In a book review on the New York Times online Opinionator page, Stanley Fish offers specious objections to the following item of political wisdom:
So it’s O.K. to argue that a proposed piece of legislation will benefit the economy, or improve the nation’s health, or strengthen national security; but it’s not O.K. to argue that a proposed piece of legislation should be passed because it comports with a verse from the book of Genesis or corresponds to the will of God.
He goes on to explain this classical liberal viewpoint in a way that is essentially correct, but tendentious in its wording:
behind it is a form of intellectual/political apartheid known as the private/public distinction: matters that pertain to the spirit and to salvation are the province of religion and are to be settled by religious reasons; matters that pertain to the good order and prosperity of civil society are the province of democratically elected representatives and are to be settled by secular reasons. As John Locke put it in 1689 (“A Letter Concerning Toleration”), the “care of men’s souls” is the responsibility of the church while to the civil magistrate belongs the care of “outward things such as money, land, houses, furniture and the like”; it is his responsibility to secure for everyone, of whatever denomination or belief, “the just possession of these things belonging to this life.”
A neat division, to be sure, which has the effect (not, I think, intended by Locke) of honoring religion by kicking it upstairs and out of sight. If the business of everyday life — commerce, science, medicine, law, agriculture, education, foreign policy, etc. — can be assigned to secular institutions employing secular reasons to justify actions, what is left to religious institutions and religious reasons is a private area of contemplation and worship, an area that can be safely and properly ignored when there are “real” decisions to be made. Let those who remain captives of ancient superstitions and fairy tales have their churches, chapels, synagogues, mosques, rituals and liturgical mumbo-jumbo; just don’t confuse the (pseudo)knowledge they traffic in with the knowledge needed to solve the world’s problems.
Note the use of words such as "apartheid", not to mention the scare quotes around "real", to signal Fish's distaste for this line of reasoning. And then there's the dripping sarcasm of the final sentence that I've quoted. Fish is antagonistic to the classical liberal tradition based on the work of philosophers such as Locke, Mill, and Rawls. Like Steven D. Smith, the author of the forthcoming book that he's reviewing, Fish thinks that it leads to an impoverishment of politics.
I disagree strongly. This tradition is worth defending. That's why I'm writing a book about it: specifically about what it offer on freedom of religion.
What Fish leaves out of his discussion is the historical context of Locke's proposal to separate the roles of church and state. There's the whole wretched history of persecution, torture, burnings at the stake, large-scale dislocation, and cruel warfare. Particularly in the 16th and 17th centuries, in response to the Protestant Reformation, the European states took it upon themselves to decide which religion was correct, and to use fire and sword in long-term, relentless, yet ultimately futile, efforts to impose their respective notions of "correct" doctrine and ritual.
It was not for nothing that radical thinkers such as Locke and Spinoza turned to new ideas of freedom of religion, mutual tolerance, and the separation of church and state. The state is a poor judge of which church or sect, if any, is correct; its efforts to impose its theological judgments are often futile; and they can lead to endless horrible, largely unpredictable ramifications. The point isn't so much that religion should be private - not in the strict sense of not being discussed in public fora - but that the state should not form a form a view as to which religion is correct, and then seek to impose it on non-believers. Nor should it persecute the followers of a religion that it objects to on theological grounds. The rest of us who are not the state can argue and persuade as much as we like, whether in private or public, but we cannot use political coercion.
None of this is based on any fancy metaphysics, just on historical experience and good sense. We can see that the state does a reasonable job of deterring violence and theft, maintaining a property regime, and even providing a welfare system; but it does a horrible job when it goes on the frolic of deciding and imposing the "correct" religious views.
In attacking the Lockean approach to separation of church and state, Fish totally misunderstands the notorious fact/value distinction, which is not the same as the distinction between empirical and logical, or the distinction between natural and supernatural. He alludes to Hume's observation that reasons for action cannot arise from facts alone, in the absence of values or desires (I will use the word "values", where Hume refers to "desires", but we both refer to human psychological structures of pro-attitudes, hopes, fears, preferences, and so on). Without values, Hume thought, we cannot be motivated - and in that sense do not have reasons - to act in any particular way. More specifically, we cannot be motivated to develop certain traits or dispositions of character; or to attempt to instil them in growing children; or to support certain moral norms and oppose others; or to vote for certain laws and policies.
