Three Questions for America

By Ronald Dworkin


Nothing frightens liberals and moderates more, I think, than the vision of religious organizations and movements dictating what may be taught to children in public schools, either through formal legislation or school board rulings or informal intimidation of teachers. Many Americans are horrified by the prospect of a new dark age imposed by militant superstition; they fear a black, know-nothing night of ignorance in which America becomes an intellectually backward and stagnant theocracy. But someone must decide what children are taught about history and science. If the elected school board or the majority of parents in a particular jurisdiction sincerely believes that Darwin’s theory of evolution is radically wrong, why should they not have the power to prevent that error from being taught to their children, just as they have the power to prevent teachers from converting their classes to the Flat Earth Society? It is no answer that children must not be taught the biblical theory of creation because the Bible must be kept out of the classroom. The Bible also condemns murder but that does not mean that children cannot be taught that murder is wrong.

But the cosmological and biological beliefs of the religious conservatives do not just coincide with their religious convictions: they would reject those cosmological and biological beliefs out of hand if they were not dictated by those religious convictions. Almost all religious conservatives accept that the methods of empirical science are in general well designed for the discovery of truth and that their children must be taught the reliability of those methods if they are to be prepared for their lives. They would not countenance requiring or permitting teachers to teach, even as an alternate theory, what science has established as unquestionably and beyond challenge false: that the sun orbits the earth or that radioactivity is harmless, for example. The biblical account of the creation of the universe and of human beings is just as silly if it is treated not as a myth but as a scientific explanation. Some religious people find that for them faith trumps science in these and the other few remaining areas in which faith challenges science. They deny the truth of Darwinian theory in the self-conscious exercise of their personal responsibility to fix the role of faith in their lives. That is their right: it would be a terrible violation of liberty to try to coerce them out of that conviction. But they must not try to impose that faith on others, including children, most of whom attend public schools.

In recent years a few religious scientists have claimed a refutation of the main tenets of Darwinian evolution that does not rely on biblical authority or the biblical young-Earth account of creation. This refutation purports only to show that an “intelligent design” rather than the unguided processes of random variation and natural selection that Darwin postulated must be responsible for creating life and human beings. The thesis has quickly gained enormous attention and notoriety. Several states have considered requiring teachers to describe the intelligent design theory as an available alternative to standard evolutionary theory in public high school biology classes. A Pennsylvania school board adopted that requirement a few years ago, and though a federal judge then struck the proposal down as an unconstitutional imposition of Christian doctrine in public schools,[1] other public bodies in other states are still pursuing similar programs. President Bush recently appeared to endorse these campaigns: he said that “I felt like both sides ought to be properly taught.”[2] The Senate majority leader, Bill Frist, who is said to covet the Republican nomination for the presidency in 2008, agreed. He said that teaching intelligent design theory along with evolution, as competing scientific explanations of the creation of human life, was fair because it “doesn’t force any particular theory on anyone.”[3]

If there is any scientific evidence against evolution, then of course students should be taught what it is. But the intelligent design movement has discovered no such scientific evidence at all. We must distinguish the following three claims. (1) Scientists have not yet shown to all their satisfaction how the Darwinian processes of random mutation and natural selection explain every feature of the development of plant and animal life on our planet; some features remain areas of speculation and controversy among them. (2) There is now good scientific evidence that these features cannot be explained within the general Darwinian structure; a successful explanation will therefore require abandoning that structure altogether. (3) This evidence also at least suggests that an intelligent designer created life and designed the processes of development that have produced human beings.

The first of these claims is both correct and unsurprising. The details of evolutionary theory, like the phenomena it tries to explain, are enormously complex. Eminent biologists disagree in heated arguments about, for example, whether some features of developed life are best explained as accidents or byproducts of no survival value in themselves. Evolutionary biologists face other challenges and disagree in how best to meet them.

The second of the three claims is false. It does not follow from the fact that evolutionary scientists have not yet found or agreed on a solution to some puzzle that their methods have been shown to be defective, any more than it follows from historical controversies or unproved mathematical conjectures that the methods of historians or mathematicians must be abandoned. Scientists have so far found no reason to doubt that the evolutionary puzzles can be solved within the general apparatus of neo-Darwinian theory that supplements Darwin with the dramatic recent discoveries of genetic biology. None of the rival solutions that scientists offer to the puzzles of evolution calls that general apparatus into question. The proponents of intelligent design theory claim in their lectures, popular writing, and television appearances that the irreducible complexity of certain forms of life proves that Darwin’s theory must be rejected root and branch. No element of certain even primitive forms of life could be removed, they say, without making it impossible for that form of life to survive. But their arguments are very bad, a judgment confirmed by their failure so far to expose these arguments to professional review by submitting articles to peer-reviewed journals.[4] It is no explanation of this failure to suppose that the scientific establishment would reject even well-reasoned articles that challenged Darwin. On the contrary, a scientifically sound general attack on evolution would be very exciting news indeed: a Nobel Prize might be around the corner.

