Democracy: A Paradox of Rights?

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Theorist Corey Brettschneider argues that in a “paradox of rights,” liberal democracies are expected to allow freedom of association, expression, and conscience, but viewpoint neutrality dictates that they cannot themselves express the values of free and equal citizenship that undergird these rights. According to what he terms value democracy, the state should abrogate viewpoint neutrality and instead speak in ways that would transform recalcitrant citizens’ views to support these core values. Although I support the values of free and equal citizenship, I question some of the means Brettschneider would use to promote these values. First, we cannot always count on the state itself to support the values of free and equal citizenship. Second, although he would withdraw tax exemptions from groups that oppose these values, making this determination accords too much power to public authority, and voluntary associations are not always monolithic in their values. Finally, the true threat to free and equal citizenship lies not in the beliefs that we fail to transform, but in the practices that individuals and groups may attempt to impose not only on others but also potentially on the larger community.

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A more relaxed view is appropriate when considering private voluntary organizations that do not receive public funds. These organizations need not always reflect the democratic principles of freedom and equality in their internal values. In general, individuals should be free to form private associations rooted in a common purpose without fear of dilution by forced association with others who do not share their goals. Context, however, is important. Society must not only allow for exclusivity, but also the slack, or the potential for other opportunities for association, that gives meaning to the freedom to leave. Although the Boy Scouts, for example, merit criticism for their former policy of excluding gay boys and scoutmasters, the Supreme Court was correct to allow them the expressive freedom to expel a gay scoutmaster despite the Scouts’ flimsy justification for doing so. But if enough voluntary associations were exclusive toward the same groups, these unified policies might curtail opportunities similarly to Jim Crow, thereby justifying government intervention. Private organizations accepting public funds, however, have less room to deny liberal democratic values. Because the Christian Legal Society, for example, accepted benefits from a public law school, they were correctly required to follow the school’s accept-all-comers policy.
Should the Boy Scouts of America and other noncommercial associations have a right to discriminate when selecting their members? Does the state have a legitimate interest in regulating the membership practices of private associations? These questions-raised by Boy Scouts of America v. Dale, in which the Supreme Court ruled that the Scouts had a right to expel gay members-are at the core of this provocative book, an in-depth exploration of the tension between freedom of association and antidiscrimination law. The book demonstrates that the "right" to discriminate has a long and unpleasant history. Andrew Koppelman and Tobias Wolff bring together legal history, constitutional theory, and political philosophy to analyze how the law ought to deal with discriminatory private organizations. © 2009 by Andrew Koppelman and Tobias Barrington Wolff. All rights reserved.
Justice, Gender and the Politics of Multiculturalism explores the tensions that arise when culturally diverse democratic states pursue both justice for religious and cultural minorities and justice for women. Sarah Song provides a distinctive argument about the circumstances under which egalitarian justice requires special accommodations for cultural minorities while emphasizing the value of gender equality as an important limit on cultural accommodation. Drawing on detailed case studies of gendered cultural conflicts, including conflicts over the 'cultural defense' in criminal law, aboriginal membership rules and polygamy, Song offers a fresh perspective on multicultural politics by examining the role of intercultural interactions in shaping such conflicts. in particular, she demonstrates the different ways that majority institutions have reinforced gender inequality in minority communities and, in light of this, argues in favour of resolving gendered cultural dilemmas through intercultural democratic dialogue.
This is the introduction to my new book, When the State Speaks, What Should It Say?: How Democracies Can Protect Expression and Promote Equality.How should a liberal democracy respond to hate groups and others that oppose the ideal of free and equal citizenship? The democratic state faces the hard choice of either protecting the rights of hate groups and allowing their views to spread, or banning their views and violating citizens' rights to freedoms of expression, association, and religion. Avoiding the familiar yet problematic responses to these issues, political theorist Corey Brettschneider proposes a new approach called value democracy. The theory of value democracy argues that the state should protect the right to express illiberal beliefs, but the state should also engage in democratic persuasion when it speaks through its various expressive capacities: publicly criticizing, and giving reasons to reject, hate-based or other discriminatory viewpoints.Distinguishing between two kinds of state action -- expressive and coercive -- Brettschneider contends that public criticism of viewpoints advocating discrimination based on race, gender, or sexual orientation should be pursued through the state's expressive capacities as speaker, educator, and spender. When the state uses its expressive capacities to promote the values of free and equal citizenship, it engages in democratic persuasion. By using democratic persuasion, the state can both respect rights and counter hateful or discriminatory viewpoints. Brettschneider extends this analysis from freedom of expression to the freedoms of religion and association, and he shows that value democracy can uphold the protection of these freedoms while promoting equality for all citizens.
Religious freedom is often thought to protect not only religious practices but also the underlying religious beliefs of citizens. But what should be said about religious beliefs that oppose religious freedom itself or that deny the concept of equal citizenship? The author argues here that such beliefs, while protected against coercive sanction, are rightly subject to attempts at transformation by the state in its expressive capacities. Transformation is entailed by a commitment to publicizing the reasons and principles that justify the basic rights of citizens.
Hate groups are often thought to reveal a paradox in liberal thinking. On the one hand, such groups challenge the very foundations of liberal thought, including core values of equality and autonomy. On the other hand, these same values underlie the rights such as freedom of expression and association that protect hate groups. Thus a liberal democratic state that extends those protections to such groups in the name of value neutrality and freedom of expression may be thought to be undermining the values on which its legitimacy rests. In this paper, I suggest how this apparent paradox might be resolved. I argue that the state should protect the expression of illiberal beliefs, but that the state (along with its citizens) is also obligated to criticize publicly those beliefs. Distinguishing between two kinds of state action - coercive and expressive - I contend that such criticism should be pursued through the state's expressive capacities in its roles as speaker, educator, and spender. Here I extend the familiar idea that law, to be legitimate, must be widely publicized; I contend that a proper theory of the freedom of expression obligates the legitimate state to publicize the reasons that underlie rights, in particular reasons that appeal to the entitlement of each citizen subject to coercion to be treated as free and equal. My theory of freedom of expression is thus “expressive” in two senses: it protects the entitlement of citizens to express any political viewpoint, and it emphasizes a role for the state in explaining these free-speech protections and persuading its citizens of the value of the entitlements that underlie them.
This paper explores the tension between freedom of speech and freedom of association. First, as an expressive association the Boy Scouts is on firmer ground asserting the centrality of theism than the importance of heterosexuality. Nevertheless, although I deplore the exclusion of gay Scouts, I offer qualified support for the Scouts’ right to set their terms of membership. Second, I examine the public reaction to the Scout case, arguing that “free speech” by the Scouts as a discriminatory organization is in tension with freedom of association, insofar as the Scouts have had to forfeit some support from other groups. Finally, I shall briefly discuss President Bush’s faith-based initiative as a further illustration of how the maintenance of one’s message may properly result in the forfeiture of public support. A robust defense of freedom of association does not require that voluntary associations be supported either by other private organizations or by public entities. KeywordsBoy Scouts-Boy Scouts exclusion of gays-Freedom of association and free speech-Expressive association-Free speech and funding
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