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Amor Mundi: Discrimination and Freedom

Discrimination and Freedom

Andrew Sullivan argues that the Supreme Court case that will decide whether a fundamentalist Christian baker has a right not to be forced by law to bake a cake for a gay marriage is a much harder case than either side wants to admit.

“If someone had asked me back in the day, if, in 2017, we’d be having a discussion about whether a fundamentalist baker should be forced by the law to create a wedding cake for a gay couple, I’d have been gobsmacked, as the Brits say. Smacked in the gob because only a decade ago such a question would have seemed so remotely hypothetical as to be absurd. And yet, here we are. A Christian baker has taken a stand on the grounds of religious conscience and artistic freedom not to provide a cake specifically designed for a legal, constitutional same-sex wedding. His case was just argued in the Supreme Court no less. The staggering victories of the marriage-equality movement (now, Australia!) have led us here — far sooner than most of us pioneers ever contemplated. And the speed and finality of this social change has — understandably — frightened, disturbed, and alienated many on the other side. They are still smarting from the sting of defeat, defensibly regrouping and obsessing over their victimhood.

Which is why I think it was a prudential mistake to sue the baker. Live and let live would have been a far better response. The baker’s religious convictions are not trivial or obviously in bad faith, which means to say he is not just suddenly citing them solely when it comes to catering to gays. His fundamentalism makes him refuse to make even Halloween cakes, for Pete’s sake. More to the point, he has said he would provide any form of custom-designed cakes for gay couples — a birthday cake, for example — except for one designed for a specific celebration that he has religious objections to. And those religious convictions cannot be dismissed as arbitrary (even if you find them absurd). Opposition to same-sex marriage has been an uncontested pillar of every major world religion for aeons.

And so, if there are alternative solutions, like finding another baker, why force the point? Why take up arms to coerce someone when you can easily let him be — and still celebrate your wedding? That is particularly the case when much of the argument for marriage equality was that it would not force anyone outside that marriage to approve or disapprove of it. One reason we won that debate is because many straight people simply said to themselves, “How does someone else’s marriage affect me?” and decided on those grounds to support or acquiesce to such a deep social change. It seems grotesquely disingenuous now for the marriage-equality movement to bait and switch on that core “live and let live” argument. And it seems deeply insensitive and intolerant to force the clear losers in a culture war into not just defeat but personal humiliation.

Nonetheless, here we are. And it is a hard case constitutionally. It pits religious and artistic freedom against civil equality and nondiscrimination. Anyone on either side who claims this is an easy call are fanatics of one kind or other. I’m deeply conflicted. I worry that a decision that endorses religious freedom could effectively nullify a large swathe of antidiscrimination legislation — and have a feeling that Scalia, for example, would have backed the gays in this case on those grounds alone. Equally, I worry that a ruling that backs the right of the state to coerce someone into doing something that violates their religious conscience will also have terrible consequences. A law that controls an individual’s conscience violates a core liberal idea. It smacks of authoritarianism and of a contempt for religious faith. It feels downright anti-American to me.”

The suit against the baker Jack Phillips brings to mind one of the most controversial of Hannah Arendt’s many provocative opinions—her support for the right to social discrimination. Arendt fiercely defended equality in public affairs and in politics; at the same time, she strongly justified the right of Jews to spend their vacations at Jewish-only resorts as well as the right of others to “cater to a clientele that wishes not to see Jews while on holiday.” Social discrimination is, Arendt argues, a corollary of freedom. To tell people whom to socialize with or what to think is to attack the root of a free society.

Importantly, Arendt made a distinction between resorts on the one hand and buses, restaurants, theatres and museums on the other. The distinction is based on the criteria that some people go to resorts to congregate with others like themselves (they all are Jewish, all Muslim, all Catholic, or they all like to ski) while people who use buses and restaurants and museums are using “services which, whether privately or publicly owned, are in fact public services that everyone needs in order to pursue his business and lead his life.” For Arendt, these private services are in the public domain and thus must be protected from social discrimination in order to guarantee political equality in the public sphere.

And yet, Arendt affirms not only the right, but also the importance, of social discrimination as a necessary antidote against conformism. “The danger of conformism in this country–a danger almost as old as the Republic–is that, because of the extraordinary heterogeneity of its population, social conformism tends to become an absolute and a substitute for national homogeneity.” In other words, the rise of the social realm “which has only one opinion and one interest”–whether in the one-interest of economic rationality or the one opinion of polite society–leads to the expectation that all citizens will behave, follow innumerable rules, and live according to normal standards that “exclude spontaneous action or outstanding achievement.”

It is worth recalling Arendt’s fear of the dangers presented by social conformity and her consequent defense of social discrimination in light of the state of Colorado’s attempt to force a baker to not discriminate in deciding for whom he will design and make a custom wedding cake. From Arendt’s viewpoint, it is one thing to support the right to marry whomever one wants, which Arendt did. She specifically says that marriage is a private right and that the state should not in any way intrude on a person’s private decision of whom to marry, be they of another race or of the same sex. She also fundamentally rejected those laws that would permit restaurants, bus lines, or museums to refuse service to gays or to Jews on religious grounds. Even when privately owned, these businesses operate in the public sphere and thus must treat all people equally.