What Fish does not appear to have noticed is that this issue of motivation does not apply only to facts about the natural world. It applies equally to truths of logic, such as "If the truth of proposition P entails the truth of proposition Q, and proposition P is true, then proposition Q is true." It also applies to any truths that might exist about a supernatural world or supernatural beings. If we learn that a certain god hates us eating shellfish, that alone cannot motivate us to avoid eating shellfish. We must also desire to please this god, or we must fear its wrath, or hope that its plan for the world will come to pass, or whatever. Somewhere along the line, our values must be involved or the supernatural fact will not motivate us.
Thus, even if some religious sect has access to truths about the will of certain gods, that cannot help us decide how to act in the absence of values - i.e., of fears, hopes, preferences, and so on. Even a true body of religious doctrines about supernatural beings and their various powers, proclivities, etc., cannot give us guidance by itself.
In that sense, even a true religion is in exactly the same position as science.
It might, of course, go without saying that I wish to avoid being tortured with fire forever if I act in a certain way, but it might also go without saying that I wish to avoid infection with a painful and debilitating disease if I act in a certain way. True religious claims about the powers, wishes, etc., of a god might combine with very obvious values to give me guidance as to how I ought to act, but so might true empirical claims about the worldly consequences of my actions. Either combination might lead me to support certain social norms or certain legislative innovations. But my values are always involved, whether in combination with natural or supernatural facts.
Fish is correct that the state acts on certain values when it enacts laws forbidding (say) murder and rape, or seeking to avoid economic ruin for its population. E.g., most of the people in any population fear being killed or raped, most people enjoy peace and economic prosperity, most of us fear poverty and hunger, and so on. These are well-recognised values that are shared by almost all people, religious or not, and the state has various mechanisms (notably the criminal justice system and the tax-transfer system) that have at least some positive effect in the domain of such worldly values. Thus, as a matter of practicality, the state has a positive role to play in providing and protecting widely-valued this-worldly things.
Conversely, if the state attempts to provide or protect spiritual salvation, nirvana, moksa, or any of the other grand goals of the various religions, it generally makes a mess of it. As Charles Taylor rightly points out in A Secular Age, these goals are supposed to be obtained through deep personal transformations, and they involve ways of living that are supposed to transcend our ordinary concepts of human flourishing - which involve living in ways that satisfy species-typical worldly values. The state is not well equipped to decide which of these transcendent goals, if any, is the correct one to seek. Its major agencies, such as those operating within the criminal justice and tax-transfer systems, are not well designed for producing the required inner transformations. If the state attempts to ensure that the "right" transformative beliefs and practices are adopted in the territory where it has power, this will be experienced as tyrannical by those who disagree, and if it pushes hard the cost in human lives and human happiness is likely to be immense.
When Locke and his followers seek to confine the state to a wordly role, they make arguments such as these. They do not claim that the state's actions are value free, merely that there are good reasons for the state to act solely on those values which relate to the things of this world. That leaves the various churches and sects to offer ways of achieving salvation, moksa, rightness with God, or whatever it might be, to whichever people can be induced to value those things. The set of values that the state acts upon may be relatively thin, compared to the various sets of values that are offered by the religions, though it need not always be like that, since religions can tell us to renounce many of our worldly values. And even if state power is confined to promoting only a thin set of values, that is not a bad thing. By not imposing any one set of "thick" religious values, and one set of practices that can supposedly be used to obtain them, the state allows all the others to co-exist. That's usually a good bargain, even for the religious. (I leave aside the likelihood that moksa, spiritual salvation, nirvana, rightness with God, and so on, are illusory. Despite Fish's sarcasm, the liberal arguments simply do not turn on this.)
The arguments developed by liberals since Locke's time are to do with the clumsiness of the state's powers, historical experience, and the practical need to accept reasonable social pluralism ("reasonable" because, at least beyond a certain point, we need not tolerate the intolerant). They do not depend at any stage on a naive denial of the fact/value distinction. What Fish really needs is not an argument that slanders liberals for an imagined meta-ethical naivety. He needs something more gritty and practical, an argument as to why we now live in an era when it is wise to trust the state to decide which religion is correct, and then legislate accordingly. I'd love to see that argument.