The third claim would be false even if the second claim were true. The proponents of intelligent design do not state explicitly that the designer must be a god—they try to avoid overtly religious claims in hopes that the constitutional bar to religious instruction in public schools would not prevent their theory being taught there—but that is the clear and unacceptable implication of their argument. If the failure to find a natural physical or biological explanation of some physical or biological phenomenon were taken to be evidence of intervention by a god who intended to bring about that phenomenon, science would disappear.

Science depends on the possibility of verification or falsification through positive evidence. There might conceivably be evidence that a superhuman power exists and has caused an otherwise inexplicable event. But the mere absence of a more conventional scientific explanation is in itself no such evidence. If it were, then we could postulate divine intervention in pursuit of some divine plan to explain anything we could not otherwise explain. Doctors have established a strong correlation between cigarette smoking and lung cancer, but they do not yet know the mechanisms through which one causes the other. Why should we not then say that an explanation is nevertheless at hand: that God punishes selected cigarette smokers in that way? Indeed, divine intervention would then be available even as a rival to a fully adequate conventional explanation. Why should we prefer a climatologist’s account of global warming, which suggests that the process will continue unless and until people reduce the level of their carbon pollution of the atmosphere, to the rival account that a god is warming the planet for his own purposes and will cool it again when he wishes?

Very few socially conservative Americans would vote for a school board that allowed teachers to explain anything they wished by citing a supernatural intelligence at work. The intelligent design theory appeals to some of them because it uses the idea of such an intelligence only to confirm the plausibility of the specific miraculous claims that are described in the Bible. But science can provide no reason for restricting appeals to supernatural intelligence to those that confirm the claims of a particular religious tradition. Only faith can do that, and faiths differ dramatically. So once appeals to a supernatural intelligence are recognized as competitive with scientific explanations, the damage to reason cannot be limited or controlled.

I am not denying the truth of any theological hypothesis: I am not denying that those many millions of people who believe that a god created the universe or life or human beings are right. But their belief, even if it is in some way warranted, does not provide a scientific explanation of those events. This distinction is not merely semantic. I am not quibbling about the meaning of “science.” If we are to protect dignity by protecting people’s responsibility for their own personal values, then we must build our compulsory education and our collective endorsements of truth around the distinction between faith and reason. We need a defensible conception of science not only for the intensely practical reason that we must prepare our children and youth to advance knowledge and to compete in the world’s economy but also in order to protect the personal responsibility of our citizens each for his own religious faith. We need an account of science, in our public philosophy of government, that does not make its authority depend on commitment to any set of religious or ethical values. So Senator Frist made a serious mistake when he said that describing intelligent design only as a scientific alternative to evolution doesn’t “force any particular theory on anyone.” In fact it damages young students, practically and politically, by using the state’s authority to force on them a false and disabling view of what science is.

When President Bush said that intelligent design should be taught in the schools, his science adviser, John Marburger, said that Darwinian theory is “the cornerstone of modern biology,” and that Bush meant only that “students should be taught that some people have suggested that Intelligent Design is a viable alternative theory.”[5] If so, we should welcome Bush’s suggestion, but not for courses in science. Instead we urgently need to make a Contemporary Politics course in which such claims can be discussed part of every high school curriculum.

I do not mean civics lessons in which students are taught the structure of our government or history courses in which America’s story is recounted. I mean courses that take up issues that are among the most contentious political controversies of the day, including, for example, the case for and against abortion; affirmative action in public education; the role of money in politics; the fairness of the tax system; and the role of civil liberties in shaping and limiting antiterrorist activities. The dominant pedagogical aim must be to instill some sense of the complexity of these issues, some understanding of positions different from those the students are likely to find at home or among friends, and some idea of what a conscientious and respectful argument over these issues might be like. The dominant pedagogical strategy should be an attempt to locate these controversies in different interpretations of principles the students might be expected themselves to accept: for example, the principles of human dignity that I believe are embodied in the Constitution and are now common ground in America.[6]

The courses might well include an examination of classics of Western political philosophy from both the conservative and liberal traditions so that students could gain some understanding of the ideas of Aquinas, Locke, Kant, Rawls, and Hayek, for example, drawing on secondary sources and explanatory texts if necessary. The materials and teaching must be geared to the abilities of high school students, of course, but I believe that we are more likely to underestimate than overestimate those abilities. People who can master the intricacies of peer-to-peer file sharing through the Internet should have no trouble with the Categorical Imperative; indeed some study of the latter might help them in deciding whether the former is fair.

