Liberalism - Ricerca sull'intelligenza artificiale specializzata al MIT

Liberalism
& Deferential Treatment

Paul Weithman

Legally preferential treatment of a religious organization is the legal conferral of
a status that is more favorable than that accorded to other religious organizations.
This essay introduces and analyzes the contrasting concept of deferential treatment.
“Deferential treatment” refers to forms of favorable treatment that are cultural
rather than legal. While the problems posed by legally preferential treatment of re-
ligion are well known, the problems posed by deferential treatment have received lit-
tle attention. One problem is that when a religious organization receives deferential
treatment, its authorities are not compelled to exercise their power in ways that track
the interests of those over whom they exercise it. This leaves those subject to their
power liable to abuse. Another is that deferential treatment encourages “bench-
mark traditionalism.” Benchmark traditionalism is problematic because it is po-
litically unreasonable. These problems with deferential treatment give all citizens,
including religiously committed citizens, reason to favor a culture of non-deference.

L et us say that societies are liberal to the extent that they give special prior-

ity to the equal protection of basic rights and liberties, including freedom
of the press, conscience, and association, together with political liberties.
This might seem a relatively undemanding condition of liberalism, but the satis-
faction of other important conditions follows from the satisfaction of this one.
Per esempio, a society can protect citizens’ rights only if it honors the rule of law.
A society that protects the freedom of association has a government that is limit-
ed, and therefore allows for a robust and diverse civil society. The condition of lib-
eralism is therefore not as minimal as it might initially seem.

Societies that protect the basic liberties of all citizens create space for plural-
ism. That space is created and maintained, in parte, by citizens’ sustaining a public
culture. For keeping government within the limits needed for a vibrant civil soci-
ety requires citizens’ willingness to repudiate public officials who would overstep
them. Civil society flourishes only if citizens observe informal norms of toleration
and respect. That liberal societies create space in these ways raises the question of
how citizens of liberal societies are to regard their own participation in the ways
their societies create such a space.

D
o
w
N
o
UN
D
e
D

F
R
o
M
H

T
T

:
/
/

D
io
R
e
C
T
.

io
T
.

e
D
tu
D
UN
e
D
UN
R
T
io
C
e
–
P
D

F
/

1
4
9
3
5
9
1
8
5
7
3
1
4
D
UN
e
D
_
UN
_
0
1
8
0
3
P
D

B
sì
G
tu
e
S
T

o
N
0
7
S
e
P
e
M
B
e
R
2
0
2
3

T hough I cannot show it here, I believe John Rawls, who authored A Theory

of Justice, thought the question I have identified arose with respect to all
citizens of liberal societies, and that answering it uncovered an important
source of civic friendship and crucial buttress of justice.1 For the purposes of this
essay, Anche se, I focus on that subset of the citizenry whom I call “citizens of eccle-
sial faith.” These are adherents of religions which claim that the human good, O
the highest human good, consists of a relationship with God that is mediated by a
particular ecclesial structure.

The question arises with respect to them because, by definition, societies that
make space for pluralism make a plurality of ways of life available. One of the
longer-term effects of liberal, pluralistic societies seems to be the loosening of
ties with ecclesial structures, so that citizens come to regard those ties as bonds
that can be renegotiated or broken at will. Inoltre, once spaces are opened for
a plurality of ways of life, it becomes possible for those who adhere to an eccle-
sial faith to conceive and explore different ways of adhering to it. This leads to
what philosopher Charles Taylor has called the “unbundling” of individual lives:
practices sanctioned by a church and regulations promulgated by it are selective-
ly observed, followed in some areas of life but not others.2 A pluralistic society
is also bound to make space for–indeed, it may seem to encourage–ways of life
that some citizens of ecclesial faith will consider profoundly misguided. Since all
of these effects of pluralism might be thought at least prima facie troubling to cit-
izens of ecclesial faith, these citizens may regret the ways they help sustain a cul-
ture that has these consequences. Their regret and alienation may loosen their al-
legiance to their societies and their fellow citizens, with unwelcome consequenc-
es for the quality of civic life. If this is right, then the question I have identified as
pressing is one that liberal political philosophy must confront.

One piece of evidence that the question is experienced as a pressing one is that
some citizens of ecclesial faith have responded to the pressure. Much to my sur-
prise, so-called Catholic integralism is enjoying something of a revival. Catholic
integralists decry some of the characteristic features of modern life: the differen-
tiations between the sacred and the secular, the natural and the supernatural, IL
church and the state.3 I think of integralism as implying a response to the question
I have identified because I think the differentiation of modern life and the creation
of space for pluralism go hand-in-hand. One of the ways in which liberal societies
create space for pluralism is precisely by creating and maintaining the differenti-
ations to which integralists object. So I take it integralists disapprove of the way
those societies make room for pluralism. And I take it they regard our–perhaps
unavoidable–implication in the practices and culture by which liberal societies
do so as at best a lamentable inevitability.

