Freedom of Religion and the Secular State: Morality

In Chapter 5, Blackford argues against using religious-based morality to determine or influence secular laws, but it seems to me that he goes further. He actually ends up arguing that a secular state has no reason to make laws on the basis of morality at all. Instead, we can use principles that are “political” and not, therefore, explicitly moral. The problem here is with what he suggests we can replace them with:

… the harm principle, principles relating to such matters as free speech, reproductive liberty, and sexual privacy are always available to be raised in political debate [pg 84]

Well, excluding the harm principle, those last three really do seem like moral principles to me. What, then, is the harm principle? Well, it’s John Stuart Mill’s main principle:

… only the prevention of harm to others can justify the exercise of power over an individual in a civilized community [pg 71].

Again, this sounds an awful lot like a moral principle to me. Even his starting point could be accused of being a moral principle or position; there’s a reason that the Hobbesian Social Contract at least used to be taught in introductory ethics classes. The Locke that Blackford is using would likely be in there as well if not for the fact that Locke is far better known for other things. So it’s starting to look at lot like Blackford is defining the moral principles that he happens to agree with as being “political”, and thus acceptable, while rejecting the ones he doesn’t agree with as being an imposition of morality, aided by the fact that his preferred principles are liberal and so allow for more freedom of choice and so seem, at least, like less of an imposition.

While he might be able to claim, reasonably, that religious moralities can’t be the basis for laws — in the sense that you cannot say “The Bible says” or “The Quran says” or “Vishnu says” as the sole or main justification for a law — in order to preserve the separation of Church and State that is a reasonable argument, it seems unlikely that he could say the same about Stoic or Kantian moral principles, for example. But both of these are not likely to take the same view as the principles Blackford cites. Thus, his only hope is to justify it from the starting point of the State that he uses from the beginning, and thus can distinguish them. But since liberalism and individualism does not follow naturally from that starting point, he will have to argue for it.

To his credit, Blackford does indeed try to argue for it, but it is a fairly weak argument. He tries, essentially, to argue that his starting point leads to secularism — which is a fairly credible argument — and then from there that secularism leads to liberalism. The main weakness here is that he spends a lot of time talking about religious moralities, and not about other alternatives, and about communitarian or conservative viewpoints that might disagree. It is not hard to imagine, for example, a communitarian society railing against a lot of the individual freedoms that Blackford uses as his main principles, arguing that having a set of common values — especially including moral values — is key to maintaining a stable society. Thus, from that viewpoint, the State imposing moral values is key to stability, and not detrimental to it.

Blackford does take that notion on, arguing essentially that while our armchair notions that so liberal a society might be unstable, history has shown that societies with such mindsets have been stable, and so reality has trumped our philosophy. There are two problems with this argument. The first is that it isn’t indicative; communitarian societies with a common set of values, including moral values, have also proven stable, and likely more stable than others, as long as the promoted values and the values of the people agree. The second is that even in those countries the State legislates morality. Take any nation with anti-discrimination laws — the hallmark, it seems to me, of modern liberal societies — and tell me that that isn’t, in fact, legislating morality. All societies then, it seems to me, do in fact create laws that are based on morals. The successful, stable societies simply make their laws based on the moral values that the people actually have. Thus, societies that are liberal make liberal laws; societies that are conservative make conservative laws. Societies that are individualistic make individualistic laws; societies that are communitarian make communitarian laws. As long as the laws match what the people think is moral, there is no issue with legislating on the basis of morality … and, in fact, it seems that most people expect it.

So, as long as the State makes laws that reflect the moral values of the people, the society will remain stable. The State can, however, make laws that may influence the moral values of the people, as long as that is not their purpose. They can, instead, make laws out of an overwhelming secular need that happen to impact or go against the common moral values. For example, in WWII Allied nations quite quickly mobilized women and put them to work in the factories, freeing up more men to act as troops while maintaining their industries. Germany, on the other hand, was slow to mobilize women due to the “traditional values” stance of the Nazi Party, which put Germany at a production disadvantage. It can easily be argued, I think, that that did quite a bit to foster equality movements for women. In the Civil War, again the North mobilized black forces into their army, which the South could not do. Many black troops thought that this would be an excellent way for them to earn their rights, even the vote, despite the fact that racism was still alive and well in the North. So, while in both cases the actions went against the established moral values of the society, it was accepted due to there being an overwhelming secular need — generally, preservation of the State — to do so. Seen that way, it fostered less objections and resentment, and once the genie was let out of the bottle it would not be so contained again.

In some sense, the battle over same-sex marriage can be seen as reflecting both sides of this. Some of the animus towards same-sex marriage from people who are not homophobic is due to a seeming disconnect between the values of the society and the values that the government and courts are trying to promote. It seems like too much of an imposition, and running roughshod over society to promote the values that the government and the courts have, but that the people do not. The only recourse is to appeal to what is indeed presumed to be a shared value, which is the liberal one of anti-discrimination and the pursuit of happiness. But on any case where that argument does not take root, all that is left is a government seemingly imposing values for no good secular reason, and that sort of thing always leads to instability and resentment.

At any rate, it is thus unclear that the secular state leads to liberalism, or that the state has to get out of making moral laws. In fact, history seems to demonstrate that the state is expected to legislate morality. Blackford himself seems willing to legislate morality under the guise of the political. Thus, we will not escape moral laws that easily.


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