Martha Nussbaum, Liberty of Conscience, cont.
The beer has been poured. Okay, back to the two main lines of critique: her treatment of issues in chapter 8, and her silence on politics.
I’ll start with chapter 8: Contemporary Controversies. As mentioned in the previous post, Nussbaum picks out the Pledge of Allegiance, evolution, imagination, gay marriage, and fear of Muslims. It’s not clear to me that the Pledge deserves its place on this list (abortion? contraception? sexuality generally?), and in the section on fear of Muslims, she focuses on Europe, but the problem is less with the list itself than in how she approaches these issues.
First, the Pledge. Yes, it has its place in the annals of American jurisprudence, which may be why she includes it here, but this seems an historical rather than contemporary matter. The recent case brought by Michael Newdow, against the recitation of [‘under God’ in] the Pledge, excited a lot of commentators, but as he was denied standing by the Supreme Court, nothing happened. Nussbaum makes a plausible case that it may, at some point, ripen, but not now. As she herself notes, ‘Given public feeling on the issue, it would cause a national crisis were the Supreme Court to say that the words “under God” are unconstitutional. [. . .] If there is uncertainty about the correct way of proceeding in such a momentous case, it is probably wise for the Court to avoid the issue as long as possible—hoping that, in the meanwhile, greater public understanding of Hinduism, Buddhism, and other related religions, as well as a greater appreciation for conscientious moral atheism and agnosticism, will undermine the perception that the opponents of the pledge are all dangerous subversives.’ [314] I won’t be holding my breath for this greater appreciation, but I take her larger practical point.
The teaching evolution in the public schools, on the other hand, clearly is an ongoing controversy. She slips into hermeneutical mode at the outset of the section, pointing out that the Christian fundamentalist understanding of Genesis is unique to a subset of Bible-believers. ‘Practices of allegorical reading of scripture are nothing new, not in the least connected with skepticism or agnosticism.’ [316] Nussbaum takes the reader through Jewish traditions and into mainstream Protestant interpretations of Genesis, noting that ‘Teaching Darwin’s theory does not deny the biblical story (although it does suggest that one would need to read it nonliterally), . . .’ From this she concludes, citing approvingly Judge Jones’s decision in the Dover case, that teaching so-called creation science or intelligent design in the science classroom impermissably imposes a sectarian doctrine in the public schools.
This is all fine, but she’s doing something in the evolution section which evolves (sorry) even further in the section on imagination and difference in the classroom. This is the most intriguing case in this section, and I’m glad Nussbaum brings it up; I’m just not sure that she realizes the profundity of the issues she raises. ‘I have said that the public schools can and must teach values that lie at the heart of our political principles. [. . .] The classroom strongly encourages the use of imagination to come to grips with the variety of people who live together in our country.’ [327] (Leaving aside the fanciful notion that imagination is encouraged in the classroom, it is nonetheless a lovely sentiment.) Unfortunately, ‘For some believing Christians in our nation, this exercise of imagination is sinful. It is a kind of magical thinking, and magic is bad. What is good is strict obedience to the literal word of the Bible.’ [329] She takes up the 1987 case Mozert v Hawkins, in which parents Bob Mozert and Vicky Frost objected to various books on the schools reading lists. They didn’t like how gender roles were portrayed, or the use of the word ‘comrade’, alleged hidden messages promoting satanism, and the purported Hindu influence of the texts. Mainly, however, they objected to ‘exposing ther children “to other forms of religion and to the feelings, attitudes and values of other students that contradict the plaintiffs’ religious views without a statement that the other views are incorrect and that the plaintiffs’ views are the correct ones”.’ [330] Attempts at accommodation failed. The Sixth Circuit Court of Appeals Court ruled against Mozert and Frost; the Supreme Court declined to hear the case.
Why is this such a fascinating case? After all, it seems a no-brainer: As Chief Justice Lively points out (and Nussbaum quotes): ‘The “tolerance of divergent. . . religious views” referred to by the Supreme Court is a civil tolerance, not a religious one.’ [332] The parents and children aren’t required to believe anything about these other religions, and their allergy to mere exposure to them does not rise to the level of religious oppression. They may continue to believe and practice as they see fit.
