When the State Speaks: the Sentiment of the Golden Mean and Practical Disagreements

Corey’s book is a splendid effort to address an extremely difficult and important problem.  How should a liberal society approach the topic of hate speech.  Corey posits two dystopias that we need to avoid.  The first is the dystopia of the Invasive States which is so eager to militantly protect democracy that it regularly invades people’s rights.  The second is the dystopia of the Hateful Society which is so tolerant that it will not even intervene to defend its core norm of tolerance.   Both of these dystopias have existed in the last century:  The United States verged on being an Invasive State during the red scares and McCarthy period, while Weimar Germany became a Hateful Society.

The core instinct of Corey’s book is that we need to find a golden mean that lies somewhere between the two dystopias.  I agree with this sentiment entirely, and I also agree with Corey that we should not criminally punish hate speech and that we should not expect that when the government speaks that its speech must be viewpoint neutral.  We celebrate great men and women and events in our history for value laden reasons and that is precisely as it should be.   Public universities and schools could not even function if they did not chose to praise some viewpoints and criticize others.  That is basically what education is all about.  The Corporation for Public Broadcasting, PBS, and National Public Radio are examples of non-government neutrality as to viewpoints.  Obviously, these entities are all of value and should be retained.

I do disagree with Corey to some extent on the ease with which he would revoke 501(c)(3) status from groups that he thinks are engaged in hate speech.  My disagreement is more practical than normative.  I do not think hate speech groups deserve a 501(c)(3) subsidy, but I do fear that once government officials get in the business of evaluating which 501(c)(3)’s ought to have their tax exemption yanked a very rabid partisanship will set in which will be destructive of the goals of free and equal citizenship that Corey and I favor.  I think the federal government was within its rights under current law and that it acted correctly in yanking the tax exemption of Bob Jones University.  There has never been a religion in the United States under which interracial dating was forbidden as a matter of wide spread religious belief.  Bob Jones’ claim to a churches’ tax exempt statutes was correctly denied.  I would not conclude from this as Corey does that the Boy Scouts tax exemption should be withdrawn because of their refusal to recognize gay rights.  I think the Boy Scouts can be and should be publicly criticized for this but I would ostracize the Scouts rather than withdrawing their tax deduction.  Many political conservatives would leap at the chance  to eliminate 501(c)(3) status for liberal ivy league schools if they thought this behavior was tolerable.  We should NOT go down that road.  America’s huge not for profit corporate sector is one of the many things that makes us so much stronger than Europe and Japan.  501(c)(3)’s are what Edmund Burke called mediating institutions between the power of the state and the power of government.  They are an invaluable asset and should be left alone.

I agree with Corey that free and equal citizenship is the proper goal of the liberal state, but I would ban laws or executive actions that deprive people  of life, liberty, or property on the basis of religion as well as on the basis of race and gender.  Most people are born into their parents’ religion and this may be an immutable characteristic.  Secular and Christian people of Jewish dissent were stunned to find that Hitler thought them to be Jewish by blood and accordingly sent them to concentration camps.  Muslims today are born into their faith and may face charges of apostasy if they try to convert.

Finally, I would note that the concept of free and equal citizenship does not apply to longtime resident aliens whether legal or illegal.  This would seem to be a flaw.

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11 Responses

  1. Paul Horwitz says:

    Two questions, if I may. 1) Do you view it as determinative, either as a descriptive or a prescriptive matter, for a religious liberty question that some ostensibly religious view must have been “a matter of wide spread religious belief?” I certainly don’t take that as a requirement of current American law in this area, and I think there are good reasons why this is so–because such a requirement might go especially hard for minority faiths, because it would involve judicial inquiry in an area the courts might lack competence to engage, and because it would take an even more “static” view of religion than the accommodationist approach that Brettschneider thinks is too static as it is. Our current approach has its own problems, to be sure, but I think denying an exemption to Bob Jones on the ground that its position was not a genuine religious one, as opposed to some other reason, would be dangerous for precisely the concerns about discretion that you invoke.

    2) Is it fair to say that there has *never* been a religion in the U.S. under which interracial dating was forbidden as a matter of widespread religious belief? Others no doubt have a stronger grounding in ante- and post-bellum American Christianity than I do, so I’ll just raise it as a question, but it seems a surprising claim to me. Or does it arise from your view of what constituted “true” Christian doctrine even at a time when many Christians might have offered what they thought were religious justifications for a rule or norm against interracial dating or marriage?

    Both questions, for me, go to the same point. I think (and argue in my latest book) that cases like Bob Jones are harder cases as a matter of law and theory than they are often made out to be, largely because as an intuitive matter they seem just. (Insert the usual cite to Bob Cover here.) Corey’s approach at least offers a way of justifying that result while still allowing Bob Jones’s claim to be treated as a religious one, although in my posts I’ve offered arguments about why I think it is problematic. Or we can take a fairly historically based “race is special” view to such cases, rooting it doctrinally in the compelling interest prong of strict scrutiny. Or, without adopting all of Corey’s approach, we can just argue for a distinction between government coercion and government subsidy, or argue as a doctrinal matter that tax-exempt status presents a weaker case for a “substantial burden.” But I think that however we resolve these issues, we are better off doing so without denying Bob Jones’s claim that its rule was religiously motivated. (Not to mention that that would still allow the dispute to be replayed as an associational claim rather than a religious claim.)