I have little sympathy for the integralist movement as I understand it. Infatti,
I think it is psychologically healthy for people to be able to escape the reach and

D
o
w
N
o
UN
D
e
D

F
R
o
M
H

T
T

:
/
/

D
io
R
e
C
T
.

io
T
.

e
D
tu
D
UN
e
D
UN
R
T
io
C
e
–
P
D

F
/

1
4
9
3
5
9
1
8
5
7
3
1
4
D
UN
e
D
_
UN
_
0
1
8
0
3
P
D

B
sì
G
tu
e
S
T

o
N
0
7
S
e
P
e
M
B
e
R
2
0
2
3

Dædalus, the Journal of the American Academy of Arts & SciencesLiberalism & Deferential Treatment

scrutiny of a church, to find spaces in which they can treat its normative authority
as self-imposed, and even to find spaces for transgression and experimentation.
And so I think the differentiation to which integralists object is probably a healthy
thing for religious believers. But I shall not engage integralism here. I bring it up
only because its presence on the intellectual landscape testifies to the pressing
character of the question I have identified.

That question might, Tuttavia, seem quite easy to answer. There are some fa-
miliar arguments that citizens of ecclesial faith should value the creation of space
for the organizations of civil society. Inoltre, though I said above that the condi-
tion of liberalism is not as minimalist in its implications as it might initially seem
to be, it is still weak enough to count as liberal a society that accords religion and
religious organizations preferential legal standing. It is also weak enough to count
as liberal a society that accords them what I shall call “deferential treatment.” It
might be thought that these two forms of treatment have the potential greatly to
alleviate religious citizens’ misgivings about liberal culture. I shall concentrate on
deferential rather than preferential treatment here. After distinguishing prefer-
ential from deferential treatment, I shall explore two reasons citizens of ecclesial
faith should value their own participation in a society that accords religion and
religious organizations non-deferential treatment.

L egally preferential treatment of a religious organization or a religion refers to

the legal conferral of a status that is more favorable than that accorded to
other organizations or systems of belief. One familiar form of legally pref-
erential treatment is ecclesial establishment. Another form is found where the law
accords favorable status to religion, just as such. This occurs when, Per esempio,
the law treats ultimate commitments that are religious differently than it treats
those that are nonreligious, and takes the former to ground claims to exemptions
that the latter does not. It also occurs when state power is used to foster religion
and membership in religious organizations, even if no particular religion or reli-
gious organization is favored or established.

By the deferential treatment of a religious organization or a religion, I mean forms
of favorable treatment that are cultural rather than legal, since they do not depend
on that organization or religion enjoying a different legal status than any other.
Deferential treatment has a number of ingredients. The ingredients are natural
concomitants, and so it is natural for them to be found together, but they are log-
ically independent.

One ingredient of the deferential treatment of a religion is that its teachings are
accorded the status of social norms. The teachings may concern the existence and
nature of a supreme being, appropriate forms of worship and devotional practice,
and appropriate forms of personal–including sexual–conduct. The teachings
enjoy the status of social norms when they are generally taken to express stan-

D
o
w
N
o
UN
D
e
D

F
R
o
M
H

T
T

:
/
/

D
io
R
e
C
T
.

io
T
.

e
D
tu
D
UN
e
D
UN
R
T
io
C
e
–
P
D

F
/

1
4
9
3
5
9
1
8
5
7
3
1
4
D
UN
e
D
_
UN
_
0
1
8
0
3
P
D

B
sì
G
tu
e
S
T

o
N
0
7
S
e
P
e
M
B
e
R
2
0
2
3

149 (3) Summer 2020Paul Weithman

dards of belief and conduct that are culturally rather than legally enforced. IL
phrase “generally taken” is unfortunately misleading and vague: it suggests that
deferential treatment of a religion requires that its teachings be internalized or
genuinely accepted by a majority. But norms can still function as a society’s stan-
dards of judgment if they are employed by a minority with the power to shape
opinion or to give wide effect to their disapprobation.

An ingredient of the deferential treatment of a religious organization is that
those charged with elucidating and promulgating its teachings are accorded
the status of moral authorities, by members of the organization and by some of
those outside it. Another ingredient of the deferential treatment of a religious or-
ganization is the social trust accorded to its hierarchy and clergy: to those, Quello
È, who are among the people accorded the status of moral authorities. I take the
trust in the phrase “social trust” to refer to a working presumption that those who
are the objects of the attitude follow their own authoritative moral pronounce-
menti, act for the good of those in their spiritual care, and honor demanding
norms of pastoral conduct. That the trust is social means that according such
trust is normative or expected of church members, including those in official po-
sitions, but also by others in society, including members of cultural and political
elites. Describing the trust as a working presumption signals the fact that not ev-
eryone who accords what I have called “social trust” believes that members of
the hierarchy and clergy honor the norms to which they are supposed to adhere.
Piuttosto, it is generally understood that those who accord social trust will act as if
they believed that.

