As you may have gathered by now, Corey Brettschneider’s book When the State Speaks makes roughly the following argument: It is important for the state to uphold and defend the ideal of “free and equal citizenship,” which is “the most basic ideal of public equality that underlies liberal democracy.” In doing so, it should avoid coercive measures taken against groups or individuals that hold “hateful viewpoints,” but it should make full use of its “persuasive” powers, which include not only expression countering those views and publicizing “the justification for those rights protected by law,” but also the denial of tax-exempt status and state subsidies for “groups that oppose the core values of free and equal citizenship.” That’s a blunt (but fair, I hope) statement of Brettschneider’s views, although they are importantly nuanced and hedged with cautions and substantive limits.
In my previous post, I argued that Brettschneider’s views are likely to face more pressure and danger at the hands of those who support them than those who oppose them outright. Precisely because Brettschneider takes a middle-ground position between what he calls the dangers of the “Invasive Society,” which attempts to coerce citizens’ views, and the “Hateful Society,” which he claims is indifferent to hateful and discriminatory views, his argument is likely to be co-opted by those who would ignore his caveats and substantive limits and impose a much more coercive and/or unbounded version of his recommendations. In this post, I want to discuss his application of his general approach to religion, a subject he takes up in the fourth and fifth chapters of his book. Rather than offer a laundry list or go over the (several) objections I have to some of his characterizations of current law, I want to raise three or four basic points.