Democratic legitimacy, legal expressivism, and religious establishment

Abstract

I argue that some instances of constitutional religious establishment can be consistent with an expressivist interpretation of democratic legitimacy. Whether official religious endorsements disparage or exclude religious minorities depends on a number of contextual considerations, including the philosophical content of the religion in question, the attitudes of the majority, and the underlying purpose of the official status of the religious doctrine.

Christmas, Crescents, and Crosses: When Is Symbolic Religious Establishment Permissible?

“…Is religious establishment permissible, and, if so, under which conditions? A debate in political and legal philosophy has recently emerged to examine such issues (Ahdar and Leigh 2005; Audi 2011; Bader 2007; Bonotti 2012; Brudney 2005; Dworkin 2006; Laborde 2013; Maclure and Taylor 2011; May 2012; Seglow 2017). All agree that an important distinction should be made between illiberal and liberal forms of religious establishment.…”

What’s wrong with establishment?

“…For writers such as Sacks and Modood, the Church of England can play a central role in the public narrative that helps bind together diverse societies such as the UK. In recent years, a number of liberal political theorists without overt religious sympathies have explored whether moderate establishment might be compatible with liberal democratic principles (Brudney, 2005; Laborde, 2013a; Lægaard, 2017; May, 2009, 2012). At the same time, though, the orthodox liberal view – the view of the US Constitution, the Federalists and John Rawls – is anti-establishment.…”

“…Establishment disrespects them or illegitimately casts them as outsiders. The most cited legal deployment of the expressivist point of view is Justice Sandra Day O’Connor’s opinion in Lynch v. Donnelly (1984) which concerned a nativity display in the city of Pawtucket, Rhode Island (Eisgruber and Sager, 2010: 122–123; Koppelman, 2013: 46–48, 86; May, 2012: 224–225). For O’Connor, the display clearly amounted to an endorsement of the Christian religion, contrary to the Supreme Court’s Lemon test which, inter alia, requires that government actions must have a secular purpose.…”

“…Expressive messages are wrongful when they violate well-founded moral principles, but what are those principles? Here I follow May (2012) in distinguishing between the equal respect and the equal standing interpretations of the expressivist argument, though I make different use of these two ideas than he does.…”

“…This concerns a moderately established state’s legitimacy; its moral right to implement establishment laws and policies in the first place (cf. May, 2009: 137–138, 148, 2012: 220–222). A legitimate political procedure authorises the state to make collectively binding decisions, given enduring conflict in politics, not least over the appropriate role of religion.…”