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Legal Commentary: Prawfs
Is public reason a two-way street?
By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel
We pay a lot of attention, at least in the academy, to how religious believers engage the political arena. We would prefer that believers put their views into language that is accessible -- not necessarily agreeable -- to non-believers. (E.g., we frown on "God created Adam and Eve, not Adam and Steve," but are willing to discuss "Children are more likely to flourish under the care of a father and mother.") In this past campaign season, the more pressing issue was the reverse: how should the political arena engage religious believers? Romney's apparent need to satisfy a theological litmus test in order to maintain political viability ("I believe that Jesus Christ is the Son of God and the savior of mankind") was just the beginning. Whether it was folks taking political potshots at Obama based on the tenets of black liberation theology, or at Palin based on the spiritual warfare prayer said over her, or at Mormons based on their support of proposition 8, I sensed a troubling eagerness to pierce the public reason veil when the object of criticism was the religious believers themselves. Yes, when religious folks jump into the sandbox, they're bound to get dirty. But just as we're concerned that believers' invocations of divine authority or revelation as the basis for political action tends to be divisive and potentially marginalizing, shouldn't we also worry that building political arguments based on a political actor's religious identity poses similar threats?
Obviously I'm not talking about legal norms here; I'm talking about what should be viewed as best practices in a democracy that takes the concept of public reason seriously. (Maybe we don't yet take it seriously, so I suppose my question is more aspirational than descriptive.) If we think that Mormons were wrong on proposition 8, and we want to communicate that fact, shouldn't we drive the arguments with ideals that engage our listeners as citizens (equality, the social functions of marriage, inclusiveness) or as spouses (the centrality of marriage in our own lives), rather than as people who share our disdain or skepticism toward the religious believers in question? For example, the commercial depicting two tie-wearing Mormons barging through the front door of a lesbian couple's home and ripping up their marriage license seems ill-designed to persuade Mormons. Its more likely objective was to remind Californians that it's those odd proselytizing Mormons who are behind the prop 8 campaign. If we think that Rev. Wright is a legitimate campaign issue, let's talk about his policy stances that could be attributed to congregation members; let's not focus on the perceived strangeness of the theological claims.
I recently wrote a short essay on this point for Commonweal (subscription req'd, unfortunately) but I'm not sure if I've gotten the point quite right yet. My basic question: if we expect religious believers to use public reason when they enter the political arena, how should public reason commitments shape our response to those believers?
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