Linköping University | Department of Culture and Communication Master’s Thesis, 15 ECTS Credits | Applied Ethics Autumn Semester 2016 | LIU‐CTE‐AE‐EX‐‐16/10‐‐SE
On the Morality of the
Religious Freedom
Restoration Act
– Ethics in a Failing Democracy
Troy Elliott Supervisor: Maren Behrensen Examiner: Göran Collste Linköping UniversityTable of Contents
Page 1……….……….…..……Title Page Page 2……….….…….Table of Contents Page 3……….……...……….Abstract Pages 4 - 5……….…………...………....Introduction Pages 5 – 11………..…………..……....RFRA Case Study Pages 11 – 15………..………..……RFRA Controversy Pages 15 – 17………...….………LGBT Community Response Pages 18 – 20……….…..………Conflict of Rights Pages 20 – 22………..………..……...Politics in Indiana’s RFRA Pages 22 – 24………..…...Classical Liberalism & Utilitarianism Pages 24 – 27……….….……….……...Liberty and Religion Pages 27 – 32……….…...……...A Rawlsian Perspective Pages 32 – 34………..…………..……...Conclusion Pages 35 – 39………..…...………….…..References Pages 40 – 46………..………Appendix
On the Morality of the Religious Freedom Restoration Act: Ethics in a Failing Democracy
Abstract
The Indiana Religious Freedom Restoration Act and its subsequent backlash serve as a case-study to raise ethical concerns both about the characterization of contemporary western liberal democracy as a political theory and a prevailing religious extremism acting as a legislative power within governments; Developing and reflecting on these issues this study will attempt to show a need to evaluate the moral principles attributed to modern political systems and the governmental delineation of power over individuals within a society. Applying Rawlsian concepts, this study will show that laws such as the RFRA are representative of weak and superficial democracies that in most cases are actually centres of power, funded by corporations and organisations in direct conflict with liberal principles.
Introduction
In early 2015 Indiana passed the Religious Freedom Restoration Act fostering an immense backlash of controversy throughout the United States. On one side the Act was seen as a harmless piece of legislation that protected some freedoms when people of religious groups faced conflicts between secular and religious activities or rights. On the other it was regarded by many as a rightwing religious response to the recent legislation in many American states that permitted same sex marriage by law, and would allow those that belonged to religious groups to discriminate against other members of the public. Subsequently many states passed their own version of the RFRA1.
Where the danger lies in the RFRA isn’t necessarily in the enforceability of law but the political and cultural message it sends. Whilst in reality using the RFRA to legally enforce the power to discriminate on religious grounds would not hold water in many states across the US, one must recognise how different interpretations and perceptions of these varying state laws, lead to confusion amongst both religious and LGBT communities in what message governments are sending to the people. For example during my research it was apparent that indeed many religious-owned businesses did in fact turn away members of the LGBT community, not because of any enforceability of a law or its actual meaning but because of how they perceived and wished to interpret it.
Indeed, religion is a human phenomena and one should have the right to their belief but there have always been claims from different religious groups in the political sphere about what should be morally acceptable in society and this seems be where conflicts arise. In the market place of ideas never more so has religion continually lost ground in terms of its political and cultural significance in how it misaligns itself with progressive liberal thinking. One only needs to witness the recent lobbying in the U.S
1 Presently 21 U.S states have signed in RFRA’s but since the controversy surrounding Indiana’s law various amendments have been added in order to address claims that RFRA’s could be used to condone prejudice on religious grounds. For example following the public outcry that condemned the language of Indiana’s RFRA, Indiana’s general assembly announced amendments that would specifically state that the law could not be used to discriminate. House speaker Brian Bosma stated “what was meant to be a law of inclusion has been perceived as a law of exclusion and this couldn’t be further from the truth” (Indy Star,2015). However, it remains that 20 other states have varying descriptions that are meant to provide protection of religious rights and indeed the inconsistent legislation texts do allow for different interpretations and perceptions being made.
against gay-marriage being legalised to see how the rights of different groups drive a wedge into communities. On one hand the U.S regards itself as a Christian nation based on Christian values but not when those values infringe on the rights of others. In the case of the RFRA was there then perhaps revealed an incompatibility of rights between the religious and the LGBT community? One could argue that not all members within a religious group wish to have a legal right to discriminate on religious grounds but it was clear that some do. Conversely it would be hard to believe that any member of the LGBT community would wish to be discriminated against therefore in the competition for rights does this not become a zero sum game? When an anti-gay Christian baker must by law make a cake for a gay wedding what was the point of the original enactment of the Indiana RFRA? What is apparent and what this study aims to expose is that U.S political policy superficially expounds progressive liberal ideals whilst pandering to outdated Christian values it feels represent the core values of a high percentage of the voting public. I will show that this pervasive faith-based presence sees its values as being under attack by the very progressive liberal ideals it attempts to align itself with, thereby raising an ethical concern about the moral nature within American politics. I will show that at the very least that the religious presence that pervades legislative process in the United States produces confusion about what is defined as tolerant, liberal and democratic.
1. The RFRA Case-study
To fully realise the importance of what occurred when the Religious freedom Act was enacted in March 2015, we need first to contextualise the situation with the historical events that came previously and are relevant to the case. The language by which the RFRA owes its content and structure can be traced back to the United States constitution where we find in the first amendment “congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof”. In this statement is what is known as the establishment clause2 and free exercise clause.
2The Establishment Clause is a limitation placed upon the United States Congress preventing it from passing legislation respecting an establishment of religion. The second half of the Establishment Clause inherently prohibits the government from preferring any one religion over another (The Charters of Freedom, 2015).
In layman’s terms what this essentially means is that governments cannot stand in the way of a person practicing their religion. During the last century many court cases were brought to light which involved individuals bringing law suits against their employers and organisations claiming infringements to the free exercise clause. The most notable case that led to a Supreme Court ruling in favour of the pertitioner was the Sherbert V. Verner case of 1963. Adell Sherbet, a textile-mill worker was a member of the Seventh-day Adventist Church who refused to work on a Saturday when her employer switched from a five –day week to a six-day week. Sherbet’s belief forbade her to work on Saturdays and she was consequently fired when she didn’t turn up for work. When she couldn’t find alternative employment Sherbet claimed for unemployment benefit but was denied due to the nature of her dismissal. A state trial court backed up the Employment Commission’s decision but it was eventually reversed by the Supreme Court stating that the government's denial of Sherbert's claim was an unconstitutional burden on the free exercise of her religion (Findlaw, 2015).
