I’ve been out of commission for over a week now, so I’m afraid this post won’t respond to the very interesting current debates happening on this blog. But I was recently in an airport and passed an advertisement with a picture of a puppy on it (which, naturally, stopped me in my tracks) and the header reading “Oops.” The tagline: “50% of animals born are accidents.” This is a curious discovery, because I actually didn’t know that the other 50% were planned. Did Fido and Fluffy practice family planning before Fluffy’s latest litter? Are they spacing the litters so as to afford a bigger dog house or obedience school?

The meaning of the ad is obvious, of course; one recalls Bob Barker’s famous dictum, “Help control the pet population; have your pet spayed or neutered.” And for the record, no objections to that. But this isn’t a post about animal control; it’s actually not even about human birth control. Rather, I’m wondering just how far we’re going in our attempt to bring nature under man’s control. Are we really now calling animal births “planned” or “accidental”?

Control implies choice, but of course, we can see where such “choice” often leads. We assume that more choice is better (this is America, after all, and I say that with tongue firmly planted in cheek). But it seems that as choice increases, we are simultaneously choosing increasingly to control, to put the reins on nature. And of course, there’s nothing wrong, or very little wrong, with intervening with nature in some circumstances, though it seems to me that it should be more when something has gone wrong with nature than when it has worked simply how it, well, naturally functions. But I wonder if we might need something more than the idea of “choice” to talk about when we should, and should not, try to control or intervene in the way that nature works. Why? Because nature might actually tell us something about who we are, and, therefore, how we might best flourish.

John Rawls, as a quintessential modern liberal (not meaning leftist, here!) gives us choice: “We should…reverse the relation between the right and the good proposed by teleological doctrines and view the right as prior.” We have a right to choose, he might say, because we have shed the “teleological doctrines” – i.e., exactly those doctrines that see some sense of normativity inscribed in nature.

But again, as free as we might think we are to pursue our own ends and choices, we have to ask if that kind of freedom is sustainable in political society. At some point, if we have loosed the binds that nature once imposed on us (binds which, I repeat, may very well have been suggestive of the parameters within which we best flourish), might the animal control people want to control other things, too? In other words, if everything is choice, might, eventually, nothing be our choice?

I recently had the chance to introduce to a group of very sharp undergraduates the famed work of Thomas Hobbes, Leviathan. Hobbes wrote during the Scientific Revolution, the fruits of which took us straight to (inter alia) the idea of knowledge that Greg cleverly quotes from The Matrix’s Morpheus: “What is real? How do you define real? If you’re talking about what you can feel, what you can smell, what you can taste and see, then real is simply electrical signals interpreted by your brain.” Hobbes wrote during an era in which everything but knowledge that ultimately derived from empirical/sensory data seemed uncertain and scientific knowledge certain, a legacy the Scientific Revolution has handed us.

What does this have to do with political life? The import is captured by these two common expressions: “It’s just an idea” versus “This is scientific fact.” To many or most people, that which is certain is certain because science tells us so, and everything else is ideational, which comes to be synonymous with “opinion.” But there’s more to knowledge than a dichotomy of indisputable fact and mere opinion. Kyle talks of a debate between an atheist and a Christian in which he ‘knew’ that the Christian was right yet the atheist had made a better case. But the positivist and empiricist assumptions underlying not just the atheist’s but our own culture’s conception of knowledge tends to stack the deck in front of someone who can argue with “scientific fact” instead of relying on the ultimately unfalsifiable claims of religious knowledge. “Public reason”, in democratic theory, is often synonymous with “secular reasons”, because as Hobbes observed, religious knowledge doesn’t fit as well into the scientific paradigm of knowledge that has governed since his own era. Importantly, he also observed, it tends to be divisive in a way that is not easily settled (and often becomes violent).

Does this mean that we should give up on religious reason? Of course not. But in my view, we should probably do better than we’ve been doing. With apologies for the overt grad school theme of what follows, I attended a really excellent event yesterday at Georgetown’s Berkley Center in which Professor Robert Audi gave a succinct – and persuasive, I think – view of how to go about this challenge for Christians (and religious people more generally) in a democracy that embraces some form of separation of church and state. (Side note: after Professor Audi presented, Professor Ferrari gave his own presentation. I’m not making this up. I sort of wonder why Professor Ford wasn’t invited.) Audi advances the “principle of secular rationale,” which states that “one has a prima facie obligation not to advocate or support any law or public policy that restricts human conduct, unless one has, and is willing to offer, adequate secular reason for this advocacy or support.” He unpacks this principle by explaining, first, that the term “secular” need not preclude religious reasons, because the important criterion for Audi is that a reason is knowable by secular means. “A secular reason for an action (or a belief) is roughly one whose status as a justifier of action (or belief) does not evidentially depend on (but also does not deny) the existence of God; nor does it depend on theological considerations, or on the pronouncements of a person or institution as a religious authority.”

