From a tolerant to an ethically neutral state

Introduction

Members of modern pluralistic societies have different, and sometimes mutually irreconcilably opposed, axiological beliefs, moralities, conceptions of good and ways of life. We are therefore inevitably faced with one basic question: In ethically and culturally heterogeneous societies in which opposing axiological beliefs and ways of the good life compete to such an extent that they are now at the level of Weber’s ethical “struggle of the gods” between different value orders (Weber, 1919/2002, pp. 500-501), how can we ensure a kind of human dignity or at least tolerant coexistence between individuals and groups of people? Where the need for tolerance is concerned, the ethical neutrality of the state is one way of dealing with this ethical pluralism. The aim is to enable and legally guarantee the peaceful and equal coexistence of people whose values and conceptions of the good life differ substantially. With the principle that all the members of a pluralistic society should be treated equally, comes the need for the state in an ethically plural society to adopt a position of moral abstinence when assessing divergent conceptions of the good and corresponding ways of life. The state should withdraw from the societal rivalry and competing values and ways of life to occupy neutral ground and create a legal framework that enables all members of pluralistic society to shape their lives freely and in accordance with their own ideas about good and happiness. State preference for a particular disputed ethical or religious moral position and way of life would contravene the principle of equal respect and the equal right to freedom. Those who subscribe to a particular prevailing moral or religion which makes exclusive claims to ownership of a universal moral truth—by virtue of their forming a majority in that society—cannot seize the right to legislatively enforce their values on the whole of that ethically pluralistic society either.

This paper will attempt to defend the position that the answer to the fundamental question posed above will differ in essence depending on whom the question is directed at —whether that be the state or various individuals or groups of individuals living in that pluralistic society. While members of a particular pluralistic society may be required to demonstrate the kind of tolerance which enables peaceful coexistence between people, despite enduring differences in their axiological beliefs and ways of life, the liberal state may be legally required to behave as an ethically neutral state towards the various members of that pluralistic society and not merely as a “tolerant” state.

This issue is not entirely unambiguous and uncontested in cases where the state presents itself as a democratic and legal state and declares that it is not bound by a particular religion, worldview or ethical position. It may respond differently to ethical pluralism. One of the alternatives on offer is for the state to adopt the position of either a tolerant state or of an ethically neutral state. The crucial question here is: In some morally controversial cases at least, such as disputes over whether recognition should be given to lifelong homosexual partnerships, should a democratic and legal state just behave towards its citizens—as a “tolerant” state which identifies with the (real or imaginary) moral majority in society, and on this normative basis should it graciously tolerate minorities within appropriate limits? Or should it behave towards all members of a pluralistic society as an ethically neutral state which accords the same respect to all? The aim of the following analysis is to clarify this position and ascertain the importance of this distinction, without, of course, claiming to provide a comprehensive description of the various aspects of this issue. ^[1]

The article will establish the basic conceptual difference between a tolerant state and an ethically neutral state, using examples of attitudes to controversial religious, worldview and moral questions relating to the legal recognition of same-sex couples and partnerships. Furthermore, a debate is ongoing as to whether partnerships should be recognized in Slovakia, a country, which despite its conservative nature, is seeing a growing pluralization of axiological beliefs and ideas about good, lifestyles and forms of coexistence. The article will focus on one aspect of this dispute which will help us to shed light on the fundamental issue this paper addresses. That aspect concerns the legitimacy of the relativized principle of the ethical neutrality of the legal state encountered in situations where the state attests its condescending “tolerance” of minorities which “do not fit into” the majority culture of the nation. The Slovak case demonstrates that it is never about the smooth and problem-free application of the general principle of the ethical neutrality of the state in specific cases, especially where there is a strong religious, worldview and moral undercurrent in the pluralistic society. Accordingly, the disputes over whether homosexual couples should be recognized in Slovakia are included here simply for the purposes of illustrating some of the key aspects and factors relating to the central issue of this paper: distinguishing between a tolerant state and an ethically neutral state.

A tolerant state?

Why has it become so vitally important today to insist that the state, when faced with the existing pluralism of competing and incompatible conceptions of the good life, ought to act neutrally rather than as a “tolerant state”?