The civil/religious tolerance (Nussbaum prefers ‘respect’ to tolerance) distinction is a useful one, and does real social and political work: You are a citizen in a plural society, and such citizenship requires a practical recognition of that plurality. You may not like it, you may even try to change it, but as long as such plurality exists, you may not claim legal exemption from it. This seems a straightforwardly democratically-republican understanding of the obligations of citizenship: Democratic insofar as it recognizes difference, and republican in the insistence on a similar public treatment of one’s fellow citizens.
But what if one’s religious views truly do not allow for a recognition of difference? What if it truly is onerous to one’s religious practices and beliefs to act respectfully (or tolerantly) toward the Other? Nussbaum argues in favor of a generous interpretation of polygamy as it related to 19th century Mormons, namely because it was central to their beliefs. What if the shunning of the Other is central to belief? Nussbaum could make the ‘compelling state interest’ argument, but she sticks to the civil tolerance theme. It’s a reasonable tactic, but in doing so she ducks an unavoidable consequence of the judgment: that tolerance of the intolerable can itself be oppressive. Had she used the state interest argument, she would have had to confront head-on the coercive nature of the state’s action. Coercion may be inevitable in these cases; the least we (I concur with the court’s decision) can do is grant the Mozerts and Frosts (as well as those opposed to the teaching of evolution) the recognition of that coercion.
This also raises the question of how to deal with the children in such cases. Nussbaum writes movingly of the role of imagination in Women and Human Development, and I’m inclined to agree that a life is not fully human without such imagination. But we Americans also grant wide latitude to parents to raise their children as they see fit, seeing these children (especially when young) as members of a family more than as fully rights-bearing individuals. (It’s been a long time since I’ve read Amy Guttmann’s Democratic Education, but I think she makes the argument that we might want to consider a bit less deference toward parental control.) What if parents raise their children in such a way that they are unable, when adults, to make their own way in the world? Nussbaum is surprisingly assertive of children’s rights as individuals in Women and Human Development; here, she sidesteps the issue.
I suspect the problem is her desire to accommodate all sides of the debate (as evidenced by her careful repetition of the list of not only monotheists but also Hindus, Buddhists, Taoists, Confucianists, pagans, atheists, and agnostics in her list of interested parties to the various debates). Consensus, when honestly reached, is terrific, but it is not always possible. In some matters, there are winners and losers, and that hard truth ought not be hidden.
Nussbaum at least puts together coherent arguments for the first three issues; not so for the fourth issue and fifth issues, gay marriage and fear of a Muslim planet. To take the latter issue first, she notes that while there have been isolated instances of anti-Muslim violence in the US, Muslims are, for the most part, free to practice their religion. (I think she downplays the significance of expressed anti-Islamic animus, and she ignores the post-September 11 roundups of Muslim males by FBI & immigration officials, but she’s right: there haven’t been any pogroms.) Thus, after a brief mention of the veils and drivers licenses (and some self-congratulatory words on Americans’ deep and entrenched respect for religious difference), she heads to Europe.
Europe is a problem for Nussbaum. Europeans value diversity less, have done a lousy job integrating immigrant populations into their societies, and in some cases (France!) are intolerant of public displays of religion. Nussbaum is not the first person to point out the difficulties some European nations are having with ethnic and religious minorities, but she does a terrible job—actually, no job—of putting such difficulties into context. She makes mention of the treatment of Jews in the eighteenth century, and that’s about it. Really: all of European history is dealt with in less than two paragraphs on p. 348. She thus concludes, from her voluminous historical research, that ‘The reasons for this difference between the European and the American traditions are many and complex. One reason was surely that the Americans had experienced the European way and didn’t like it.’ Uh huh. The other two reasons are lack of majority religion in the US (given the varieties of majority-Protestantism), and that ‘European nationalism has typically relied on ideas of blood, soil, and belonging to define nationhood, whereas America’s self-conception as a nation has, like India’s, been political: a set of democratic commitments, not a single ethnic style, is what holds us all together.’ [348]
Even I, who is embarrassingly ignorant of much European history, knows this is wrong. Blood and soil may matter to some versions of fascist thought across various countries, as well as to non-fascist sensibilities within some countries, but it was hardly across the continent. How would she explain republican France, with its emphasis on language and republican ideals? Or to British imperial history? Even if I agree with her that Jack Straw’s statements about niqab-covered women are appalling, I’m so damned bothered by her shallow understanding of these other cultures that I’m inclined to dismiss everything she has to say on this particular issue.