Contemporary Politics courses would be extremely challenging and difficult to teach, particularly unless and before some broad consensus had developed among teachers and in schools of education about how they should be taught. Teachers would have to steer between anodyne banality and indoctrination and they would have to recognize that the first of these failures is as much to be avoided as the second. But think how much it would improve our politics if students leaving high school had some understanding of the reasons why a deeply devout person might nevertheless prefer a tolerant secular state to a tolerant religious state, or why an atheist might think that public celebrations of religion were appropriate in a nation the vast majority of whose members were religious. Or if those students had been asked to consider what differences were morally permissible in a state’s treatment of citizens and aliens who are arrested as terrorist suspects. Or if they had actually read and debated the opinions of Justice Margaret Marshall and Chief Judge Judith Kaye in the Massachusetts and New York gay marriage cases and, if they disagreed with those opinions, had been challenged to say why. Or if they had been invited to consider what made a theory scientific and whether the intelligent design theory of creation met whatever standard for classification as science they considered appropriate.

I know, of course, that this suggestion bristles with possibly insuperable political difficulties. The selection of texts would be intensely controversial and the danger of manipulation by local political and religious groups very great indeed. It would be much easier for everyone—school boards, school principals, and teachers particularly— if nothing like this were attempted. But we cheat our children inexcusably if education is so remote from political issues that we allow the nation to continue only to masquerade as democratic. The idea that public education is a school for democracy is certainly not new: it was at the center of John Dewey’s enormously influential educational philosophy. What is new in this suggestion is only its specificity about content and its high ambition; but that is driven only by a more realistic opinion of what genuine democracy needs and the cost we pay in legitimacy so long as we fail to provide it.



Consider another issue of contemporary controversy: the American Pledge of Allegiance. This is the official pledge of political fidelity that by tradition is recited in schools and on some ceremonial occasions. In 1954, after a campaign by the Knights of Columbus, Congress added to that ritual pledge a reasonably ecumenical religious declaration: the pledge says that America is “one nation under God.” The pledge is voluntary: the Supreme Court held long ago, even before this reference to God was made part of it, that schoolchildren could not be forced to recite it. Many religious people support the reference to God in the official pledge because they believe it both symbolizes and achieves an indispensable fusion of religion and patriotism. They point out that since no one is required to recite the official pledge, no one is forced into an act that contradicts his conscience. They might acknowledge that an American who stands silent while the crowd around him recites the pledge is made to feel an outsider. That is nevertheless his choice, however: if he cannot subscribe to an ecumenical endorsement of monotheism he is an outsider, and there can be no harm in reminding him and everyone else of that fact.

But the dignity we should try to preserve for all citizens does not simply command that no one be forced to recite what he does not believe. It assigns each of us a positive responsibility to choose ethical values for ourselves, and though we know we are influenced by thousands of dimensions of culture in making those choices, we must nevertheless refuse to accept subordination to a government that deliberately and coercively manipulates our choices. No requirement of justice demands an official pledge that makes some full citizens feel like outsiders. Government can have only one motive in choosing such a pledge. It acts to strengthen the association of religion and patriotism—presupposing that that association is desirable—in a way that makes it more difficult for someone who wishes to embrace patriotism free of religion to do so. It is plainly part of people’s responsibility for their own values to define for themselves the religious or metaphysical assumptions of political allegiance. The coercive impact of an officially endorsed ritual is no more acceptable than the open manipulation of compelled assertion.

That coercive impact, however, is in fact not very strong and so though the official Pledge is a violation of liberty it is not a practically serious one. Just as an atheist can fish in his pocket for a coin that bears a message of trust in God or stand at the opening ceremony of prayer in congressional or court sessions without any sense of self-betrayal, so he can mouth the words of the Pledge, or skip the words he finds objectionable, without loss of integrity. Few children treat the detailed wording of the Pledge they recite in school as having the authority even of the solemn vows they make in the playground. But that only means that the intended purpose of making the Pledge theological has failed, not that that purpose is in itself legitimate.