Still another ingredient of deferential treatment is that officials and clergy are
accorded considerable latitude to act without official or unofficial scrutiny, so that
the propriety or legality of their actions is rarely called into question. Still another
ingredient comes into play when their actions are called into question. When they
are, church officials and clergy are accorded a strong presumption of innocence by
civil authorities, the gravity of their offenses is minimized, and they are punished
with lenience.

Deferential treatment comes in degrees. The presence of any one of the forego-
ing ingredients would suffice for us to say that a religion or religious organization
is the beneficiary of some deferential treatment. Deferential treatment increases
as more of the ingredients are present or as any one of the ingredients becomes
more intensely or widely present. To the extent that a church receives deferential
treatment, the church, its hierarchy, and its clergy enjoy positions of privilege. IL
privilege is, in the first instance, a cultural rather than a legal phenomenon, for its
maintenance depends on the general recognition and observance of informal and
often tacit norms. Where it prevails, the explanation of its prevalence–like that of
other forms of privilege–can be complicated. Those who sustain it may act out of
a variety of motives, from the reverent and the high-minded, to cold calculations

D
o
w
N
o
UN
D
e
D

F
R
o
M
H

T
T

:
/
/

D
io
R
e
C
T
.

io
T
.

e
D
tu
D
UN
e
D
UN
R
T
io
C
e
–
P
D

F
/

1
4
9
3
5
9
1
8
5
7
3
1
4
D
UN
e
D
_
UN
_
0
1
8
0
3
P
D

B
sì
G
tu
e
S
T

o
N
0
7
S
e
P
e
M
B
e
R
2
0
2
3

Dædalus, the Journal of the American Academy of Arts & SciencesLiberalism & Deferential Treatment

about how best to maintain the good will of ecclesiastical officials in positions of
social and political power.

I noted at the outset that societies that are liberal in my sense, and hence

pluralistic, allow for a robust civil society. According to one familiar ar-
gument, a robust civil society is to be valued because it consists of orga-
nizations that can check the power of the state and hold public officials ac-
countable.4 That is something all citizens have good reason to value, including
citizens of ecclesial faith. Citizens of faith therefore have reason to value and
contribute to the pluralistic public culture that sustains civil society. Inoltre,
in some societies, churches are prominent among the organizations of civil so-
ciety that serve as counterweights to government. Citizens of ecclesial faith
who belong to such churches would seem to have reason to value and to take
pride in their doing so.

Citizens of ecclesial faith may also seem to have prima facie reason to value
their own participation in checking government power. But they may not have
all-things-considered reason to value it, or even to participate in that activity.
Pointing out the excesses of government and holding public officials accountable
can be dangerous business. And so it may be that when all the reasons are toted up,
citizens of ecclesial faith have the most reason to free-ride on the efforts of others
to hold government accountable, and to suppress rather than to affirm any desire
they find within themselves to take part. But I think the argument above points
us in the right direction by highlighting the fact that liberal societies are societies
with multiple centers of power that are capable of checking one another’s excess-
es. According to the argument I want to explore next, citizens of ecclesial faith
have reason to value a certain kind of liberal society, and their own participation
in the culture that sustains it, because a liberal society of that kind checks the pow-
er of religious organizations over their members.

When I introduced the idea of deferential treatment, I indicated that if a church
is accorded such treatment, then those who hold positions in its hierarchy or its
clergy more easily avoid being held legally or socially accountable for their con-
duct than other citizens. And so they will not often be subject to legal penalties for
offenses they commit and such offenses will not often be spoken of in ways that
open them to shaming or ostracism.

Those holding official or clerical positions within a church are in positions
to exercise power over those entrusted to their care: adult and minor clergy-in-
training, minors who may be entrusted to their tutelage or supervision, and be-
lievers who approach them for pastoral care at vulnerable moments in their lives.
If they can escape legal and social accountability for their conduct, then they are
not compelled by the threat of legal and social penalties to exercise their power in
ways that track the interests of those over whom they exercise it. They may in fact

D
o
w
N
o
UN
D
e
D

F
R
o
M
H

T
T

:
/
/

D
io
R
e
C
T
.

io
T
.

e
D
tu
D
UN
e
D
UN
R
T
io
C
e
–
P
D

F
/

1
4
9
3
5
9
1
8
5
7
3
1
4
D
UN
e
D
_
UN
_
0
1
8
0
3
P
D

B
sì
G
tu
e
S
T

o
N
0
7
S
e
P
e
M
B
e
R
2
0
2
3

149 (3) Summer 2020Paul Weithman

exercise it in a way that tracks those interests, but there are not sufficiently strong
legal and social incentives to do so.

That those in power are not forced to track the interests of those subject to
them leaves the subjects vulnerable to the abuse. This vulnerability is therefore
traceable to the deferential treatment accorded churches. If one thinks, as I do,
that they should not be left vulnerable to the abuse of power even if that power
is not in fact abused, then it follows that churches should not be accorded high
degrees of deferential treatment. To see whether citizens of ecclesial faith should
value their participation in a society that does not accord their church deferential
treatment, we need to see what the opposite of deferential treatment would be.