Finally, given her discussion in Women and Human Development of the distortions of adaptive preferences (i.e., one makes the only choices one can, however lousy, and may come to value them as good choices), how can she not even consider that some forms of religious dress might actually be oppressive? To continue that line of questioning would take me outside of the realm of this book review (and I go back and forth on this issue), but, shees, to state that the burqa is as unproblematic as ‘normal Chicago winter gear and surgical masks’ [350] is. . . idiotic. I don’t like using such a term for a thinker I (generally) respect, but the thoughtlessness of her narrative on this point is dismaying.
Which leaves me with the gay marriage section. If the Muslim section is a trifle, the piece on gay marriage is an offensive and incoherent mess. For much of the book she takes the side of the minority believer against majoritarian practices. This is a legitimate approach, but it breaks down when the issue is less of the freedom of religious expression than freedom from religion. Thus, she considers gay marriage from the perspective of belief, and questions whether any religious tradition requires gay marriage. Some prohibit, some allow, but none require. Given that Nussbaum wrote sympathetically of the centrality of polygamy to 19th century Mormon beliefs, one might suspect a concurrent sympathy for alternate forms of marriage, but the lack of centrality of gay marriage to religious belief means, for Nussbaum, that the First Amendment has little to say on this issue. ‘It seems difficult to imagine any Free Exercise claim in this area.’ [338] However,
The Establishment Clause might seem more promising, for many people see the current restrictions on same-sex marriage as a de facto establishment of a Christian or Judeo-Christian norm. But a case that claimed a right to marriage for gays and lesbians on Establishment Clause grounds would be extremely weak. As I’ve argued, these limitations on marriage are not particularly characteristic of Judaism and Christianity, at least in their present form; they are things with regard to which Judaism and Christianity are deeply divided, and non religious America is also deeply divided. Nor is there any religion that strongly promotes same-sex marriage, though many permit it.
Moreover, the state has always chosen definitions of marriage and family that favor some traditions and disfavor others, without any apparent constitutional problem under the religion clauses. . . .
But if the issue of sexual orientation is not really a religious issue, or, at any rate, not an issue to be handled under the religion clauses, is there some other way in which these clauses can help us think through our divisions over these issues? [339-40]
Oh. My. First, she offers NO EVIDENCE for the assertion (the second in this section; see also 338, top) that atheists and agnostics are divided on the issue of gay marriage. Maybe we are, maybe we aren’t, but given that it seems so terribly convenient for Nussbaum to make this assertion (so as to say this isn’t really a religious issue), I’m not taking her word on this.
In fact, it seems terrifically important that secularists are divided, precisely so she can avoid dealing with the religious component of the anti-gay-marriage argument. Because she is so focused on believers, she can’t come around to the other side to see that at times what is required, from the perspective of liberty, is a claim against religion. Dammit, it’s getting late and my thoughts are fraying, but let me try to hash out this last point before going to bed (I guess I’ll have to finish in a part III.) Nussbaum tosses out that states have always regulated marriage—so what? Nevermind that she considered prohibition of Mormon polygamy as inimical to freedom; as long as gay marriage isn’t anywhere required by religion, no problem. (Of course, there’s also the matter that some religious proponents of gay marriage are advocates precisely because they see the sanctification same-sex relationships as intrinsically involving core precepts of their beliefs. Nussbaum, however, rides right past these arguments.)
But, of course, there is a problem, akin to that facing Catholics in Protestant-influenced public schools: the state has taken on the prejudices of sect and, in imposing the requirements of that sect on all, violates its own neutrality and thus, the rights of those outside of that sect. For Nussbaum to state that because Reform Jews and some Christian denominations welcome gay marriage means there is no sectarian influence in the definition of marriage is to ignore large swaths of the political debate surrounding this issue, as well as common sense.
Shit, I’m breaking up, and I want to be very clear in the rest of my critique. I’ll pick this up later. Now: to bed.
AbsurdBeats 