Normative Foundations
Equal Concern and Respect
For a state to be impartial in matters of religious belief, it must treat all religious convictions equally in the sense of not taking sides with any one religious community or belief system.
But this does not mean that there are never situations in which the state may be permitted or even required to take sides. The principle of neutrality is based, not least, in morality. It is a consequence of the requirement that the state treat all its citizens as equals, with equal concern and respect.4 It must give equal weight to the life, well-being, and self-determination of each and every individual member of the political community. For the state’s laws apply to all citizens equally, and every citizen must be able to abide by them, not merely out of fear or prudence, but also out of respect for law’s content. As a consequence, legislators, governments, administrations, and courts, as well as we ourselves, as citizens, we all bear the responsibility of preventing segregation and discrimination among the citizenry. A reasonably fair state will not accept that there are any second-class citizens or even citizens without rights. In the words of the American legal philosopher Ronald Dworkin:A political community that exercises dominion over all its own citizens, and demands from them allegiance and obedience to its laws, must take up an impartial objective attitude towards them all, and each of its citizens must vote, and its officials must enact laws and form governmental policies, with that responsibility in mind. Equal concern, as I said, is the special and indispensable virtue of sovereigns.5
The equality of respect and regard is a basic norm in need of clarification. It can call for strictly equal treatment, but need not necessarily entail it. The emphasis here is not so much on equal treatment, but rather on everyone counting equally.6 Undoubtedly, this entails having the same basic rights.
Where this is not the case, there, by definition, exists discrimination. When it comes to the interpretation and exercise of rights, however, some consideration of morally relevant dif-A An important basic reading on neutrality: Stefan Huster, Die ethische Neutralitat des Staates: Eine Iiberale Interpretation der Verfassung (Tubingen: Mohr Siebeck, 2002).
5 Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, MA, London: Harvard University Press, 2002), 6.
6 On the difference between equal treatment and being treated as an equal, see Ronald Dworkin, Burgerrechte ernstgenommen (Frankfurt am Main: Suhrkamp, 1990), 370. Dworkin also emphasizes that the right to be treated as an equal is basic, whilst the right to equal treatment is derivative.
ferences is required. Some individuals or communities are likely to be more vulnerable and/or needy than others. Abstract principles of human rights, such as respect for physical and psychological integrity, or the promotion of autonomy, can only be exercised as rights in a meaningful way and in an equal manner, where morally relevant differences between groups and individuals are taken into account. Thus, for example, one would not be treating someone suffering from a chronic illness as equals by overlooking their specific needs for expensive medication or by expecting the same level of performance from them as one would from healthy individuals. Neither are children regarded as equal without taking into account their special need for attention, care, and protection.
If we are to judge truly impartially, that is, if we are to search for justifying reasons that all can share,[316] we will understand that some deviation from equal treatment does not create undue privilege for some. On the contrary, it is but an attempt — however insufficient — to strike a balance against specific disadvantages or against undeserved inferior starting conditions. Impartial grounds for a deviation from the principle of equal treatment may include: unequal needs, unequal contribution to some common good, a past discrimination that may still be momentous, or previous entitlements that were legitimately acquired, such as in contractual form.
In any case, the list is not especially long where all count as equals. If no moral grounds speak for unequal treatment, then the logical conclusion is equal treatment, following from the principle that all are to be treated as equals. This is nothing more and nothing less than a necessary moral fallback position for those cases in which no shared grounds for unequal treatment can be found.[317]Equal treatment is prima facie also called for when it comes to religious and other comprehensive doctrines that are disputed amongst citizens who judge them critically, conscientiously, and in a morally responsible manner. Laws cannot stand on theoretical foundations that are baseless to non-believers, or people of differing persuasions. Whosoever is systematically disadvantaged through legislation influenced by religious convictions would be fully justified in considering themselves to be second-class citizens.
However, the limitations of the principle of equal treatment become visible at the point where its own moral foundations are at stake. Belief systems that do not grant equal rights to all, or that infringe upon (other) basic legal interests have to face justifiable limitations and even sanctions. No community of belief may, for example, prohibit its members from leaving that community. Equally, no community may attempt to occupy the role of the sovereign. The equality of the entire citizenry remains the basis for positive and negative freedoms of belief and religious expression.
Ethical Liberalism
A more difficult question is whether a liberal state is permitted to promote certain ways of life over others. Some liberals hold that the secular state must remain strictly neutral in all questions pertaining to how to lead a good and meaningful life; and if the state does intervene it can only do so rightfully in order to promote basic rights such as the right to life and to physical integrity. I hold this view to be unworldly and also untenable from a normative perspective.
