Abstract
Bouke De Vries’s bold and original article departs from extant discussion of the political morality of religious establishment in liberal democracies in two ways. First, its centre of gravity is not so much with the cluster of reasons for why religious establishment, as opposed to more secular political arrangements, is justified or not, but in the relative merits of ‘mono-recognition’ where only one religion enjoys a public status as against plural recognition (my term) where other religions enjoy that status too. Of course, mono-recognition is the norm in societies where religion has any official status, and plural recognition the exception, and the thrust of De Vries’s case is to argue against the former and on behalf of the latter. Second, De Vries rejects the four main arguments which have been made against mono-recognition and around which most of the current debate orbits: that it alienates non-members of the official religion; that it subordinates them either symbolically, or more substantively as a matter of justice; and that it fails the test of justificatory neutrality. In their place, he offers a novel argument which claims, roughly speaking, that mono-recognition is unjustified if adherents of other religions desire recognition too, provided that their preferences are reasonable and not formed in unjust circumstances. In this comment I focus on the structure of his positive argument for recognition.
There are different ways political morality has of responding to individuals’ various preferences, of which the most obvious answer is a democratic one. On any political question, we can let the majority view prevail, content that minorities have had a fair chance to persuade others of their view. Sometimes we hold that some preferences shouldn’t figure at all in the political calculation—if they are motivated by a desire to deny other citizens their basic rights or assault their interests. These are unreasonable preferences. If preferences are reasonable, then the chief alternative to the majority view is some arrangement of formal accommodation where various groups are guaranteed at least a substantial measure of what they want, typically through constitutional means. When do we opt for the accommodative as opposed to democratic route? Usually when preferences are not mere preferences but reflect some deeper interest or claim of justice. Consider the question of official languages in multi-lingual societies. If there are reasons for states such as Belgium or Switzerland to adopt formal multilingual measures, those will reflect values such as cultural identity, self-determination, non-domination or basic fairness; longstanding preferences, of Flemish speakers in Belgium for example, are evidentiary of these deeper normative concerns. Language recognition is somewhat analogous to establishment, not least because it is often a matter of formal constitutionalisation.
Alan Patten develops a view which hinges on the structure of certain types of preferences in his defence of minority cultural rights, including language rights. Some kinds of preferences, he says, are of particular importance for citizens who have an interest individual self-determination; those which have a pivotal role in their further aims and ends (his two examples are religion and language use); those which have a non-negotiable character; and those involved in basic relationships of respect and recognition with other members of society (2014: 133–336). Patten’s position is that the liberal state has a duty fairly to accommodate diverse preferences by granting them pro-rated forms of recognition. The argument is a complex one; all I take from it here is Patten’s implicit view that only certain preferences have the structure to merit special forms of accommodation.
I mention all this because it seems to me noteworthy that De Vries employs a preference-based view to defend plural recognition. His reason for doing so may be that the issue of whether religion has objective or inherent value is notoriously contested, which is fair enough. But much recent work in religion and political theory has grappled with that issue and Cècile Laborde (2017) and others have argued for the more encompassing ideal of moral integrity—living in accordance with one’s moral or religious convictions—as a neutral value and appropriate basis to defend legal exemptions from uniform laws (including secular convictions such as veganism). True, in democracies which are characterised by largely symbolic mono-recognition of one religion, it’s hard to see how that inhibits adherents of minority religions from achieving integrity, but just the same applies if we relegate integrity to preferences, and that is not the argument. The point instead is that as the value of integrity has moral weight in a way preference-satisfaction does not, there is a more obvious wrongness in a public environment that systematically elevates the symbols and practices surrounding only some citizens’ integrity. We can see this if we replace the preference for religion with a preference for something less fundamental such as one’s sport of choice. In his defence of liberal establishment, David Miller (2019) makes the analogy with a country such as New Zealand where public celebration of rugby does not really set back the interests of the minority of New Zealanders who follow football instead. Miller’s’ point is weakened if religion, but not sport, is the object of individuals’ conscientious convictions. But if both are forms of preference, his claim is more appealing. Thus it seems too broad, if it’s a generalisation, to claim that ‘the state is violating citizens’ equal status by being unequally responsive to their preferences’ (Miller, 2019: 10).
Characterising De Vries’s argument as appealing only to raw preferences is unfair. For one thing, it’s important to note that the argument appeals to citizens’ counterfactual, rather than actual, preferences. We should rule out motives such as the desire to avoid a social backlash, adaptive preferences or cases where members of a religious minority internalise subordinating norms and feel themselves unworthy of having their religion constitutionally recognised. The notion of counterfactual preferences plays a significant role in the case for plural recognition though I shan’t focus on it here. I’d only say that it seems to me one can only push the point about counterfactual preferences so far if we are meant to be dealing with recognition in societies which are substantively just.