But if a business wants to only provide wedding cakes for gay weddings or another business only wants to provide wedding cakes for heterosexual weddings, the logic of Arendt’s position (one should not speak for what Arendt would in fact say) also means that she would likely support that right and would most certainly oppose the societal and state efforts to force religious individuals to forgo their right to association. The baker concedes his willingness to sell cakes to gay couples for birthdays; his refusal is based not in an unwillingness to serve homosexual customers, but to design cakes celebrating events he personally finds wrong. He also refuses to make Halloween cakes on the ground that such cakes violate his Christian beliefs. In short, whatever we may think of his principles, his actions are principled. What is more, the customized service he refuses is—as opposed to selling cakes in general—is at least arguably not part of the public retail experience. And there are plenty of other artisanal bakers one can approach, maybe even some specializing in wedding cakes for gay couples.  

We don’t have to agree with Arendt, god forbid. But one reason her thought is so important is because it provokes us to think deeply about the rise and danger of social conformity in the modern age. Arendt was clear that all public discrimination must be fought vigorously. Social discrimination can be uncomfortable, but it is also a corollary of freedom. It would  do all of us some good to think about her strong defense of social discrimination. Arendt pushes us to ask, are their meaningful limits to the drive for social equality?

—Roger Berkowitz

Religion and Political Life

Melvin Rogers argues that that there is no meaningful politics without faith, if we understand faith not as a doctrinaire religion but as having a moral center underwriting that for which one will struggle and suffer. There is, Rogers writes, a necessary family resemblance between religion and politics.

“I don’t ever want to forget that resistance must be its own reward…” This is also a line from the same paragraph of his to which you are referring. Resistance being its own reward sounds nice when the goods of one’s life are not at stake. But if one’s ability to flourish is on the line—and here I mean the material, educational, and psychological goods you need in order to live a meaningful life—then I don’t know if one should settle for resistance being its own reward. Indeed, I’m not sure one can ultimately be satisfied with a form of power—resistance—that does not eventuate, even a bit, in improving one’s life chances. Resistance gains the power that it does from believing, as one trembles with fear, that it can win the day. Now, I say tremble with fear because we know that things could end badly.I have always understood the great thinkers and activists struggling for racial justice, particularly in the African American tradition, to have understood this. From David Walker to Ida B. Wells to James Baldwin, the idea was that one should never be seduced by the thought that progress on matters of race is fated to happen. Even as they encouraged action in the service of a better society, they sought to discipline and chasten our self-understanding. This remains one of the important gifts of African Americans to what they rightly claim as their home. Action, for them, is infused with a deep faith in its power that runs alongside a profound sense of caution. Acting in the world is what must happen precisely because tragedy is part of our reality. This contribution consistently bumps up against and seeks to undercut that version of American exceptionalism that relies on—that depends on—the idea that the good is fated to happen. This strain in American political life and thought—the idea that the good is fated to happen—disarms us and it is always in danger of eviscerating our political and moral imaginations. This is why I find myself arguing these days for retrieving this and other insights of the tradition of African American thinking.

But their responses to racial injustice were underwritten by faith, without which it is unlikely they would have been able to formulate an alternative vision of society and the place of black people therein or struggle in the service of that vision. If you are without faith, some kind of faith, you will find it difficult if not impossible to get on in the world. And what would it mean for an entire community to be without political faith? Well, it would be a broken community. And black folks are not broken.

Now, my use of faith immediately seems inappropriate because folks want to know the content of the faith, and the supposition is that whatever the content is it will have some reference to religious commitments. This is one of the unfortunate features of intellectual life among those who study politics, but know nothing of religion. And this is one of the unfortunate features of our public discourse broadly. We have such a narrow vision of religious discourse. The thought is that it should only be understood in narrow doctrinal terms and thus the language of religious faiths should not be allowed to travel beyond those faiths. Thus to invoke the language of faith, salvation, redemption (or some other term presumed to be the property of religion) must always carry with it some reference to a particular religion and its doctrinal framework.

But this is to deny the family resemblance between religion and political life broadly understood. And it involves denying the structural features of faith that travel within and beyond religious communities—features that denote, as W. E. B. Du Bois reminded us, “the sense of striving for the infinite, the ultimate, and the best.” So my claim is that African Americans that struggle against racial injustice are often committed to a vision of society that is at odds with their reality—an ideal to which they are both committed to and yet stands beyond them. It is an ideal for which they have been willing to fight and that they believe others can find a home in. It structures their present, allowing them to at once take the horrors of the past seriously, but without releasing them (and us) from the responsibility of addressing the weight of the past on the present. There is no political struggle for realizing the greatest of goods—freedom, equality, dignity, economic security—without faith.

Consider my final point this way. Coates himself stands in support of Black Lives Matter. And yet, his own philosophy undercuts its meaning. For in adopting Coates’s position, we would find ourselves unable to make sense of the following mission of the movement articulated by Patrisse Cullors, one of its founders: to “provide hope and inspiration for collective action to build collective power to achieve collective transformation, rooted in grief and rage but pointed towards vision and dreams.”