We will begin by pointing out that the phrase “tolerant state” is problematic for at least two reasons. Firstly, the toleration of difference must involve an element of rejection articulated by the tolerating body from its particularistic ethical position. The opportunity to truly test one’s tolerance of the conflicting values and ways of life others subscribe to can only arise when someone else disapproves of or rejects a value system on the grounds that it is wrong, bad or immoral simply because of their own moral or religious bearing. It would strike one as quite odd to hear someone claim that they tolerate something that leaves them indifferent, something about which they have not formed any evaluative judgement, and remain just an impartial on-looker. Such cases are instances of nothing other than indifference and an inability to form either positive or negative evaluative judgements about the matter at hand. Yet it would strike one as equally odd if another person announced that they tolerated values and a corresponding way of life which they unconditionally approved of by virtue of the fact that they shared those same values. In such cases, this is nothing other than the manifestation of moral sanctioning and acknowledgement of values and lifestyles practised by others, which is not to be substituted for tolerance. Tolerance can only be a virtue of those who practise certain moral or religious convictions; it can never be a “virtue” of those who are indifferent, who “put up” with anything, since they are not concerned by anything. That is to say that they are, so to speak, people “without an opinion”, therefore, people who typically (for different reasons) do not form positive or negative evaluative judgements about what is going on around them. It seems, though, that members of modern pluralistic societies have today accommodated the opposite widely received view, which holds that the people who are classified as tolerant are precisely those who are indifferent, who let anything go and criticize nothing. Conversely, shaming epithets like “the intolerant” or “insufficiently tolerant” will inevitably, amidst this tolerance of the indifferent, will stick to people who practise firm value beliefs and are capable, on this basis, of articulating either disapproving or appreciative moral judgements. Unless we intend to employ the word “tolerance” in one of its antiquated or excessively ambiguous senses though, it is safe to say that tolerance, or intolerance for that matter, can only be extended to someone who stands up for their deeply-held values, ideals, and ideas of the good life, forming from their ethical stances critical judgements about other people’s differing persuasions and lifestyles. The question about tolerating differences encountered in others is thus essentially a question about good reasons, which a tolerant individual will be able to place on one side of the scales in order to weigh up the good reasons for not approving of this difference on the other side of the scales. The concern here is this process of weighing up or tipping the scales in favour of the good reasons for either condemning or critically assessing the difference, rather than merely eliminating or temporarily smoothing over the reasons. Thus, the act of tolerating difference in another person is based on the predication that the person doing the tolerating has good reason to accept that difference. At the same time the reason for accepting must be strong enough to prevail over (“trump”) the moral reasons for rejecting that difference, which the person doing the tolerating always defends on the basis of his/her ethical, worldview or religious perspective.^[2] Tolerant behaviour is developed by means of a mutual game of disapproval and acceptance, (moral) rejection and (moral) respect for the different axiological beliefs and lifestyles of other people. Let us add that acts of tolerance must be based on a combination of reasons for rejecting and accepting. The person doing the tolerating can provide reasons for rejecting a difference in others by laying out reasons for accepting some other difference in others, which may be purely pragmatic, ethically particularist or universally moral in character.

In this sense, the toleration of difference will always assume “partiality” to a certain ethical position or religious/moral truth about the good and, from this particularistic perspective, involve the capacity to judge that the difference in question is wrong or immoral and yet at the same time that it can also be tolerated for some other very good reason. Yet the liberal state observes the principle of non-identification in the sense that it is supposed to avoid identifying itself with a confessional or Weltanschauung truth about the good or with an ethical conception of the eudaimon life, that is, with anything that might prove contentious in religious and moral discussions among members of modern non-homogeneous societies. On this understanding, then, the term “tolerant state” is a contradiction in terms when applied to a liberal state which is supposed to guarantee equitable liberties for all.

This also links up to the second reason why the phrase is problematic from a liberal viewpoint. The fact is that diverse differences could equally be tolerated by a political power identifying with a particular prevailing moral normativity which would be prepared to suffer/put up with the differences of some minorities within certain limits. It could be a genuine or simply a declarative prevailing normativity in that society, favouring, for instance, a certain religious creed with an exclusivist claim to impartial and universalistic moral truths about good and evil. From its power-wielding position and conscious of its responsibility for enforcing a particular “correct” morality and for maintaining the spiritual-cultural heritage, a moral state thus defined could then permit the luxury of tolerating^[3] the “otherness” of minorities—be it religious, Weltanschauung, cultural, ethnical, sexual and so on—which differs to varying degrees from the prevailing normativity. In this case, “tolerating” a minority’s differences simply means enduring their otherness within the boundaries laid out by the state that identifies with the prevailing moral normativity of the society concerned. The boundaries within which this tolerant state authority demonstrates tolerance of different minorities in particular instances may be established as the state-guaranteed right for individual people to freely shape their own lives in the “bastions” of their own privacy. State tolerance of “anomalous” members of a minority is equal to respecting their right to privacy as a space of freedom protected from external intervention by the state authority and fellow citizens. In this sense, the members of a minority are “tolerated” so long as any manifestations of their “anomalies” remain invisible, i.e. behind the walls of their privacy and so long as they don’t make political claims for equality. Here, the state’s “tolerance” of a minority goes hand in hand with denying equal recognition and equal rights. It is a deficient form of tolerance based on strict separation of private and public, and of private issues relating to the good life and public-political issues about justice and human rights. “We tolerate the members of a minority within the boundaries of their invisible privacy but we will not recognise their public-political and legal status.” This is how the highest practical principle of the tolerant state would be formulated in this instance.

