Identity in democracy

Identity in Democracy

Volumn , Issue , 2009, Pages

  Gutmann, Amy ^a  

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References (260)

1. For a review of the relevant experiments, see Jonathan D. Brown Natalie D. Novick, Kelley A. Lord, and Jane M. Richards, "When Gulliver Travels: Social Context, Psychological Closeness, and Self-Appraisals," Journal of Personality and Social Psychology 62, no. 5 (1992): 717-27.
2. For an overview of the psychological literature, see Margaret Wetherell, ed., Identities, Groups, and Social Issues (London: Sage, 1996);
3. Michael A. Hogg and Scott Tindale, eds., Group Processes (Oxford: Blackwell, 2001).
4. See Claude M. Steele and J. Aronson, "Stereotype Threat and the Test Performance of Academically Successful African Americans," in Jencks, C., and M. Phillips, eds. Black-White Test Score Gap (Washington, DC: Brookings Institution Press, 1998);
5. J. Aronson, et al., "When White Men Can't Do Math: Necessary and Sufficient Factors in Stereotype Threat," Journal of Experimental Social Psychology 35: (1999) 29-46;
6. S. J. Spencer, C. M. Steele, and D. M. Quinn, "Stereotype Threat and Women's Math Performance," Journal of Experimental Social Psychology 35 (1999): 4-28.
7. For an overview of the experimental evidence on African American college students, see Claude Steele, "Thin Ice: 'Stereotype Threat' and Black College Students," The Atlantic Monthly 284 (August 1999), no. 2: 44-47, 50-54.
8. David Truman, who helped establish interest group theory in political science, neglected identity groups because he used the term interest group to include every group that "makes certain claims upon other groups for the establishment, maintenance or enhancement of forms of behavior that are implied by the[ir] shared attitudes." The Governmental Process, 2d ed. (New York: Knopf, 1971), 33.
9. So broadly used, interest groups include what today we call identity groups, but they were invisible at the time Truman wrote partly because no term captured the politically significant phenomenon of people joining together out of mutual identification, which interest group theorists call a "solidary" incentive.
10. For a hypercritique of identity groups in the American context, see Ward Connerly, "Are Ethnic and Gender-based Special-Interest Groups Good for America?" Insight on the News, July 7, 1997: 30 paragraphs. Lexis Academic Universe. News. General News. Magazines & Journals. Part Symposium, 25. (Accessed October 18, 2000.)
11. Connerly's claim that identity politics "was not envisioned by our Founders" is belied by the Federalist 10, which suggests precisely the contrary. Madison's understanding of factions is very broad, subsuming both interest and identity groups as the terms are used today: "The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice . . ." (25).
12. See Yael Tamir, Liberal Nationalism (Princeton, NJ: Princeton University Press, 1985).
13. Bruce E. Keith The Myth of the Independent Voter (Berkeley: University of California Press, 1992), 38ff.
14. Angus Campbell, Philip E. Converse, Warren E. Miller, and Donald E. Stokes, The American Voter (New York: John Wiley and Sons, 1960), pp. 143-44.
15. Larry Bartels, "Partisanship and Voting Behavior, 1952-1996," American Journal of Political Science 44, no. 1 ( January 2000): 35-50.
16. See, e.g., Philip E. Converse and Roy Pierce, Political Representation in France (Cambridge, MA: Harvard University Press, 1986), especially 120-67.
17. For a vivid portrayal of this march, see Women of the Wall, a film by Faye Lederman. This description is borrowed from the description of the film. For a discussion of the legal struggle by the Women of the Wall, see Pnina Lahav, "The Women-of-the-Wall Decision." Israel Studies Bulletin 16, no. 1 (Fall 2000): 19-22.
18. Boy Scouts of America et al. v Dale, 530 US 696 (June 28, 2000).
19. Unorganized identity groups are also an important phenomenon but not as directly connected to democratic politics. They include, for example, "jocks" and "geeks." When the identities of these groups are negatively stereotyped, they raise the political question of whether the negative stereotyping can realistically be overcome without the identity groups themselves organizing in some way to do so. The political problems raised by informal (or "nominal") identity groups therefore overlap substantially with those discussed in this book.
