State Speaks Symposium: Responses to Chambers (Chapter 3), Rubinstein (Chapter 4), Vallier (Chapter 5) and Stilz (Chapter 5)

Response to Chambers

Simone Chambers raises several good questions, but I focus on two. First, Chambers claims that the loss that comes from banning hateful viewpoints falls well short of the Invasive State. Canada, for instance, has laws banning hate speech, but they are seldom used. So, why worry about largely dormant restrictions on hate speech?

I think it is important to appeal on this point to an intuition that is often brought out most clearly by republican theorists such as Phillip Pettit. Our autonomy may be restricted, not only by actual instances of punishment, but also by the perceived threat of it (or what Pettit calls possible acts of domination). Part of the worry here is the familiar one about the possible chilling effects of threatened punishment. I might not be speaking out of fear of being punished.

But apart from the chilling effects, I think laws have to be judged as if they were invoked. Consider, for instance, a law that gave the death penalty for parking violations. It might be that no one would be so foolish to test that law because the risk of punishment was too high. But I take it that it would still be a unjust law, because the punishment would be disproportionate to the crime. The law would still be unjust even if no one violated it, and the punishment were never imposed.

Second, Chambers wonders about my “means based limit” on democratic persuasion. According to this limit, democratic persuasion should not be pursued through bans or threats that amount to coercion. She suggests that my willingness to use state spending and tax deductible status as a means of democratic persuasion (as we will discuss in reference to chapter 4) seems tantamount to coercion.

In response, Peter Stone suggests that the liberal tradition has always drawn the line at coercion, and that I am following in the footsteps of past versions of liberalism. I want to bring out the liberal principle behind the notion that democratic persuasion can use the state’s spending power but not its coercive power to ban behavior. Namely, spending incentives leave a choice for individuals to reject the incentive or the benefit, without having to face the drastic restriction on their freedom of imprisonment. Coercive bans do not leave this choice open to citizens. They demand a particular outcome or point of view for citizens to remain free of imprisonment. On my view, it is the ability to reject a financial incentive that honors the idea of autonomy. It leaves a decision up to the individuals. Coercive bans do no such thing and thus are not autonomy protecting. As the Bob Jones case showed, a group can have the financial benefits of tax privileges discontinued, and still continue to exist and exercise their rights to dissent from the endorsement of democratic values.

Response to Rubinstein and Pevnick

Those who tend to fear the Invasive State more than the Hateful Society will be concerned that democratic persuasion is too robust in its condemnation of some viewpoints. Jennifer Rubinstein has the opposite worry. In contrast to Chambers, Rubenstein claims that it is too weak in its use of persuasive power. Rubinstein suggests there is a risk of reinforcing equally problematic but more subtle forms of racism and misogyny if democratic persuasion is only used in the most egregious cases of rejection of the ideal of free and equal citizenship. After all, institutional racism is no less dangerous than outright racism to the ideal of free an equal citizenship.

I note first that my examples go beyond the most obvious cases of organizations that reject the ideal of free and equal citizenship. The proposal to revoke nonprofit status for the Boy Scouts of America is likely to be quite controversial. I also include in democratic persuasion the step of denying tax privileges and public benefits to discriminatory groups. For instance, the state may refuse to rent public store fronts to a discriminatory group.

But when it comes to the topic of this chapter, namely the use of state spending and non-profit status to criticize hateful and discriminatory viewpoints, there is a need for a clear guide that can be codified into law. Institutional racism and sexism are so prevalent, however, that a rule that targeted it might exclude any institution from nonprofit status.

The substance and means based limits do not mean the government cannot speak out against more subtle forms of racism sexism and homophobia. Indeed, when it speaks generally it should encourage a self examination of the kind I discuss in chapter two. Reflective revision is precisely the process of looking for our own, perhaps hidden, forms of racism and sexism. But encouraging reflective revision is a way of recognizing the subtlety of institutional racism and its prevalence. Using the stronger means I discuss in chapter 4 I think would fail to recognize this subtlety.

My argument for a clear legally modifiable standard for revoking 501c3 status also helps to answer Ryan Pevnick’s worry about the abuse of state power in pursuit of democratic persuasion. Currently, the tax privileges of 501c3 status hinges on an overly broad discretion by the IRS about what is and what is not a “charitable” purpose that confers a public benefit. My proposal is to clarify the meaning of what qualifies as a “charitable” organization to exclude certain hateful viewpoints. Clarifying the standard, in fact, would allow less discretion to the IRS and other administrative agencies . Pevnick’s worry about the abuse of state power apply more to the current understanding of 501c3 status, and less to my theory of democratic persuasion, which has a clearer and less arbitrary understanding of what charitable organizations can receive tax privileges.

Response to Vallier, Schwartzman and Stilz

The exchange between Kevin Vallier and Micah Schwartzman focuses on my account of transformation and religious freedom. Vallier suggests that my account of transformation commits me to a state role in making theological judgments. If I think that the state should criticize religious groups, even churches that reject the ideal of free and equal citizenship, does that make the state a theologian?

Schwartzman disagrees, replying that I am merely defending a set of democratic values that might or might not conflict with theological values. That is not engaging in theology, although it might impact theological institutors, notably churches like Westboro.

Not surprisingly I agree with Schwartzman. My aim is to have the state promote a set of democratic values, and not to make theological judgments. I am seeking to defend the reasons for rights, including the reasons that undergird the right to free exercise of religious. That right is based on an ideal of free and equal citizenship. To defend religion we must defend these values even in the face of religious opposition. This means engaging in judgment about the meaning of religious freedom, but that is not theological judgment.

But I do think Kevin is correct that some religious groups will find that democratic persuasion impinges on their theological commitments. Some religious groups have no trouble seeing how their theology leads them to endorse an ideal of free and equal citizenship. But others, such as the Westboro Church, will find their theological commitments at odds with the state’s promotion of the ideal of free and equal citizenship. Their central commitment as they see it, namely that God hates gays, is at odds with the ideal of equality for gays under law. To the extent that the government promotes an ideal of equality, it inevitably criticizes homophobia that is grounded in Westboro’s view of theology.

I do not think I could say here either that these are merely unintended or unforeseeable effects of democratic persuasion. I take Vallier’s point to be that we know these effects will happen. But recognizing that democratic persuasion might impact theological viewpoints is not the same as saying that it is itself theological or engages in theology. The state is not endorsing a belief in Christianity, Islam, Buddhism, or any religion at all. Rather, the state is promoting a set of political, democratic values even when they conflict with other values, including those grounded in some theologies.

Relatedly Anna Stilz also worries that democratic persuasion might undermine theological authority. Ultimately she says my view requires that religious groups accept a grounding of political authority as being secular and not religious. She worries that might have too great a theological impact.

In responding to this related concern, I think it is important to remind the reader of the many instances in which there is not such a conflict. Many religions accept the ideal of equality under law for various statuses. Indeed every major religion currently has variants that accept these values at least as a matter of law. This shows that there is no instance of these values being at odds with religion wholesale.

But what about the impact on those religions that are at odds with these values? As Annie makes clear they can simply opt out of democratic persuasion by refusing non-profit status and government funding. But am I saying they cannot be good citizens?

I think that goes too far. Citizenship is multifaceted and has many dynamics. Members of these groups might be good citizens in paying taxes, obeying the law, and performing national service. I think though, that we should acknowledge that as far as they reject free and equal citizenship, they do not endorse the highest ideal of democratic citizenship, and they are denying the respect that is owed to their fellow citizens as free and equal.

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