Michael J. Perry, a prolific legal theorist who teaches at Emory Law School, is well known in the academy and to the readers of Commonweal. His latest book, The Political Morality of Liberal Democracy, is characteristically wide-ranging and forceful—nothing less than an effort to define and defend the moral convictions that should guide legal practices in liberal democratic regimes.
The book is divided into four sections. The first focuses on the relation between liberal democracy, human rights, and religious faith. The second elaborates three liberal democratic first principles—the rights to moral equality, religious freedom, and moral freedom. The third applies these principles to two hot-button cultural issues, abortion and same-sex marriage. The final section offers an account of the courts’ appropriate role in protecting constitutional rights.
Perry is always interesting and challenging, and the reviewer is tempted to engage him on every front. I shall resist that temptation and focus instead on what I take to be Perry’s most important thesis, advanced in section 1—namely, that the public morality of liberal democracy requires, cannot do without, religious faith. As he puts it, “The point is not that one cannot live one’s life in accord with the fact (if it is a fact) that every human being has inherent dignity.... The point is simply that it is open to serious question whether a secular worldview can bear the weight of the claim that we should.” A bit later Perry elaborates on this thesis: Even if we could find some secular basis for the equal-dignity thesis, we would still have no compelling reason to live our lives in accordance with that thesis. In technical terms, morality is one thing, normativity another. While Perry does not claim that no secular rationale can possibly succeed, in his view none has succeeded thus far, and he is openly skeptical that any can.
At first glance, the move from this broad thesis to liberal democratic first principles appears seamless. Principle 1—the right to moral equality—“follows naturally” from the equal dignity and inviolability of every human being. Otherwise put, the commitment to equal dignity and inviolability “entails” the right to moral equality. So, if we need faith for the commitment, we also need it for the right.
When we turn to principles 2 and 3, however, matters become more complicated. Perry puts the case for religious freedom this way: Even in the absence of religious war, government oppression of religion (whether all religions or just some) prevents individuals from living their lives in harmony with conscience, conviction, and commitment: “The kind of suffering human beings endure in consequence of being legally forbidden to practice their religion consists of the disintegration of a central aspect of their lives.” Unless governments have compelling reasons to impose such suffering, doing so is unjustified. In some cases—protecting the lives, health, and safety of the citizenry, for example—they do have such reasons. But beyond that point, government is not to be trusted, especially when it claims to be the arbiter of religious truth. Our “historical experience” demonstrates that religious uniformity is in no way essential to the strength of liberal democracy. This “fundamental warrant” for the right to religious freedom is ecumenical: both believers and nonbelievers can affirm it, which is not to say that believers may not have additional reasons for doing so. Indeed, Perry goes so far as to claim that the Catholic Church’s embrace of religious liberty in Vatican II’s Dignitatis humanae was motivated by historical experience rather than theology; the church accepted religious liberty “on substantially the same basis liberal democracy embraces it.”
When we reach principle 3—the right to moral freedom, understood as a broad freedom to “live one’s life in harmony with one’s moral convictions and commitments”—matters are much the same. The case for liberal democracy’s commitment to moral freedom, says Perry, is “analogous to” the case for religious freedom. So the reader is not surprised to encounter arguments for moral freedom based on human suffering and historical experience. Government is no more reliable as the arbiter of moral truth than as the arbiter of religious truth. And beyond the point needed to preserve the lives, health, and security of the citizenry, liberal democracy needs moral uniformity no more than it needs religious uniformity—that is, not at all.
These reflections raise an obvious question: If there is a compelling secular or “ecumenical” basis for principles 2 and 3, why not for principle 1? Why is it that there, and only there, we need faith?
Now, it may be argued that every known empirical basis for asserting equal dignity and inviolability has failed, because human beings turn out to be unequal along every measurable dimension—whether physical, intellectual, or moral. But that consideration does not rule out other experience-based reasons for embracing principle 1. What if history teaches us that societies that reject this principle as foundational generate far more oppression and needless suffering than do those that accept it? It would appear, moreover, that if we have a compelling secular rationale for endorsing religious and moral freedom, we have by implication endorsed a substantial portion of what we ordinarily understand to be human dignity. (This is analogous to Abraham Lincoln’s contention that the human equality of which the Declaration of Independence speaks is not equality of capacities but rather of rights.)
This is not a good argument, Perry may object, because principle 1 has a basic structure that distinguishes it from the others. While governments may infringe on moral and religious freedom if they have good reasons (which U.S. constitutional law calls “compelling state interests”), they may not infringe on moral equality, which is founded on inviolable human dignity. But this claim rests on the very strong deontological claim that government may never violate human dignity, even when the consequences for a society of not doing so could be severe. Perhaps that is the right position. But citizens—deliberating, for example, on how best to protect themselves against attack—do not always see it that way. It would take an argument, not just a phrase, to persuade them that they are wrong.