run based on assumptions one cannot defend reasonably" -- is that ultimately most of the moral principles that each of us has can't be defended purely reasonably
is a cop out, and again would seem to show an ignorance of Constitutional Law than Eugene Volokh cannot possibly have. The Supreme Court is constantly asking whether laws are "rationally related" to a "legitimate government interest". Promoting a religion is not a legitimate government interest.
The other part of the problem is that the religious right does not tend to argue that religious arguments are as legitimate as any other. They tend to demand special deference. They often accuse people who oppose their arguments of being "anti-Catholic" or "prejudiced against Christians", although their opponents make no reference to their religions. They also claim that, when they lose a public debate about whether the country's laws should conform with their religion's rules, it violates their freedom of religion.
"The Supreme Court is constantly asking whether laws are 'rationally related' to a 'legitimate government interest'."
I dunno, Katherine. To the extent that he makes use of it at all, I think that Volokh is being open about the dirty-little-not-so-secret that "rationally related" is precisely the same bar to - anything - that "connected to interstate commerce" (I forget the formulation) used to be. After all, there are a fair number of bad decisions (meaning hard to defend) that depend on jokey rational claims. Off the top of my head, I'd think that Brown and Scalia's male stat. rape case fall into that category. Not that many years ago, Bowers seemed to meet the rationally related test. Yadda-yadda.
I think Volokh is simply saying that there comes a point at which you evaluate statements by your simple belief in them, and then you rebuild the argument you've deconstructed with that validated statement in tow. And he means that as (and I believe it as) a descriptive rather than normative statement.