Why the State Can – and Should – Promote Public Values as well as Civic Virtue: A Response to Corey Brettschneider

James E. Fleming & Linda C. McClain

We appreciate that Corey Brettschneider identifies with us as “kindred spirits in the project of developing a liberalism that is both rights protecting and also promotes liberal values.” We also appreciate that he views our book as offering a “powerful challenge” to a “neutralist view” of what a liberal democracy can do to promote its “central values” while also protecting “basic rights.” And we look forward to participating in the upcoming symposium on Concurring Opinions about his book, When the State Speaks, What Should It Say? We are concerned, however, to clear up his evident misunderstandings concerning our book. Thus, when he suggests that his own book has “distinctive features” that “might give us different resources in replying to critics” of the liberal project in which he believes we are “kindred spirits,” he seems to underestimate the resources our own book provides! Namely, he seems to conclude that we view the liberal state’s project as encouraging responsibility and promoting civic virtue, to the exclusion of promoting public values and free and equal citizenship. This is not correct: the fundamental substantive commitment of our Rawlsian constitutional liberalism is to secure the status of free and equal citizenship for all, even though, admittedly, our book’s subtitle is “Rights, Responsibilities, and Virtues.”

At the outset, it seems that we do have a genuine area of disagreement with Brettschneider with respect to whether government should promote civic virtue. He worries that “‘virtue’ and ‘civil virtue’ are too tied to thinkers who believe that the liberal state should endorse a conception of the good life.” We will not attempt here to persuade him about why it is possible to promote civic virtue without sliding into promoting moral virtues simpliciter and comprehensive visions of the good life. (We would point out that a similar worry would apply to promoting “democratic values,” given “values polarization,” “values voters,” and battles over “family values” in the culture wars.) We think that governmental promotion of civic virtue is consistent with precedents like Brown v. Board of Education and other leading Supreme Court precedents about the role of education: government has a significant responsibility to prepare students both for success in life and for good citizenship.

In this post, we want to clarify that promoting civic virtue does not exhaust what we believe the state may and should do, consistent with constitutional commitments. First, we, like Brettschneider, also argue that government should promote free and equal citizenship. That is the lens through which we assess cases like Boy Scouts v. Dale, Roberts v. United States Jaycees, Bob Jones University v. United States, and Christian Legal Society v. Martinez. Perhaps we encouraged this misreading by Brettschneider because, in our book, we often pair civic, or political, virtues with political, or public, when we refer to government advancing “political virtues or values.” (147) Nonetheless, we do not collapse into governmental inculcation of “civic virtue” the projects of governmental promotion of public and constitutional values and of the ideal of free and equal citizenship. Moreover, we focus particularly on issues of conflicts between constitutional commitments.

For example, we discuss the Bob Jones, Dale, Roberts, and Martinez cases in a chapter entitled, “Conflicts between Liberty and Equality,” and we explain that we will analyze those four cases to “show how constitutional law justifies the use of antidiscrimination law to secure the status of equal citizenship for everyone.” (147) To be fair to Brettschneider admittedly, we do pair virtues and values when we explain how these conflicts often arise because of a “basic tension” between “two important ideas about the relationship between civil society and government.” As we explain this tension: “Families, religious institutions, and the many voluntary associations of civil society are foundational sources or ‘seedbeds’ of virtue and values that undergird constitutional democracy, and yet these same institutions are independent locations of power and authority that guard against governmental orthodoxy by generating their own distinctive virtues and values.” (146) However, when we turn to analyzing the cases, we view them as involving clashes between liberty and equality, e.g., freedom of association and freedom of religion, on the one hand, and the right to be free from discrimination and to free and equal citizenship, on the other.

It is a misreading, then, to say, as Brettschneider puts it, that we conclude Dale was “wrongly decided because on balance, the concern for promoting responsibility and protecting the rights of free association weighs in favor of limiting expression and association.” We clearly analyze Dale through the lens of governmental concern – expressed through New Jersey’s antidiscrimination law and its public accommodations provisions – to promote free and equal citizenship of homosexual youth. We say that “in adjusting the clash between the concerns for freedom of association of the Boy Scouts and the equal citizenship of homosexuals, the Court should have recognized the latter as a more substantial concern than it did.” (155) Thus, if, as Brettschneider suggests, we and he are “kindred sprits” in our respective tilling in the fields of liberalism, then we do need to make clear that one area in which we do not differ is in a commitment to promoting free and equal citizenship.