The case led to what has since been coined as the ‘Sherbet-test’ (US Legal 2015) which essentially mandates that if the government is going to have rules and regulations there must be strict scrutiny applied in the case of religion. This means that if the government is going to deny an expression of a person’s belief there needs to be a ‘compelling state interest’ that justifies the infringement and that there can be no alternative that would avoid the infringement being made. This is known as narrow tailoring3 ( US Legal, 2015).
However by the 1990’s the Supreme Court begins to make some changes to the Sherbert-test during an important case that came involving Native Americans. In 1990
Employment Division v. Smith (Justia, 2015) involved the decision where Oregon
state was able deny employees unemployment benefits after being fired for using the drug Peyote even though it was regarded as being part of a religious ritual. Both
3 Narrow-tailoring (otherwise known as narrow-framing) is the legal principle that a law be written to specifically fulfill only its intended goals. This phrase is most commonly invoked in cases which involve racial discrimination by creating racial distinctions.
Alfred Smith and Galen Black members of the Native American Church and counselors at a private drug rehabilitation clinic were fired after they were known to have ingested the drug. Their claims for unemployment benefit were denied due to them both being fired for work-related misconduct.
Smith and Black claimed that their free-exercise of religion rights were being violated but after various rulings at different levels the Supreme court ruled in favour of the employment service stating that Oregon's prohibition of peyote was not legislation specifically aimed at a physical act engaged in for a religious reason. Rather, it is a law that applies to everyone who might possess peyote, for whatever reason—a "neutral law of general applicability” (Shaman, 2015). The Court characterized Smith's and Black's claim of using peyote for religious reasons, an attempt to place themselves beyond the reach of Oregon's generally applicable prohibition on the possession of peyote. The First Amendment's protection of the "free exercise" of religion claimed the court did not permit individuals to use a religious motivation as a reason not to obey generally applicable laws. "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." (Cornell, 2015) This has become what is now known as the ‘General rule of Applicability’, which means that if a law was neutral and isn’t aimed at infringing on any particular religious belief but applies to everyone, in that roads have to go through everyone’s back yards and we all have to pass drug tests, than person’s claiming first amendment violations would not win these types of cases (Shaman, 2015).
This essentially reversed the Sherbert-test rule4 that caused controversy throughout the United States during the early nineties. On one hand there were leftist secular groups that claimed that the government were overstepping bounds whilst conservative Christians groups foresaw the move as one that could have negative
4 The Sherbert test was developed in a context -- unemployment compensation eligibility rules -- that lent itself to individualized governmental assessment of the reasons for the relevant conduct. The test is inapplicable to an across-the-board criminal prohibition on a particular form of conduct. A holding to the contrary would create an extraordinary right to ignore generally applicable laws that are not supported by "compelling governmental interest" on the basis of religious belief. Nor could such a right be limited to situations in which the conduct prohibited is "central" to the individual's religion, since that would enmesh judges in an impermissible inquiry into the centrality of particular beliefs or practices to a faith (Cornell University Law School,2015).
implications for them. In 1993, with intense support from both left and right groups the Religious Freedom Restoration Act was passed through Congress and signed in as law by President Bill Clinton. The bill essentially reinstated the Sherbet-rule but added some additional provisions. The RFRA stated that that a neutral law that’s makes no direct religious provisions can burden a religion just as much as one that was intended to interfere with religion;therefore the Act states that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability. (RFRA, 1993).
However in 1997 during another case City of Boerne v. Flores the Supreme Court reversed some of the RFRA stating that Congress had stepped beyond the power of enforcement as stated in the fourteenth amendment. The Supreme Court denied an RFRA claim by a Roman Catholic Church group who wanted to tear down and rebuild a church in Boerne, Texas that was protected under local ordinance law as a historic landmark (Miller, 1998: 1053). The Supreme Court stated the RFRA law should only apply at federal level not state level leading to the act being amended in 2003 to reflect the change. Prior to 1997 Boerne v. Flores Ruling which made the RFRA unconstitutional when applied to states, 337 RFRA court cases had been filed in a 36-month period since the introduction of the law. Two notable cases where the plaintiffs were ruled against by the US courts involved Adams v. Commissioner (Findlaw, 2015) in 1998 and Miller v. Commissioner in 2000 (Miller v. Commissioner, 733 F.2d 399,6th Cir. 1984). In the 1998 case Priscilla M. Lippincott Adams, a devout Quaker tried to claim she should be exempt from paying federal income taxes because the taxes funded United states military action and this would seriously burden her religious beliefs. In the later case taxpayers refused to pay their taxes based on the argument that social security numbers might contain numbers related to the ‘mark of the beast’. The ruling against these taxpayers in these cases represents the government applying the compelling interest clause5.
5 The Supreme Court under Earl Warren adopted an expansive view of the Free Exercise Clause holding that states must have a "compelling interest" to refuse to accommodate religiously motivated conduct. In a 1972 case Wisconsin v. Yoder, the Court ruled that a law that "unduly burdens the practice of religion" without a compelling interest, even though it might be "neutral on its face," would be unconstitutional. After 1990 the "compelling interest" doctrine became much narrower where the supreme court held that as long as a law does not target a particular religious practice, it does not violate the Free Exercise Clause as we see in these late nineties cases.
One of the most interesting turn of events regarding the RFRA law was in 2014 during the Burwell v. Hobby Lobby case (Supreme Court, 2014) where a new regulation allowed for closely held6 profit organisations to opt out of federal law on religious grounds. The Hobby Lobby case was concerned with the Affordable care act that mandated business owners to fund reproductive healthcare (such as the contraceptive and morning after-pill) for employees. Hobby Lobby, owned and managed by an evangelical Christian family, claimed on RFRA grounds that providing this type of healthcare would be in violation of their beliefs as an organisation and in a landmark decision the court ruled in the company’s favour (Supreme Court, 2014). As an interpretation of the RFRA there was much opposition to the ruling and the new regulation such as by pro-choice advocates who claimed the law would allow employers to discriminate against their female employees who would benefit from the reproductive healthcare (BBC News, 2014). Deputy legal director of the American Civil Liberties Union Louise Melling claimed, "This is a deeply troubling decision. For the first time, the highest court in the country has said that business owners can use their religious beliefs to deny their employees a benefit that they are guaranteed by law” (ACLU, 2014). In what can be seen as chain of events in the controversy surrounding the RFRA, it is in what happened in New Mexico following the Hobby Lobby case later in 2014 which could be said to be the catalyst for the Indiana version of the act.