There is, in my own view, even less reason for concern about a subject that has much occupied the federal courts: public displays of ceremonial icons that have a religious heritage and association but also have a nonreligious civic function in holiday festivities. It is true that public Christmas trees are bought with taxes collected from nonbelievers, but the expense is trivial. It would be wrong for a community to recognize the great occasions of only one of the religions of its members, which explains why Christmas trees are now often flanked by menorahs and no doubt, in some places, crescents as well. Equality of concern and respect for citizens is an independent requirement. But as the Supreme Court has come to recognize in a series of awkwardly expressed opinions, there is precious little endorsement of religion in these public displays and nonbelievers can comfortably enjoy their secular significance with no more sense of inauthenticity than they feel when they spend a quarter.



My final example—gay marriage—is a very different matter. Though the laws of the American states differ in the advantages they give to married couples over couples who live together unmarried, these advantages are substantial throughout the country. Married couples enjoy more favorable tax rates, insurance opportunities, intestacy and inheritance status, workman’s compensation benefits, and the opportunity to participate in medical decisions affecting their partners. So the prohibition in almost all states against same-sex marriage is a cause of substantial economic and other deprivation.

The discrimination is sometimes defended on the ground that different-sex couples are much more likely than same-sex couples to raise children and that states should therefore offer special encouragement to the marriages of men and women in order to form legally sanctioned relationships that promote family stability. That argument offers no justification for the discrimination, however: it would not injure the stability of different-sex marriages also to encourage stability in same-sex partnerships. The discrimination is also defended on the different ground that it is better for children to be raised by different-sex parents than same-sex parents. But there is no genuine evidence for that claim and, in any case, same-sex couples are now permitted in many states to adopt children who would presumably also benefit from a legally sanctioned stability of their parents’ relationship.

Some defenders of a ban on same-sex marriage therefore concede that states should recognize a special “civil union” status, which same-sex couples may enter, as Vermont, California, Connecticut, and several foreign countries have done. This is not recognized as a marriage but nevertheless provides many of the legal and material benefits of marriage. Such a step reduces the discrimination, but falls far short of eliminating it. The institution of marriage is unique: it is a distinct mode of association and commitment with long traditions of historical, social, and personal meaning. It means something slightly different to each couple, no doubt. For some it is primarily a union that sanctifies sex, for others a social status, for still others a confirmation of the most profound possible commitment. But each of these meanings depends on associations that have been attached to the institution by centuries of experience. We can no more now create an alternate mode of commitment carrying a parallel intensity of meaning than we can now create a substitute for poetry or for love. The status of marriage is therefore a social resource of irreplaceable value to those to whom it is offered: it enables two people together to create value in their lives that they could not create if that institution had never existed. We know that people of the same sex often love one another with the same passion as people of different sexes do and that they want as much as heterosexuals to have the benefits and experience of the married state. If we allow a heterosexual couple access to that wonderful resource but deny it to a homosexual couple, we make it possible for one pair but not the other to realize what they both believe to be an important value in their lives.

Civil union status may provide many of the legal and material benefits of marriage, but it does not provide the social and personal meaning of that institution because marriage has a spiritual dimension that civil union does not. For many people, this is a religious dimension, which some same-sex couples want as much as some heterosexuals do. For others it is the participation in the historical and cultural traditions that both kinds of couples covet. But whatever it is, if there are reasons for withholding the status from gay couples then these must also be reasons why civil union is not an equivalent opportunity.

The only genuine argument against gay marriage has the same form as the argument for a religious Pledge of Allegiance, but the stakes are of course very much higher. The case against gay marriage, put most sympathetically, begins with the premise that the institution of marriage is, as I said, a unique and immensely valuable cultural resource. Its meaning and hence its value have developed over centuries, and the assumption that marriage is the union of a man and a woman is so embedded in our common understanding that it would become a different institution were that assumption now challenged and lost. Just as we might struggle to maintain the meaning and value of any other great natural or artistic resource, so we should struggle to retain this uniquely valuable cultural resource.

I believe that argument to be the strongest that can be made against gay marriage. It raises a larger and even more important issue. Who should have control, and in what way, over the moral, ethical, and aesthetic culture in which we must all live and that defines the meaning of our social and legal institutions and shapes our lives in many other ways?

That complex culture is molded by many forces but I now isolate two of these. It is shaped organically, by the discrete decisions of individual people about what to produce and what to buy and at what price, about what to read and say, about what to wear, what music to listen to, and what god if any to pray to. Our culture is in large part the result of many millions of such decisions that people make, as individuals, one by one, every day. But our culture is also shaped by law, that is, by collective decisions taken by elected legislators about how we must all behave. Interest rate policy fixed by the Federal Reserve Board shapes our economic culture, zoning ordinances shape our aesthetic culture, civil rights laws shape our moral culture. How shall we decide which aspects of culture should be influenced collectively in that way, and which should be left to the organic process of individual decision?

