Against my better judgment–but since folks have been e-mailing me their comments in this debate–I’m going to say something about the rather unsatisfying discussion going on at several law-related blogs prompted by Geoffrey Stone’s comments about President Bush’s veto of funding for stem cell research.  Professor Stone wrote:

In vetoing the bill that would have funded
stem-cell research, President Bush invoked what he termed a “conflict
between science and ethics.” But what, exactly, is the “ethical” side
of this conflict? Clearly, it derives from the belief that an embryo
smaller than a period on this page is a “human life” – indeed, a human
life that is as valuable as those of living, breathing, suffering
children. And what, exactly, is the basis of this belief? Is it
Science? Reason? Logic? Tradition? Morals? None-of-the Above?

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.

Except for one ambiguity (about which more in a moment), this strikes me as a straightforward and plausible argument.  Let me reconstruct it a bit more formally, for purposes of bringing out how unsatisfactory and sometimes confused some of the blogospheric commentary on it has been:

1.  Government officials should only wield the power of the state (e.g., the power to fund or not fund certain activities) on the basis of non-religious reasons.

2.  There is no non-religious reason to veto funding of stem cell research.

3.  Therefore, President Bush acted unethically in imposing his sectarian view of stem cell research against the majority of the legislature and the populace.

The ambiguity pertains to the right way to interpret (1) ‘s requirement that state power be exercised only "on the basis of non-religious reasons."  This could mean (1a) the actual reasons on which state officials act must be non-religious, or (1b) the possible reasons which might justify the decisions of state officials must be non-religious.  On the second interpretation, it suffices to meet (1)’s requirement that there exist non-religious reasons for the exercise of state power, even if those reasons are not the reasons which motivate officials to act.  [There is actually a third possibility, a variation on (1a), according to which what is required is that state officials only act when they can identify reasons of the (1b) variety, even if those reasons don’t motivate the state action.  I shall bracket that possibiltiy here.]  Professor Stone’s argument in the posting in question appears to endorse (1a), but uses a variation of a (1b) argument to support the conclusion that Bush’s motivation was sectarian:  namely, the truth of (2) (if it is true) supports the conclusion about Bush’s actual religious motivation.

Both (1a) and (1b) strike me as defensible.  Some of Professor Stone’s rhetoric suggests that he thinks there is a constitutional argument for (1), namely, from the Establishment Clause.   But other remarks suggest he thinks there is a moral argument for (1).  Perhaps, as Professor Solum usefully suggests, it is a Rawlsian argument that requires, "given the fact of reasonable pluralism," that official decisions about fundamental constitutional matters be based on public reasons acceptable to all reasonable people, where public reasons includes (to quote Professor Solum again) "common sense, the noncontroversial results of
science, and public political values. Nonpublic reasons include the
deep and controversial premises of particular moral and religious
theorys; for example, the utilitarian idea that only consequences count would be a nonpublic reason."   Or perhaps if, as I have argued, there is no moral justification for singling out religion for special legal protections, related considerations would help explain why it is morally objectionable to exercise state power on exclusively religious grounds.  (Let me emphasize "related considerations":  the paper cited above does not make the latter argument, though I think a reader of that paper can see how it would go.)

Professor Stone does not, needless to say, give an extended argument for (2), though it too strikes me as prima facie plausible.  Here, remember, is what Professor Stone does say:

What, exactly, is the “ethical” side
of this conflict? Clearly, it derives from the belief that an embryo
smaller than a period on this page is a “human life” – indeed, a human
life that is as valuable as those of living, breathing, suffering
children. And what, exactly, is the basis of this belief? Is it
Science? Reason? Logic? Tradition? Morals? None-of-the Above?

Notice that there is a simple, sectarian, religious premise that would support this argument:  e.g., that all life is a gift from God, from whence its value derives, and that all life acquires this special value once God implants a soul; souls being non-material are present in embryos, even embryos smaller than a period on the page, and thus what is morally significant about "living, breathing, suffering children" is the same as what is morally significant about embryos, namely, that they have God-given souls.  (I am going to shift back and forth between speaking about embryos and [embryonic] stem cells, though it may well be that this difference would matter for the kinds of arguments that can be given against stem cell research, i.e., it may be the moral status of embryos is more robust that the moral status of embryonic stem cells.)

Now Professor Stone’s challenge is to ask what non-sectarian (or perhaps "public") reason could support this conclusion?  On this particular point, I do not find Professor Solum’s rejoinder very compelling:

If Stone means to assert that
there are no reasonable nonreligious arguments for the belief as
described, then he is…woefully ignorant of contemporary moral theory.

