Indiana Senate Bill 101, entitled the Religious Freedom Restoration Act, may be today’s headline, but it is only the latest parry in a much more important debate that is bigger than Indiana, and bigger than North America. That debate isn’t just about marriage and religion, it’s about the ongoing struggle to determine the proper boundaries between the State’s use of the coercive force and its ongoing commitment to uphold the sorts of freedoms that makes our democratic political systems worthy of the label, “liberal.”
Comment and the institution out of which we work, Cardus, has not only been thinking about the propriety of these boundaries, but publishing leading thinkers who can help us make sense of where these boundaries should be set. These are questions we’ve been asking since well before the Indiana headlines of last week.
So today we republish a prescient piece by Cardus Senior Fellow Jonathan Chaplin, originally published in 2006, which suggested that liberalism is undergoing a “regime change” that poses challenges not only for those who are religious, but for the whole of civil society. Here he proposes a framework for thinking through the content of the “menu of toleration” in our democracies and how we might work to make the case for a unique type of constitutional regime, one which respects and affirms the proper role of religion and the State, but also respects and remains hospitable to the widely diverse forms of our shared public life.
The notion of a “regime” of tolerance sounds paradoxical. The term “regime” conjures up images of an authoritarian state employing heavy-handed tactics—or more subtle techniques of persuasion—to suppress free speech. Countries like Iran, Zimbabwe, or Cuba come to mind. The term, “tolerance,” by contrast, evokes pictures of open skies and bustling streets in which contending political groups vie freely for a hearing. We immediately think of countries like Canada, of course, with ample justification. The imputation that liberalism is a “regime of tolerance” is doubly counter-intuitive. Isn’t liberalism defined essentially as a system of placard-waving tolerance, laid-back openness, and boisterous intellectual freedom?
In this article, I won’t interrogate the term “liberalism” itself. I will only explore one of the contradictions generated by common liberal language lodged deep in the liberal self-understanding. My aim is to debunk liberal claims that liberalism brings about a universal realisation of “tolerance.” I want to restate an obvious point which frequently gets obscured in public debates about tolerance: that every political system, not only authoritarian ones but liberal ones as well, is a “regime” which facilitates a particular zone of toleration, and simultaneously demarcates clear boundaries to such toleration. These will often be legal boundaries imposed, if necessary, with coercion. Such boundaries are acts of intolerance. Every regime must set such boundaries.
This isn’t to say that the difference between Canada and Cuba is merely one of degree. Liberal states operate on what has been called a “presumption of liberty,” seeing constraints on citizens as needing justification. Authoritarian states operate on the presumption of citizens’ conformity to government expectations, regarding liberty as requiring justification.
But even liberal regimes—even relatively just liberal regimes—must set legal boundaries as to what is tolerable. Criminal laws protecting people against acts of violence such as murder or rape are the clearest examples of how a free, open, “liberal” society must be legally intolerant of certain acts if it is to establish a minimum baseline of justice in society. As William Galston has pointedly put it, a liberal society does not grant rights to the free exercise of religion for Aztecs—who famously practised human sacrifice. And it is not just acts that are subject to restriction, but also words. Every regime—every just regime—also must set legal boundaries to freedom of speech and expression, even though no physical harm is immediately caused by “mere words.” Contrary to the dreamy imaginings of some libertarians, freedom is not, and can nowhere be, absolute or unlimited. Rigorous and enforceable laws against libel and slander, against incitement to violence or racial or religious hatred, and against the abuse of commercially or militarily sensitive information are basic ingredients of protective justice in a free society. We may, and we should, argue vehemently over the precise content of such legal restrictions, but no political system can do without them entirely.
Every regime sets limits, even to artistic freedom. Liberal countries like Canada, the USA and the UK erect legal constraints around what can be depicted in public. Hard-core pornographic movies are prohibited from public broadcasting outlets (even if freely available privately on the internet) to avoid gratuitous offence to public standards of decency, and to protect the dignity and rights of women. Again, only ideological libertarians or fanatical devotees of the romantic theory of art—who think that the slightest curtailment of artistic expression is the very death of creativity—would claim that the right to artistic freedom trumps such compelling public concerns. Liberal societies are intolerant of many things, and rightly so.
All political systems, then, are both tolerant and intolerant, but of different things. Each system offers a distinctive “menu of toleration.” It matters enormously which things are on the menu and which are not—that is how we distinguish between liberal and authoritarian regimes. But the debate on the toleration menu is not helped when we simplistically bifurcate political systems, or social institutions, into those which are “tolerant” (us) and those which are “intolerant” (them).
