In Professor Barbara Forrest's recent diatribe against me--brought to your attention, and ably refuted, by my colleague Ed Feser--she asserts the following: "I am indebted for this point to Prof. Steven Gey, who, unlike Beckwith, is both an attorney and a constitutional scholar." Ironically, in my recent Santa Clara Law Review piece in which I clarify my views on intelligent design, I briefly critique Professor Gey's philosophical take on the establishment clause of the U. S. Constitution's First Amendment. In order for readers of W4 to get an understanding of Professor Gey's scholarship, and what Professor Forrest perhaps finds so intellectually compelling about it, I reproduce below a portion of my article in which I assess Professor Gey's argument.
[L]egal scholar Steven Gey asserts that belief in God and liberal democracy are incompatible, that the first is against reason while the latter demands it, Gey writes:The establishment clause should be viewed as a reflection of the secular, relativist political values of the Enlightenment, which are incompatible with thefundamental nature of religious faith. As an embodiment of these Enlightenment values, the establishment clause requires that the political influence of religion be substantially diminished . . . . Religious belief and practice should be protected under the first amendment, but only to the same extent and for the same reason that all other forms of expression and conscience are protected—because the first amendment prohibits government from enacting into law any religious, political, or aesthetic orthodoxy .... [R]eligious principles are not based on logic or reason, and, therefore, may not be proved or disproved, .... [R]eligion asserts that its principles are immutable and absolutely authoritative, democratic theory asserts just the opposite. The sine qua non of any democratic state is that everything political is open to question; not only specific policies and programs, but the very structure of the state itself must always be subject to challenge. Democracies are by nature inhospitable to political or intellectual stasis or certainty. Religion is fundamentally incompatible with this intellectual cornerstone of the modern democratic state. 
Although claiming to side with the friends of reason, Professor Gey’s argument seems to provide more comfort to its opponents. First, his embracing of relativist political values (whatever those are) is self-refuting. Relativism is the view that there are no universal and unchanging political values that apply to all persons in all times and all places. Yet Professor Gey states that a true proponent of liberal democracy ought to be a relativist, for he claims that liberal democracy and opposition to relativism are incompatible. But to claim that one ought to be a relativist is to make a non-relative normative claim about what it means for a member of the political community to be intellectually virtuous. Thus, Gey’s claim refutes itself. On the other hand, if he denies that each member of a liberal democratic political community ought to be a relativist on the matter of political values, then necessarily it is not the case that each member of a liberal democratic political community ought to be a relativist on the matter of political values. Consequently, whether he affirms or denies his claim, Gey’s claim is refuted, and thus we can safely say it is something that no friend of reason ought to seriously entertain.
Second, although Gey associates his view with the Enlightenment, it is difficult to square it with the nonrelativist moral and political philosophies of John Locke, Immanuel Kant, and John Stuart Mill, whose Enlightenment credentials no one doubts.
Third, Gey claims that “there can be no sacrosanct principles or unquestioned truths in a democracy” and that “no religion can exist without sacrosanct principles and unquestioned truths.” But the latter claim is itself an unquestioned truth about which Gey seems certain. For he employs it as the ground by which the law may permanently sequester a large segment of his fellow citizens from the public square simply because they may choose to shape their communities with policies that are informed by their religious beliefs. Moreover, Gey’s position assumes a first principle—democracy ought not to be based on unquestioned truths—that he stipulates and for which he does not offer support, and thus seems to function as an unquestioned truth. But if Gey were to offer support for that truth, those grounds too would need support, and those grounds would then become the new first principle. At some point, therefore, Gey must rely on a first principle, a foundation, on which his claims about liberal democracy and its support may rationally rest and for which no other grounds are necessary. Thus, if, as Gey argues, the political application of “unquestioned truths” is a sufficient condition for political disenfranchisement of fellow citizens, then his own position serves as the ground by which the state may disenfranchise him, since his philosophical arsenal has within it at least one unquestioned truth, namely, that “democracy ought not to be based on unquestioned truths.” Consequently, Professor Gey’s position is by its own lights irrational, and thus we need not think of it as an impediment to the political participation of citizens who embrace what Professor Gey pejoratively labels as “unquestioned truths.”
I say “pejorative,” since it seems to me that when Gey writes of citizens who believe in these “unquestioned truths,” he is claiming that they do so irrationally or without adequate warrant. But this is surely not the case, for two reasons: (1) There are numerous well-reasoned works critical of the sort of crude relativism Gey offers, and none of these works presents esoteric religious arguments whose premises would seem irrational to many unbelievers; and (2) Gey does not interact with any of the relevant academic literature on religious belief, morality, and rationality. Thus, it is difficult to know how he would reply to the sophisticated and compelling arguments offered by members of the growing intellectual movement of theistic philosophers in Anglo- American philosophy published before 1990 (the year Gey’s article appeared in print).
13. Steven G. Gey, Why is Religion Special?: Reconsidering the Accommodation of Religion Under the Religion Clauses of the First Amendment, 52 U. PITT. L. REV. 75, 79, 167, 174 (1990).
16. Gey, supra note 13, at 179.
17. Id. at 79.
18. According to Locke, God endows us with unchanging natural rights and that a just government has an obligation to ensure that these rights are not trampled upon by other citizens or the government itself. SEE JOHN LOCKE, SECOND TREATISE ON GOVERNMENT (Barnes & Noble Press 2004) (1690). For Kant, the administration of justice cannot contravene the categorical imperative: “Act only according to that maxim by which you can at the same time will that it should become a universal law.” IMMANUEL KANT, FOUNDATIONS OF THE METAPHYSICS OF MORALS 39 (Lewis White Beck trans., 2d ed. 1989); see also ALLEN D. ROSEN, KANT’S THEORY OF JUSTICE (1996). In the case of Mill, justice is measured by his version of the principle of utility: “The creed which accepts as the foundation of morals, Utility, or the Greatest Happiness Principle, holds that actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness.” JOHN STUART MILL, UTILITARIANISM 9−10 (13th ed. 1891). None of these thinkers—leading lights of the Enlightenment—affirmed or defended the relativism supported by Professor Gey.
19. Id. at 174.
21. See Gey, supra note 13.
22. See, e.g., MORTIMER J. ADLER, HOW TO THINK ABOUT GOD: A GUIDE FOR THE 20TH CENTURY PAGAN (1980); MORTIMER J. ADLER, TEN PHILOSOPHICAL MISTAKES (1985); WILLIAM LANE CRAIG, THE KALAM COSMOLOGICAL ARGUMENT (1979); FAITH AND RATIONALITY: REASON AND BELIEF IN GOD (Alvin Plantinga & Nicholas Wolterstorff eds., 1983); JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980); JOHN FINNIS, FUNDAMENTALS OF ETHICS (1983); J. P. MORELAND, SCALING THE SECULAR CITY: A DEFENSE OF CHRISTIANITY (1987); ALVIN PLANTINGA, GOD AND OTHER MINDS: A STUDY OF THE RATIONAL JUSTIFICATION OF BELIEF IN GOD (1967); RICHARD SWINBURNE, FAITH & REASON (1987); RICHARD SWINBURNE, THE EXISTENCE OF GOD (1979).