Individual integrity,freedom of association and religious exemption

ABSTRACT

Of the many questions Cécile Laborde addresses in her magisterial Liberalism’s Religion, several relate to what she describes as ‘the puzzle of exemptions’. I examine some of the issues raised by her efforts to solve that puzzle: whether her ideal of moral integrity squares with the nature of religious belief; whether we should find the case for collective religious exemptions in freedom of association and the ‘coherence interests’ of associations; how much significance we should give to the ‘competence interests’ of organised religions; and by which criteria we should assess individual claims to religious exemption.     

Defending broad neutrality

ABSTRACT

This paper interrogates Cécile Laborde’s account of the proper role of religion in the liberal state. It begins by examining Laborde’s claims that prevailing liberals are not committed to broad neutrality about the good, but rather only restricted neutrality about the good—and that they are right to do so. It argues against Laborde on both exegetical and substantive grounds. It then turns to Laborde’s minimalist conception of secularism, according to which the state must be justifiable, inclusive, and limited, and it argues that it is not sufficiently demanding. Finally, it argues that the classical liberal presumption of skepticism toward religious establishment is warranted.     

Religion and discrimination: extending the ‘disaggregative approach’

ABSTRACT

Cécile Laborde’s disaggregation strategy, which is convincingly applied to religion, liberal neutrality, and freedom of association, should be extended to discrimination, in order to more systematically determine whether, when, and why indirect religious discrimination is unfair. Moreover, while Laborde’s distinction between the ‘Disproportionate Burden scenario’ and the ‘Majority Bias scenario’ is a powerful alternative to the discrimination-focused account of the justifiability of religious exemptions, the epistemic status of that distinction is not immediately clear. A case can be made that Disproportionate Burden and Majority Bias do not map onto different types of minority exemption claims. They are perspectives or analytical frames that may jointly and usefully be applied to most instances of such claims.     

On Liberalism’s Religion

ABSTRACT

This chapter addresses two crucial issues raised by Laborde’s superb Liberalism’s Religion. The first pertains to where the liberal democratic modern state draws the line between the self-governing prerogatives of religious nomos communities and their regulation by the civil law; the second pertains to the prerogative of the state to do the relevant line drawing. Theorists concerned with religious freedom focus on the first set of questions under the rubric of ‘accommodation.’ The issue is unfair discrimination. I focus on Laborde’s approach to the second. This is again an important issue due to the recent revival of jurisdictional political pluralism: an approach that challenges the supremacy of the civil law and of the authority of the sovereign state over domestic religious authorities. I suggest more work must be done to parry those challenges.     

Is epistemic accessibility enough? Same-sex marriage,tradition, and the Bible

ABSTRACT

In Liberalism’s Religion, Cécile Laborde argues that a liberal state has to be a justifiable state: state action can only be legitimate if it is publicly justified, that is, if it is based on accessible reasons. These accessible reasons, she argues, are reasons that can be understood by all citizens. She defends a purely epistemic conception of accessibility. On Laborde’s account, accessible reasons are identified by particular epistemic features, and not by their substantive content. In this paper, I argue that Laborde’s account of epistemic accessibility cannot deliver on its promise of public justification. To illustrate this argument, I examine the case of the prohibition of same-sex marriage and look at two potential reasons that could be used to justify this prohibition: the non-accessible reference to the Bible and the accessible appeal to the value of tradition.     

Liberalism and religion: the plural grounds of separation

ABSTRACT

In what sense, and to what extent, should a liberal state be secular? Many interpret liberal-egalitarian political theory as dictating a radical separation between church and state. Against this view, Cécile Laborde has powerfully argued that, in fact, liberal-egalitarianism is not committed to strict separation as such. Laborde understands the liberal-egalitarian commitment to separation as ultimately grounded on a principle of neutrality. However, she argues that the conception of neutrality to which liberal egalitarians are committed is much more ‘restricted’ than it is often thought. If a commitment to separation is derivative from a commitment to neutrality, then, if neutrality is restricted, secularism is minimal. This means that not all forms of religious establishment should be regarded as impermissible from a liberal-egalitarian perspective. Contra Laborde, I argue that restricted neutrality should not be understood as the only ground of separation. Separation has plural grounds. Forms of religious recognition that do not violate any of the requirements of restricted neutrality may still be regarded as impermissible from a liberal-egalitarian perspective, if they (1) violate a basic commitment to fairness, (2) treat citizens in a patronizing way and/or (3) violate, in their justification, a requirement of sincerity, as grounded on reciprocity.     

Laborde’s religion

ABSTRACT

Cécile Laborde’s Liberalism’s Religion proposes liberal principles to address political controversies over religion. One is the public reason requirement that reasons for state policies should be accessible. Another is the civic inclusiveness requirement according to which symbolic religious establishment is wrong when it communicates that religious identity is a component of civic identity. A third is the claim that liberal states have meta-jurisdictional authority to settle the boundary between what counts as religion and what counts as non-religion. The article considers whether Laborde has managed to articulate these three principles in a way that is operationalisable and can serve to provide solutions to practical controversies over religion. It is argued that Laborde’s formulations leave important issues open, and some ways of settling these issues are considered.     