A tolerant state thus turns out to be merely a peculiar way of being “benevolent” and “gracious” towards various digressions from what the majority deem to be “normal” or “natural”. The patronizing benevolence of the powerful in the face of the otherness of those who are “different” leads to the latter’s real claims to full recognition being overlooked and flouted instead of being duly incorporated into law as the equal right of its members to freely pursue a life according to their own perception of happiness and genuine values. The truth is, however, if the representatives of the (alleged) morality of the majority, who feel called upon to draw stark and universally binding divisions between that which is “normal” and that which is “abnormal” (or “healthy” and “ill”, “natural” and “perverse” and “good” and “evil”), put up with and allow the “others” to express their differences, then this is also generally referred to as tolerance, and clearly, and in all likelihood, no one would dream of branding such attitudes as intolerant. In reality, however, this is a deficient way of tolerating the differences of others, one that is in fact just an act of stigmatising and further cementing the marginal and inferior socio-cultural position of the minority in that society. Seen through the perspective of those who are “tolerated”, this condescending toleration/suffering of their difference (“abnormality”) can only and must inevitably mean ignoring, insulting, and despising the “tolerated”. At this point, Goethe’s words spring to mind: he famously suggested that tolerating others by simply suffering or enduring them is tantamount to insulting them: “Tolerance should be in fact just a provisional attitude: it must be a striving for recognition. Tolerance suggests insult” (Goethe, 1833/1988, p. 183).

A tolerant Christian state then is one that is associated with the Christianity of the majority as its normative foundation, whilst enduring—within the boundaries set by that state—certain deviations from that widely practised normativity. In a 1988 study, Hans-Martin Pawlowski suggests that, in recent decades, Germany has successfully undergone transformation from a tolerant Christian state into a pluralistic one. He clarifies the distinction between these two state arrangements thus:

Pluralistic states will endeavour to legitimize their law in relation to all religious denominations or philosophies as a just law. Conversely, tolerant states will proceed from the majority world view. The latter presumes then the existence of a kind of broadly shared conviction about the right action, on the basis of which the law can be legitimized as a proper law. Alongside this, tolerant states–proceeding from their engagement with tolerance–will in some measure admit defectors, since the decisions of the conscience of the latter have to be respected inasmuch as it is only possible, irrespective of the fact that such decisions are in fact at odds with the true faith and could only be taken as the decisions of false conscience. Again, a tolerant state cannot be duly embraced as theirs by the defectors–on the grounds that such a state is merely capable of looking on the dissenters as stray (Pawlowski, 1988, p. 410).

Current aspects of a tolerant state

Today, however, we must continue to ask to what extent tolerant Christian states that label themselves as “democratic” and “governed by the rule of law” (Rechtsstaat) have in fact completed the transition process of transforming themselves fully into ethically neutral liberal states. Is it not the case that the notion of a “tolerant state” which identifies with the proclaimed or actual prevailing normativity endures under the wrappings of a democracy even in present-day democratic and legal states operating in modern pluralistic societies? Questions and doubts like these can gain ground when one is searching for the right or just way for the state and the law to deal with specific cases of moral and religious worldview conflict occurring in a pluralistic society. These may develop such that they begin to resemble a kind of ethical “struggle of the gods” (Weber, 1919/2002, pp. 500-501) in which different axiological orders and conceptions of the good and ways of life stand in opposition to one another irreconcilably and with no hope of any agreement being reached, such that what in one axiological order represents “God” is in another the “devil”.