20. See, e.g., the review of the literature in Margaret Wetherell, ed., Identities, Groups, and Social Issues (London: Sage, 1996)
21. Michael A. Hogg and Scott Tindale, eds., Group Processes (Oxford: Blackwell, 2001).
22. A feminist is not only a feminist. As Iris Marion Young writes: "A person's identity is her own, formed in active relation to social positions, among other things, rather than [completely] constituted by them." Inclusion and Democracy (Oxford: Oxford University Press, 2000), 99.
23. We therefore should distinguish between whether group identities can partially constitute individual identities or completely constitute them. An active agent can be partially constituted by many group identities but not fully constituted by any or all of them. The idea that being a woman and a feminist partially constitutes my identity is also completely consistent with my standing in an active relationship to what these identities mean to me and their implications for my life.
24. Many American women who identify as feminists, for example, join NOW or some other feminist group. Like feminism, other social markers are identifiable independently of any single person's interpretation of them. My interpretation of feminism does not determine what feminism means to most people. And yet I can interpret what it means for me to be a feminist in a way that is comprehensibly to others. My identity as a feminist therefore is not completely determined by the dominant social meaning. But it is influenced by that meaning if only by requiring me to dissent if I want to publicly distinguish my interpretation from the dominant one. Over time within a social context, the interpretation of social markers by individuals can make a difference in how the dominant social meanings of the markers change or not. See also Iris Marion Young, Inclusion and Democracy, 87-120.
25. For an insightful new account, see K. Anthony Appiah, "The State and the Shaping of Identity," unpublished Tanner Lectures, 2001.
26. For a similar understanding, see James Fearon, "What Is Identity (As We Now Use the Word)?," unpublished manuscript, 1999.
27. For an interest group theory that is typical in recognizing the importance of solidary incentives without recognizing the phenomenon of identity groups, see Allan J. Cigler and Burdett A. Loomis, eds. Interest Group Politics, 4th ed. (Washington, DC: Congressional Quarterly Press, 1995), 9.
28. Mancur Olson, The Logic of Collective Action (Cambridge, MA: Harvard University Press, 1971).
29. Rogers Brubaker and Frederick Cooper, "Beyond 'Identity,' " Theory and Society 29(1) (2000): 8.
30. Terrence M. Moe, The Organization of Interests (Chicago: University of Chicago, 1980).
31. For an extensive critique along these lines, see Brian M. Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge, MA: Harvard University Press, 2001).
32. John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1999), 65-73.
33. Barry claims that trying to satisfy the demands of cultural identity groups not only "diverts political effort away from universalistic goals" but also destroys the political conditions that would favor "across-the-board equalization of opportunities and resources" (Culture and Equality, 325). But he does not suggest what political conditions favorable to egalitarianism existed and were actually destroyed by feminist, African American, Latin American, Native American, and other identity groups in the United States, whose members and supporters have been among the more egalitarian forces in American politics.
34. Todd Gitlin, The Twilight of Common Dreams: Why America Is Wracked by Culture Wars (New York: Henry Holt, 1995), 237. See also Barry, Culture and Equality, 326.
35. Brian Barry, Culture and Equality, 326.
36. William G. Bowen and Derek Bok, The Shape of the River (Princeton, NJ: Princeton University Press, 1998).
37. See William Julius Wilson, The Bridge over the Racial Divide (Berkeley: University of California Press, 1999);
38. William Julius Wilson, The Truly Disad vantaged: The Inner City, the Underclass, and Public Policy (Chicago: University of Chicago Press, 1987).
39. Federalist 10.
40. Barry, Culture and Equality, 326-327 and passim.
41. For a general discussion of Barry's critique of multiculturalism, see Ayelet Shachar, "Two Critiques of Multiculturalim," Cardozo Law Review 23:1 (November 2001): 253-297, especially 275-287.
42. See, e.g., Stuart White, "Trade Unionism in a Liberal State," in Freedom of Association, edited by Amy Gutmann (Princeton, NJ: Princeton University Press, 1999), 330-356.
43. For a defense of deliberation and other principles of democratic justice, see Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, MA: Harvard University Press, 1996).