Elane Photography was said to have violated New Mexico Human Rights Act by the state supreme court when they refused to take photos at a same-sex wedding ceremony (Huffington Post, 2014). One of the co-owner’s Elaine Huguenin claimed that accepting to take on the work would have been in violation of her religious beliefs and declined. The court stated “when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the New Mexico Human Rights Act in the same way as if it had refused to photograph a wedding between people of different races” (Barnes, 2014). An appeal was made to the U.S supreme
6 A closely held corporation is any company that has only a limited number of shareholders; its stock is publicly traded on occasion but not on a regular basis. These entities differ from privately owned firms that issue stock that is not publicly traded.
court who refused to hear the case backing up the state level decision stating that as there was no government entity involved then its not necessary for them to be involved and this case should stay with the state-level ruling.
The New Mexico case ruling reverberated throughout the religious communities of the United States receiving lots of attention and controversy. Critics claimed that the government should not be allowed to control and coerce business owners to violate their religious beliefs. Protests and lobbying were followed by the Indiana and 19 other states passing their own RFRA in March 2015 that were claimed to mirror the existing federal RFRA. However Indiana had made a couple of very important changes. While the media and online rhetoric defended the bill on grounds that it mirrored the Federal and other state versions in terms of content, this was not entirely true as two additional clauses where added in the case of Indiana. The Federal and 19 other state RFRA versions were very similar in the sense they provide religious rights to people, non-profit organisations and as in the Hobby-Lobby ruling, to ‘closely-held’ corporations who share religious beliefs. The Indiana version however a distinction was made in the definition of the term ‘person’. The Indiana RFRA reads: Sec.7. As Used in this chapter, “person” includes the following:
(1) An individual.
(2) An Organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes.
(3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that:
(A) may sue and be sued; and
(B) exercises practices that are compelled or limited by a system of religious belief held by:
(i) an individual; or (ii) the individuals;
who have control and substantial ownership of the entity, regardless of whether the entity is organized for profit or non-profit purposes (Indiana
RFRA, 2015).
The last section of this definition and sub-clauses are what seem to be in direct response to what happened in the New Mexico case ruling. This new piece of legislation now denoted a “person” not only as an individual or an organisation but also an individual who owns an organisation. What this implicates is that if this new legislation were applied to the same New Mexico case, the ruling would not be so clear-cut, because there would be now a conflict of rights. It is clear this clause was added for a reason, but what are the consequences? At the very least, irrespective of its political implications, and regardless of its enforceability, does it not just needlessly spend taxpayer’s money jamming up courts and the legal system? As stated in my introduction is there not an obvious compatibility here between the rights that the religious communities want and the rights of the LGBT community? The purpose of this paper is to identify problems in the functionality and intentions of what we might consider liberalist policy regarding religious freedom as we see its place as a political theory within a liberal democratic society such as the United States. In order to do this we first need to look at the proceeding backlash of the Indiana RFRA being implemented.
RFRA Controversy
What made the RFRA of Indiana receive so much media coverage were the ramifications of these added clauses, how the media and the population of Indiana would interpret them, and how they functioned in conjunction with other state laws. With an openly strong opposition to gay marriage being conveyed by the religious communities of Indiana, the LGBT spoke-persons of the state claimed that the Indiana RFRA, would allow for discrimination without the fear of prosecution. This was due to the fact that at the time of writing Indiana did not have any LGBT anti-discrimination laws in place. In a BBC interview Zach Adamson an openly gay county elected official, claims that “The RFRA has nothing to do with religion, nothing to do with freedom and everything to do with discrimination”. In response to claims by critics that the LGBT community are focusing on the wrong aspects of the
law and that it’s not discriminatory at all Adamson rebuts with “Then there’s no real purpose for the law if it doesn’t do what they say it doesn’t do, it is clear the intent was to target the LGBT community after taking a major loss on the gay marriage front here in the United States”. (BBC, 2015).
Many corporations, businesses, tourism companies and sports organizers began to boycott Indiana in protest of the bill. National and International corporations such as Walmart, Apple, GAP, Angies List and Sports organisations including NASCAR and the NCAA publicly condemned the RFRA of Indiana. A number of states and cities took action by banning non-essential state travel to Indiana in support of their LGBT communities. Many businesses and groups relocated events and meetings in response to the bill. The president of the AFSCME7 Lee Saunders stated:
This un-American law allowing business to refuse service to gay and lesbian customers sets Indiana and our nation back decades in the struggle for civil rights. It is an embarrassment and cannot be tolerated (Lee Saunders, AFSCME, 2015).
In response to the backlash by the media and the LGBT community, Mike Pence, the Governor who signed the legislation into law, was interviewed several times by a number of news organisations with his responses adding to the confusion and controversy surrounding the bill. In one interview there is a clear contradiction by Pence regarding how the law can be implemented with:
This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it. In fact, it does not even apply to disputes between private parties unless government action is involved.
(Mike Pence, IndyStar, 2015)
This statement is in direct contrast with what section 7 of the Indiana actually states. In another live ABC News interview Pence claims wrongly that the Indiana RFRA was “the same version of the RFRA Bill Clinton signed into law and the same bill
Barack Obama voted for”. Later in the same interview Pence refused to answer repeated questions posed by George Stephanopoulos such as “would the Indiana RFRA allow say a Christian Florist to avoid prosecution by refusing service to a gay couple?” and “is refusing service to a gay couple legal now in Indiana, yes or no?” (ABC News, 2015). Pence continued to avoid answering direct questions throughout the 12-minute interview and reiterated his position that the bill would simply “protect the constitutional rights and privileges of freedom of religion for people of faith and families of faith” (ABC News, 2015).
Jake Tapper in a live CNN interview with Senator Bert Hester Co-Author of the state of Arkansas’ version of the RFRA received the same contradictory and confusing responses. Arkansas’ legislation featured similar clauses to the Indiana law and when asked the question “does the RFRA allow a Christian conservative business to deny service to a homosexual couple or not” Hester responded with:
To be clear it does not allow someone to be able to discriminate and they should absolutely serve a homosexual-couple but what it also does is let them hold their personal religious beliefs close on a message and that message would be they don’t support homosexual weddings. I wouldn’t expect a Jewish baker to put a Swastika on a cake. (CNN, 2015).