Let us now consider from this perspective the battles being fought for the full recognition of cohabiting homosexual couples in the form of registered partnerships, or for grating them equal legal standing with traditionally-conceived marriages. In Slovakia one can encounter those who advocate as well as those who vociferously oppose legal recognition of same-sex couples. The debates between the two sides re-surfaced in the country’s public arena in light of the recent constitutional amendment protecting marriage as “the unique bond between a man and a woman” (this amendment to the Constitution of the Slovak Republic was passed by the Slovak National Council (parliament) in June 2014). Many of those who supported the amendment rejected outright any legal recognition of registered partnerships for cohabiting homosexual couples, and so the adoption of the constitutional amendment protecting marriage as a union between a man and a woman may well have been perceived by the sexual minority as an anti-homosexual measure rather than a pro-family one. And this was despite the well-meaning and sympathetic arguments of the opposing side in the conflict to the effect that no one had the slightest intention whatsoever of discriminating against differently-oriented people or to prevent them from living together in one household and pursuing their own form of bliss.

Here, the “legal recognition” of homosexual couples is understood to mean state recognition of the equality of the two forms of cohabitation. It is the vertical recognition by the state of the equal right of individuals to freedom, which gives individuals the potential to freely practise their notions of what a good or fulfilled life is, and it is about individual self-realization. In law recognition is conferred on the basis of the universal moral principle that each person is respected equally as a legal entity. In this case, the person’s personal identity and characteristics are ignored. Individual legal entities are the bearers of the ethically neutral right to freedom and this gives diverse individuals the legally guaranteed space to freely shape their life in accordance with their own ideas about good and happiness. However, individual rights are not designed to provide legal protection only to isolated or atomized individuals but also to individuals who have important lifelong relationships and forms of coexistence which create and stabilize their identity. Lifelong partnerships between homosexual couples are one form of this coexistence. On the inherent links between the legal protection of individuals and their intersubjective relations Jürgen Habermas wrote the following: “From a normative point of view, the integrity of the individual legal person cannot be guaranteed without protecting the intersubjectively shared experiences and life contexts in which the person has been socialized and has formed his or her identity.” (Habermas, 1997, p. 258).

In the context of our reflections on a “tolerant state”, it is interesting to note the arguments employed by those who oppose legal recognition of life-long same-sex partnerships. Essentially, two lines of argument are discernible. The first is pragmatic and the second relates to the Preamble to the Constitution of the Slovak Republic. The pragmatic line of argument appeals to the need for society to survive, for demographic growth and for the need to ensure Slovakia’s socio-economic development. In very extreme cases, a grim picture is created of the overall decline of Western civilization and its eventual fall unless changes are made to the current trends that pose a threat to traditional family life (the factors referred to as being responsible for the current erosion of the traditional family not infrequently include the “EU legislative craze” for fully recognising life-long same-sex partnerships). The arguments based on the Constitution of the Slovak Republic bring us closer to our task of distinguishing between a “tolerant state” on the one hand, which, where decision-making on morally contentious issues is concerned, will identify itself with the prevailing (actual or supposed) normativity, and, on the other hand, a liberal state that respects the principle of ethical neutrality.

The Preamble to the Constitution of the Slovak Republic asserts among other things that the Slovak nation and the citizens of the Slovak Republic will act in accordance with the Constitution, bearing in mind “the struggles for national existence” and “the spiritual heritage of Cyril and Methodius”. It is these words in the Preamble that are cited by Slovak politicians (and not only those from the ranks of the Christian Democrats but also some Social Democrats) who defend the constitutional definition of marriage as matrimony between a man and a woman. At the same time they oppose legal recognition of homosexual couples in the form of registered life partnerships, let alone, with the idea of conferring upon such partnerships rights equitable to those enjoyed by traditional marriage. Politicians find a normative leg to stand on for their resolutely dismissive attitude to recognizing this particular sexual minority—and hence to the issue that has been the target of religious, Weltanschauung and moral conflicts within Slovakia’s pluralizing society—in the idea of the cultural-moral and spiritual foundations of the Slovak national being, which have been forged, fostered and strengthened over centuries and which are explicitly referred to in the Preamble to the Constitution.