  2. Steven G. Calabresi says:

    Paul Horwitz’s response to my post makes the good point that there are dangers in having the state pass on what is or is not a religion. I have wrestled with this issue for 25 years, and I have always come to the conclusion that the government is going to have to draw lines as to what is a religion if it is going to recognize free exercise rights or tax exemptions. I think new religions can and have emerged like Mormonism, but I do not think anything that any small group of people want to call a religions is a religion. A group of prisoners cannot form a Church of LSD and then demand that they be provided with LSD so they can take it as their holy sacrament. Religions need not be large nor need they be old, but they must be something more than just a belief that interracial dating is wrong.

  3. Brett Bellmore says:

    My own take on this is that the problem here is not with people up and declaring themselves to be religions, but with the fact that we don’t allow people the amount of liberty we should, UNLESS we admit them to have religious motivations. Shouldn’t have to convince the state you’re religious, because you should be free enough that it doesn’t matter.

    Or to put it another way: Unless the state has a good enough reason to prohibit LSD that even a genuine, thousand year old “Church of LSD” would legitimately be denied it, (The way we wouldn’t let the church of Kali strangle people, even if it’s a real church.) what the hell excuse does the state have telling Joe Blow that he can’t have it? The very fact that you’d consider waiving a prohibition for a legit religion is evidence that there isn’t enough justification to impose it on ANYBODY.

  4. Joe says:

    Oregon v. Smith applies a general applicable law test that evenhandedly denies LSD use, well, peyote use.

    Brett is basically saying that religion isn’t special. This is fine — he gets to suggest the Constitution is wrong on something. Religion is special though for various reasons, particularly arising from human nature and history. These days “religion” is interpreted broadly. Still, there is a reason a religion, broadly defined, akin to conscience, is specifically found in the 1A.

    As to aliens, the equal protection clause and due process basically treats discrimination there akin to discrimination by race except in limited cases. Not sure how it is a “flaw” in that respect.

  5. Brett Bellmore says:

    I’m basically saying that religion shouldn’t have to be special, that we should be free enough that religion has no need to be special, because you won’t order people around on any subject where you’d be willing to make an exception for religion. Not because religion isn’t important, but because liberty IS.

    This is not to deny that it IS special, for reasons which are completely orthogonal to it’s truth value. Essentially, religion is special because,(For many people, anyway.) it occupies a privileged psychological status the state aspires to, but which public education isn’t early enough or exclusive enough to give it. Religion is special because, to analogize to computers, it’s installed with root privileges, and the state isn’t, (And neither is rationality.) which means the state has to avoid coming into too deep of conflict with it. Because it’s one of the few things where, if the state says, “Me, or that!”, people will chose “that”, and you get civil war instead of compliance.

    Another point I’d make, by the way, is that it’s not so easy to distinguish between the “invasive” and the “hateful” state, because hate is really good at cloaking itself in noble motives. The hateful state will claim to be the invasive state, and the people running it likely won’t even be introspective enough to realize they’re hateful.

  6. Joe says:

    No matter how “free” we are, there are going to be reasonable rules in place for which religion will be a factor for exemptions or a factor in determining the liberty as applied.

    Religion is special in part because (1) it is basic to being human (2) it is a basic part of human history and this particular society [some other, e.g, might be much more secular] and this warrants certain treatment.

    Religion has been shown to have certain values and benefits and yes “truth value” isn’t necessary, but if religion totally promoted falsity, protecting it would be problematic. Overall, however, it does promote a sort of truth, including how to act and care for each other.

    The state has “root privileges” too. Again, you can disagree, but our government sets up a republican form of government for which the people delegate to the state certain “root privileges” that the private sector does not have. The people continuously accept this and don’t support a libertarian mind-set. The continual struggle between church and state over history is well known.

    As to cloaking hatred, yes, private and public.

  7. I think the presence of most if not all of the follow “characteristics” helps us clarify what we often (and perhaps should) mean by the term “religion” or religious worldview (these might even serve as criteria for identifying ‘religion’ for legal purposes). It is capable of encompassing both “Western” and “Eastern” religious traditions, theistic and nontheistic worldviews, as well as many new (although not necessarily ‘New Age’) religions. The assumption here is that there is no readily or agreeably identifiable “essence” to religion, even if we often focus on certain dimensions or characteristics, say, a core set of beliefs (as a central set of truth-claims), the “transcendence” of religion, certain sorts of religious experience: of the “numinous” or “mystical” or “revelatory” and so forth. Our next task would be to identify what it means to cleave to a non-religious worldview.*

    1. Belief in supernatural beings (spirits, gods, etc.), God, or a supreme divine principle or force (in the latter case, comprehensive or ‘holistic’ in structure).