In response to this statement Tapper asks, “how would the Christian conservative remain true to their beliefs and at the same time not discriminate, I’m confused?”. Hester responds saying, “its not confusing because the first amendment is clear that a Christian conservative does not have to participate in a message they don’t agree with…..they cannot discriminate an individual but they can discriminate a message” (CNN, 2015). Tapper pushed further with “So under this law it would be ok with you for a Muslim baker to deny service to Christians and Jews?”. Hester responded with “Under this law with have the right to the first amendment, the right to freedom of speech and I believe in the fist amendment” (CNN, 2015).
implementation of Indiana’s RFRA. Kevin O’ Conner and his daughter Crystal who run the business Memories Pizza openly stated in an ABC interview they would refuse catering for a gay wedding claiming the RFRA permits them to do this (ABC57, 2015). In an interview with the business owners, USA Today revealed that the business had received 842,000 dollars in donations from 29,000 people who supported their opposition to gay weddings. Crystal O’Conner stated after the media backlash of the decision “My biggest fear was that this could have changed the way god made me” (USA Today, 2015). In response to the public support and donations Kevin O’Conner made an untenable comparison to wartime protestors with “They support our right to be able to have that belief, and I compare this case like that of conscientious objectors” (Huffington Post, 2015).
This comparison is weak because it comes down to the concept of moral deference. Deference to the moral claim at issue in a conscientious objection case requires a court to take at face value the objector’s claim that his religion finds some act or practice morally impermissible, and in the case of war for example this form of deference is not difficult to defend (Sepinwall, 2015). This is down to various factors but for example, objecting to fight in a war does not then affect the rights of another group8 and there is not usually a “third party” interest in the court arguing for the opposite position9. With that said, if any kind of conscientious objection from a moral deference perspective is claimed, do we not run the risk of accepting such claims across the board? Could one not think that “there some moral beliefs are so objectionable that they deserve no deference at all? Consider the belief that “homosexuality is wrong”, shouldn’t there be limits on moral deference to ensure that courts are not compelled to treat such claims on par with other moral beliefs?” (Sepinwall, 2015). This is where as Amy Sepinwall claims in her 2015 article
Conscience and Complicity: Assessing Pleas for Religious Exemptions in Hobby Lobby’s Wake:
8 One could argue it affects the right of an individual, the person drafted in place of the conscientious objector. 9 Again one could argue that in the case of conscientious objection to war “third party interests” might include the U.S. Military or the U.S. Government in how they fare in war due to a loss in personnel, but this is where the court judiciaries have to weigh up how strongly they accept a person’’ moral conviction case by case.
Courts must weigh the objectionable moral conviction against not only the government’s interests but also the interests of third parties. Third parties will presumably be able to marshal arguments that acceding to the believer’s hateful claim inflicts a grave injury on them—one so grave that the court should find it dispositive. But even if third parties choose not to become too vexed about the believer’s claim, the state must, again in its capacity as a defender of our constitutional regime, add to its arguments about the compelling interests underpinning the challenged legal requirement a statement decrying the challenge because it deviates from our most cherished constitutional values.
What this reveals is the implementation of the RFRA of Indiana a) produced obvious conflicts between the rights of two groups, in this case the rights of people protecting their right to practice their faith and the right for people not to be discriminated against and b) that religious business owners adopted and applied the law very quickly and c) there was some vague and suspicious responses from the politicians involved. While I would like to look at the first issue concerning the conflicts of people’s rights in the next chapter, in response to how religious business owners responded to the RFRA, I would like to focus this section on evaluating religious attitudes towards the LGBT community.
LGBT Community Response
The LGBT community claims that the RFRA is a ‘bill of discrimination’ (Badash, 2015) and in the previous chapter I highlighted two real life examples of religious business owners refusing certain forms of business to homosexual couples. However just because one can apply the RFRA doesn’t necessarily mean one will. So does the LGBT community have a genuine fear of discrimination from the religious community as opposed to non-religious communities? Anyone belonging to any group can discriminate, but while supporters of RFRA might claim that acting in accordance with one’s religious belief is not discrimination, under the Indiana RFRA it was only the religious that would be privileged with an exemption from being prosecuted for it. So is one more likely to experience discrimination from a religious
group regardless of what the law permits?
In a recent cross-European survey on religion and contemporary prejudice Anna-Kaisa Newheiser et al examined the responses of over 7000 volunteers between the ages of 16 and over from 8 European countries. According to the study group much of the present empirical literature at the time of writing focusing on the religion-prejudice relationship was somewhat out of date and didn’t factor in data from more recent decades (Newheiser et al, 2013: 111). The purpose of the study was to examine whether religiosity played a role in explaining levels of contemporary prejudice applied to three target groups, Muslims, Jews and Homosexuals. Newheiser’s study group wished to assess whether religiosity was related to levels of Islamophobia, anti-Semitism and anti-gay attitudes beyond a comprehensive range of background variables.10 Newheiser’s main concern regarding variables was whether a connection between religiosity and prejudice would remain independent of two key ideological predictors of intolerance, Social Dominance Orientation (SDO) and Right-Wing Authoritarianism (RWA) (Newhesier et al, 2013: 111), initially characterized as personality types but now refer to social-political ideologies (Duckitt, 2001) regarded as strong predictors of prejudice. While this study was based in Europe and might be regarded as speculative, it’s important to note its relevance in relation to the implications of the RFRA. Firstly it is the most recent and comprehensive study of its type and secondly was conducted in a part of the world that statistics show is home to the most atheist countries in the world.
According to the research of Sidanius and Pratto, SDO is a position that opposes the idea of equality and represents the propensity for people to believe a hierarchical structuring of society where they would agree with statements like “Inferior groups should stay in their place” (Sidanius and Pratto, 1999). Parallel to this RWA represents people’s need for security, order and authority-based harmony where an individual chooses to submit to those considered as legitimate authority figures who stand against norm-violations and cling to the norms established by authority figures (Newheiser et al, 2013: 112). RWA individuals believe in old-fashioned or traditional
10 These background variables included the respondent’s age, gender, income, education, economic situation, personal financial situation, , perceived social status, political orientation and social capital.
values as guidelines in how to live one’s life, tend to balk at the idea of free-thinking and would disagree with the idea that people are free to choose their life-style, religious beliefs and sexual preferences (Altemeyer, 1981).