44. For a sampling of recent books that propose conceptions of democratic justice that defend a version of equal freedom, opportunity, and civic equality, see Seyla Benhabib, ed., Democracy and Difference (Princeton, NJ: Princeton University Press, 1996);
45. Ronald Dworkin, Sovereign Virtue (Cambridge, MA: Harvard University Press, 2000);
46. Amy Gutmann and Dennis Thompson, Democracy and Disagreement; Jurgen Habermas, The Inclusion of the Other (Cambridge, MA: MIT Press, 1998);
47. Russell Hardin, Liberalism, Constitutionalism and Democracy (Oxford: Oxford University Press, 2000);
48. George Kateb, The Inner Ocean: Individualism and Democratic Culture (Ithaca, NY: Cornell University Press, 1992);
49. David Miller, Principles of Social Justice (Cambridge, MA: Harvard University Press, 1999);
50. Carlos Santiago Nino, The Constitution of Deliberative Democracy (New Haven: Yale University Press, 1996);
51. Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Clarendon Press, 1997);
52. John Rawls, A Theory of Justice; and Ian Shapiro, Democratic Justice (New Haven, CT: Yale University Press, 1999).
53. A culture "provides its members with meaningful ways of life across the full range of human activities, including social, educational, religious, recreational, and economic life, encompassing both public and private spheres." Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995), 76.
54. A culture, as Avishai Margalit and Joseph Raz put it, "defines or marks a variety of forms or styles of life, types of activity, occupation, pursuit, and relationship. With national groups we expect to find national cuisines, distinctive architectural styles, a common language, distinctive literary and artistic traditions, national music, customs, dress, ceremonies and holidays, etc." From Avishai Margalit and Joseph Raz, "National Self-Determination," in Ethics in the Public Domain: Essays in the Morality of Law and Politics, edited by Joseph Raz (New York: Oxford University Press, 1994), 114.
55. See also Will Kymlicka, Liberalism, Community, and Culture (Oxford: Clarendon Press, 1989), 162-78, who identifies culture with a "context of choice" (164, 166).
56. Alexis de Tocqueville, Democracy in America, edited by J. P. Mayer (New York: Doubleday Anchor ed., 1969), 513.
57. George Kateb, "The Value of Association," in Freedom of Association, edited by Amy Gutmann (Princeton, NJ: Princeton University Press, 1998), 37-38.
58. See K. Anthony Appiah, "Race, Culture, Identity," in K. Anthony Appiah and Amy Gutmann, Color Conscious: The Political Morality of Race (Princeton, NJ: Princeton University Press, 1996), 97-104.
59. See, e.g., Iris Marion Young's influential Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990), 23-24, 152-55, and passim.
60. "Familiarity with a culture determines the boundaries of the imaginable. Sharing in a culture, being part of it, determines the limits of the feasible." Joseph Raz and Avishai Margalit, "National Self-Determination," in Ethics in the Public Domain: Essays in the Morality of Law and Politics, edited by Joseph Raz (New York: Oxford University Press, 1994), 119.
61. Whereas the ETA, an armed group of separatist Basque nationalists, engages in terrorist activities that threaten the basic security of people who peacefully oppose them, Catalan nationalists peacefully coexist with non-Catalans in a federated Spain that gives both national minorities considerable political autonomy. The comparison between Basques and Catalans provides a striking example of why it would be a mistake to think that even a single category of cultural identity groups-national minorities-makes a single set of claims on democracy. Basque nationalists are themselves internally divided, and radically so, in their claims, some of which are entirely compatible and others completely incompatible with basic liberty and civic equality for all individuals.
62. Will Kymlicka, Liberalism, Community, and Culture (Oxford: Clarendon Press, 1989), 175.
63. Margalit and Raz, "National Self-Determination," 114.
64. See Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995), 18, 76
65. Margalit and Raz, "National Self-Determination," 114. What Kymlicka calls a societal culture Margalit and Raz call a pervasive culture. People who share or come close to sharing a pervasive culture and whose "identity is determined at least in part by their culture" are "serious candidates for the right to self-determination" according to the account offered by Margalit and Raz ("National Self-Determination," 114).
66. Margalit and Raz, "National Self-Determination," 118.
67. Will Kymlicka, Liberalism, Community, and Culture, 164.
68. Margalit and Raz, "National Self-Determination," 118.
69. Raz, Ethics in the Public Domain, 162.
70. The seminal contemporary work on this subject is Charles Taylor's Multiculturalism, edited by Amy Gutmann (Princeton, NJ: Princeton University Press, 1994).
71. For a philosophical basis for the toleration view, see Bruce Ackerman, Social Justice in the Liberal State (New Haven: Yale University Press, 1980), 139-141.