I admit to being woefully ignorant of many things, especially sports, but also a lot of work in bioethics (which I’m afraid I find too often to be a philosophically unsatisfying field), but I think we really need to hear more about the arguments that Professor Solum has in mind.  Might some (at least apparently) non-sectarian arguments against abortion be extended to the case of stem cell research?  Perhaps, I am not sure.  In the blogospheric discussion prompted by Professor Stone’s posting, I have come across only one actual attempt to articulate an argument (despite lots of hand-waving about how easy it is to do), in a comment here.  This commenter also waves his hands, but then, to his credit, presents an argument:

[T]he secular argument against embryo-killing research is almost trivial
to make. I believe it is that argument that President Bush cited in
support of his veto, not any scripture. Namely: that a new-born child
is a human being, protected from murder. A not-quite born child is
physically the same, therefore also protected. The development of the
unborn child from conception to birth is a continuous process; there is
no point after conception at which one can say "this is now a human
being; previously it was not". Therefore, the protection covers all
human fetuses and embryos.

Not everything, unfortunately, that has the syntactic form of an argument constitutes a rational argument, i.e., one that would constitute a reason for doing something, like vetoing a law.  Unless critics of Professor Stone can do better than this commenter, however, then his premise (2) stands. 

The proposed argument, quoted above, has two rather obvious problems (dare I say "almost trival[ly]" obvious problems?).  First, it draws precisely the wrong conclusion from a form of argument associated with the so-called paradox of the heap (or, more generally, "the Sorites paradox").  One grain of sand is not a heap, nor are two grains of sand.  Fifty million grains of sand do make a heap.  But (to quote the preceding article):  "Given…that
one grain of [sand] does not make a heap, it would seem to follow that
two do not, thus three do not, and so on. In the end it would appear
that no amount of [sand] can make a heap."  This is a paradox because the premises are apparently true, the form of reasoning valid, but the conclusion is false.  The argument doesn’t show that there are no heaps; if it did, there would be no paradox!

Unfortunately, the proposed argument for protecting embryos, above, parallels the argument for the paradox of the heap, except it treats it as non-paradoxical because it treats the entailed conclusion as true!  That is, from the fact that there is no point at which we can say an embryo is a human invested with moral rights, it is supposed to follow that there is no difference in the moral status of embryos and humans.  But this is tantamount to saying that since there is no point at which grains of sand become a heap, there is no difference between a grain of sand and a heap, which is false (or, more precisely, there are no heaps).  The paradoxical character of vague predicates–namely, that there are cases where their application is indeterminate–simply doesn’t show that they don’t also have plenty of non-vague applications.

This is related to the second flaw in the proposed argument:  it doesn’t actually address what is at issue here, namely, the features of living things in virtue of which they have a moral right not to be killed.  Noting that murdering children is illegal is neither here nor there; the question is why children have moral value such that their murder ought to be prohibited.   Professor Solum fairly complains that Professor Stone has not given a systematic argument on this point, though the latter’s comments suggest that he views sentience–the ability to suffer, to experience pleasure and pain–as morally significant, a feature which children have, and embryos don’t.  (Notice that abortion would have to be treated differently under this approach than stem cells.)  But the burden, for now, is on those who would reject premise (2) of Professor Stone’s argument to show that there really is no difference in the moral status of embryos and humans by explaining what is morally significant about killing humans.  I suspect the most promising response to Professor Stone would fare best by putting pressure on his premise (2).  Unfortunately, the blogospheric discussion has almost entirely neglected that central issue.

Now let us turn to some of the other responses to Professor Stone’s comments.  Professor Horwitz starts off a bit snidely:

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.

That this view is "increasingly rare" among academics–with Professor Stone being a pleasing exception–may tell us more about the corruption of scholarship on religious liberty by sectarian partisanship than about the law or ethics of the matter.  In any case, this is tangential to the crux of Professor Horwitz’s substantive criticism, which is as follows:

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. 

Motivations are plainly not as opaque as Professor Horwitz implies they are, and we, in fact, make warranted inferences about motivations based on accessible evidence all the time in both law and in ordinary life.  Professor Horwitz’s own comments well-illustrate that practice, as he identifies one of the three possible motives for Bush’s actions:  namely, to shore up political support among his "base" (call this "the political motivation").  The evidence for ascribing this motivation is apparent and hardly controversial, notwithstanding the purported opacity of motivations.

The other two possible motivations are, as Professor Stone suggests, that Bush acted on the basis of sectarian, religious reasons, or that he acted on the basis of non-sectarian, non-religious reasons.  If, as Professor Stone  believes, there exist no reasons of the latter kind, then there are really only two plausible motivations:  the "political motivation" and the "religious motivation."  (Contrary to Professor Horwitz, the issue of motivation and of reasons are the same in this context; why Professor Horwitz thinks the issue is "publically" stated reasons I am unsure.  Professor Stone’s objection, rather clearly stated I thought, is that Bush’s veto constituted an "unethical and illegitimate
usurpation of state authority designed to impose on all of society a
particular religious faith."  That objection stands whether the religious reason or motivation is publically articulated or not.)   For purposes of Professor Stone’s argument, it isn’t clear that the difference between the "political motivation" and "religious motivation" account matters:  both involve the "usurpation of state authority designed to impose on all of society a particular religious faith."

