Paul Horwitz has posted Stone on the Stem Cell Veto on PrawfsBlawg, replying to Geoff Stone's Religious Rights and Wrongs on the University of Chicago's Faculty Blog. Stone wrote:
What these three acts have in common is a reckless disregard for the fundamental American aspiration to keep church and state separate. In vetoing the bill that would have funded stem-cell research, President Bush invoked what he termed a “conflict between science and ethics.” But what, exactly, is the “ethical” side of this conflict? Clearly, it derives from the belief that an embryo smaller than a period on this page is a “human life” – indeed, a human life that is as valuable as those of living, breathing, suffering children. And what, exactly, is the basis of this belief? Is it Science? Reason? Logic? Tradition? Morals? None-of-the Above?
What the President describes neutrally as “ethics” is simply his own, sectarian religious belief. Is this an ethical (or legitimate) basis on which a President should veto a law? Of course, Mr. Bush is entitled to his belief. He is entitled, for his own religious reasons, to choose not to donate an embryo he creates to try to save the lives of living, breathing children. More than that, he is entitled to protect the interests of others who do not want the embryos they create to be used in this manner. Thus, he could ethically veto a law that required all embryos to be destroyed in the name of scientific research, even over the religious objections of their creators. But in what sense is it “ethical” for Mr. Bush – acting as President of the United States -- to place his own sectarian, religious belief above the convictions of a majority of the American people and a substantial majority of both the House of Representatives and the Senate? In my judgment, this is no different from the President vetoing a law providing a subsidy to pork producers because eating pork offends his religious faith. Such a veto is an unethical and illegitimate usurpation of state authority designed to impose on all of society a particular religious faith.
Horwitz replies:
There are, I think, several problems with Professor Stone's argument, and the first is one of misdescription. Professor Stone suggests that the President erred by acting on his own "sectarian, religious belief[s]." We do not know why he did what he did, however. It is entirely possible that the President vetoed the bill not only or even primarily for religious reasons, but for political purposes -- shoring up the base and so forth. Motivations for legislative action are often opaque; what of a legislator who (permissibly, according to Professor Stone) acts to protect religious objectors from having their embryos destroyed, not for any secular reasons, but strictly as a matter of her own religious faith? So we should set motivation to one side and acknowledge that what Professor Stone is really asking is, under what circumstances is it ethical or legitimate for a public official to publicly offer religious reasons for some official action?
Horwitz is right--the President's motives are not clear. Consider the following assertion by Stone:
[T]he belief that an embryo smaller than a period on this page is a “human life” – indeed, a human life that is as valuable as those of living, breathing, suffering children . . . is simply [the President's] own, sectarian religious belief.
This argument is ambiguous and woefully underargued. If Stone means to assert that there are no reasonable nonreligious arguments for the belief as described, then he is either engaged in intentional rhetorical exxageration or he is woefully ignorant of contemporary moral theory. If he means to assert that the President's own belief is in fact purely religious, it seems likely that the assertion is based on a hunch rather than sufficient evidence. This said, I agree with Stone that motivations are relevant to political morality, and disagree with Horwitz who somehow thinks that the fact of motivational opacity is sufficient to establish that political morality does not restrict permissible motivations. Of course, it does--consider, for example, the fairly obvious and clear cases of rascist, sexist, antisemetic, or anticatholic motivations.
But the really interesting part of the exchange is in the following passage from Horwitz:
Although it may often be unwise to offer religious reasons, and no other reasons, for a public action, that does not make it illegitimate. Ours is a republican democracy, but not a Rawlsian republic in which public officials or citizens deliberating publicly are obliged to speak in terms of universally accessible reasons, if such a language is even available. We should remember that public officials who give religious reasons are subject to a host of vetogates and barriers: they may lack the requisite votes for a particular action, they may be subject to a veto or a veto override, and they face significant electoral checks. (For that reason, the argument that the President's action are especially wrong because they placed the President's convictions "above the convictions of a majority of the American people and a substantial majority of [Congress]" strikes me as an utter canard. Ours is not a majoritarian democracy in that sense, and actions that dissatisfy a large enough majority are subject to reversal.) [red added for emphasis]
I am very curious about how this argument is supposed to go. One interpretation is that there are several (or at least two) forms of republican government--"Rawlsian republics" and "republican democracy" and that ideals of public reason are relative to the form. I can't quite imagine how this argument could possibly go--maybe Horwitz can explain it.
Another possibility is that Horwitz means to argue that checks and balances--"a host of vetogates"--somehow create conditions which change the content of the ideal of public reason that is appropriate. Once again, however, I am puzzled. How could this be the case? Ideals of public reason can be justified in a variety of ways. Rawls, for example, appeals to the liberal principle of legitimacy--the political value of offering justiications that can be accepted as reasonable given the fact of reasonable pluralism--the fact that citizens adhere to a variety of religious and moral doctrines. Given the structure of Rawls's argument, the existence of vetogates does not seem relevant, at least not in any obvious way.
To return to context. I should think it obvious that had President Bush relied explicitly on sectarian religious reasons as the sole basis for his veto (by sole basis, I mean that he did not also offer a public reason), that there would have been a very good argument that his action violated a duty of political morality and that it was illegitimate. Of course, these matters are debated, but I have yet to see a truly convincing argument for a principle of laissez faire as the approrpriate ideal of public reason for a pluralist democratic society--and I must say, this is a literature I hav followed closely for well more than a decade.
Read Stone & Horwitz!
And for more on public reason, check out Public Reason in the Legal Theory Lexicon.
Update: More from Rick Garnett on Mirror of Justice.
And another update: Eugene Volokh weighs in.