“Tolerant and benevolent treatment of sexual minorities—yes, but undermining or challenging the ethical-cultural and spiritual foundations of the national being—no” is one of the ways we might take stock of the case against fully recognizing cohabiting same-sex couples (including legislatively). Do such political attitudes to the morally controversial agenda of a pluralistic society not merely reflect a particular version of Christian state tolerance in action? Here the state is identifying with the normative idea that national existence is founded on uniform and unified ethical-cultural foundations entrenched in the Cyril and Methodius tradition, thereby imposing at the same time (whether overtly or covertly) on all its citizens an image of a society reminiscent of an ethical monolith trying hard to withstand the corrosive impact of Western individualism and liberalism. Thus the self-defined state can—within the boundaries established by the incumbent democratic majority—afford some degree of luxury of tolerance towards the minority’s “otherness”, which somehow does not fit into the ideas of “national existence” and the spiritual foundations passed off as the majority opinion of Slovakia’s citizens. This is merely patronizing “toleration” of people who fail to live up to centrally established normative notions of what is “right”, “natural”, and “normal”. They are “tolerated” so long as their “abnormality” or “perversion” remains enclosed in a nationally protected bastion of privacy and they do not join in public political discussions and demand equal treatment and equal freedom. This conditional “tolerance” of homosexuals is based on the schizophrenic fragmentation of their personas into two parts: private and public.

The arguments that favour toleration of homosexuals end up in a curious kind of double morality. This double morality can also be found among conservative-minded people in Slovakia. Their thinking is as follows: “We do not have anything against homosexual people; no one wants to discriminate against them and prevent them from cohabiting contentedly and feeling good. In terms of human dignity we are equal to homosexual people and there is no need to judge them; on the contrary, we should accept them with love and try to help them in accordance with the commandment about loving thy neighbour. However, in no way does this mean that there should be official recognition of their lifelong partnerships nor that equal rights should be conferred on these partnerships.”

The reasoning (referring to human dignity and loving thy neighbour) behind this condescending “toleration” of homosexual people is linked to arguments against officially recognizing and equalizing their coexistence. This conservative double morality is ethically doubtful and moreover problematic insofar as dealing with members of this sexual minority is concerned. In reality it is the humiliation of those who are “tolerated” that further encourages their exclusion from “normal” society. In this context it is worth remembering Goethe’s words, cited above, about tolerating or putting up with the other people’s characteristics that they find offensive (1833/1988, p. 183).

At this point, however, it is worth pointing out that the Slovak constitution contains passages that may well lead us to reflect upon or question the very nature of the state, especially in terms of its emancipation from religion. Article 1 of the Constitution of the Slovak Republic declares that the state does not subscribe to any ideology or religion^[4], yet at the same time, the Preamble refers to a “national existence” bound to the “spiritual heritage of Cyril and Methodius”. This contradiction could be corrected, however, by relativizing the principle of non-identification in Article 1 of the Constitution or by deleting the reference to the spiritual heritage of the two apostles in the Preamble. Neither would there be any inconsistency in the reference to the spiritual legacy and the non-identification principle if, for instance, the spiritual heritage of Cyril and Methodius was not attributed legitimating weight that has to be considered when making certain kinds of political decisions or drawing up legally binding provisions relating to areas over which there is a lack of agreement among members of Slovakia’s ethically heterogeneous society. Importantly, the very absence of such an ethical consensus should not in itself arouse indignation or criticism—unless we perceive ethical pluralism to be a threat or a mark of moral degradation rather than a blessing.

Thus it appears to be high time that we started making our assessments along quite different lines and not seek to legitimize the “rightness” of juridical or constitutional norms by invoking the spiritual heritage of Cyril and Methodius, which would probably contravene the non-identification principle the Slovak Constitution subscribes to in Article 1. The reference to the spiritual heritage of the two pious brothers in the Preamble of the Slovak Constitution would thus also be accorded legal/juridical normative relevance when drafting universally binding laws, which would therefore apply to all citizens, norms and standards including areas over which the members of an ethically pluralistic society markedly differ. Yet it is precisely in the political discussions about the constitutional definition of marriage as matrimony between a man and a woman and on the status of sexual minorities that we might equally come across attempts to promote the heritage of Cyril and Methodius—and the subsequent demotion or relativization of the constitutional principle that the state should not subscribe to any ideology or religion, that is to say, to any majority religion which claims to own the Truth about what should be considered good and right, hence including the truth about homosexuality and cohabitation of same-sex couples.

