The cases raise several issues. For example, does the ruling infringe the business owner's right to free expression (or free association or religious belief)? Also to what extent should the state be involved in deciding these matters? In the US, religious pastors are exempt from performing same-sex weddings. But how does that differ in principle from the above cases?
In the liberal intellectual tradition, the conventional divide has been between classical (free market) liberalism and welfare (redistributionist) liberalism. In recent decades, with the collapse of socialism and the shift toward market-based reform around the world, that division is no longer quite as fundamental as it was.
However there is another historical division regaining prominence, which is between pluralist and rationalist liberalism. Pluralist liberalism is skeptical of the central state and friendly towards local, traditional and voluntary communities and associations. Whereas rationalist liberalism is committed to intellectual progress, universalism and equality before a unified law and is keen to disrupt what it sees as local tyrannies in religious and ethnic groups.
The anti-discrimination cases are examples of disputes across the pluralist/rationalist divide. On the one side, liberal rationalists are arguing that the state should ensure equal treatment before the law, on the other side liberal pluralists are arguing for religious diversity and autonomy (for various reasons, while I support same-sex marriage, I side with the pluralists for the two described cases).
Jacob T. Levy (Professor of Political Theory at McGill University) has written a book that explores this liberal divide since the Enlightenment (entitled "Rationalism, Pluralism, and Freedom", 2014 - the first three chapters are here). He points out that many of the problems we find today about multiculturalism, religious freedom and freedom of associations are really just the recent manifestations of this deep and perennial divide. That is, one side is inclined toward the use of state power to protect individuals from local group power, the other is inclined to see groups as the results of individual free choice and the protectors of freedom against state power. It's also worth noting that both groups and the state have some general tendencies to impair freedom and the book seeks to identify the patterns.
Good post. There was an example here recently of wanting to mandate that every school have a Gay-Straight Alliances club, to reduce bullying.
ReplyDeleteThe interesting thing for me among many of these issues is the legal mechanisms used (or attempted) to impose the mandates: by what means are one group of rights trumped by another.
A little different, but it also makes me think about the issue of charitable organisations who are helping people (say, Palestinians) among whom terrorist groups are based: does this constitute aiding a terrorist organisation? To what extent can the state decide how a charitable organisation should operate (assuming some good faith on the part of the organisation, i.e. that it is not just a cover to funnel funds to the group).
Taking a pluralist view with the charities, I think any state interference should still need strong justification (maintaining good intelligence is probably one thing that meets that standard, given the security interest). For the charities, having a clearly stated purpose and keeping things transparent would seem to be a good idea.
Delete