The claim in Professor Horwitz’s second paragraph is a bit obscure, as Professor Solum helpfully brings out:

One
interpretation is that there are several (or at least two) forms of
republican government–"Rawlsian republics" and "republican democracy"
and that ideals of public reason are relative to the form.  I can’t
quite imagine how this argument could possibly go–maybe Horwitz can
explain it.

Another
possibility is that Horwitz means to argue that checks and balances–"a
host of vetogates"–somehow create conditions which change the content
of the ideal of public reason that is appropriate.  Once again,
however, I am puzzled.  How could this be the case?  Ideals of public
reason can be justified in a variety of ways.  Rawls, for example,
appeals to the liberal principle of legitimacy–the political value of
offering justiications that can be accepted as reasonable given the
fact of reasonable pluralism–the fact that citizens adhere to a
variety of religious and moral doctrines.  Given the structure of
Rawls’s argument, the existence of vetogates does not seem relevant, at
least not in any obvious way.

(In an update to his original post, Professor Horwitz, as I read it, effectively concedes the force of these criticisms, which is to his credit.)

Professor Volokh aligns himself with Professor Horwitz’s implausible claims about motivations that we have already discussed, but then adds the following:

I suspect that for many deeply religious people, all their moral
beliefs are faith-based, because they believe morality only comes from
God. I’d wager that many religious pacifists, abolitionists, and others
would take precisely this view. Yet I think that we surely shouldn’t
condemn either their cause or them for this.

Strictly speaking, this is irrelevant to the issue actually raised by Professor Stone’s argument:  the question was whether the power of the state may be wielded based on religious reasons (and against the will of the majority), not whether the citizenry may have religious reasons for their actions.  Of course, if Rawlsians are right, it may be that we ought to "condemn" those of our fellow citizens who do act on the basis of sectarian reasons (at least when fundamental constitutional issues are at stake):  the warrant for Professor Volokh’s "surely" is, in that regard, mysterious.  But we can bracket that question here.  Professor Volokh continues:

Your moral views may come from your understanding of human dignity;
another’s view may come from utilitarianism; another’s may come from
libertarianism; another’s may come from fundamentalist Christianity.
None of these bases are somehow provable; none is constitutionally
superior to the others….Any other approach is itself deeply discriminatory — it suggests
that atheists, agnostics, utilitarians, and the like are entitled to
enact their moral views into law (because they don’t rest on religion)
while devout Catholics, Protestants, Jews, Muslims, and others are
forbidden from enacting their moral views into law (because they do
rest on religion). That’s not mandated by the Constitution, it’s not in
my view compatible with our national traditions, and it’s not right.

This paragraph, I am afraid, confuses a variety of issues, and, in consequence, fails to give any real argument on the crucial issue (about discrimination).  The second of the two general confusions is more significant than the first:

A.  Provability.  It is unclear precisely what Professor Volokh has in mind by "provability," and it is also unclear why this would be relevant on any of the possible interpretations.   Certain aspects of "fundamentalist Christianity," for example, are certainly disprovable in the familiar sense that, e.g., belief in the literal truth of the Bible is not rationally warranted given uncontroversial standards of inference and evidence that even fundamentalist Christians otherwise accept and apply in other contexts.  (This is related to one of the reasons I thought "insulation from reasons and evidence" had to be a distinguishing feature of religious faith.)   As to "provability," this immediately puts fundamentalist Christianity in a worse situation than, e.g., utilitarianism, none of whose tenets  are false in light of the robust results of biology and geology.

Now it might be said in reply that the false claims of fundamentalist Christianity (e.g., about the age of the earth) aren’t really at issue in this context, since what matters is a distinctively moral view, namely, about the moral rights of embryos.  Recall the earlier, admittedly sectarian argument I suggested for rejecting stem cell research:

[A]ll life is a gift from God, from whence its value derives, and…all life acquires this special value once God implants a soul; souls
being non-material are present in embryos, even embryos smaller than a
period on the page, and thus what is morally significant about "living,
breathing, suffering children" is the same as what is morally
significant about embryos

Does Professor Volokh’s concern with "provability" include considerations of epistemic warrant, of what we are reasonably justified in believing?  If so, then I still do not see that the views he considers are on equal epistemic footing, since the epistemic warrant for belief in immaterial souls is quite a bit shakier than the epistemic warrant for the main premises of utilitarianism or libertarianism.

