I was hoping to garner interest with my last post. I consider the contraception mandate an important issue not merely because it is in the news but because the controversy surrounding it drives people to vigorously engage broader philosophical issues.

I think there were three general concerns that merit a detailed response. They are scattered throughout the comments, but good_in_theory (GIT) brought them together in an elegant way towards the end of the comment threads. I will reconstruct the argument.

I. Brief Summary of My Previous Argument

I base liberalism on a principle of public justification (PPJ) which holds that a coercive law L is only justified if members of the public have sufficient reason to endorse L. The contraception mandate (CM) coerces the Roman Catholic Church (RCC) but the RCC has sufficient reason to reject the CM, so CM cannot be publicly justified. Since liberalism can be understood in terms of the principle of public justification, the contraception mandate is illiberal (and unjust)

II. GIT’s Dilemma

As I interpret him, GIT presents myargument with a dilemma, namely that it rationally cannot compel liberals to reject CM because the principle on which it is based (the PPJ) is illiberal. Here’s my reconstruction (it’s not perfectly valid, but you get the idea).

(1) The argument from the PPJ applies to cases besides the CM.

(2) The set of cases is very large, which means that coercion is very hard to justify.

(3) If the PPJ says that coercion is very hard to justify, the PPJ is libertarian, not liberal.

(4) Attempts to limit the set of cases will give special treatment to religion.

(5) If the PPJ gives special treatment to religion, the PPJ is inegalitarian, not liberal.

(6) Either the set of cases is large or it is limited.

(C) The PPJ is either libertarian or inegalitarian and so, not liberal.

This argument is my way of putting the best articulation of the general points that my argument makes religion special, is discriminatory, is really libertarianism, etc. In my response, I will accept (1) but deny (2) and (4). I do so on the grounds that we should distinguish between mere moral complaints and conscientious objections. Only some versions of libertarianism make all moral complaints defeaters for laws, whereas supporters of the mandate downgrade conscientious objections into moral complaints. True liberalism vigorously defends the distinction, barring coercion in the case of conscientious objections (“Here I stand. I can do not other.”) but permitting it in the case of moral complaints (“This law is not fully just.”).

III. Some Theory

The principle of public justification is typically combined with the claim that freely reasoning individuals will tend to disagree rather than agree about life’s most important questions. Rawls called this “the fact of reasonable pluralism.” If a liberal society is based on the PPJ, then that means all coercion must be the subject of an overlapping consensus, namely that the coercion in question is justified to each reasonable point of view.

For a coercive law to be justified, however, it need not be optimal from the moral perspective of each person. A coercive law is prohibited only if citizens lack sufficient reason to endorse it. But citizens often have sufficient reason to endorse morally sub-optimal laws. Given reasonable pluralism, we cannot reasonably expect for every law to be morally optimal from our own perspective. So we must acknowledge that some morally sub-optimal laws can acquire our allegiance. Consequently, the imposition of such laws can still treat us as free and equal. In other words, morally sub-optimal laws are liberal.

Consider a dispute about the appropriate size of a safety net. Suppose for the sake of argument that all members of the public regard some safety net as justified, but they disagree about which safety net (A, B or C) are morally best. We can say, then, that policies A, B and C are in an eligible set of proposals. Any one of them can be selected by a justified decision procedure, such as a constitutionally limited majority vote. But consider deeply social democratic policy D. It is probably not in the eligible set because more libertarian members of the public have defeaters for it. Such is the fact of exceedingly meager policy E, because more social democratic members of the public have defeaters for it. But A, B and C are still eligible for both the libertarian and the social democrat.

We can therefore distinguish between laws that are (a) defeated, (b) eligible, but morally sub-optimal and (c) morally best.

I believe that GIT’s argument implicitly assumes that laws are either morally best or justified. That is, they can have status (a) or (c). If laws can only be morally best or unjustified, then it is easy to see why, say, all safety nets are defeated. Members of the public do not agree on which policy is best. Radical libertarians will be happy with this result. But as a neoclassical liberal, I am not. I think some safety nets are eligible, but morally sub-optimal from my point of view (and from other points of view, I’m willing to bet). Admittedly, I think that all healthcare mandates are unjustified because they violate even a modest right of liberty of contract. But set this view aside for the moment. It should be clear to any liberal that mandates (like the CM) that violate conscience are defeated because conscientiously committed members of the public have especially strong reason to reject the coercive law in question.

If I am right, then the PPJ is not objectionably libertarian, as it holds that many non-libertarian laws can be publicly justified to libertarians even if from the libertarian perspective they are morally sub-optimal. Premise (2) is false.

We can now see why premise (4) is false as well. Religious reasons function as defeaters not because they are religious but because they are reasons characteristic of the core life projects and principles of religious citizens. But non-religious, moral reasons can play a similar role for non-religious citizens. Thus, the PPJ requires that conscientious objector status must be extended to non-religious citizens. That is, all persons have a right of moral conscience. When a coercive law forces someone to violate her religious or moral conscience, it is defeated. But a right of moral conscience does not render all morally sub-optimal laws unjustified.

IV. Back to Practice

I use this machinery to substantiate a commonsense intuition, namely that some moral concerns rise to the status of defeaters for laws, whereas others simply show certain laws to be morally sub-optimal. It is this commonsense intuition that leads courts to distinguish between conscientious and non-conscientious objections to laws. In the case of morally sub-optimal laws, a liberal polity can demand that citizens tough it out (whereas a libertarian polity cannot). But in the case of laws that violate moral conscience, a liberal polity cannot demand that citizens comply with the law without injustice.

I contend that the contraception mandate is not merely morally sub-optimal because it forces the RCC to violate conscience. It seems obvious then that RCs have conclusive reason to reject CM. Thus CM can have no authority for them and so they have no duty to comply with it. To impose CM on them anyway is to coerce them without justification and so defeat the case for the law. Or so a liberal must contend. CM can only be justified if the RCC’s complaints are mere complaints of moral sub-optimality, but they are clearly far stronger than this.

In contrast, few citizens have defeater reasons for all redistributive proposals, as property rights themselves are the subject of reasonable dispute. The use of coercion to enforce property rights cannot be justified to social democratic members of the public who regard full libertarian property rights as unconscionable. That said, full social democratic property rights cannot be publicly justified either, as libertarian members of the public regard them as unconscionable.

When it comes to property rights, then, neither libertarians nor social democrats get their first choice. Instead, property rights will have, as Jerry Gaus has argued, a classical liberal tilt. Legitimate states can engage in limited redistribution. But many forms of redistribution are defeated, such as the redistribution of capital goods involved in state socialism. Redistribution that violates conscience is also defeated.

V. Conclusion

GIT’s dilemma depends on a failure to distinguish defeater-strength reasons of conscience (“Here I stand. I can do no other.”) from mere moral complaints (“This law is not fully just.”). The PPJ is only objectionably libertarian if all moral complaints count as defeaters. In contrast, the mandate can only be justified if reasons of religious conscience are mere moral complaints. With this distinction in hand, we can see both that the public justification principle is liberal, not libertarian (though libertarian-leaning) and that it does not give special treatment to religion. Premises (2) and (4) are false.

So to reiterate, CM is authoritarian, illiberal and cannot be implemented without injustice.