Newheiser’s survey showed that results from SDO and RWA were consistent with previous studies revealing high prejudice predictions in all three target groups. However after accounting for individual participant background variables religion featured over and above that of SDO and RWA as a strong predictor of prejudice in one target group, homosexuality (Newheiser et al, 2013: 113). Based on the survey Newheiser’s study group concluded that religiosity does play a major role regarding levels of contemporary prejudice depending on target group but being strongest for anti-gay attitudes that is consistent with other studies regarding the relationship between religion and prejudice11 (Newheiser, 2013: 113). This conclusion was also reached in two separate 2008 studies conducted by Christian organisations that showed a high percentage of “Evangelical and fundamental Christians regard homosexual acts as sinful” (Lifeway Research Study, 2008) and “..think they should not be a part of society” (U.S.Religious Landscape Survey, 2008). It would seem that with the propensity for a person of religion to have a high probability of anti-gay prejudice, the LGBT community would have reasonable grounds for fear of discrimination under such legislation the RFRA mandated.
The Conflicts of Rights
A key part in the RFRA case was that there were two competing interests coming at heads with each other. On one hand you have people protecting their right to practice their faith and the other is the right for people not to be discriminated against12. It has been made very clear from both supporters and critics of the Indiana and other state RFRA bills that there was an intention within the language of the bill to essentially
11 See Kupper and Zick 2010 and Herek 1987.
12 One could expand an argument for the concept of conflicting rights in terms of questioning whether this is due solely to the complexities of the US Juridical system or perhaps symptomatic of liberal democracies in general. My position would agree the complexities of the US Juridical system that incorporates common law, to be part of
allow religious freedom rights to trump the right not to be discriminated against.13
The question this raises is how do we justify how one right of an individual can indeed trump that of another? Should certain rights trump other rights? Are there any coherent moral guidelines one can refer to in the case of competing rights?
In his work Taking Rights Seriously Ronald Dworkin develops the idea of rights as trumps where he highlights a key concern that they are some moral rights against government. For Dworkin not all constitutional rights are considered as moral rights except for those that might be considered fundamental rights like free speech. The sense here is that a government would be wrong to repeal such a right even if the majority of society would be better off with out it in that particular interests of individuals are so integral that it would be wrong for the community “to sacrifice those interests just to secure an overall benefit” (Dworkin, 2006: 31). Certain rights that might be considered important politically or fundamentally aim to protect particular individual interests and thereby become a “trump over the kind of trade-off argument that normally justifies political action” (Dworkin, 2006: 31). What this comes down to is that from a moral perspective it might be considered that there are certain individual liberties so important to society that they could not be dispensed with regardless of any negative consequences that may arise by their implementation or even if a majority mandated its repeal14. Dworkin engages with the idea that the very nature of a trump is that it should not be subject to any kind weighing, yet the question remains, if two rights in conflict are considered by a government as both being “fundamental rights” then does not the competing still mandate some kind of weighing and balancing?
As in Dworkin’s work there are many philosophical texts that cover the subject, however, at the time of writing there are no universal guidelines or policies concerning how one should assess competing human rights. In fact only one official
13 Changes were later made to the bill that were considered to avoid this ‘trumping’ which I will discuss later in the paper.
14 Such as repealing the freedom to practice a religion because some individuals interpret the texts literally that lead to fatal consequences.
document exists that addresses the issue that was prescribed in Canada in 2013 by the Ontario Human Rights Commission and called the Policy on Competing Human
Rights. The policy features some very relevant examples of where situations of
competing human rights can occur and provides a process for individuals and organisations by which one can assess and resolve rights conflicts. The interesting thing about the OHRC Policy is that it takes less of a ‘cold’ legislation position to the issue in favour of a more process-orientated approach focusing on a ‘human’ position with aims to cultivate positive attitudes and to respect the rights of others. In the case where litigation cannot be avoided the policy also provides a framework for courts and legal practioners (OHRC, 2013). According to the policy everyone should:
• show dignity and respect for one another
• encourage mutual recognition of interests, rights and obligations • facilitate maximum recognition of rights, wherever possible
• help parties to understand the scope of their rights and obligations
• address stigma and power imbalances and help to give marginalized individuals and groups a voice
• encourage cooperation and shared responsibility for finding agreeable solutions that maximize enjoyment of rights.
In contrast to the OHRC Policy guidelines what we saw happen during the backlash of the Indiana RFRA, did not include much respect or positive attitudes toward the rights others and instead we saw protests and a media firestorm that included a range of negative human expression on both sides of the debate. One of the biggest problems related to the case as I previously mentioned was that of the confusion and apparent deception by the law-maker’s themselves. Since the marriage equality bill had been accepted in the U.S. it’s true that many legislators and religious leaders condemned the future of the country yet the facts are that the religious beliefs and convictions of all Americans are fully protected by both national and state law in all states. Individuals will never be forced to promote or renounce a religious belief and no churches will ever be made to offer sacraments to those they deem unfit. It is true, however, that public businesses and corporations that serve the general public will be
required to offer fair and equal treatment and service to all people- regardless of their race, creed, political party, religious affiliation, sexual orientation, or gender identity. And it is this where the new RFRA bills attempt to undermine with its special clauses and amendments as previously mentioned.
The conflicts of human rights as a fundamental problem that causing division and dissent within societies, is something that governments and lawmakers need to address. Certain scholars see competing human rights as a complex problem that threatens the possibility of a more cohesive “universality of human rights” (Zu & Wilson, 2014: 34). The Liberal theorist John Rawls saw “basic rights as forming a stable system made up of mutually compatible elements” (Martin, 1985.129) yet in the RFRA case what we saw was nothing but instability of a system comprised of incompatible elements. In the following chapters I argue that this is due to inconsistencies within an in-cohesive social-political system.
Political Background of Indiana’s RFRA
Mike Pence, the governor who signed Indiana’s RFRA into law, probably received the most flak over the decision during the weeks proceeding the implementation of the bill. Reflecting on Pence’s history and social standing the IndyStar news website characterized the RFRA move as a “public image battle routed in perception and misperception” (LoBianco, 2015) a statement that seems to carry some weight when one evaluates Pence’s continued attempts during interviews to avoid direct questions regarding the intention behind the RFRA bill. Because of his public profile, during the law’s enactment, Pence’s role highlights my argument of how the RFRA law was confusing and deceptive to the public.
