Stone on the Stem Cell Veto

One often sees examples of laypeople expansively assuming that any religiously motivated action by a legislator or other public official is, in some way, an undermining of the "separation of church and state."  But such views are, it seems to me, increasingly rare in that sector of the legal academy that deals regularly with law and religion issues.  (A broad statement, to be sure, and I don't doubt there are exceptions; but I think such statements, even if they linger elsewhere in the legal academy, are indeed rarer in the law & religion branch of the legal academy, in which strict separationists are less common than they once were.) 

A partial exception to this can be found in a recent post on the University of Chicago Law blog.  There, Geoffrey Stone writes to complain of a variety of recent actions by President Bush and Congress.  Stone begins by criticizing President Bush's veto of the stem cell bill.  He says it shows "a reckless disregard for the fundamental American aspiration to keep church and state separate."  He continues:

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.

Professor Stone concludes that he is not necessarily saying such an action violates the Establishment Clause.  So it may not be unconstitutional; merely "unethical and illegitimate."

I respectfully disagree.  I disapprove of President Bush's veto as a matter of policy and my own sense of ethics, but I see nothing "unethical and illegitimate" about a public official proposing or disposing of legislation because that official is religiously motivated to do so, as I think I have made clear. 

[more after the jump -- update: including a brief response to Larry Solum's comments]   

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?

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.)  They are also subject to substantive checks: whatever their reasons for acting, they are simply barred from engaging in official actions that deny the free excercise of religion to others or that effectuate an establishment of religion, a substantive check that I am inclined to read fairly broadly, although not so broadly as to negate any actions that are merely religiously motivated.  Within these political and constitutional parameters, however, public officials have no obligation to give generally accessible public reasons.  So President Bush's veto was not illegitimate.

If we take Professor Stone's choice of language perhaps more seriously than we should, the question whether President Bush acted ethically is perhaps a more difficult question, although maybe not for precisely the reasons Professor Stone would select.  Professor Stone seems to suggest that the President acted unethically because his motivations for acting were religious.  I do not think any ethical obligation exists to be motivated by publicly accessible reasons.  But we could ask, does a public official have an ethical obligation, qua public official, to publicly give publicly accessible reasons for his actions, regardless of his motivations?  That is to say, even if a public official is entitled to publicly offer religious reasons for her actions, must she also offer public reasons to justify her actions that are more broadly accessible?   

This is a closer call, and while I ultimately am inclined to say no, I think a very credible argument could be mounted on this point.  But this isn't what the President did.  His veto statement does not speak in clearly religious terms at all.  Rather, he simply argues that the bill does not strike a proper ethical balance.  Surely the President's sense of what is ethical is substantially derived from his religious beliefs, but the same could be said, directly or indirectly, of many Americans.  And for those whose ethical beliefs are at least nominally untethered to any religious views, those of us who are non-philosophers are likely at some point to come to rest on arguments that are equally publicly inaccessible: "It's just right."  "It's just wrong." 

Unless Professor Stone thinks that we are all obliged to appeal to some form of utilitarian philosophy, or some other closely reasoned form of moral philosophy, every time we give our sense of what is ethical or unethical, I can see no reason why the President's publicly offered reasons can be seen as intrinsically "unethical."  And if I am wrong, then I would expect that Professor Stone would demand the same level of reason-giving from any legislator who voted for the stem cell bill on the basis that encouraging medical research is the "ethical" thing to do, or simply "the right thing to do."

Politicians may justifiably suffer if they offer reasons for their actions that satisfy only a narrow band of the public; one of the political benefits of publicly accessible reasons is that they enable public officials to retain the support of larger coalitions of voters.  But Professor Stone seems ultimately to argue that there is something unethical or illegitimate not just in speaking in religious terms, but in having religious motivations, and acting on them, regardless of what reasons the public official gives publicly.  That, I think, is altogether too expansive a view of "the separation of church and state."  I may think the President's veto was wrong, but it certainly was not wrong for those reasons.

UPDATE: Larry Solum has offered a thoughtful response at Legal Theory; you can find it here.  I knew that casually invoking Rawls might be courting trouble, but so be it.  Let me clarify what I was trying to say in a couple of places.  I don't have a settled view on whether and when motivation is or isn't relevant to political morality, although I certainly don't think that religious motivations are impermissible as such for public officials.  My point in the first portion of the post excerpted by Larry was simply to suggest that Stone's post itself is unclear on whether the primary concern is Bush's motivations, or his public explanation of his actions.

As to the "Rawlsian republic" line, I meant to suggest there that I do not believe our Constitution itself demands that public officials offer publicly accessible reasons for their actions.  It is true that in a variety of ways, the institutional design of the Constitution may encourage politicians to offer such reasons if they wish to stand any chance of successful coalition-building, and the fact of pluralism in the real political landscape in which we live also may encourage the provision of publicly accessible reasons.  By the same token, because a politician who fails to provide reasons in a form that is likely to convince a broad swath of voters or other politicians risks political failure, I think the risks of public officials who give religious reasons are also self-limiting -- and to that one must add that the Constitution's commands restrict public officials from taking certain religious actions, whatever their motivation.  In a constitutional sense, then, I do not think there is a legitimacy problem with public officials who give reasons that are not widely accessible. 

I think the questions of political morality that Larry raises fall under the category of "ethics" in Stone's post and my response, and I think I gave some hint of my greater sense of ambivalence on this question.  But I suspect I come at it from the opposite direction; while Larry has seen nothing that convinces him of the rightness of laissez faire as "the appropriate ideal of public reason for a pluralist democratic society," and certainly has read the literature for longer and more closely than I have, I have yet to be convinced by the literature I have read that politicians in our procedurally and substantively constrained society are also, on top of those restraints, obliged to present public reasons according to the ideal of public reasons.  Maybe Larry will encourage me to read more!  In any event, I appreciated the thoughtful comments.