De Vries says that only morally reasonable preferences count. Reasonable preferences might be, as I implied earlier, those which respect certain moral constraints; ruling out, for example, the preferences of minority Catholics whose desire for state recognition is driven by hostility towards the Protestant majority, or vice versa. Something like that is at work in the argument but De Vries’s view is somewhat stronger: ‘there are certain motives for wanting one’s religion to be constitutionally recognised’, he writes, ‘that do not seem unreasonable and that seem to carry normative weight as a result’ (De Vries, 2020). What are those motives? De Vries mentions three, though all of them briefly. Unlike Patten’s structure-based approach to individuals’ preferences, De Vries’s motive-based view appeals to the substance behind them. As I’ll now suggest, preferences themselves begin to assume a somewhat evidentiary role: the issue becomes what sorts of interests those motives reflect.
One motive is some religious individuals’ desire to have their social contribution recognised. One could imagine quite benign activities here such as religiously minded citizens who run food banks or emergency shelters for the homeless. But other kinds of religiously motivated activities are more controversial and whether it counts as a contribution will depend to a large degree on whether one takes those religious citizens’ perspective or a more impartial one, bearing in mind that (it seems implicit in the argument) citizens of other faiths or none are owed some explanation for accommodating their preferences. Consider religious individuals who run private religious schools, a contentious issue in the UK for instance. Are they providing a good (instilling in young people a secure faith that will fortify them as public-spirited citizens) or disrespecting children’s autonomy as some political liberals would insist? In a multi-faith society, which is ex hypothesi the situation here, there is likely to be greater rather than lesser agreement over what counts as an appropriate contribution; witness the debate about religious organisations having public purposes in the US and elsewhere. So at the very least we need to know more about what sorts of contributions count.
A second criterion is historic injustice. De Vries mentions no examples here, but injustices committed against members of religious minorities are (sadly) all too easy to come by. Discrimination in employment, education, or housing; systematic violence or harassment; and hate speech all come to mind. One relevant issue here is whether such injustices are perpetrated by agents of the state or with their complicity, or by private individuals which perhaps the state did its best to prevent. Be that as it may, my question is why religious recognition in particular should be the unit of currency through which religious individuals’ complaints are addressed. Vigorous anti-discrimination measures; affirmative action, community reconciliation initiatives, hate speech laws, and financial compensation all stand as alternatives, and more substantial ones at that, since the religious recognition at issue is largely symbolic.
Strictly speaking, that members of a religious minority have been treated unjustly is just a fact; their desire for that injustice to be redressed is a motive, albeit one that commonly accompanies it. The same goes for social contribution. Some people are quietly happy with their philanthropic efforts, without any expectation of recognition or reward (too much of which we tend to think dilutes their altruism). But, if that is the case, then I wonder, once again, how much preferences matter? We would not generally withhold compensation for malicious injury to an individual indifferent to receiving it, or deny an especially hardworking employee a deserved pay increment she had not asked for. Along these lines, we could ask whether the desire for rectificatory justice or recognition of one’s social contribution really need to be motives underlying the preference for establishment? At best, they’d be evidence that there’s an issue of justice at stake. A more sympathetic view would be that a group’s preference for religious recognition is a necessary condition of any justice-based argument that would deliver it, but even here the normative work is really being done by the relevant interests in compensation or contribution.
De Vries mentions very briefly a third kind of reasonable motive, that official recognition may help members of religious minorities feel themselves equal citizens (De Vries, 2020: 10), a point which overlaps with the former two motives and with his claim that unequal responsiveness to different groups’ preferences violates their equal status. He notes that minority religions often care about the symbolic status of any benefits that recognition confers on them, and gives the example of when the city authority in Bremen decided to recognise local Muslim organisations as religious bodies. The German Muslim Coordination Council declared that this ‘sends a clear signal that Islam belongs to Germany’ (De Vries, 2020: 18). I agree with this, but worry slightly that it’s in tension with De Vries’s earlier rejection of the symbolic subordination argument. Commenting on Justice Sandra Day O’Connor’s much cited opinion in Lynch v. Donnelly (1984) that a town’s nativity display sent a message that non-Christians were ‘outsiders, not full members of the political community’, De Vries quotes approvingly Sune Lægaard’s view that this implies nothing about the moral status of non-preferred groups (De Vries, 2020: 6; Lægaard, 2017: 27; cf. Miller, 2019). That is correct: under symbolic mono-recognition, all citizens’ rights and liberties are secure. If the symbolic subordination argument stands then it hinges on a more subtle point about civic inclusion. The argument will be something to the effect that accommodating minority practices communicates something about how public space is one in which all citizens can belong, one which can be a shared civic home. I admit that this is rather imprecise; it looks a bit question-begging, and it raises questions about what propositional content is implied by laws. So perhaps De Vries’s critique of the symbolic subordination argument is correct after all. If it is, though, then symbolic measures such as the Bremen case would seem to be ruled out as well.
I worry slightly that I have over-egged my point about reasonable motives in this short response. After all, De Vries does not say much about them. Still, I am sceptical whether unequal satisfaction of preferences alone is sufficient to ground a claim to recognition, in which case we are led to examine their substance. And if that is the case, there is a little more to be said.