As a Congressman Pence had built up a reputation in Indiana as a “crusading religious conservative” (LoBianco, 2015) fighting against government funding for abortions and advocating for a constitutional same-sex marriage ban in Indiana. During the months leading up to the implementation of the RFRA and surrounding his run for governor, Pence tone-downed his Christian-rooted views portraying himself as the
average ‘Hoosier’ and conservative businessman. In October 2014 a federal court decision made same-sex marriage legal in the state of Indiana and the opponents of the law, groups that Pence had supported and previously rubbed shoulders with, looked to Pence for support in the RFRA venture.15 Many writers including Tobin Grant of the Washington Post argued that:
Indiana enacted its law after the federal courts ruled that same-sex marriage was now legal in the Hoosier state. … RFRA was seen as a way to give residents and businesses that objected to sex marriage a way around having to cater to same-sex couples (Grant, Washington Post, 2015).
During the RFRA campaign news reports and statements by some supporters show the religious freedom law was from its conception deeply entangled with conservative lobbying groups' moral opposition to same-sex marriage (Glaad, 2015). Yet representatives of the law had attempted to clarify early on that the RFRA would not take precedence over anti-discrimination laws that protected sexual orientation or gender identity in roughly 12 Indiana towns. Still, legal experts commented that the law could be used to raise religious objections to providing services to same-sex weddings. Yet within the legal circles of Indiana, the idea that the RFRA was not meant to "re-legislate" the issue of same-sex marriage was being exhaustively stressed (Wang, IndyStar, 2015).
With all of this said when Mike Pence enacted the law at a private signing ceremony, those present were ardent conservative supporters of the same-sex marriage ban along with other members of anti-gay lobbying groups16. Curt Smith, President of the Family Institute who helped write the bill was very outspoken about his opposition to homosexuality stating, “I believe homosexuality is harmful to all, including society, and is against the teachings of the God of the Bible” (Curt Smith, 2007). Also present
15 These groups include The Indiana Family Institute and American Family Association of America
16 It is interesting to note that at the time of writing Donald Trump had become a U.S. Presidential candidate with Pence becoming a strong supporter to the extent of producing a ‘church greeting’ video to play at sunday congregations and online. Pence’s reasons for backing Trump was due to the campaign’s “promise to evangelicals, especially the promise to repeal the Johnson Amendment” (Vox, 2016). (In its most basic terms the Johnson Amendment proposed by then-senator Lyndon B. Johnson effected certain non-profit and church organisations’
was Eric Miller a conservative lobbyist and the executive director of Advance America – the state’s leading anti-LGBT organization and quoted as saying “homosexuality is wrong” and claimed that “banning same-sex marriages and civil unions will prove to be the great moral battle of this generation” (Eric Miller in Nuvo article, 2007). Micah Clark is the head of the American family association of America and is an advocate of ‘ex-gay’17 therapy claiming that “Homosexuality has no sexual benefit…and it is individually destructive and dangerous” (Clark, 2009).
When enacting laws should not a liberal democratic society avoid such motivations? Would such motivations be considered unconstitutional regarding the United States Bill of rights? In the next chapter I argue from the viewpoint that the system of government we see in the United States that can enact such a law as the RFRA is a superficial kind of liberal democracy.
Classical Liberalism and Utilitarianism
The RFRA law was enacted within the United States of America by a governing body that functions under a social political system characterized as a liberal democracy. The evolution of liberalism as a social political theory has been a complex one and can be difficult to both track and define. The form by which it is recognised today in the United States of America is very different from its roots in what is known as classical liberalism. While the highly influential enlightenment philosopher John Locke is mostly recognized as the “father of classical liberalism” (Locke, 1991: 5), the original formulation of liberalism as political theory is mostly attributed to the Prussian philosopher Wilhelm von Humboldt whose post-humously published work
On the Limits of State Action (1850) greatly influenced John Stuart Mills’ On Liberty
(1859). One may consider Locke and Humboldt’s classical liberalism as theory compared to Mill who, although very much a classical liberalist in his thinking, acts more like a social democrat by advocating principles of how the theory could be realised.
17 The ex-gay movement is comprised of people and organizations whose purpose is to encourage people to refrain from entering or pursuing same-sex relationships, to eliminate homosexual desires, to develop heterosexual desires, or to enter into a heterosexual relationship.
The world in which Humboldt envisioned his liberal society to exist was that of a post-feudal and pre-capitalist system, where there would not exist a great disparity between individuals in how much power they could exert over each other. However what Humboldt recognised and what Mill later developed was that there was a growing divergence between individuals and the authority of the state (Humboldt, 1850). They saw the goal of their liberalism, a liberalism focused on rights and the equality between individuals, as being a way to diminish the power of the state over individual liberty. However their conceptions of liberalism applied in the modern era may, on one hand can be seen producing an equality of individual liberties yet on the other, be in direct conflict with an inequality concerning the distribution of wealth which allows for disparities of power between individuals.
Mill’s ideas were rooted in the ethics of Utilitarianism, the concept of which has been mostly attributed to the philosopher and social reformer Jeremy Bentham. As a normative moral philosophy the central idea to Bentham’s utilitarianism was the axiom “It is the greatest happiness of the greatest number that is the measure of all right and wrong” (Bentham, 1776: 2nd para). Essentially this ‘principle of utility’ provided a calculus to determine happiness as a predominance of pain over pleasure in moral decision-making:
Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne. They govern us in all we do, in all we say, in all we think.. (Bentham, 1789: 1).
Grounded in Bentham’s teachings John Stuart Mill acknowledged using utilitarianism to form his liberal ideas that in turn influenced the social and legislative reforms of early 19th century Britain. Where utilitarianism was a political motivation for the introduction of economic liberalism it has been argued that it was mostly used to justify a laissez faire approach to economy and trade. This economic system meant
that a governmental body could not interfere, regulate or provide policies in transactions between private parties. Mill could not have foreseen the modern implications of these earlier concepts when he applied his principles of liberalism to the concept of ‘free-trade’ when he stated, “restrictions on trade, or on the production or purposes of trade, are indeed restraints; and all restraint… is an evil” (Mill, 1974: 164).