Generalized suspicion of a church, its clergy, and its hierarchy would be a mis-
take, as would generalized readiness to believe the worst of anyone who professes a
commitment to the forms of sexual discipline and abstinence that a church might
ask of its clergy. What is necessary is that public officials and ordinary citizens sus-
tain legal and cultural practices that provide ecclesiastical officials and clergy with
the appropriate disincentives to act against the interests of those in their power.

The necessary legal practices are obvious enough. Statutes of limitations need
to be sufficiently lengthy. Officials need to exercise their subpoena power to in-
vestigate first-order crimes and subsequent attempts to conceal them. They can-
not be afraid to jail even highly visible ecclesiastical officials who are convicted of
criminal behavior. But the necessary practices are not just legal, and it is not just
public officials who are responsible for maintaining them. Investigative journal-
ist, their editors, and their publishers must follow stories where they lead. Cit-
izens have to be supportive of them. Everyone must learn to avoid euphemisms
and to call the crimes what they are.

A culture of non-deference makes cognitive and emotional demands of citi-
zens of ecclesial faith that they may find difficult to satisfy, though how difficult
no doubt depends on the internal organization of the ecclesial organization to
which they belong. Suppose that an organization invests its clergy and hierarchy
with authority on theological and moral matters. And suppose we follow philoso-
pher Joseph Raz in thinking that the exercise of authority consists, at least in part,
in the provision of preemptive reasons.5 Then the recognition of clerical or hier-
archical authority requires the reception of clerical and hierarchical pronounce-
ments as reasons of that kind for belief and conduct. Questo è, it requires members
of the church to treat those pronouncements as blocking the force of other rea-
sons they have that bear on these matters. Getting them to treat pronouncements
as preemptive–rather than as, Dire, advisory–is greatly facilitated by formation in
a church culture, with its account of where ecclesial authority comes from. Quello
formation can easily encourage habits of deference to authority that are too gener-
al in scope, so that reason, scrutiny, and judgment are short-circuited where they
are warranted. And so citizens of ecclesial faith need to live with a challenging

D
o
w
N
o
UN
D
e
D

F
R
o
M
H

T
T

:
/
/

D
io
R
e
C
T
.

io
T
.

e
D
tu
D
UN
e
D
UN
R
T
io
C
e
–
P
D

F
/

1
4
9
3
5
9
1
8
5
7
3
1
4
D
UN
e
D
_
UN
_
0
1
8
0
3
P
D

B
sì
G
tu
e
S
T

o
N
0
7
S
e
P
e
M
B
e
R
2
0
2
3

Dædalus, the Journal of the American Academy of Arts & SciencesLiberalism & Deferential Treatment

dualism, treating ecclesial authority as genuine and preemptive while confining
deference to its proper sphere.

A culture of non-deference makes demands of other citizens as well. Investi-
gators and prosecutors can be overly zealous in the pursuit of a righteous cause.
They need to do their work with judiciousness and restraint. A religiously plural-
istic society may well be home to faiths and churches whose practices are strange
or off-putting, and whose members seem alien. A culture of non-deference also
has to be a culture of tolerance, so that minority faiths are not met with hostility
or unwarranted suspicion. All of this is part of what it is to sustain a liberal society
in which there are multiple centers of power that can be mutually checking. Cit-
izens of ecclesial faith should value such a society, and their own participation in
its creation and maintenance. For by doing their part to sustain such a society and
its public culture, they participate in creating disincentives for those who would
otherwise be in a position to harm vulnerable persons in their care.

One may object that the argument appeals to a false dichotomy, for it assumes
that the only way to protect the vulnerable is by a culture of non-deferential treat-
ment. Another possibility, which I did not consider even to rebut, is to leave defer-
ential treatment in place while letting the organizations of civil society police them-
selves. Why might that not be an acceptable way to provide security and protection?
The claim that a culture of deferential treatment leads to unacceptable vulner-
ability is an empirical one. The question of whether organizations should police
themselves is also empirical. The short answer is that the results of the empiri-
cal investigation are in, and we know all too well how self-policing has worked
fuori. According to a more expansive version of that answer, things have worked out
that way because societies in which deferential treatment is accorded are precise-
ly the ones in which organizations of civil society are likely to be especially bad at
policing themselves and should not be left free to do so. There are, I think, many
reasons why, but I shall cite just one: the privilege it is accorded when a church is
deferred to comes, over time, to be thought of, not just as the way things should be,
but as the way they must be, as essential to the church’s identity. Once a privileged
status is seen as an essential component of institutional identity, it has to be pro-
tected at all costs. That means that much of what threatens to jeopardize the privi-
lege is going to be suppressed, covered up, or silenced. If this empirical conjecture
is right, it is one more reason to object to the deferential treatment of religion.