In the light of our present concerns, it might be of some use to recall that similar tensions between the wording of the preamble and the constitutional principle of Weltanschauung and religious neutrality of the state used to be the subject of disputes in Germany involving specialists and public activists. The Preamble to the German Constitution (Grundgesetz für die Bundesrepublik Deutschland) stipulates that the German nation has adopted this Basic Law, “being fully conscious of their responsibility before God and the people”. Does this imply, though, that the Preamble to the main law of the land, by invoking God (understood as the Christian God), contradicts the constitutional principle of Weltanschauung and the confessional neutrality of the state? Put differently, does the Preamble contradict the principle of religious neutrality which enables the state to emancipate all citizens from all religions— even if it is a religion practised by the majority of the population? The answer depends on the sense and juridical relevance ascribed to this reference to God in the Preamble to the German Constitution. At this point, one can readily see that there is a considerable difference in the arguments employed by Slovak Conservative politicians who cite the Preamble of the Constitution of the Slovak Republic in order to explain their political attitudes to morally controversial issues being debated in Slovak society. While in Slovakia appeals to the spiritual heritage of Cyril and Methodius laid out in the Preamble are ascribed a legitimating role in political decision-making and law-making on areas over which there is no broad consensus among members of Slovak pluralistic society, in Germany the prevailing opinion is that no legal/juridical consequences can arise from the reference to God in the Preamble of the Basic Law. The “correct” or “just” nature of political decisions and legal norms relating to matters affected by religious, worldview and moral disputes cannot be justified on the basis of the reference to “responsibility before God” in the Preamble of German Constitution, or to a moral truth established by God’s law. According to Ernst Gottfried Mahrenholz, a former judge in the German Constitutional Court (1989-1994), the reference to God in the Preamble of the Constitution is made nominatio dei rather than invocatio dei. That suggests, Mahrenholz says, that “God is simply named rather than invoked. Thus the reference to God in the Basic Law has no legitimizing function” (Mahrenholz, 2009, pp. 65-66).

When political decisions are taken on morally controversial issues, a “tolerant state” will identify itself with the prevailing normativity, thereby siding with a particularist religious-Weltanschauung position in conflicts arising within modern pluralistic societies. By contrast a liberal state will withdraw from this societal rivalry—at times quite vociferous and irreconcilable—over the various value orders and perceptions of the good life and occupy neutral territory. The liberal state will attempt to remain neutral over divergent ideas of the good and leave the various mutually incompatible ways of life and the processes of forming and practising the various life-long conceptions of the good to individuals and different groups within a pluralistic society. Understood like this, an ethically neutral state ought to abstain from making moral judgements about the permissible divergent values and the conceptions of the good that might hide coherent Weltanschauungen, religious or philosophical systems. So, the ethically neutral state cannot judge the wide variety of forms of the good life on the basis of uniform criteria that claim universalist validity for everybody, and subsequently favour some ways of life (“superior”, more valuable, or that correspond to an ethos based on the absolute truth about the good) in the legislation (“inferior”, less valuable, or clearly at variance with the moral truth and, therefore, “immoral”).^[5] This suggests that, like E. W. Böckenförde, one can claim the modern state is surrendering its positive powers over morality: “Citing its neutrality ... the state is denied its positive sovereign competence in the sphere of substantive morality, while that competence is being taken over by communities and institutions that are personally closer, particularly churches” (Böckenförde, 1992, p. 130).

Art of differentiating

Article 1 of the Constitution of the Slovak Republic declares that it is a confessionally and ideologically neutral state: “The Slovak Republic is a sovereign democratic state governed by the rule of law. It is not bound to any ideology or religion”. Interpreted thus, the neutrality of the state means that the state must avoid assuming any kind of role as supreme moral judge in disputes about truth between world views and religions. The principle of neutrality can then be classified as the one that forbids the state from identifying itself with any religion or world view.

In the strict sense of the word, then, we are concerned with neutrality towards the systematized world views and religions established within that society. In this case one can speak of a Weltanschauung and the religious neutrality of the state. Yet the principle of state neutrality can also be understood in more general terms; that is, not merely in terms of neutrality towards an established Weltanschauung and religious systems but also towards differing perceptions of the good life; hence, towards all things that substantially distinguish members of modern ethically heterogeneous societies. Only in this case would one be justified in speaking of the ethical neutrality of the state.