72. See Axel Honneth, The Struggle for Recognition: The Moral Grammar of Social Conflicts (Cambridge, MA: MIT Press, 1996);
73. Axel Honneth, "Integrity and Disrespect: Principles of a Conception of Morality Based on a Theory of Recognition," in The Fragmented World of the Social: Essays in Social and Political Philosophy, edited by Charles W. Wright (Albany: State University of New York Press, 1995), 255-56.
74. Goldman v Weinberger, 475 US 503 (1986). See discussions of these cases in Kymlicka, Multicultural Citizenship, 108-15;
75. Jacob T. Levy, The Multiculturalism of Fear (New York: Oxford University Press, 2000), 129-30.
76. See Levy, The Multiculturalism of Fear, for a clear and useful categorization of claims on behalf of cultural identity groups, which he subsumes under the rubric of "rights" (although not all of the claims by cultural identity groups are made in the name of rights), 125-60.
77. Cited in Martinez v Santa Clara Pueblo, 540 F2d 1039, 1042 (10th Cir 1976).
78. Martinez v Romney, 402F, Supp 5, 19 (D NM 1975). Emphasis added. By putting the "good" in scare quotes, the Court conveys the idea that no reason could be a good reason. The Court also makes explicit its own faulty reasoning, that upholding the discriminatory law saves a valued cultural identity of Pueblo women, while upholding Martinez's plea for being treated as a civic equal would destroy her valued cultural identity. In a tautological sense, deferring to any existing cultural practice "saves" the cultural identities that depend on the practice. But Martinez and the other plaintiffs reasonably wanted to remain Pueblo but not labor under the burden of a discriminatory membership law.
79. For a discussion of the Martinez case from a legal and humanistic perspective, see Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women's Rights (Cambridge: Cambridge University Press, 2001), 18-20.
80. Shachar's legal analysis concludes that "the group's collective interest in preserving its nomos is achieved, in part, through the imposition of severe and disproportionate burdens upon a particular class of group members [women] (19)."
81. Kymlicka, Multicultural Citizenship, 163-70. For a case made against one group's imposing rights on another group that it has a tradition of oppressing, see Jeff Spinner-Halev, "Feminism, Multiculturalism, Oppression, and the State," Ethics 112 (October 2001): 84-113.
82. Spinner-Halev's argument does not rest on assuming the comprehensiveness of cultures but it does rest on an unargued assumption that groups will come to accept the basic rights of their members more quickly if they are not pressured from the outside to reform. Even if this assumption is sometimes correct, when it is not, the basic rights of individuals should not be violated out of deference to a group. In the Martinez case, as in many others, members of the culture are asking to have their rights vindicated. The case therefore cannot be reduced to one of external imposition of a human rights regime by an oppressive outside group when Pueblo women are the plaintiffs.
83. Taylor, Multiculturalism, 54-61, and Kymlicka, Liberalism, Community, and Culture, 135-61; 253-57.
84. See, for example, Taylor, Multiculturalism, 59. For a more recent discussion of basic rights in an international context, see Michael Ignatieff, Human Rights as Politics and Idolatry, edited by A. Gutmann (Princeton, NJ: Princeton University Press, 2001).
85. "I was born an Indian, and not only an Indian, but a Bombayite. . . . My writing and thought have . . . been as deeply influenced by Hindu myths and attitudes as Muslim ones. . . . Nor is the West absent from Bombay. . . . The point is this: Muslim culture has been very important to me, but it is not by any means the only shaping factor." Salman Rushdie, "In Good Faith," in Imaginary Homelands: Essays and Criticism 1981-1991 (London: Penguin Books, 1991), 404.
86. For a defense of cosmopolitanism based on Rushdie's example, see Jeremy Waldron, "Multiculturalism and Melange," in Public Education in a Multicultural Society: Policy, Theory, Critique, edited by Robert K. Fullinwider (Cambridge, England: Cambridge University Press, 1996), 90-118.
87. Amartya Sen, "Other People." The New Republic, December 18, 2000, 28.
88. Amy Gutmann, "Challenges of Multiculturalism in Education," in Public Education in a Multicultural Society: Policy, Theory, Critique, edited by Robert Fullinwider (Cambridge, England: Cambridge University Press, 1996), 156-79.
89. See Bryna Jocheved Levy, "Sense and Sensibilities: Women and Talmud Torah," Jewish Action magazine, http://www.ou.org/publications/ja/5759winter/sense.htm.