Wherever a state, even a liberal one, actively sets guidelines for rational self-determination, it is promoting a certain way of life over another. This is the case in public schools, for example, where education is intended to promote maturity [Mundig- keit] by training male as well as female children’s’ ability to make informed decisions and pass judgement by thinking through matters in a critical manner. Even traditionalist parents have to live with the fact that their children attending public schools will become familiar with ways of thinking that they might then turn against the values that their parents revere.It is clear to me that there is no such thing as total impartiality in this respect (possible and desirable). Although the state should not be partial to any particular set of goals, it will show some partiality by promoting a certain way of life: well informed, guided by independent thought and action, and with the potential to scrutinise and even revise the conception of the good.[318] This position is not
based in the misguided assumption that we can choose such a conception at random. On the contrary: anyone seriously committed to a certain way of life should be interested in how to justify it and in what makes — or fails to make — it viable and meaningful. Openness to critique does not indicate a loss of the strong, stable bonds that hold together one’s self-conceptualization. On the contrary, it is the only rational and responsible way to foster them.
This general conviction is the hallmark of ethical liberalism. It assumes that a good life is also always one of self-determination. And it does not shy away from obligating the state to promote personal autonomy. This ethical liberalism, it seems to me, is superior to the kind of liberalism that seeks to remain neutral even when confronted with communities that hold minors in heteronomy in order to protect them from a ‘sinful’ outside world or from world views that unsettle their beliefs such as the theory of evolution.
This might create the impression that followers of ethical liberalism would have to favour the promotion of non-religious lifestyles. After all, believers pass their lives into the hands of God. They believe that not they themselves, but God should have the last say in all of life’s big questions. Instead of freely choosing the good, they see themselves bound to God’s resolution. But it would be invalid to infer that, as a consequence, religious people must oppose individual autonomy. When someone leads a self-determined life, they are guided by reasons they consider good and valid, under conditions of judgment that promote rational thought.10 Leading an autonomous life at the least requires selfrespect and self-confidence, the mental and physical capacities for independent thought and action, a certain level of material security, basic education, and the knowledge of relevant alternatives, in a social context sufficiently rich with valuable options. Whoever leads a religious life within such a framework, will count as self-determined until the opposite is proven.
And in any case, strictly speaking nobody is in a position to choose freely among different conceptions of the good. We do not just have a set of convictions which we may trade in at will. Whatever convictions we have, we find ourselves
stances of modern societies, is provided by Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986). I myself have defended the centrality of autonomy for liberalism in Bernd Ladwig, Gerechtigkeit und Verantwortung: Liberale Gleichheit fur autonome Personen (Berlin: Akademie-Verlag, 2000).
10 See on this Bernd Ladwig, ‘Der Wert der Wahlfreiheit: Eine Kritik von Isaiah Berlins Ver- standnis von negativer Freiheit’, Deutsche Zeitschriftfur Philosophie 55, no. 6 (2007), 877ff. committed to them, be it through argumentation or evidence-based thought.[319] [320] [321] This is equally the case for religious and non-religious beliefs.
The freedom of an autonomous being consists in a disposition to critically evaluate their beliefs when necessary. Even religious people can recognise that they bear responsibility for their beliefs and should thus remain open to new perspectives, experiences, and arguments.An ethical liberal will thus differentiate between rational and irrational forms of belief. But this will be just a special case of distinguishing between rational and irrational forms of commitment more generally. Ethical liberals prefer open-minded and oppose narrow-minded attitudes regarding our most important convictions. And if the educational system within a secular state were to favour open-mindedness and contribute to dogmatism losing ground, such a person would welcome this development.
At the end of the day, some belief systems will find such an arrangement more problematic than others. But equality in the end-result cannot be expected from a liberal state anyway. A community without open-ended debate and free competition between worldviews cannot be a liberal one. It is the state’s responsibility to ensure that such confrontations take place within a context of respect that all citizens owe to each other. And it must ensure that the formally granted equal rights also have real value for all. In other words, the state must guarantee that communal conflicts within the citizen body take place within a framework characterised by fairness. However, this is not to be equated with an obligation to protect and preserve any and all religious orientations?2 They can only survive so long as enough people practice the respective beliefs voluntarily.
If the state is to function in accordance with ethical liberalism, then it will, among other things, be in favour of an educational system that encourages independent thinking and critical judgment by pupils of any gender. This puts any community and belief system under pressure: they must prove that they can attract and maintain the loyalty of people who call for justifying reasons. They must be able to survive in a society of self-critical and reflective individuals, who perform self-respect as confident subjects of equal rights.u If they cannot manage this task, then there is no reason to be saddened by their declining influence.[322]