The “menu of toleration”
The question is: What is tolerable? But this question requires careful unpacking if we are to say anything sensible about it. First, a quick definition. Roger Scruton (A Dictionary of Political Thought, Macmillan, 1982) has defined toleration succinctly as a “policy of patient forbearance towards that which is not approved.” But immediately we need to make this abstract definition more concrete by specifying the diverse institutional contexts in which toleration is occasioned. Parents may lay down clear rules on respectful language on the part of their children, with punitive sanctions attached (“You’re grounded!”). But such domestic rules would be wholly inappropriate in a parliamentary chamber and would stifle debate unacceptably—as they do in authoritarian regimes where it is illegal to speak “disrespectfully” of the head of state or governing party. Religious associations may quite legitimately hold their officers to account for departures from their authorized confession of faith, whereas states may do no such thing since they no longer have jurisdiction over confessions of faith. A backbench Labour MP might denounce the British Cabinet for its craven submission to Prime Minister Blair’s policy on Iraq, but if a member of the Cabinet did so, the minister would be instantly dismissed. The bounds of tolerance are quite properly wider within a political party than within a government, the latter being subject to the constitutional principle of “collective responsibility.”
The scope of tolerance, then, is “sphere-specific.” But this seemingly obvious claim is, however, not universally accepted. It assumes the legitimacy of a differentiated society, in which, for example, church, state, family, corporation, university, or voluntary association exercise its own jurisdictional autonomy free from state direction. Officially Islamic or communist states, however, make no such assumption, and it is only weakly endorsed in some African, Asian, and Latin American states, where collectivist, populist, nationalist, or “clientelist” political cultures still prevail. Even in European and North American liberal societies this principle of differentiated authority is under threat, both from the steadily expanding bureaucratization of the state, and from the creeping marketization of civil society. So we have no grounds for complacency.
My assertion that tolerance is sphere-specific assumes the legitimacy of the principle of differentiation. What I am proposing is a particular regime of tolerance, one marked by institutional differentiation, and which secures a specific “menu of toleration.” In such a regime, among other things, state-enforced religious confessions are not tolerated, civil society associations are relatively free to manage their own affairs free of intrusion or domination by public authorities, and individuals are substantially free to hold and voice their own convictions on almost anything. Most of us would emphatically prefer to live under such a regime of tolerance than the ones prevailing in Cuba, Iran, or Zimbabwe.
Let me give one example of why such differentiation is vital. In a differentiated polity, individuals may come to the conclusion that the confession of a particular church is too “narrow” or “dogmatic,” or, conversely, too “broad” or “liberal.” And they may use their rights to free speech to criticize it, either as a member or (with more latitude) as an outsider. But this has no implications at all for what public legal constraints on church confessions might be justified. Our personal estimation of such confessions is entirely beside the point on that jurisdictional question. As it happens, most European and North American states impose no legal constraints at all on the internal confessions of churches, beyond a general requirement of conformity to criminal and civil law. Such states have learned—through bitter and bloody experience, as well as through the insights of the Reformation and the Enlightenment—to grant political toleration to convictions deemed by many citizens to be objectionable, crazy, even abhorrent. For example, there are religious “cults” which in my view are all three of these things. But I don’t claim there is any legal justification for closing down their activities, so long as they don’t fail the “Aztec test” or engage in activities like sexual abuse. Western societies have come to see that it is beyond the proper jurisdiction of states to regulate religious belief. And the legal restrictions on “cults” I just mentioned are justified not because the state is competent to judge the falsity of their beliefs per se, but because it is competent to judge the minimal requirements of public order, human rights, child protection, and so forth.
Adjudicating religious tolerance
This principle of religious toleration is an enormous achievement of modern constitutional democracies and we should protect it vigorously. It is one of several items on the “menu of toleration” secured by liberal regimes of tolerance that Christians, among others, have good reason to defend.
But liberal regimes of tolerance are throwing up their own inner contradictions, and some minority groups in such societies are increasingly crying foul at what they perceive are unjust curtailments of their freedom of action or expression. I want to suggest that this is because liberalism itself is undergoing an important internal “regime change.” The earlier liberal regime converged extensively with (because it was indebted to) a Christian conception of constitutionalism. In that regime, governments understood their role as the protection of the basic civil rights and freedom of its citizens, the provision of essential social welfare services for all those in need, and the widespread protection of freedom of association and self-government for the institutions of civil society. The new regime is taking upon itself a new mandate, one which is undermining some of those earlier commitments. It is attempting to refashion civil society associations in the image of the universal public principles applying to liberal governments.
