Contents - Constitutional Court of Georgia

Constitutionalism and Secularism: the Need for Public Reason
THE CONSEQUENTIALIST OBJECTION
Constitutional policies that would replace liberal constitutionalism with democratic or non-democratic
theocracy stand for a social organization that is based on the intense emotional identification
of the believers. The political regime that is in denial of divine commands cannot be accepted
for the community of the strongly religious because “People do not feel whole if they try to divorce
their deepest sources of insight from their political stances.” 42 Accepting non-secular grounds for
legislation runs the risk of accommodating the above position.
RELIGIOUS PLURALISM
One of the Trojan horses that would bring religious ground into democratic justification is misconstrued
pluralism. Strong religions insist on the accommodation of their practices. By this logic,
religion-dictated public and private conduct should be accommodated in the name of equality of
individuals and their religions without further secular scrutiny (i.e., without asking if the conduct
satisfies the neutral criteria of generally applicable valid law). This seems to me a misconstruction
of pluralism. After all,
[p]luralism, tolerance and broadmindedness are hallmarks of a “democratic society.” Although
individual interests must on occasion be subordinated to those of a group, democracy does not
simply mean that the views of a majority must always prevail: a balance must be achieved which
ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant
position. 43
But it does not follow from the requirement of the proper treatment of people from minorities
that their respect means recognition of religious minority (or majority) practices and viewpoints 44
that dictate practices that disregard tolerance or violate gender equality, or are simply harmful in the
sense J. S. Mill understood harm to be the ground for restrictive governmental action, or which limit
and deny social integration chances to members of the minority into communities of their choice.
A specific version of pluralism is localism, modeled partly on Yoder 45 : a tolerant society should
allow a local community to live according to its religious tenets, especially if there are no spillover
42 GREENAWALT, SUPRA NOTE 20, AT 406.
43 Sahin v. Turkey, App. No. 44774/98, Eur. Ct. H.R., 108 (2004).
44 Viewpoints as such are of course protected as speech and belief.
45 Wisconsin v. Yoder, 406 U.S. 205 (1972).
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