Racial structural solidarity

Abstract

Effective political action against racial injustice requires a conception of solidarity based on the social and material reality of this form of injustice. I develop such a notion of solidarity by extending Iris Young’s notion of ‘gender as seriality’ to race. This notion of solidarity avoids the problems encountered by Shelby’s ‘common oppression view’ and Gooding-Williams’s non-foundational view. On Shelby’s ‘common oppression’ view, solidarity is based solely on the victims’ shared condition of oppression. According to Shelby, all victims of racial oppression can be reasonably expected to endorse a set of principles that will move them to common action. Gooding-Williams sheds doubt on the idea that such shared principles exist and defends instead a view of politics as action-in-concert, marked by reasonable disagreement, and a non-foundational view of solidarity constituted through the controversy of politics rather than given in virtue of pre-political commitments or interests. I argue that the problem with such a notion is that it is unable to link the material and social reality of the unjust structures to the forms of political action that would effectively transform social reality. My notion of ‘structural racial solidarity’ would avoid these problems.     

Self-determination,group identity and the common will

ABSTRACT

Anna Stilz defends a political autonomy account of self-determination that, she argues, best explains our intuitions about why colonization, annexation and foreign occupation are wrong. These are wrong, on Stilz’s view, because they unilaterally coerce individuals living under those systems of government. I argue that Stilz does not show that her account of self-determination explains our intuitions about autonomy in these kinds of cases, because she does not have a separate argument for the value of belonging to particular political groups.     

Secularism vs. Post-Secularism: A Critical Examination of Cooke’s Post-Secular Alternative

In recent work, Maeve Cooke has criticised Jürgen Habermas’s post-metaphysical model in order to motivate an alternative “post-secular” conception of the state, which involves the replacement of the “institutional translation proviso” with the “nonauthoritarian reasoning requirement”. I provide a qualified defence of the Habermasian model by arguing that it does not lead to the kind of negative consequences regarding legitimacy and solidarity Cooke attributes to it. This, in turn, means that Cooke’s proposal for the secular foundation of political authority on a post-secular basis is insufficiently motivated. In the process, I argue that the point of departure for the debate about religion in the public sphere shared by both Habermas and Cooke – the picture of the “total” religious citizen – should be rejected because it presupposes an overly simplistic view of religions and religious identities.     

Reconciling cultural diversity with a democratic community: Mestizaje as opposed to the usual suspects

A fascinating development within the liberal‐communitarian debate is how to deal with cultural diversity in increasingly heterogeneous democracies. Particularly noteworthy are Will Kymlicka's recasting of liberalism to deal with cultural minorities, especially the indigenous peoples of Canada and Charles Taylor's and Michael Walzer's articulation of a ‘deep diversity’ with regard to the federal relationship of Quebec to Canada as a whole. Both approaches, though, insufficiently address how combinations of cultures have been underway in the Americas for the past 500 years. Instead, I contend that mestizaje, the combination of cultures which has ensued in Mexico and the United States Southwest, articulates a ‘unity in diversity’ in which cultures transform each other without culminating in assimilation. To bolster my exegesis of mestizaje from the works of the Virgil Elizondo and Gloria Anzaldua, I accent how Jeremy Waldron's cosmopolitanism, Iris Marion Young's relational group theory, and Homi Bhabha's hybridity similarly illustrate how proposals such as Kymlicka's or Taylor/Walzer's insufficiently incorporate how integral heterogeneity is to cultural identity. In view of how ‘the border’ between the United States and Mexico exemplifies the growing intersection of diverse cultures from the developed and developing world, mestizaje offers that the intersection of multiple cultures in collaborative—not hegemonic—relations is intrinsic to realizing democratic citizenship.     

Occupancy rights: dynamic as well as located

ABSTRACT

Anna Stilz’s Territorial Sovereignty (2019) aims to be a revisionist account of territorial rights that puts the value of individual autonomy first, without giving up the value of collective self-determination. In what follows I examine Stilz’s definition of occupancy rights and her emphasis on the moral relevance of what she calls ‘located’ life plans. I suggest that, if it aims at being truly revisionist, her theory should work with a broader definition of occupancy. So long as it doesn’t, these rights will be mainly the preserve of groups of settlers and peoples with predictable patterns of movement. Moreover, insofar as occupancy rights ground collective rights to self-determination, they actually have the potential to trump individual rights to what I call ‘dynamic’ or non-located occupancy. This is worrying, I claim, for at least two reasons. First, rights to dynamic occupancy are arguably as central for respecting individual autonomy as rights to located occupancy. And second, rights to dynamic ocupancy should be seen as key in helping to form the kind of political allegiances required to overcome the most pressing collective action problems that humanity faces.     