But we do not need to belabor this point, since "provability," however we are to understand it, is irrelevant.  What is at stake in Professor Stone’s argument is (to borrow Professor Solum’s gloss on it) the need for "public reasons" in justifying the exercise of state power.  There are many kinds of public reasons unrelated to questions of "provability" or "epistemic warrant," and so we may put Professor Volokh’s not very plausible claims about "provability" to the side.

B. Discrimination. Professor Stone’s view simply does not "suggest[] that atheists, agnostics, utlitarians, and the like are entitled to enact their moral views into law…while devout Catholics, Protestants, Jews, Muslims and others are forbidden from enacting their moral views into law (because they rest on religion)" (as Professor Volokh claims).  It suggests, instead, that the power of the state may not be exercised when the only reasons for doing so are religious reasons or, more broadly, when they are non-public reasons.  The religious may enact their moral views into law all the time when there are public reasons supporting those views (even if the religious find the religious reasons far more compelling and motivating).  And the non-religious are equally restricted from enacting their moral views (whatever their source) when they lack public reasons in support of them.  (Recall Professor Solum’s point about utilitarian reasons being, potentially, non-public in the Rawlsian sense.  But that is one of many possible examples.  Someone who, e.g., wanted to enact laws based on evolutionary psychology would equally well be thwarted by the non-public character of the reasons [on this issue, the discussion in the paper by Michael Weisberg and myself is pertinent].)

Now there is a weaker version of Professor Volokh’s claim about discrimination, which does follow from Professor Stone’s (and Rawls’s and my own) view, namely, that state officials who have only religious reasons for acting (call them "the solely religious") are acting unethically and improperly.  (Those with only "public reasons" for acting, by contrast, do not act improperly.)   This does, indeed, discriminate between the solely religious public officials and other state actors.  As noted earlier, however, there may be both legal (Establishment Clause) and moral (Rawlsian arguments, or my own) reasons for thinking this discrimination is both legal and just.  (Viewpoint discrimination doctrine has so wrecked Establishment Clause jurisprudence that the legal argument may be harder to make these days; I’ll leave that matter to the experts.)   So, yes, "the solely religious" are treated differently under Professor Stone’s approach, but there is no argument in evidence as to why this is illegal or unethical.

Professor Garnett’s comments are the briefest, but at least one aspect of his remarks warrants critical scrutiny.  He writes:

It seems to me that Professor Stone, like many others, assumes that an
objection to public funding of research involving the destruction of
human embryos is — and could only be — a "religious" or "sectarian"
one. It is not the case, though, that the arguments against such
funding require, or always involve, recourse to revelation. I am
starting to think that *all* moral claims — e.g., "it is wrong to deny
equal protection of the laws on the basis of race" — are, in the end,
"religious" arguments, but put that aside. The claim that there is
something about a human embryo such that its destruction for research
purposes ought not to be funded by the government — whether we are
moved by it or not — is not, it seems to me, any more "religious" than
any other argument about how human persons ought to be treated.

I do not think it can be the mark of religious arguments that they are all based on "revelation," since I do not understand "revelation" to be a central feature of all traditions of religious ethics.  But putting that aside, Professor Garnett (perhaps like Professor Volokh) appears to misunderstand the argument against "the solely religious" public official.  "Public reasons" are, by hypothesis here, reasons that may properly ground legislation and exercises of state power.  The argument that religious reasons are not "public reasons" isn’t that they lack a certain kind of foundation that genuine "public reasons" have (perhaps this is what Professor Volokh was after with the talk about "provability"); the argument is that they aren’t public, i.e., that they aren’t the kinds of reasons acceptable to all reasonable people in a pluralistic society.  Many "public reasons" in this sense may lack foundations of one kind or another, but that has no bearing on their public status.  To put it (a bit too) crudely, reasons are "public" largely in virtue of a head count, not in virtue of their having more robust epistemic foundations.  So, contra Professor Garnett, it is not apparent that the the foundations of the beliefs or reasons in question are at issue here.

This is a lot more philosophy and argument-parsing than I usually do on blogs.  No doubt there are mistakes in reasoning and infelicities of expression in the preceding.  But perhaps these remarks may stimulate a more focused discussion, and give some pause to the hasty skepticism many in the blogosphere have expressed about Professor Stone’s position.

UPDATE:  I have fixed several typos and reformulated a couple of points in the hour or so since this was posted.  I also meant to open comments; non-anonymous comments only.  I will only approve those that make a substantive contribution to the discussion and reflect an actual engagement with the arguments laid out here.

ONE MORE:  I have also now corrected a line in the discussion about vague predicates, which Trevor Morrison correctly pointed out was missing a necessary negation.