A hypothesis worth pursuing (further than I can here) is that the new liberal regime is expanding its remit at the same time as—and perhaps because of—its decreasing capacity to deliver the wide-ranging social services it used to think of as essential to its mandate. If there is truth in this, the irony is rich: as liberal states, under pressures from increasingly globalized economic exchanges, are less and less able or willing to resist the progressive marketization of civil society, and the consequent dismantling of their welfare systems, they simultaneously pursue the progressive politicization of civil society. As the power to restrain business corporations slips through their fingers—indeed, as they all too willingly cede it—they grab hold ever more jealously of the reins of voluntary associations, which are easier targets. A diagnosis of this new apparent twist in the pathology of late modern liberal states awaits.
Let me explore this dilemma further in relation to religious associations. The adjudication of religious toleration is becoming more complex today for at least three reasons. One is that global population movements are deepening religious pluralism in European and North American liberal democracies. There are simply more kinds of religion around, each with large and growing numbers of adherents. Another is that religious groups are becoming increasingly vocal in articulating their distinctive claims and asserting their particular identities in the public realm. “Public religion” is on the rise. A third is that the steady expansion of the welfare state has been occasioning more collisions—and more serious ones—between public authorities and voluntary associations of all kinds, including religious ones.
A troubling recent manifestation of the third factor has arisen because governments, at all levels, have expanded the scope of their regulatory claims over what are defined as “public sector” institutions, such as health care or social service providers, and educational establishments. Some of these claims are justifiable. Where serious, system-wide deficiencies have arisen, such as inordinately long hospital wait times, or persistently inadequate performance by schools or universities, then new governmentally-imposed regulations (codes governing professional practice, for instance) may be necessary if the bodies cannot or will not reform themselves (so long as such regulations are not fiscally driven—that is, aimed primarily at cost-saving rather than performance-enhancement).
Now consider a specific case arising in several public sector institutions. One of the most rapidly-expanding areas of regulation concerns anti-discrimination policies. Almost all public institutions are now acquiring detailed official guidelines or codes of practice intended to prevent discrimination in hiring, promotion, treatment, service provision, et al. on grounds of race, ethnicity, religion, gender, sexual orientation, and so on. In some cases the regulations in question have been self-generated, in others, imposed by public authorities. In Canada, regulations within federal public institutions must be consistent with, and pursuant to, the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act. Indeed, the Charter itself has been a major stimulus to their expansion. But since all provincial governments are also subject to the Charter, provincial public sector bodies are also increasingly finding themselves obliged to conform in this way. Thus, in the important case of Hall v. Powers, a Catholic school—deemed to be in the Ontario provincial “public sector” on account of its receipt of public monies—was obliged to reverse a decision in line with its own sexual lifestyle policy on the order of a provincial judge invoking the equal individual rights provisions of the Charter.
Let me note in passing that another concept I will not interrogate here is the standard liberal (and social democratic) distinction between the “public” and “private” sectors. My own view is that any association which performs a service of public value is part of the public sector, even when it is quite independent of the state, and that it should in principle be eligible for equitable public funding for that reason. But “public sector” today generally means “owned and controlled by government.” This should be renamed the “state sector.” Today’s loose liberal terminology furthers the widespread confusion that, if a body is in receipt of any public funding at all (whether or not it is also owned and controlled by government), it is deemed to be thereby subject to the same set of uniform public norms as prevail in government-controlled institutions. In this way, public funding regimes are exploited to further the politicization of civil society, a process particularly damaging to institutions which seek to uphold a set of values at odds with those of the newly monopolistic liberal regime. The process is fuelled by the misleading rhetoric, “Why should public money be used to sponsor prejudice and intolerance?”
Individualistic vs. pluralistic toleration
The idea of uniform codes of practice in public institutions is not in itself wrong. Some such codes are essential to ensure just treatment: we wouldn’t want one hospital to treat applicants of all races fairly in its hiring processes but another one down the road to get away with covert racism. But the current trend toward the ever-wider and ever-deeper penetration of such codes evokes important questions. A particularly instructive one arises from the intersection of public institutions with private ones. Consider a religious student society on a public university campus. It is a voluntary, self-governing society. It is not owned by the university, or by the student association. It merely avails itself of facilities (meeting rooms, publicity outlets, subsidies, etc.) under the immediate control of the student association, and under the final authority of the university. Such facilities are available to every other student society recognized by or affiliated to the student association. The student association holds a monopoly of control of such facilities and can enforce its rulings coercively.
