From the Social Science Research Network (SSRN):
"Religious Argument, Free Speech Theory, and Democratic Dynamism"
by Gregory P. Magarian
(Washington University School of Law in St. Louis)
Political theorists have long debated whether liberal democratic norms of public political debate should constrain political arguments grounded in religious beliefs or similar conscientious commitments. In this Article, Professor Magarian contends that normative insights from free speech theory have salience for this controversy and should ultimately lead us to reject any normative constraint on religious argument. On the restrictive side of the debate stand prominent liberal theorists, led by John Rawls, who maintain that arguments grounded in religion and other comprehensive commitments threaten liberal democracy by offering illegitimate grounds for government action and destabilizing democratic politics. On the permissive side stand leading advocates for religious liberty, who deny that religious arguments pose any threat to liberal democracy and insist that normative constraints on religious argument deny religious believers’ political autonomy. Both sides proceed from their premises about whether religious argument threatens liberal democracy to their conclusions about whether norms of public political debate should constrain religious argument. Professor Magarian agrees with the restrictive premise that religious argument poses a meaningful threat to liberal democracy, and he accordingly rejects the logic of the permissive position. He finds deeper fault, however, with the restrictive theorists’ move from consciousness of danger to advocacy of normative constraint. Drawing upon two prominent free speech controversies – the debates over First Amendment protection for Communist advocacy and the First Amendment’s proper role in balancing values of political dynamism and political stability – Professor Magarian derives normative lessons that counsel against constraints on religious argument. Based on the Communist speech controversy, he contends that even political advocacy that existentially threatens liberal democracy adds distinctive value to liberal democratic political discourse. Based on the stability-dynamism controversy, he contends that political conditions in the contemporary United States and the nature of religious advocacy make religious argument, at the margin, more beneficial than threatening to our political culture. As a corollary to his rejection of normative constraints on religious argument, Professor Magarian contends that our norms of public political debate should also freely permit substantive political criticism of religious arguments and doctrines.