Secondly, the term “adequate” means that the reason is “is one that, in rough terms, evidentially justifies the belief, act, or other element it supports” – again, an epistemological, not ontological, criterion. Furthermore, “adequate” need not imply that the reasons are shared by everyone; rather, they must “only be in a certain way accessible to rational adults.” To help determine what constitutes such a reason, we have the category of “natural reason,” by which Audi intends “a general human capacity for apprehending and responding to grounds for belief and for action.” Reasons arrived at through the exercise of natural reason “do not preclude religious concepts from figuring in their content; they are epistemically, not contentually, independent of religion and theology.”

As I see it, Professor Audi’s proposal is helpful for enlarging the idea of what counts as knowledge and reason in democratic discourse such that religiously-based reasons, and not just those based on the unsatisfying options of science or opinion, are admitted in serious public discourse. But I’d be really interested in others’ takes on it. Is there a burden on religious believers to answer to a secular rationale, even in the qualified way Audi suggests?

In this delightful sketch from A Bit of Fry & Laurie, Stephen Fry asks whether the qualities of the English language are a function of the characteristics of the English people, or whether those qualities “come extrinsically, extrinsically, from the language itself? It’s a chicken and egg problem.” So today, we’re talking about the chicken-and-egg problem of law and moral consensus.

Greg writes that “Law can’t be legitimate if it’s not grounded in a moral consensus. All law presupposes a moral framework. You can’t ban public nudity without some implied judgment on the moral status of public nudity.” It seems to me that there are (at least) two disparate claims set forth here: a) that law must be grounded in moral consensus, and b) more subtly, that law implies moral judgment.

But the two don’t entail each other necessarily. The legislature can issue laws that reflect society’s moral consensus without passing judgment on whether that consensus is good, i.e., without making a moral judgment. (Of course, we are then presupposing a moral judgment on whether that particular mode of issuing laws is a good one, but I don’t think that’s what Greg is talking about.) On the flip side, the legislature (or monarch, or tyrant, whatever) can issue laws that do imply a moral judgment – i.e., banning public nudity because public nudity is morally bad – but that don’t reflect anyone’s consensus.

But here comes the chicken-and-egg issue, because the law often serves an educative function as well as its commanding one, i.e., people tend to view as wrong something that the law tells them to perceive as wrong. So moral consensus can follow the law as well as it can precede it.

Still, I think that we’re encountering some confusion in the marriage debates in part because we’ve been operating with two different understandings of how law is made in democracy, but without addressing the difference between them. Law can be made to reflect societal consensus without taking a stand on the metaphysical status of the act forbidden or commanded, or it can be made as a mandate to do that which is good or avoid what is bad as determined by moral judgment. And the difference between these two modes of making law doesn’t become clear in cases of societal moral consensus, such as public nudity. In other words, when there is moral consensus, we don’t really know whether the law exists simply because of the legislator’s moral judgment or because the legislator is reflecting a broad societal moral consensus in issuing laws against public nudity.

Rather, we see the difference between these two ways of making law in cases of dissensus, such as we’re finding today with the definition of marriage. Has the state always favored traditional marriage because of societal moral consensus, or because the state/legislator has reflected a (good, in my opinion) moral judgment that traditional family structure is morally good? The answer could be “both,” in the sense described above, since societal consensus might have come in part from the practice of traditional marriage ensconced in the law. Which might be leading to some of the current confusion: “The state can’t legislate morality!” versus “The state has always legislated morality; why should it stop now?” But if the answer is only ‘societal consensus,’ we’re stuck when societal consensus shifts.

Where does this leave us? Minimally, I think it means that we need to figure out what type of government we really have, and I think conservatives have been ambiguous on this in the past. At times we want “pure democracy” in the sense of simple majoritarian rule, which maps onto the idea of reflecting societal moral consensus: i.e., “legislate what we tell you to legislate and stay out of morality. Traditional marriage is good because it’s what the people want.” At other times we want democracy with a moral standard – something that comes “extrinsically, extrinsically” from society itself. In other words, we want Congress to legislate that which is independently good, meaning either good for society or good by a moral standard higher than humans.

But if all democracy is is a reflection or function of society’s moral consensus, there might not be much left for traditional marriage.

As I’ve been reading (with delight!) the ongoing exchange between Dan and Greg (inter alia) concerning bouncing dead cats and marriage and such, I find myself wondering why we’re dancing around the issue of children a bit. Not entirely dancing around it; Dan provided a clear explanation of the state’s interest in marriage in his original post: “The state cares about marriage because if a man and a woman get together and produce a child, someone has to care for the wee little one. And if it is not the child’s parents, the burden falls on society.”