Brettschneider differs with us in his analysis of Dale because he believes the correct solution is to permit the BSA to choose its members, but for government to condemn their “discriminatory funding” through measures like discontinuance of nonprofit status, akin to Bob Jones’ loss of their tax exemption. Certainly, we agree with him that denying subsidies is one way for the state to promote free and equal citizenship while respecting freedom of association. However, given the special place of the BSA in America (as Andrew Koppelman and Tobias Barrington Wolff have explained), as the largest civic youth organization in the United States, and the only one with “quasi-official status” and a Congressional charter, it is arguable that government could have insisted that its membership be open to all boys, consistent with its many representations of itself as “nonsectarian” and inclusive. In any event, our main point is to clarify that we, like Brettschneider, view Dale as involving the issue of equal citizenship.

Thus, a more fruitful path to explore is how our approach differs from his in terms of his “absolutist” approach to the First Amendment when it comes to free speech protections. To go down that path, however, it is important to understand what position we actually take. Both his book and ours support the outcome in Bob Jones: the federal government discontinuing public subsidy through the tax-exemption afforded charitable organizations. Here, again, though, Brettschneider misreads our analysis. He says that he would answer Mark Graber’s challenge about Bob Jones by arguing that the denial of a tax exemption is “justifiable not because of a concern for citizens’ virtue, but because the University is opposing democratic values,” namely, it is “preaching racism and a notion of African Americans as second-class citizens.” That is also our analysis. In our book, we discuss Bob Jones in the context of “religious and political virtues and values in congruence of conflict.” We point out that “government may regulate religiously motivated conduct in order to secure the status of equal citizenship for all,” and that it may “promote congruence in circumstances of conflict between religious values and political values, “ but may use the tool of “conditioning of benefits upon not discriminating” to avoid “compelling religious conduct or belief.” (157) When we discuss Bob Jones, we offer it as an example of government “promoting congruence” with the public value of equal citizenship, not of promoting civic virtues. We quote the Court’s identification of a “firm national policy to prohibit racial segregation and discrimination in public education,” and how the University’s policies concerning interracial dating conflicts with that policy. We observe: “The very fact that this nation struggled with and repudiated racial segregation fortifies the Court’s conviction that current practices of discrimination are not congruent with public values, and therefore, not a ‘public charitable use.’” (158) Thus, it is the public value of racial integration, not any civic virtue, that we discuss here. This is also evident in our discussion of Justice Powell’s dissent, in which he questions the need for congruence between the views of charitable organizations and governmental norms, arguing for a form of pluralism that allows and even supports this lack of congruence. We explain the difference between the majority and the dissent in terms of their different views about what it means to tolerate “associations whose values are not congruent with national commitments.” (161)

Now we turn to the second distinction Brettschneider draws between otherwise kindred projects. He says that we take a “balancing” approach in First Amendment free speech cases, whereas he is an “absolutist.” We are puzzled with this reading of our theory. In Chapter 6, on conflicts between the First Amendment’s protection of freedom of association and religion and the Equal Protection Clause’s concern for equal citizenship, we begin by blasting Justice Felix Frankfurter’s balancing approach to freedom of speech and praising Justice Hugo Black’s absolutist approach. We say that, as liberals who (with John Rawls) give “priority” to basic liberties and who (like Ronald Dworkin) “take rights seriously,” we are “proud to take [our] stand with Black and . . . against Frankfurter in these battles.” (149) We then put forward a framework we adapt from Rawls for adressing clashes of rights, or more precisely, clashes of higher order values or interests that underlie rights. In resolving such clashes, Rawls argues, it may be appropriate to engage in “mutual adjustment” of certain basic liberties for the sake of securing others or the priority of the family of basic liberties as a whole over utilitarian balancing of interests. (148-51) We quoted Rawls: “The ‘mutual adjustment’ of the basic liberties “is markedly different from a general balancing of interests which permits considerations of all kinds – political, economic, and social – to restrict these liberties.” (150) We presented Roberts as a paradigm of such “mutual adjustment” of freedom of association and equal citizenship. Roberts and our Rawlsian approach to the “priority” of the family of basic liberties hardly represent a “balancing approach” as that is commonly understood in the context of the First Amendment.

In sum, we look forward to exploring, in the Concurring Opinions symposium on Brettschneider’s book, how our approaches to liberalism differ. We may well have different approaches to the First Amendment, though the differences are not well captured by the distinction between “balancing” and “absolutism.” Moreover, to clear the ground for that discussion, we need to make clear that we do not differ in the other important respect he suggests: instead, both of our books support governmental promotion of public values and of free and equal citizenship. With this understood, it may well be fruitful to examine why he eschews both the language of civic virtue and of governmental promotion of it.

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