D eferential treatment of religion encourages a form of unreasonability

that I call “benchmark traditionalism.” To see what benchmark tradi-
tionalism is, recall the commonplace that society ought to be a scheme of
mutual benefit. I refer to this requirement as a “commonplace” because it is com-
monly acknowledged. I suspect it is commonly acknowledged because it is under-
theorized in many quarters of political philosophy. So long as it is not clear what

D
o
w
N
o
UN
D
e
D

F
R
o
M
H

T
T

:
/
/

D
io
R
e
C
T
.

io
T
.

e
D
tu
D
UN
e
D
UN
R
T
io
C
e
–
P
D

F
/

1
4
9
3
5
9
1
8
5
7
3
1
4
D
UN
e
D
_
UN
_
0
1
8
0
3
P
D

B
sì
G
tu
e
S
T

o
N
0
7
S
e
P
e
M
B
e
R
2
0
2
3

149 (3) Summer 2020Paul Weithman

mutual benefit demands, agreeing to the requirement of mutuality is costless. Ma
if the commonplace is undertheorized in many quarters, it is not in the school of
moral and political philosophy called contractualism.6 One of the great insights of
contractualist liberalism is that the demands of the mutual benefit requirement
can be ascertained procedurally: a society is a scheme of mutual benefit if it com-
plies with principles that can be justified to everyone via an appropriate procedure
O, what is often taken to be the same thing, if it complies with principles about
which no one has a valid complaint that is not outweighed by competing moral
considerations.

My characterization of benchmark traditionalism takes the contractualist in-
sight as its point of departure. But before getting to benchmark traditionalism, IO
need to elaborate the insight. Compliance is not stasis: the governance of societies
is an ongoing undertaking, a matter of constant adjustment to continually alter-
ing circumstances. This raises the question of how to judge whether adjustments
or changes are for mutual benefit. The contractualist insight supplies an answer: if
the move from one state of affairs to another results in a state of affairs that com-
plies with principles that can be justified to everyone by means that are justifiable,
then the change is mutually beneficial.

This contractualist insight has the advantage of subsuming Pareto improve-
ments as a special case. Those improvements are changes that are justifiable to all
because they make no one worse off and at least one person better off. But not all
i cambiamenti, even all justifiable changes, are Pareto improvements, since some chang-
es worsen the lot of some people in ways that give rise to valid complaints. Che cosa
contractualism says about these cases is that the change is justified if–or perhaps
if and only if–the burdens imposed on those who have valid complaints about the
change are less weighty than the burdens that would have to be borne by the bene-
ficiaries of the change were the change not made. Così, in contractualists’ hands,
the requirement of mutual benefit ceases to be a costless commonplace. Contrac-
tualists recognize that changes sometimes impose costs that have to be balanced.
Ovviamente, how the comparative weight of burdens is to be judged is itself a
complicated question that can be answered in different ways. To answer it, con-
tractualists need to identify fundamental interests and may have recourse to pri-
ority rules that need to be justified. I will not go into the identification of those
interests or the content of the priority rules here. What matters for present pur-
poses is this: In order to determine accurately whether demands of mutuality are
satisfied, the right weights have to be attached to the burdens borne by those af-
fected. Only if the weights are right can we determine how to balance a set of val-
id complaints. In order to determine whether someone has a valid complaint at
Tutto, we also have to choose the right state or states of affairs as the benchmark of
comparison. If a legitimate move to a just distribution results in someone losing
benefits to which he had no right in the first place, then he does not have a valid

D
o
w
N
o
UN
D
e
D

F
R
o
M
H

T
T

:
/
/

D
io
R
e
C
T
.

io
T
.

e
D
tu
D
UN
e
D
UN
R
T
io
C
e
–
P
D

F
/

1
4
9
3
5
9
1
8
5
7
3
1
4
D
UN
e
D
_
UN
_
0
1
8
0
3
P
D

B
sì
G
tu
e
S
T

o
N
0
7
S
e
P
e
M
B
e
R
2
0
2
3

Dædalus, the Journal of the American Academy of Arts & SciencesLiberalism & Deferential Treatment

complaint despite his loss. His sense that he does arises from his comparison
of his holdings under a just distribution with his greater holdings under an un-
just one. But the difference does not ground a valid complaint on his part, to be
weighed against the valid complaints of others, because the comparison with an
unjust state of affairs is the wrong one to draw.

It is possible, Poi, for citizens to go wrong in the weighting of valid complaints
and for them to choose the wrong benchmark. But it is also possible to choose a
benchmark or assign a weight for the wrong reasons. What makes someone a
benchmark traditionalist is that he goes wrong in at least this way. What are the
reasons on the basis of which the benchmark traditionalist goes wrong in this way?
Above, I discussed some of the privileges of which deferential treatment is
composed. Privilege and deference can shape an institution’s self-conception.
Once an organization has become accustomed to them, it becomes very hard for
it–read, “those who direct it”–to think of itself as lacking privilege. The privi-
lege that it is accorded when it is deferred to comes, over time, to be thought of as
the way things should or must be. Something similar is true for citizens of a faith
that enjoy a dominant place in culture. Its adherents can come to think of its dom-
inance as the way things should or must be. The customary gradually becomes
normative, whether or not its status as normative is intellectually defensible. E
so those who lead a church that has enjoyed deference, and those who adhere to
its doctrine, can be led to take as a benchmark the state of affairs in which such
deference is accorded and to seize on that feature as what makes the benchmark
appropriate. They can then believe that they have well-founded complaints about
moves away from that benchmark even if they do not. This is the first manifesta-
tion of benchmark traditionalism, and the one that gives it its name. And since
those who are accustomed to privilege may think it should continue, its loss or
modification may weigh heavily upon them just in virtue of the fact that they en-
joyed it. They can then attach undue weights to their burdens even when their
complaints are prima facie well-founded.7 This is the second manifestation of
benchmark traditionalism.