It seems to me, then, that the third facet of marriage (see Dan’s original post) isn’t so much between the couple and the state as it is between the family and the state. It’s true that the state probably has some interest in regulating property disputes between childless divorcing couples, but other than that, as Dan rightly points out, the interest of the state in marriage is in the relationship between marriage and procreation.

As Dan notes, as of a few generations ago we have “intentionally decoupled sex and its consequences from the institution of marriage”. But crucially, we’ve also decoupled sex and its consequences, or at least its most, well, consequential consequence? Meaning, babies. The idea that sex and babies are intrinsically linked – something that all human beings simply knew since, well, always – is now scoffed at. We’ve fixed that problem. Sex is recreation, and children are work, and now we can maximize the former and minimize the unintended instances of the latter.

But what it that problem wasn’t actually a problem? What if sex and babies were in fact supposed to have some sort of necessary connection – both ways, not just in the “if you want to have a baby you’ll normally have to have sex” way, but also in the “if you want to have sex you should be prepared to have a baby” way? If that proposition were in fact tenable, then that should probably figure into our diagnosis of whether marriage is dead. Why? Because, as Dan also pointed out, the marriage debates have missed the point of talking about “the heart of the issue, which is the nature of marriage itself.” I submit that it is both – in its very nature – both unitive and procreative. (Fine, I didn’t come up with that one.) So if we want to blame liberal divorce laws for aiding and abetting the destruction of the unitive aspect, we should probably start looking at what killed the procreative face of marriage.

Gigantic disclaimer: I don’t mean to be cruel here; I absolutely agree with Dan that couples who don’t have children are not at all “less married” than those who do. But I really do wonder why the state should care about marriage if children are only accidental and not essential to it. And, yikes, what stands in the way of reducing sex to sport if we engineer natural consequences out of it.

I realize I’m treading really dangerous waters here, and I don’t mean to be glib or, certainly, offensive. When I say that children are essential to marriage, I mean that the nature of marriage, not each case of it – i.e., a married couple should be open to the possibility of children, while of course in some cases it won’t be possible for various reasons. But it seems like a point that needs some attention if we’re attempting to figure out what went wrong with marriage and how to save (or resuscitate) marriage.

I confess that this entry is more of a plea for input than anything else. Jacques Berlinerblau, author of a new book on secularism and religious freedom, recently made two disparate comments on a local radio show that together offer some insight into his views of the relationship between freedom of speech and freedom of religion (I think). Religion is often, he remarked, a very good thing in the public sphere, and it has done a lot of good for society. But sometimes it gets out of hand, when religion shows its “dark side,” we have take some sort of action. “A good secular government,” to Berlinerblau, doesn’t support religion under all circumstances. Rather “it takes a much more intelligent and nuanced approach [to the question of religion, and says…‘We need the FBI to monitor that’” when the dark side appears. In discussing freedom of speech, however, in the context of the recent video that sparked protests throughout the Islamic world, we simply have to allow the freedom to insult, as it were. It is highly unfortunate that such videos exist, Berlinerblau acknowledged, but we cannot let the government get into the business of “refereeing” speech.

I don’t want to make this a post about Professor Berlinerblau’s views; in all fairness these were off-the-cuff remarks on a radio show, not excerpts from his book. What I do want to call attention to is the necessirty of choosing where to place restrictions – on speech, on religion, on both, or on neither. Berlinerblau is onto something when he acknowledges that some limits must be imposed, but to him, it would seem, religion should perhaps be more carefully monitored than speech. And again, a disclaimer: he didn’t expand on when and how FBI intervention should occur with religion. Furthermore, he acknowledged that fighting words and yelling ‘fire!’ in a theater are not protected speech, so limits exist on both sides. Still, the FBI should monitor threatening religious groups but not potentially inflammatory speech. But, well, why?

To complicate matters, we can also throw in a competing conception of religious freedom. Many in the Arab world have expressed a view of religious freedom that goes a step further than, ehem, mere FBI surveillance. According to a recent New York Times article, the editor of a Coptic Christian newspaper expressed approbation over the protest, at least “if it had stayed peaceful.” To him – notably, not a Muslim, but also not a Westerner – it may be perfectly reasonable to place restrictions on speech in the name of religious freedom, albeit a particular and very different conception of religious freedom than we typically hold in America. The Times article expressed it as “the right of a community, whether Muslim, Christian or Jewish, to be free from grave insult to its identity and values” (emphasis added).

So here we are: to Berlinerblau, we should monitor religion but save pretty much all speech. To the Coptic newspaper editor – at least if we extrapolate his views (perhaps unfairly, but for the sake of discussion) – we should monitor speech to save religion. This taps into the tension between communal religious freedom (libertas ecclesiae) and individual freedom (libertas personae), as well, of course, so for the moment I’ll stop and simply ask: any thoughts? And given that the American conception of religious freedom is heavily weighted towards libertas personae, to what extent can we expect to deploy it as a universal human right?