Now consider the example of an Islamic student society, affiliated to the student association. Under pressure from other student societies or individuals, the association decides to impose a new non-discrimination policy (or, perhaps, review the enforcement of its existing one) on all affiliated student societies, upon breach of which privileges or even membership are withdrawn. This new policy requires all society offices to be filled by elections in which all members can vote, to open up such positions equally to men and women and to heterosexual or homosexual members. But the Islamic society has a rule, contained in its own constitution, and deriving from its own reading of Islam (perhaps under guidance from a sympathetic local Imam), that senior offices in the society are reserved for men, and for those upholding the society’s religious beliefs, one of which is that homosexual relations are morally illicit. The inconsistency is discovered, and the Islamic society is disaffiliated. It protests loudly against “discrimination.”
In the name of a policy of non-discrimination, a student society finds itself discriminated against. Is this a “tolerant” policy? What this case exemplifies at the micro-social level is a clash between two competing regimes of tolerance, an individualistic one and a pluralistic one. One—the student association’s—prioritizes arithmetical equality, understood as identical treatment for individuals across a wide range of institutional practices within all societies. Backed by the monopoly power of the student association, it imposes uniform rules on all societies irrespective of what their internal beliefs and rules prescribe. The other—the Islamic group’s—prioritizes associational plurality, allowing differential treatment of different groups out of equal respect for the diverse viewpoints and internal procedures such societies represent. Both seek equal treatment, but they differ over which entities merit equal treatment, individuals or associations. An individualistic regime of tolerance in effect allows the majority of individual students to determine the internal appointment procedures of every affiliated society. But imposed arithmetical equality among individuals has the effect of squeezing out associational diversity. A pluralist regime of tolerance allows each affiliated student group equally to determine its own internal appointment practices, even when some of these may diverge from what the majority of students think is morally acceptable. Its approach is also backed by the monopoly power of the student association: respect for associational pluralism is enforced across all affiliated societies. Imposed protection of associational pluralism necessarily allows the possibility of unequal (non-identical) treatment of individuals within groups. Which regime is the more “tolerant”?
In practice, of course, any student association is likely to embody a combination of individualist and pluralist elements. Any conceivable pluralist regime in universities today will certainly expect equal treatment for members of all races. No student association would tolerate a student society which practised racial discrimination. But beyond this kind of agreed baseline there seems to be an expanding contest in student association polities between the individualist and pluralist tendencies. Currently, it seems that the individualistic tendency is gaining the upper hand, even where the association pays lip-service to pluralism.
I just stated that “racial discrimination” would be regarded as universally intolerable. Yet even here further distinctions are required. Consider a society devoted to the study and dissemination of Black History. Would it be “intolerant” for such a society to require—either de jure or de facto—that its senior officers were themselves black? Would white members be legitimately offended by such a restriction? Or consider a feminist society, committed to advancing the cause of women’s rights on campus. Could anyone reasonably cry “discrimination” if the senior officers—even the membership—of that society were reserved not only for women but for feminist women, defined as those subscribing to the stated aims of the society? Even more obviously, who would cry foul if a student Liberal Club required that its officers be reserved to members of the Liberal Party, or at least those willing to sign up to a statement of Liberal principles?
In each of these cases the restrictions in question seem wholly pursuant to the very purposes of the societies. They are not arbitrary acts of discrimination, but eminently justifiable ones. As it happens, it is difficult to imagine any student association disaffiliating such societies on grounds of a breach of its non-discrimination guidelines. Yet recently a number of Christian societies in the USA and the UK (notably those with conservative theological convictions) have been subjected to exactly such moves by student associations. Even more recently, Ottawa’s Carleton University Student Association took a decision to refuse on-campus meeting space to Carleton Lifeline, a pro-life club. In some cases this is because the societies require office-holders, or even members, to indicate their agreement with a particular doctrinal statement and with a particular lifestyle policy declaring (among other things) homosexual sex to be morally illicit. Some such groups have had their student association membership withdrawn, a move supposedly justified by the putative right of the association to impose an identical set of internal norms of inclusion, tolerance, diversity, et al. on all affiliates. This amounts to the monopolistic enforcement of an individualistic regime of tolerance, one which prioritizes imposed uniformity over self-governing plurality. Let’s call it by its name: it’s a coercive act of exclusion.