Aversion to the liberal-cum-neutral order of freedom might find its breeding-ground in conservative groups’ convictions that the liberal order poses a threat to the moral order rooted in “higher truths”. Thus the liberal order of freedom is not built on a previously given and independent moral order, or on universal and objective standards established by God’s law, and nor can it be justified by referring to human nature and “authentic” human happiness. From the perspective of those who adhere to such an absolute truth or a single correct morality, the liberal order of freedom may present them with more opportunities and greater temptation to defect or turn their backs on the quest for moral truth and embark instead on an ethically dubious journey of subjectivism, relativism and arbitrary toying with the established norms of good and evil. Such people, it is feared, will liken themselves to God in the sense that they, out of their own free will, that is to say, from their own horizon of freedom practised as arbitrariness, dare to determine what is right and what is wrong, recognizing that there is no further law-giving level of authority above them. The owners of this “the only true” morality may consequently be strongly tempted to defend—against a liberal order of freedom cast as the imaginary cause of all moral anarchy and moral failure—a commandment which would strengthen the links between political-legal decision-making on issues of righteousness and rights where morality is built upon the truth established by God’s law. In this respect, it is worth considering some individual-psychological factors: if someone is, in his heart of hearts, unshakably convinced that there are certain higher moral truths in the religion in whose spirit he was raised as a child, he might be very tempted to impose this religious order of truth on society at large. But, from the liberal point of view, that would be tantamount to ignoring the reality that modern society is not a homogenous entity in terms of values or world views and that such a homogenous and monolithic order simply cannot be imposed on society nowadays without suppressing and failing to acknowledge sections of the population that respect other values and conduct their lives in accordance with other notions of the good life.

Given the earlier description of the Slovak predicament and the misinterpretations of the religious-Weltanschauung neutrality of the state, I suspect that part of the blame lies in the fact the two normative orders are insufficiently clearly distinguished: the legally established order of freedom and the religious order of truth.

A state in which the rule of law prevails (and which is therefore also obliged to adhere to the principle of non-identification as is the case in Slovakia) is a state that guarantees a particular order of freedom on the external coexistence to all members of its ethically non-homogenous society. It is the juridical anchoring of negative freedom, whereby individuals are guaranteed space to exercise freedom and this space is protected against external infringement by other individuals or the state. But the precise nature of these

legally approved spaces for freedom is left to the discretion of individuals to decide, and to the unregulated interplay between the different groups in a pluralistic society, such as, for instance, churches, religious associations, unions and institutions that ensure the national culture is maintained.

So far so good, yet from a religious stance, one might object that this negative freedom does not suffice or is morally challengeable; since genuine freedom should be directed at the quest for religious/moral truth. This positive understanding of freedom, however, does not necessarily contradict the liberal perception of the juridically established order of freedom. The law is not the order of truth but that of freedom, that is to say, it is an order whose advantages and accomplishments can be enjoyed by all individuals irrespective of their religious or moral convictions.

Ernst-Wolfgang Böckenförde, the German Christian philosopher and expert in the philosophy of law mentioned earlier, explains in many of his works that the legal order of freedom does not stand in opposition to religious truth, or to a Christian perception of freedom. Rather, we are concerned in this case with two different orders, each of which fulfils its own specific mission. Böckenförde writes:

The modern state is subject to the law of bifurcation, which is crucial for the modern world. This state is not rooted in a revelatory truth but in certain reasonable goals ... This accounts for the fact that the state cannot bind its citizens by the strength of the revelatory truth but by the force of its (the state’s) goals alone (1970, p. 80).

And one such reasonable goal that the state can pursue is to bring about and safeguard an order of egalitarian freedom for all, an order that should safeguard and promote peaceful coexistence between people who differ in terms of their world views or religions or values.

Thus, introducing moral relativism can be no substitute for distinguishing between the liberal order of freedom for all and the order of religious-moral truth. Nor should the claims of some (majority) religions to hold higher moral truths about good and evil be questioned—or, for that matter, dismissed. The concern here is not to morally disqualify or belittle religious beliefs about moral truth for being outdated, outlived or prejudice but to give reasons as to why they are irrelevant in the legitimate creation of laws that apply to all the members of a pluralistic society. A political-juridical order guaranteeing equitable freedom for all which sets out the acceptable boundaries of freedom is thus compatible with the religious-moral order of truth. Distinguishing between them in this clear-cut fashion can be seen as part and parcel of the broader historical process of the emancipation of the modern state, and hence as a means of ensuring that the order of freedom is protected against all religious truth claims.

Note

The topic of this inquiry is what do we mean when we say that in relation to all its citizens the state is supposed to behave as an ethically neutral state and not just a “tolerant” state. If we were to put this in terms of recognition theory, primarily associated with Axel Honneth^[6] we might say that we are concerned with the vertical level of the official recognition of individual and collective identities (including different minorities). Our analysis was limited to looking at one form of recognition—legal recognition. In a liberally neutral state, legal recognition is based on the ethically neutral principle that each member of that pluralistic society is equally respected.

