Summer 2020

Democracy & Religion: Some Variations & Hard Questions

Author
Kent Greenawalt
Abstract

The ideas sketched here concern the nonestablishment and free exercise norms expressed in the U.S. Constitution, their application to governmental institutions from legislatures to prisons and the military, the place of religion in the curricula of public schools, and the proper role of religious convictions in lawmaking. A major concern of the essay is the problem of achieving an appropriate balance between governmental neutrality toward religion, as required by the nonestablishment norm, and governmental accommodation of religious practices that would otherwise violate ordinary laws, as required by the free exercise norm. A recurring theme is the complexity of the issues and the variability of possible solutions given differences in the history and culture of democratic societies.

Kent Greenawalt, a Fellow of the American Academy since 1980, is University Professor at Columbia Law School and the Department of Philosophy at Columbia University. He has served as Deputy Solicitor General in the U.S. Department of Justice, Editor-in-Chief of the Columbia Law Review, and President of the American Society for Political and Legal Philosophy. He is the author of, most recently, Realms of Legal Interpretation: Core Elements and Critical Variations (2018), When Free Exercise and Nonestablishment Conflict (2017), and Exemptions: Necessary, Justified, or Misguided? (2016).

When one asks about the relation between democracy and religion, we have some answers that seem fairly obvious and others that do not. My basic claims are that there are important variations within democracies, that these may affect aspects of the proper treatment of religion, and that even within a modern, liberal democracy like that of the United States, we have some hard questions that lack simple answers. Certain answers to these questions do seem true across the board; others do not. The latter require a more particular focus.

What does democracy in general entail? Perhaps we have no precise definition, but we can take democracy as a system of government in which all adult citizens have a right to vote. Assuming we are not talking about a minuscule political order in which ordinary people would directly determine prevailing law, citizens elect legislators, and the highest executive officials are either also subject to citizen votes or are chosen by legislatures. I think we can say that if it is a genuine democracy–that is, a country that recognizes the political rights of all citizens–it will allow people to choose whether or not to worship and essentially what form of worship to engage in. Of course, there can be some limitations if a form of worship is obviously harmful for those engaging in it or for others.

What people see now as counting as a genuine democracy has developed over time. The original United States may have been conceived as a democracy, although racial slavery existed in many states and women rarely had a right to vote. Under contemporary conceptions, a political order with either of these factors might not be seen to be a genuine democracy. In respect to freedom of worship, one can imagine an exception if a particular religion and most of its followers are committed to violent acts against other citizens or overthrowing the basic political system.

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