It is characteristic of benchmark traditionalists to take uncritically as their
benchmark a world in which traditional norms have the status of social norms. UN
culture of deference is part of a social or psychological explanation for why some-
one might assume the wrong benchmark, but it is not a philosophical explanation
of what makes a benchmark wrong. For that, we need to look at the merits of the
benchmark. The ideas of benchmark traditionalism and deference are of interest
because such uncritical assumptions are common, and deference helps to explain
why they happen. In putting them forward, I am taking up one important task of
social philosophy: to bring an important but unnoticed and unnamed social phe-
nomenon to the surface, and to use the analytic and conceptual tools of philoso-
phy to illuminate it.

D
o
w
N
o
UN
D
e
D

F
R
o
M
H

T
T

:
/
/

D
io
R
e
C
T
.

io
T
.

e
D
tu
D
UN
e
D
UN
R
T
io
C
e
–
P
D

F
/

1
4
9
3
5
9
1
8
5
7
3
1
4
D
UN
e
D
_
UN
_
0
1
8
0
3
P
D

B
sì
G
tu
e
S
T

o
N
0
7
S
e
P
e
M
B
e
R
2
0
2
3

149 (3) Summer 2020Paul Weithman

T o see how benchmark traditionalism might work in practice, consider a

somewhat speculative treatment of a Supreme Court case that has been
penetratingly explored elsewhere in this issue of Dædalus: Masterpiece

Cakeshop, Ltd. v. Colorado Civil Rights Commission.8

The story of Masterpiece begins with Obergefell v. Hodges, the case in which the
NOI. Supreme Court found that same-sex couples have a constitutional right to
marry.9 Some of those who find gay marriage morally objectionable have requested
exemptions from generally applicable public accommodation laws that would re-
quire them to provide photographic, culinary, or confectionary services for same-
sex weddings. One such request came before the Court in the 2017–2018 term. Jack
Phillips, owner of the Masterpiece Cakeshop in Lakewood, Colorado, argued that
he should not be legally compelled to create a cake with a message celebrating same-
sex marriage. To compel him to do so would, he argued, “violate his right to free
speech by compelling him to exercise his artistic talents to express a message with
which he disagreed and would violate his right to the free exercise of religion.”10

Let us consider why this might be an unreasonable objection. It may be
thought–in the spirit of John Rawls’s treatment of what he called “public rea-
son”11–that if the baker in Masterpiece is unreasonable, his unreasonability lies in
his advocacy of a political position that can be defended only by appeal to reli-
gious teachings about the proper expression of human sexuality. But this thought
is mistaken. Perhaps Phillips’s objection to same-sex marriage can be defended
only by appeal to religious claims about the nature of marriage. But the Court was
not asked to rule on the merits of that objection. The question before the Court
was whether Phillips could be compelled to customize a cake celebrating same-
sex marriage, given–as was granted all around–that he had a religious objec-
tion to doing so. His lawyers’ argument that he should not be compelled to do so
turned on the values of religious freedom and the freedom of artistic expression.12
They therefore turned on public political values.

Nor is Phillips unreasonable in virtue of asking government to use its coercive
power to impose his view of marriage on others. Phillips was not asking the Court
to do that: he was not asking the Court to reverse Obergefell, though he may have
wished that it would. Piuttosto, as Cathleen Kaveny emphasizes in her contribution
to this issue, what Phillips wanted was for his own life to be unaffected or mini-
mally affected by that decision, despite the fact that a decision in his favor would
have imposed a burden on others. But that in itself does not make the plaintiff un-
reasonable. For something similar is true of others who have gone to the courts
to seek religious accommodations. The defendants in United States v. Seeger, for ex-
ample, sought exemptions from military service on grounds of conscience despite
the fact that they did not claim to be conforming to the directives of a supreme be-
ing.13 They therefore wanted to live their lives as if the government had not decid-
ed to engage in military action, despite the fact that doing so would require others

D
o
w
N
o
UN
D
e
D

F
R
o
M
H

T
T

:
/
/

D
io
R
e
C
T
.

io
T
.

e
D
tu
D
UN
e
D
UN
R
T
io
C
e
–
P
D

F
/

1
4
9
3
5
9
1
8
5
7
3
1
4
D
UN
e
D
_
UN
_
0
1
8
0
3
P
D

B
sì
G
tu
e
S
T

o
N
0
7
S
e
P
e
M
B
e
R
2
0
2
3

Dædalus, the Journal of the American Academy of Arts & SciencesLiberalism & Deferential Treatment

to bear greater shares of the burden of combat duty. If Phillips is unreasonable for
wanting to live as if Obergefell had not been decided, then Seeger was unreasonable
for wanting to live as if the decision to pursue military action had not been made.
This seems to be the wrong result. But then where, if anywhere, could the plain-
tiff’s unreasonability lie?