However, this legal form of recognition, manifest in the principle of equal respect for each individual, is just one form of recognition. It cannot reflect in all its complexity the social premise that those who are different should be able to shape their lives freely and in accordance with their own ideas about good so that they have a positive self-image. A comprehensive analysis of the forms of recognition that are of constitutive importance for the plurality of different ways of the good life and of individual self-realization would require deeper reflection on the legal and other forms of social recognition. For instance, A. Honneth, the theorist of recognition mentioned above distinguishes between three different forms of recognition—love, legal recognition and social esteem (Honneth, 1996, pp. 92-130).

However, a more differentiated analysis of the various forms of social recognition and the roles they play in the good life and individual self-realization of the members of a pluralistic society who are different goes beyond the conceptual frame of our analysis. Our analysis sought to clarify the difference between a tolerant state and an ethically neutral state. It looks at two possible ways in which the state copes with the reality of plurality and consequently, with the two ways in which the state deals with individuals and groups exhibiting “otherness” in a pluralistic society. Given this approach, we considered it advisable to limit the article to legal recognition and abstract it from other forms of social recognition.

Conclusion

When confronted with ethical pluralism, the state should in principle maintain neutrality in relation to different value beliefs and conceptions of the good, and the justification for these may be lie deep within worldview or religious systems. In Slovakia, this principle is most familiar as a constitutional and legal norm which precludes the state from identifying with an ideology or religion. Although this principle of “non-identification” is generally accepted, specific instances may occur in which it is applied to contentious moral, religious and worldview contexts and this may reveal the fact that the consensus laid down in the Constitution on the fundamental nature of the Slovak state as one that should not be bound by any ideology or religion is in fact neither clear-cut nor unproblematic. We saw when seeking to establish in what way the state is bound to the principle of ethnic and religious neutrality, especially in morally controversial cases, such as recognizing same-sex partnerships, how it may be fraught with ambiguity, confrontation and differences of opinion. This can lead to this principle being relativized in such a way that its very meaning and role in an ethically pluralistic society is questioned. The state, seeking to guarantee a just order for all members of pluralistic society operates according to the principle of ethical neutrality, cannot legitimize its political and legal decisions by appealing to what the moral or religious majority consider to be “normal” and “natural”.

In a democratic and legal state, it is the democratic majority which represents the (real or imaginary) moral or religious majority of the society. The politically acting “majority” can arrogate the right to such legitimate decisions. However, a state that defends its decisions on the basis of the principle of a democratic majority does not engage with citizens as an ethically neutral state which equally respects all the members of its pluralistic society regardless of their axiological beliefs and way of good life but does so as a “tolerant” state. When deciding issues of justice and rights that are morally contentious in a pluralistic society, this kind of state identifies with the norms of the prevailing morality and only tolerates minorities who deviate from this “normality” to an appropriate degree, providing them with the freedom to shape their lives in accordance with their own ideas about the happy life. A moral state of this nature, which knows what is truly good for people and where authentic happiness originates, can—given its position of authority—afford the luxury of tolerating minority differences without recognizing their equal status. Benevolent state tolerance of different “anomalies” is not an expression of the state’s weakness but of its power. However, from the point of view of those who are “tolerated”, this benevolent sufferance of their otherness is the equivalent of their debasement, at least in the sense that the state denies them equal recognition and equal rights. State tolerance of “others”, i.e. those who deviate from the prevailing morality or from the higher moral truths of the dominant religion, is a strange mutual game of condescending patience and belittlement, tolerance and discrimination which offers some freedom as well as being powerful controlling and both inclusive and exclusive.

Another serious problem which could not be dealt with in this paper is the varying appeal of the principle of an ethically neutral state for liberals, conservatives and for religious believers who only recognize morality founded in independent truths about good and evil. Here we can at least suggest that correctly understood ethical neutrality of the state and the exclusion of religiously motivated attitudes do not lead to something that goes against moral truth. Nor do legitimate law-making processes degrade dismissive moral attitudes to prejudices or to mistaken, irrational and retrograde attitudes inappropriate in today’s modern world. In fact, the problem is simply whether it is possible—in ethical pluralism—to justify official decisions on the basis of appeals to truths found in religious or philosophical-ethical teaching. Respecting the principle that members of a modern pluralistic society who subscribe to different religions, world views, ethics and cultures and who differ in other ways require the state to behave as an ethically neutral state and not merely as a “tolerant” one.