Now earlier I slipped the word “arbitrary” into my argument, but even this term needs unpacking. I suggested that the hypothetical cases of discrimination practiced within Islamic, feminist, or party political societies were non-arbitrary because they were crucially pursuant to the very purposes of the societies. Without such discrimination it is hard to imagine how such societies could sustain their stated goals over time. But clearly, not just any practice can be countenanced as pursuant to the purpose of a society. Suppose a student “Society for the Celebration of Confederate Culture” at an American university discriminated in its appointment process against black students who for some reason wished to join. Some members might argue, perversely, that such a restriction were “pursuant” to the society’s purposes, but no student association (or university) would, or should, let them get away with that. Even the most pluralist regime of tolerance must impose equal treatment among individuals at some point, and the relevant authority—whether a student association, a university administration, or a government—is obligated to enforce it.
A regime of tolerance will itself define what counts as “arbitrary.” But this is not to suggest—as radical deconstructionists like Stanley Fish do—that such acts of definition are themselves arbitrary, in the sense of being mere power plays incapable of reasonable public defence. A key question at the heart of the recent conflict involving Christian societies is whether certain doctrinal or moral standpoints—notably on homosexual sex—fall into the same category as racism and so merit proscription as arbitrary, or whether they are more like the ideological convictions of party political or feminist societies and so merit protection.
Well, how should that question be resolved? How should we decide whether a particular practice by a student society has crossed the border of acceptable plurality and entered the realm where individualistic imposition is justified? On that there will inevitably be real disagreement by proponents of different regimes of tolerance.
(Note that it is never enough simply to invoke existing rules or rights to justify a particular outcome, for it is exactly these that are being contested. This was the rhetorical strategy of some leading proponents of same-sex marriage in Canada, who invoked very recent provincial court judgments in their defence. Recall former Justice Minister and law professor Irwin Cotler’s obtuse mantra, “rights are rights are rights”—but it was precisely the legitimacy of these novel judicially-created rights that were in debate).
Let me suggest two responses. The first and most telling is that those who place racial identity and views on sexual morality in the same category are simply not comparing like with like. As a biologically determined trait, racial identity is wholly outside someone’s choice, while also being profoundly implicated in someone’s social identity. This is the basic reason why we have rightly come to insist that racial discrimination is arbitrary. Views of sexual morality, by contrast, are elective: we adopt them, either through individual choice or by remaining within a community that upholds them. And for some, the views they hold on this question are profoundly connected to their own moral or religious identity, such that being required to suspend or disavow them is experienced as deeply compromising.
A second response is more pragmatic. One thing on which all student societies will agree is that their student associations should not apply one rule for one society and a different one for others. So let those student associations which have acted to disaffiliate Christian or other societies accept an obligation to demonstrate that they are applying, and would apply in possible future cases, their non-discrimination guidelines even-handedly across all affiliated societies. I wonder how long the actions recently taken against Christian societies would survive the scrutiny that such a consistency test, honestly run, would impose.
But whatever we make of this very specific example, a wider conclusion beckons concerning how we live with liberalism today. These cases are merely micro-social examples of a dilemma of tolerance facing liberal societies at large. Such societies are sites of struggle between rival regimes of tolerance. Some proponents of a pluralist regime of tolerance are increasingly coming to the view that there is an intentional strategy at work to reshape the independent associations of civil society in the uniform image of an ever-expanding set of identical individual rights, imposed with the monopoly power of public authority. On the other side, many proponents of an individualistic regime of tolerance believe they have a mission and mandate to eliminate remaining vestiges of prejudice and discrimination on the part of (what they see as) reactionary private associations, and to liberate the oppressed or blinded individual members who are under the heel of the elites controlling them. These rival regimes still converge at many points—almost no one wants to roll back anti-racist legislation—but they differ substantively on other possible impositions of uniformity. That debate will run for a long time yet. But let it be waged as civilly as possible by all sides. And let no-one be allowed to get away with construing it as a simple contest between reactionary practitioners of intolerance, exclusion, dogmatism, and confinement (them), and liberating heralds of tolerance, inclusion, openness, and freedom (us). That dishonesty should certainly not be tolerated.