We have seen that in determining whether court decisions and laws adjust a
scheme of liberty in a way that benefits all, it is necessary to gauge the ongoing
conferral of benefits and imposition of losses by the appropriate benchmark. Sup-
pose that the plaintiff in Masterpiece took as his benchmark American society as
it was before Obergefell was handed down. Only under that condition would he
feel secure in the possession of his religious and expressive liberty.14 And suppose
that what made American society at that time seem to him to be the appropriate
benchmark is simply that it was a society in which his traditional view of marriage
enjoyed a certain privileged status: it was legally normative. It was widely recog-
nized by the law as the way marriage in the United States should be. If this were
the plaintiff’s reason for choosing his benchmark and for seeking a conscientious
objection, then his conduct would exemplify benchmark traditionalism.

Masterpiece Cakeshop is not an uncomplicated case. Crucial to it was the fact that
the plaintiff was being asked to create a cake specifically for a gay wedding celebra-
zione. To compel the baker to create the cake would, the baker argued, be to com-
pel artistic expression. It may be thought that the prospect of compelled artistic
expression can ground a valid complaint. But even if there is some validity to the
complaint, it does not follow that that complaint is weighty enough to be accom-
modated since there are other, conflicting claims at stake as well. The baker’s peti-
tion would exemplify benchmark traditionalism if he overestimated the weight of
his complaint because of the privileged status his traditional view enjoyed.

Nothing in the record of which I am aware reveals the true motives of the plain-
tiff in Masterpiece Cakeshop. I have fictionalized them to illustrate what I mean by
“benchmark traditionalism.” Though I lack the social scientific evidence to prove
Esso, I believe that benchmark traditionalism is a common phenomenon. Some de-
fenders of traditional values are culture warriors, moved by intense dislike of
those whose views they take to be abhorrent. But there are, I think, many tradi-
tionalists who do not conform, and do not believe they conform, to this stereo-
type. They believe themselves to be broad-minded because they are willing to
accommodate themselves, perhaps grudgingly, to changes in religious and sex-
ual behavior. Their willingness to accommodate is such that they genuinely feel
no animus toward those whose ways of life they believe to be wrong. But their
willingness to accommodate is conditional on the assumption that traditionalist
views of religious belief or sexual behavior–and the organizations that are the
primary bearers and teachers of those views–will be accorded a privileged sta-
tus in their society’s culture. In the case of the views themselves, that status is a

D
o
w
N
o
UN
D
e
D

F
R
o
M
H

T
T

:
/
/

D
io
R
e
C
T
.

io
T
.

e
D
tu
D
UN
e
D
UN
R
T
io
C
e
–
P
D

F
/

1
4
9
3
5
9
1
8
5
7
3
1
4
D
UN
e
D
_
UN
_
0
1
8
0
3
P
D

B
sì
G
tu
e
S
T

o
N
0
7
S
e
P
e
M
B
e
R
2
0
2
3

149 (3) Summer 2020Paul Weithman

benchmark that other practices are to approximate. In the case of the organiza-
tions that bear and promulgate them, the status is that of moral authority.

And so the people I now have in view are willing to accommodate themselves
to the increasingly prevalent signs of secularism in their society, or to the increas-
ingly visible presence of gay couples and transgender persons, so long as they be-
lieve traditional religiosity and traditional marriage are generally recognized–
even by those whose behavior departs from the traditional–as the way people
should behave.15 They are willing to accommodate to cultural diversity, so long
as they believe that traditional religious organizations and figures are generally
recognized–even by those outside them–as moral authorities. Questo è, they are
willing to accommodate so long as theirs is a society that accords deferential treat-
ment to traditional ways of life.

Such benchmark traditionalists suffer from one or both of two shortcomings.
Either they continue to inhabit a mental world of a bygone era, in which tradi-
tional mores and organizations enjoyed benchmark status. In that case, they fail
to recognize the true extent of reasonable pluralism. Or they fail to see that tradi-
tionalist views need to be publicly justified if they are to be taken as benchmarks
for assessing legal and cultural changes. In that case, they fail to acknowledge
that it is unreasonable to take them as benchmarks, and to assess losses of liber-
ty against them, unless a public justification for that status is forthcoming. Both
of these shortcomings are species of unreasonability. Since they are forms of un-
reasonability encouraged by deferential treatment, citizens of ecclesial faith have
reason to value a culture in which such deference is not practiced.