On the permissibility of shaping children’s values

Abstract

According to Harry Brighouse and Adam Swift, parents have a limited and conditional moral right to deliberately shape their children’s values and interests in light of their own particular comprehensive convictions. Their view contrasts with Matthew Clayton’s account of legitimate childrearing, according to which it is always impermissible for parents to seek to pass on their particular convictions to their children or, more generally, to ‘enroll’ them into their conception of the good, since this violates a requirement of respect for children’s independence. This paper offers a novel defense of Brighouse and Swift’s position that at least some forms of comprehensive enrollment are permissible. First, I argue that the claim that there is a duty to respect the independence of very young children is problematic. Then, drawing on Brighouse and Swift’s account of familial relationship goods, I argue that seeking to pass on comprehensive values or beliefs to one’s children is actually compatible with proper respect for their independence, as Clayton understands it.     

John Locke and the Limits of Religious Liberty: Marriage License Refusal,Religious Freedom Laws,Vaccine Refusal,Contraception Mandate Exemptions,and Ultrasound Requirements

Nearly two hundred fifty years into its existence, the American polity faces a conundrum over a core founding principle: religious liberty. Multiple debates have emerged over the extent and limits of religious liberty, including arguments over how far any one person’s religious liberty extends into the public sphere as well as into the private lives of other citizens. Highly influential on James Madison’s crafting of the First Amendment, John Locke’s Letter Concerning Toleration outlines a strong conception of both religious toleration and of religious liberty. In the “Letter,” Locke’s reasoning is sympathetic to the concerns and convictions of believers while remaining cognizant of the calamities to which religious differences can give rise. Further, he provides a robust explication of the mutually exclusive domains of ecclesiastical and civil authorities, now known more colloquially as the division of church and state. In the following article, I illustrate how the principles put forth by Locke offer guidance in adjudicating religious liberty claims in the cases of Kim Davis, religious freedom laws, vaccine refusal, contraception mandate exemptions, and ultrasound requirements.     

Occupancy rights: life planners and the Navajos

ABSTRACT

This Comment focuses on the limitations of Stilz’s individualist conception of occupancy rights. Her account of occupancy is critical to her attempt to answer the question of where one holds territorial rights as well as related place-related rights like the right of return. Her account appeals to the geographical location of individual life plans. This Comment argues that this fails to distinguish between Indigenous People who are connected historically and in many other ways to a place and individual Life-Planners: it treats the two as equivalent, which I argue is counter-intuitive. I also argue that Stilz’s occupancy account fails to explain the scope of occupancy rights in a number of cases that she appeals to in her examples, such as the Navajos’ expulsion from the area in which they lived. What she needs, I argue, is a group based conception of occupancy rights, in addition to the idea of individual rights of residency.     

Accommodating toleration: on Balint’s classical liberal response to the multiculturalism challenge

ABSTRACT

Peter Balint identifies three challenges to toleration, one of which is the multiculturalism challenge. This is the charge that liberal toleration fails to accommodate minorities adequately, which requires positive recognition rather than negative toleration. I discuss his response to the multiculturalism challenge and its connection to a classical liberal view of toleration. This involves Balint’s claim that liberal neutrality should be understood as reflective and ‘difference-sensitive’, which should be realised by the state being ‘hands-off’ in the sense of withdrawing support for privileged ways of life. I argue that Balint’s classical liberal view that the state needs to be ‘hands-off’ is in need of specification and that it does not fit well with his claim that neutrality needs to be reflective and difference-sensitive.     

Self-respect and public reason

In A Theory of Justice John Rawls argues that self-respect is ‘perhaps the most important’ primary good, and that its status as such gives crucial support to controversial ideas like the lexical priority of liberty. Given the importance of these ideas for Rawls, it should be no surprise that they have attracted much critical attention. In response to these critics I give a defense of self-respect that grounds its importance in Rawls’s moral conception of the person. I show that this understanding of self-respect goes well beyond giving support to the lexical priority of liberty, also supporting Rawls’s still more controversial view of public reason. On my account, taking self-respect seriously requires the coercive enforcement of public reason. This is a novel argument for public reason, in that it grounds the idea in justice as fairness and mandates its coercive enforcement.     

Toleration,neutrality, and exemption

ABSTRACT

I focus on some controversial features of Peter Balint’s stimulating and provocative reassessment of the place of toleration in contemporary diverse societies. First, I question his argument that we must enlarge the concept of toleration to include indifference and approval if toleration is to be compatible with state neutrality. Secondly, I suggest that his idea of active neutrality of intent risks encountering the same difficulties as neutrality of outcome, although these will be mitigated the more the state’s neutrality takes a ‘hands-off’ form. Thirdly, while accepting his claim that exemptions depart from neutrality insofar as they attribute a significance to religious and conscientious convictions that they deny to mere preferences, I argue that that departure is not arbitrary and remains within the spirit of neutrality of intent.     

Republican justice

I raise three objections to Philip Pettit's republican account of justice: (a) that it fails to account adequately for the role of certain values such as substantive fairness; (b) that it represents an uncomfortable hybrid of egalitarianism and sufficientarianism; and (c) that it fails Pettit’s own ‘eyeball test’. I then conclude in a more constructive vein, speculating about the kind of account of justice it is supposed to be and suggesting that, construed a certain way, it may have resources for answering the three objections.