Americans who oppose gay marriage on the cultural ground I just described believe that a majority of citizens has the right, acting through the normal political process, to shape the religious and spiritual character of our shared culture by law. Those who favor permitting gay marriage believe, on the contrary, that a religious and spiritual culture must be shaped organically, by the individual, free decisions of everyone. Which view best matches our shared ideals and principles of human dignity?

Those principles assign each of us a responsibility to assess and choose ethical values for himself rather than to yield to the coercive choices of others. Our culture of course influences our choice of values; our personalities are in that way all partly constructed out of the millions of choices that others have made for themselves. Their choices determine in large part the books we read, the images we see, and the expectations that shape what we instinctively do. Dignity does not forbid this inevitable influence.

But it does forbid subordination, which is something very different. It forbids my accepting that other people have the right to dictate what I am to think about what makes a good life or to forbid me to act as I wish because they think my personal values wrong. Dignity therefore forbids me to accept any manipulation of my culture that is both collective and deliberate—that deploys the collective power and treasure of the community as a whole and that aims to affect the personal choices and values of its members. That is subordination. I must reject manipulation even if the values it is designed to protect or instill are my own values. My dignity is as much outraged by coercion intended to freeze my values as to change them.

It is worth noticing that Americans are unwilling to grant political majorities a parallel collective power over the fundamentals of our economic culture. Socialist societies do give people in power the authority to shape the economic environment for everyone by stipulating prices and the allocation of resources and production. But we insist on a free market in goods and services: we insist, that is, that the economic culture be shaped by a composite of individual decisions reflecting individual values and wishes.[7] The socialism of a centrally controlled economy is an insult to liberty as well as to efficiency—a view most enthusiastically held by the conservatives who favor a religious model for non-economic culture. They do not realize that liberty is even more perilously at stake in the religious than the economic case.

It becomes dramatically clear that the cultural argument against gay marriage contradicts our shared ideals of personal dignity when we substitute “religion” for “marriage” in the argument I constructed. Everything I said about the cultural heritage and value of marriage is equally true of the general institution of religion: religion is an irreplaceable cultural resource in which billions of people find immense and incomparable value. Its meaning, like that of marriage, has evolved over a great many centuries. But its meaning, again like that of marriage, is subject to quite dramatic change through organic processes as new religions and sects develop and as new threats to established doctrine and practice are generated by secular developments in science or politics or theories of social justice—in the feminist movement, for instance, that demands women priests—or by the rise and fall in popular imagination of various forms of mysticism, hallucinogenic experimentation, pantheism, Unitarianism, fundamentalist doctrines, radical liberation movements, and a thousand other shifts in religious impulse that begin in individual decision and end in seismic changes in what religion can and does mean. American religious conservatives, even those who regard themselves as evangelical, do not imagine that the cultural meaning of religion should be frozen by laws prohibiting people with new visions from access to the title, legal status, or tax and economic benefits of religious organization.

The cultural argument against gay marriage is therefore inconsistent with the instincts and insight captured in the shared idea of human dignity. The argument supposes that the culture that shapes our values is the property only of some of us—those who happen to enjoy political power for the moment —to sculpt and protect in the shape they admire. That is a deep mistake: in a genuinely free society the world of ideas and values belongs to no one and to everyone. Who will argue—not just declare—that I am wrong?


[1] Tammy Kitzmiller et al. v. Dover Area School District et al., United States District Court for the Middle District of Pennsylvania, Judge John E. Jones III Memorandum Opinion, December 20, 2005.

[2] Elisabeth Bumiller, “Bush Remarks Roil Debate on Teaching of Evolution,” The New York Times, August 3, 2005.

[3] David Stout, “Frist Urges 2 Teachings on Life Origin,” The New York Times, August 20, 2005.

[4] See Kitzmiller v. Dover Area School District. For a very clear statement of the scientific errors in the intelligent design argument, see Philip M. Boffey, “The Evolution Wars, Revisited,” The New York Times, January 18, 2006.

[5] Bumiller, “Bush Remarks Roil Debate on Teaching of Evolution.”

[6] I describe the principles of dignity in my forthcoming book Is Democracy Possible Here?, to be published by Princeton University Press. This essay draws on parts of the book.

[7] Distributive justice requires that our free market be structured to protect against external influences of different kinds, and to protect people who for other reasons will not be treated fairly by pure market allocation. But an acceptable market regulation must take a form that does not deprive any group or person of an impact on supply and price that reflects its or his own wishes and values.


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