D
o
w
N
o
UN
D
e
D

F
R
o
M
H

T
T

:
/
/

D
io
R
e
C
T
.

io
T
.

e
D
tu
D
UN
e
D
UN
R
T
io
C
e
–
P
D

F
/

1
4
9
3
5
9
1
8
5
7
3
1
4
D
UN
e
D
_
UN
_
0
1
8
0
3
P
D

B
sì
G
tu
e
S
T

o
N
0
7
S
e
P
e
M
B
e
R
2
0
2
3

author’s note

Distant ancestors of this essay were delivered at an American Philosophical Associa-
tion session on “Religious Philosophers on Neutralist Liberalism: 25 Years of Rawls’s
Political Liberalism”; at a Harvard University conference on “Inequality, Religion and
Società: John Rawls and After”; at the “Global Issues in Ethics III: Religion and De-
mocracy” seminar sponsored by the Australian Catholic University; and at a work-
shop on religious liberty at the World Congress of the International Association for
the Philosophy of Law and Social Philosophy. I am grateful to audiences on those
occasions for their questions, and especially to Robert Audi, Christopher Eberle,
Amy Sepinwall, and Nelson Tebbe for helpful comments on earlier drafts.

about the author

Paul Weithman is the Glynn Family Honors Professor of Philosophy at the Uni-
versity of Notre Dame. He is the author of Rawls, Political Liberalism and Reasonable

Dædalus, the Journal of the American Academy of Arts & SciencesLiberalism & Deferential Treatment

Faith (2016), Why Political Liberalism? On John Rawls’s Political Turn (2010), and Religion
and the Obligations of Citizenship (2002).

endnotes

1 John Rawls, A Theory of Justice, rev. ed. (Cambridge, Massa.: Stampa dell'Università di Harvard,

1999), sec. 79.

2 Charles Taylor, “Afterword,” in Working with a Secular Age: Interdisciplinary Perspectives on
Charles Taylor’s Master Narrative, ed. Florian Zemmin, Colin Jager, and Guido Vanheeswijck
(Berlin: De Gruyter, 2017), 369–384.

3 For an accessible treatment, see Edmund Waldstein, “An Integralist Manifesto,” First

Things 276 (2017).

4 As political sociologist Larry Diamond has written: “The first and most basic role of civ-
il society is to limit and control the power of the state”; Larry Diamond, “What Civil
Society Can Do to Develop Democracy,” https://web.stanford.edu/~ldiamond/iraq/
Develop_Democracy021002.htm (accessed December 28, 2018).

5 Joseph Raz, “Authority and Justification,” Philosophy and Public Affairs 14 (1) (1985): 3–29.
6 Two paradigms of contractualist moral and political theory are Rawls, Theory of Justice; E
T. M. Scanlon, “Contractualism and Utilitarianism,” in Utilitarianism and Beyond, ed. Amart-
ya Sen and Bernard Williams (Cambridge: Cambridge University Press, 1982), 103–128.
7 Perhaps the assignment of undue weights to losses or potential losses is an instance of
the endowment effect and the related phenomenon of status quo bias; see Daniel
Kahneman, Jack L. Knetsch, and Richard Thaler, “Loss Aversion, Status Quo Bias and
the Endowment Effect,” Journal of Economic Perspectives 5 (1) (1991): 193–206.

8 584 NOI. ___ 2018.
9 576 NOI. ___ 2015.
10 Opinion of the Court, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U. S.
___ (2018), 1. The opinion can be found at https://www.supremecourt.gov/opinions/
17pdf/16-111_new2_22p3.pdf (accessed April 8, 2019).

11 See John Rawls, “Idea of Public Reason Revisited,” University of Chicago Law Review 64 (3)

(1997): 765–807.

12 See David Cortman, Rory T. Gray, and Jeremy D. Tedesco, “Reply in Support of Petition
for a Writ of Certiorari,” SCOTUSblog, https://www.scotusblog.com/wp-content/
uploads/2016/12/16-111-pet-cert-reply.pdf (accessed April 9, 2019).

13 380 NOI. 163 (1965). On third-party harms in Seeger, see Micah Schwartzman, Nelson Teb-
be, and Richard Schragger, “The Costs of Conscience,” Kentucky Law Journal 106 (2018):
881–912, 803–804.

14 See Jack Phillips, “I’m the Masterpiece Cakeshop Baker. Will the Supreme Court Uphold

My Freedom?” The Washington Post, April 26, 2018.

15 They believe, in T. M. Scanlon’s phrase, that their way of living is “uniquely the way for
our society”; see T. M. Scanlon, “The Difficulty of Tolerance,” in The Difficulty of Tol-
erance: Essays in Moral and Political Philosophy (Cambridge: Cambridge University Press,
2003), 187–201, 192.

D
o
w
N
o
UN
D
e
D

F
R
o
M
H

T
T

:
/
/

D
io
R
e
C
T
.

io
T
.

e
D
tu
D
UN
e
D
UN
R
T
io
C
e
–
P
D

F
/

1
4
9
3
5
9
1
8
5
7
3
1
4
D
UN
e
D
_
UN
_
0
1
8
0
3
P
D

B
sì
G
tu
e
S
T

o
N
0
7
S
e
P
e
M
B
e
R
2
0
2
3

149 (3) Summer 2020Paul Weithman
Scarica il pdf