Escaping Our Echo Chambers

Leon Botstein worries that the attack on free speech is an existential threat to colleges and universities:

“One could paint a futuristic image of university life in the United States in which anything resembling academic freedom, civility, and the tolerance of reason and free expression would be absent. I project this nightmare as someone who is responsible for an academic institution in the United States and is worried every day that something terrible might happen on campus.”

Botstein rehearses many of the reasons that young faculty and students are turning against free speech. The association of universities with business; the fact that centuries of free speech has not solved the problems of inequality and racism; the loss of faith in the enlightenment idea that discourse can lead to truth; the loneliness of teenage life that turns people to identify with groups and movements that isolate themselves and generate their own truths and even their own facts; and technology which makes it easy to live in ideological echo chambers. To resist these challenges to free speech, Botstein argues that we need more than moralizing—we must also listen to those we disagree with, even when they are objecting to free speech.

“My own view is that one has to have a sympathetic ear to why the younger generation, both faculty and students, don’t see what we see.

We — proponents of academic freedom and free speech — need to break out of our own echo chamber and be quite clear that free expression and the habits of critique, skepticism, and rational self-examination are absolutely indispensable. I happen to believe in that deeply, in part because I have an Eastern European Jewish background and am an immigrant. It seems second nature to me.

But I also think one has to hear very carefully that cloaked in the periodic craziness in which the American universities are now embroiled, there is a severe reaction to a lot of undelivered claims in the American space. The disaffections go back to the election of Ronald Reagan and beyond. They concern claims about economic opportunity, about social justice, freedom, the right to vote, and about confronting racism. We are taking down statues of Confederate generals, but will we erect memorials for all the black Americans and Native Americans who were lynched and killed after the Civil War?

A disturbing hypocritical piety persists sometimes in the rhetoric of the defense of free speech; that hypocrisy is what Trump exploits. There are burning questions surrounding medical care, education, employment, and social services in the United States. The university is viewed as in some way papering over or even implicitly defending inequities and injustices. We have to find a way to counter that claim and separate the idea of freedom of speech and academic freedom from any tacit alliance with those injustices.

We also need to defend the importance of language. One of the terrifying things about the American campus now is the intent to identify what you stand for by the jargon you use. Hannah Arendt argued that real thinking starts when you find a way to use words differently. We need to resist identifying others using a reductive ideology marked by the use of certain vocabulary. A person on a university campus ought not be called to task for the use of vocabulary without any understanding of personal usage, context, meaning or intent, let alone humor or irony. There is no way to be humorous or satirical, even at the expense of oneself. This must be fought.

But to fight it there must be more than generational moralizing. We are in a situation that reminds me of the late ’60s, when the radicals of the ’30s could not understand why the radicals of ’60s wouldn’t listen to them. All the veteran radicals did was to moralize on the basis of “we were there” too. Pontification is not going to work. Take safe spaces: Critics ridicule the idea, even though the university in the past provided them — Cardinal Newman Society chapters for Catholics and Hillel for Jews. Why object now to doing the same for others?”

A Federalist Democratic Europe

Etienne Balibar won the Hannah Arendt Prize in Political Thought, given by the city of Bremen. In his acceptance speech last week, Balibar called for a new foundation for Europe. That new foundation would have many elements, but above all Balibar sees that we must push beyond the democratic ideal of nation-states and develop a federal democratic system of collective movements from the ground up.

“A third condition means something different, but correlative:  a great political ideal, making it possible to measure the degree of perfection of the constitution. For many years now, with some others, I have developed the idea that, for Europe to become a political reality, we cannot simply keep the name democracy, doing our best to mitigate the strong “postdemocratic” tendency that is fostered by the global concentration of powers in the economy, communications, or the military.

Our aim must be to push democracy beyond the level it had reached in the nation-states when they were at their best with regard to active citizenship. In other terms, there will be no European federalism if, matching the development of executive, administrative, judiciary, and parliamentary powers above the national level, there is not a rebirth and an activation of popular forms of participatory democracy (sometimes called assembly in today’s political discourse), which are not confined to a local horizon, but communicate across borders. Obviously, such an invention can’t be decided from above, and it will meet powerful oppositions and huge obstacles which are not simply conservative (e.g. linguistic obstacles). To overcome these difficulties, we must add other conditions.

A fourth condition I would call an effective demand for the new foundation, by which I mean not only Europhilic sentiments, supporting governments which commit themselves to working for a new foundation of Europe, but actual collective movements that involve real, active citizens, with their diverse cultural heritage and their anthropological differences, joining forces across borders. Such transnational popular movements can be protest movements (e.g. against fiscal injustice and tax evasion, a plague affecting all European citizens even if it benefits certain states). Or they can be movements pushing towards cultural revolutions that can no longer wait (e.g. to transform those economic modes of production and consumption which have become self-destructive). This may seem very far away in a period of nationalist reaction and declining interest in Europe amongst the population, but I don’t see why we should declare it radically impossible. At least we should try.”

Posted on 10 December 2017 | 8:00 am

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