Writing within the same pre-capitalist framework as Humboldt and Mills, John Locke preempts, in his demand and supply theory, the problems inherent with the unrestricted accumulation of wealth leading to concentrations of private power yet sees the regulation of any conflicts that may arise as the responsibility of governments to resolve (Cobb & Foldvary, 2012). Like Humboldt and Mill, Locke assumes a self-regulating government, uninfluenced by external forces where legislative power is always limited to the public good and “hath no other end but preservation and therefore can never have the right to destroy, enslave, or designedly to impoverish the subjects” (Locke, 2002: 62). Before looking at the further implications of this, I would like to dedicate the next chapter to John Stuart Mills’ concerns regarding religion as an authoritarian power in society.
Liberty and Religion
In many of his works Mill expressed concern and mapped out the problems associated with forms of authority exercising power over the individual:
There is also in the world at large an increasing inclination to stretch unduly the powers of society over the individual both by the force of opinion and even by legislation (Mill, 1974: 73).
While this statement could be taken in general terms regarding laws and society, Mill in his work On Liberty, was very much concerned with religious elements using the “interference of law in the details of private life” (Mill, 1974: 72). In fact Mill was
especially concerned with how the more a society became liberal the more, in the name of virtue, such religious elements “continue seeking control over every department of human conduct” (Mill, 1974: 72). When we try to define what one means by ‘liberty’ we are actually conceptualizing the nature of freedom. Mill states:
The only freedom which deserves the name is that of pursuing our own good in our own way, so as long as we do not attempt to deprive others of theirs or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily or mental and spiritual. Mankind is greater gainers by suffering each other to live …(Mill, 1974: 72).
In this statement Mill is firm in the position that one his entitled to live their lives as they wish, to freely have one’s beliefs and that it is best to tolerate each other as best as we can. However Mill saw the problems inherent in religious doctrine that could be said mandated infringements of the rule as in “The Christian morality, for instance, is the whole truth on that subject, and if anyone teaches a morality which varies from it, he is wholly in error” (Mill, 1974: 111).
Applying Mill’s concerns to the religious motivations behind the RFRA law, we can see how the lawmakers of the Indiana RFRA, being members of different Christian denominations, indeed regard the rest of the world as ‘wholly in error’ on reflection to the liberal position that homosexuality is not something to be marginalized and discriminated against. In recent years right-wing Christian conservatives in the United States have claimed that there is a war on religious freedom due to legislation in areas like gay-marriage and laws concerning abortion (Schlafly, 2012). To a Christian, a central belief is that the Christian god is the authority in the lives of Christians and while yet in the bible Christians are also instructed to “obey the laws of the land” (NIV, 2001: Romans 13), when such laws conflict with deeply held beliefs, a default to the authority of the bible tends to take precedence. As we saw in the earlier chapter on religious attitudes the LGBT community, religion is a strong predictor of prejudice regarding homosexuality, even today in what are considered liberal societies.
In terms of accepting laws of the land that encourage the idea that a particular belief is not acceptable or tolerant, one can understand how conflicts between religious and non-religious attitudes can arise. This is where a religious person holding such a conviction on homosexuality cannot see John Stuart Mill’s argument that “an opinion on a point of conduct, not supported by reasons, can only count as one person’s preference; and if the reasons, when given, are a mere appeal to a similar preference felt by other people, it is still only many people’s liking instead of one (Mill, 1974: 64).
As we saw in the some of the comments made by those involved in signing in the RFRA law, there is unmoving conviction that homosexuality is a negative force in society. I stand by the assumption that this paper can confidently take the a priori position that the moral status of homosexuality would be an accepted part of a liberal and just society. If we also realize that religious freedom as an inherent right, how do we reconcile these conflicts in the light of the facts I have highlighted? What of the RFRA lawmakers? If one is free to hold a religious belief that is intolerant towards a certain group, and that person is free to hold office, go onto enact laws that are religiously motivated, that then inevitably compete with the rights of others, what is to be done? Again Mill has a suggestion regarding the government’s role:
It is a duty of governments, and of individuals, to form the truest opinions they can; to form them carefully, and never impose them upon others unless they are quite sure of being right. But when they are sure, it is not conscientiousness but cowardice to shrink from acting on their opinions and allow doctrines which they honestly think are dangerous to the welfare of mankind, either in this life or another, to be scattered abroad without restraint (Mill, 1974: 78).
My first response to this statement is how the RFRA law can be seen as a failure of ‘duty of governments’ to allow an infrastructure to exist where religiously motivated laws, as seen with the RFRA, can be enacted. The RFRA law, in the 20 plus states that signed them in, was a good example of how, within a democratic society, laws themselves can differ between federal and state level and between different states,
creating inconsistency and confusion, and consequently dividing a nation. So are the conflicts simply the result of incompetent and inconsistent governmental delineation of control over its laws? Or is their a fundamental problem with how contemporary liberal democracy functions? Mill was very much aware of the potential threats from various forms of authoritarian control over individual liberty relevant to their day, but they could not have known how their liberalist ideas and concepts of a social contract would function within the forms of political systems we see in the present18.
Political Liberalism: A Rawlsian Perspective
I believe engaging with some ideas found in the works by John Rawls can help to understand the ethical discrepancies in how democracy seems to be working presently in the United States. In A Theory of Justice (1971) John Rawls offers a detailed account of his conception of a just society extrapolated from a starting point he calls the original position. Rawls suggests there are principles that free and rational people who wish to further their own interests, would agree upon from this fundamental starting position behind what he calls a Veil of Ignorance19 (Rawls, 1971: 11). Rawls regards these principles as ‘Justice as Fairness’ (Rawls, 1971) and includes a set of basic liberties and dictums on an original position of equality that through social cooperation, people would agree in how to distribute resources and benefits. In his later work Law of Peoples (1999) Rawls introduces what he calls a ‘second original position’ (Rawls, 1999: 10) that he suggests could be employed at a later stage after the primary goods from the first original position have been distributed20. The concept here is that behind this veil of ignorance, if one has no knowledge of who they will be in the constructed society to come, concerns such as gender, ethnicity, religion, financial status, then what rights and benefits should you attribute to people in any eventuality. Rawls believed with his Theory of Justice that the fruits of this original
18 See the appendix at the end of this paper for some relevant views by Noam Chomsky on what he calls ‘Superficial Democracy’.