    2. A distinction between sacred and non-sacred (or ‘profane’) objects, space, and/or time.

    3. Ritual acts centered upon or focused around sacred events, places, times, or objects. This includes such activities as worship, prayer, meditation, pilgrimage, sacrifice (vegetable, animal, or human; literal or figurative), sacramental rites, lifecycle rituals, and healing activities.

    4. A moral code (ethics) or “way of life” believed to be sanctioned by the gods or God, or (in an informal sense: logically) derived from adherence to the divine principle or force. (There is no assumption here that morality need be religious, indeed, morality is conceptually distinct from and independent of religion.)

    5. Prayer, worship, meditation, and other forms of “communication” or attunement with the gods, God, or the divine principle or force.

    6. A worldview that situates, through (usually mythic) narrative, the individual and his/her community and tradition within the cosmos, world, and/or history. It is a significant, if not primary source of one’s identity, both in its individual form and group aspect. The worldview articulates the meaning—makes sense of—the group’s cultural traditions: its myths, history, rituals, and symbols. This often involves treating questions of the meaning of life and death (and what, if anything, follows death for a human being), of what philosophers term questions of personal identity, of humanity’s relation to the cosmos and natural world, its relation to nonhuman animals and perhaps a “spirit” world or “other worlds.” The worldview articulates the fundamental values of a religious community so as to affirm its most important values and/or its “ultimate value.” The worldview treats what we call existential and metaphysical questions (and of course these questions need not have religious answers, hence they are also important in non-religious worldviews).

    7. Characteristically religious emotions or attitudes associated with that thought to be of divine provenance or endowed with “spiritual” power: a peculiar form of awe and fear, “dread” or angst, existential anxiety, sense of mystery, adoration, reverence, love, devotion, hope, a sense of guilt or shame, serenity, compassion, bliss, etc.

    8. A more or less total organization or structuring of one’s life or individual lifeworld based on an understanding (hence interpretation) of the religious worldview (the ‘lifeworld’ may include beliefs, values, and practices not directly linked to or associated with a religious worldview). This understanding does not necessarily coincide with the normative pictures painted by those with religious authority or the “official” worldview of the religion, indeed, it may be rather idiosyncratic or even cognitively crude or fairly sophisticated, psychologically and philosophically speaking. Prima facie evidence reveals the religious adherent believes in or is attempting to live in accordance with the worldview.

    9. A social group wherein personal and collective—cultural—identity is forged by the aforementioned factors.

    10. Artistic or creative expressions related to any of the above characteristics.

    We might keep in mind that the sort of analytical clarity sought in philosophical circles or the desiderata of semantic legal precision may not be applicable if by that is meant a definition (or something very close to a definition) of religion. Why? The late B.K. Matilal provides one reason from the philosopher A.N. Whitehead:

    “Insistence on clarity at all costs is based on sheer superstition as to the mode in which human intelligence functions. Insistence on hardheaded clarity issues from sentimental feeling, as it were, a mist cloaking the perplexities of fact.”

    * This list of characteristics is inspired by and in part follows from that first provided by William P. Alston in the volume he edited, Religious Belief and Philosophical Thought: Readings in the Philosophy of Religion (Harcourt Brace Jovanovich, 1963): p. 5.

  8. Erratum: In the first sentence: “following”

  9. Joe says:

    I have read a few things that try to spell out the meaning of “religion,” including for 1A purposes. Basically, to summarize, there are a lot of ways to do it. One useful source to think about the possibilities is the concurring opinion in this case:


  10. The above list of “characteristics” of religion(s) might be fruitfully compared to a book by my late teacher, mentor, and friend (and pioneer in the cross-cultural examination of religions or the field of Religious Studies), Ninian Smart, Dimensions of the Sacred: An Anatomy of the World’s Beliefs (University of California Press, 1996). The subtitle is misleading, however, as the book is only partly about beliefs (doctrinal, philosophical, etc.), with chapters treating the narrative, experiential, emotional, ethical, legal, social, and material “dimensions” of religious worldviews. There is considerable overlap, in other words, between Ninian’s “dimensions” and the aforementioned “characteristics.” I suggest we look in the first instance to discussions of the meaning of “religion” from those whose scholarly work evidences more than a superficial familiarity with at least most of the world’s major religious traditions. One might be surprised to discover the number of academic and public intellectuals so qualified is comparatively small.

  11. Ellen Aprill says:

    The issue in the Bob Jones case was NOT whether it was entitled to tax-exemption as a church, and thus the case gives little if any guidance regarding exemption for church that discriminates on the basis of race. Bob Jones claimed tax-exemption as an educational organization, in particular as a school, although it did state that its exclusionary doctrine was religiously based. Footnote 29 in the case states in relevant part, “We deal here only with religious schools–not with churches or other purely religious institutions; here, the government interest is in denying public support to racial discrimination in education.”