19 A central feature of Rawls’ theory. To insure impartiality of judgment, the parties have no knowledge of their personal characteristics and social and historical circumstances.
20 With this second original position Rawls suggests a veil of ignorance be used at an international level in determining modes of government, foreign relations, industry, human rights, appropriate conduct of war etc.
position would produce a fair and just society, however after some critique21, Rawls
later revised some of his earlier ideas and came up with further concepts in his work
Political Liberalism (1993).
In this later work Rawls still uses many of his original ideas from Theory of Justice, yet builds and improves on his definitions of liberalism, seeing the liberalism in his earlier book as perhaps attempting to construct a comprehensive liberalism22 that doesn’t really play out in reality. Instead, with his later work, Rawls outlines a ‘thinner’ version of liberalism, which he refers to as a purely political conception of justice and not subject to moral considerations (Rawls, 1993)23. Rawls realised that his earlier formulation of the original position didn’t take into consideration the diversity and pluralism that was actually emerging in western mainstream culture at the time and so his concept of political liberalism not only needed to take these factors into account but also in fact, should be a starting point for the theory. Rawls maintains his view as justice as fairness within the updated theory but sees it as a lighter version that focuses purely on the political that should function to maintain stability within multi-cultural societies.
In a sense Rawls critiques his own work by rejecting, what he calls, the comprehensive view of liberalism in A Theory of Justice arguing for this thinned out version that concentrates more on what is right rather than what is good. This comes from the sense that people tend to have different conceptions of what might be good based on personal feelings, background, religious views etc. In Political Liberalism Rawls claims that the rationalisation of these divergent views comes from their
21 A good example of the type of critiques Rawls received is one from Susan Okin who argued that in reality, Rawls’ principles concerning gender-neutrality behind the veil ignorance are rarely played out claiming that Rawls failed to recognise “that the modern liberal society to which the principles of justice are to be applied is deeply and pervasively gender-structured” (Okin, 1991: 89).
22 Rawls claims that “the more familiar view of political philosophy is that its concepts, principles and ideals and other elements are presented as consequences of comprehensive doctrines, religious, metaphysical and moral” (Rawls, 1995: 133).
23 “The central idea is that Political Liberalism moves within the category of the political and leaves philosophy as it is. It leaves untouched all kinds of doctrines, religious, metaphysical and moral,with all their long traditions of development and interpretation” (Rawls, 1993: II:3)
overlapping and it’s within this space where perhaps a universalisation24 of what is
right is produced and what Rawls labels ‘overlapping consensus’ (Rawls, 1993). Essentially what this means is that this area of overlapping consensus, as an addition in the original position, is where people find agreement in practical solutions of what the basic principles of society should be without imposing their subjective views to achieve them.
So the question this raises is how does this function? If we accept that people from different backgrounds will be communicating in different languages so to speak, that is to say a religious language where someone might say their god dictates this or a Marxist language that mandates something else etc. In order to establish a consensus between these different languages Rawls applies a method he calls ‘public reason’ (Rawls, 1993). What Rawls means by a public use of reason as opposed to a private use of reason, is that one uses language that everyone can agree to, understand and use to create a set of principles. A private use of reason is based on a language that only a certain group of people might share based on a particular belief, opinion or worldview. For example as in the case with a fundamental religious group who may state their reason for abortion being bad is because their god mandates that precept. This kind of language would only convince those that already subscribed to the same type of reasoning and so Rawls claims this can’t be considered to be a publicly accessible language. Rawls argues then that in order for someone to make a claim on some principle, they must translate their reasoning from their comprehensive doctrine to a language that is accessible and agreed upon by everyone. This means rational argumentation for the position one holds, that is, universally accepted reasoning to defend that position.
My Reading of Rawls is shared by Gustav Steinhardt who sees Rawls’ concept of public reason as a response to a “problem of legitimacy under conditions of reasonable pluralism” (Steinhardt, 2013). As I have previously implied in my explanation of public reason, this mandates then, that in a pluralist society, citizens
24 It could be noted Rawls’ theory itself overlaps here into a procedural mapping-out of Emanual Kant’s Categorical Imperative.
would naturally be divided on different philosophical, moral and religious issues, whilst having to live under the same basic institutions and principles and abide by the same set of laws. If we understand the vast diversity of justificatory frameworks implied by such pluralism, and assuming that legitimacy requires justifiability to those who the laws and institutions are imposed upon, how is it possible that a single system of laws and institutions can be justifiable to all citizens and thus legitimate? How do we arrive at the overlapping consensus? (Steinhardt, 2013) Rawls answers this in what he calls the “liberal principle of legitimacy”, a Rawlsian vision of a just society that requires political power as being justified only when it is exercised under the principles and ideals that its citizens can accept in accordance with their collective common reason. Rawls sees where reasonable citizens may differ in their views on morality, religion, philosophy etc, they naturally share ‘reasonableness’. What Rawls means by this is reasonable citizens “who seek, offer, and accept fair terms of cooperation with others regarded as free and equal...they desire for its own sake a social world in which they, as free and equal, can cooperate on terms all can accept” (Rawls, 1993: 50). According to Rawls this shared consciousness of reasonableness would create in itself ‘political conceptions of justice’ that do not seek validity in any one or other subsets of different varieties of doctrines. Therefore when citizens wish to justify their political views with each other there is a demand to affirm their position within these conceptional frameworks, that is acceptable to their fellow citizens (Steinhardt, 2013). Rawls calls this type of reasoning as the ‘duty of civility’25, which he defines whilst outlining the liberal principle of legitimacy with:
And since the exercise of political power itself must be legitimate, the ideal of citizenship imposes a moral…duty — the duty of civility — to be able to explain to one another on those fundamental questions how the principles and policies they advocate and vote for can be supported by the political values of public reason. (Rawls, 1993: 217).
25 Christopher Eberle highlights different understandings of this term such as civility as pursuit or civility as restraint. This could be understood, for example, if decide we cannot justify our views in public reason we choose not to ‘restrain’ but ‘pursue’ or fall back onto our comprehensive doctrines. However, my interpretation of Rawls’ use of this term is a mixture of both understandings in the sense that duty of restraint is imposed at the political level while citizens follow a duty of pursuit (Steinhardt, 2013).