90. Martinez v Santa Clara Pueblo, 540 F2d 1039, 1047 (10th Cir 1976).
91. Justice White's dissent in Santa Clara Pueblo v Martinez, 436 US at 83.
92. The United States government should not be granted the authority to violate individual rights if an established legal tribunal could prevent it from so doing without any violence. There was an established and potentially effective tribunal in place that could have vindicated Martinez's right without any violence. When no established tribunal exists, political theorists need to consider the case for establishing one.
93. From text of President Bill Clinton's statement authorizing the United States to sign the Treaty on the International Criminal Court. The New York Times, January 1, 2001, A6.
94. Kymlicka, Multicultural Citizenship, 167.
95. For a useful and more comprehensive typology of group rights, see Jacob Levy, "Classifying Cultural Rights," in NOMOS XXXIX: Ethincity and Group Rights, edited by Will Kymlicka and Ian Shapiro (New York: New York University Press, 1997), 22-66.
96. Steven Lukes provides an alternative typology, distinguishing between calls for enhancement of status through the removal of discriminatory barriers to individual access and demands for recognition of difference ranging from public assertion to "the State's granting of significant claims." Lukes, "Toleration and Recognition," Ratio Juris 10, no. 2 (1997): 217-18.
97. Bhikhu Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Basingstoke, Hampshire, England: Macmillan, 2000), 215.
98. Jones, "Political Theory and Cultural Diversity," 49.
99. Avishai Margalit and Moshe Halbertal, "Liberalism and the Right to Culture," Social Research 61, no. 3 (1994): 491.
100. Shachar, Multicultural Jurisdictions, p. 43.
101. John Stuart Mill emphasized this point. See Mill, On Liberty, edited by David Spitz (New York: Norton, 1975), 451-456.
102. Richard Shweder, "What about Female Genital Mutilation? And Why Understanding Culture Matters in the First Place," in Engaging Cultural Differences: Multicultural Challenge in Liberal Democracies, edited by Richard A. Shweder, Martha Minow, and Hazel R. Markus (New York: Russell Sage Foundation Press, 2002), 222-26.
103. Carla Makhlouf Obermeyer, "Female Genital Surgeries: The Known, the Unknown, and the Unknowable," Medical Anthropology Quarterly 13, no. 1 (1999): 92.
104. A wide range of political theorists defend the compatibility of mutual respect and partisanship. See, e.g., the commentaries by William Galston, Robert George, Jane Mansbridge, Cass Sunstein, Amy Gutmann, and Dennis Thompson in Deliberative Politics: Essays on Democracy and Disagreement, edited by Stephen Macedo (New York: Oxford University Press, 1999).
105. See also Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, MA: Belknap Press, 1996).
106. For an extended defense of the basic rights of women against cultural practices that clearly threaten those rights, see Susan Moller Okin (Joshua Cohen, Matthew Howard, and Martha C. Nussbaum, eds) Is Multiculturalism Bad for Women? (Princeton, NJ: Princeton University Press, 1999);
107. Martha C. Nussbaum and Jonathan Glover, eds., Women, Culture, and Development: A Study of Human Capabilities (New York: Oxford University Press, 1994);
108. Martha C. Nussbaum, Sex and Social Justice (New York: Oxford University Press, 1999).
109. I discuss the "Affair of the Scarf " in "Challenges of Multiculturalism in Democratic Education," in Public Education in a Multicultural Society, edited by Robert K. Fullinwider (New York: Cambridge University Press, 1996), 156-79.
110. For an insightful and extended discussion of this controversy connected to a set of arguments for democratically deliberating about its resolution, see Seyla Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton, NJ: Princeton University Press, 2002).
111. Anne Fadiman, The Spirit Catches You and You Fall Down (New York: Farrar, Straus and Giroux, 1999).
112. D. L. Coleman, "The Seattle Compromise: Multicultural Sensitivity and Americanization," Duke Law Review 47 (1998): 717-782. See also Richard Shweder, Engaging Cultural Differences, 231.
113. I am not suggesting, however, that the negative reactions to the hospital's proposal are culturally determined. An activist Ethiopian immigrant, for example, told the Seattle Times that "How dare it even cross their mind [to perform female circumcision]? What the Somalis, what the immigrants like me need is an education, not sensitivity to culture." Quoted in Levy, The Multiculturalism of Fear, 55. See Levy's discussion, 53-57.
114. Another defense of deliberation about cultural diversity, which draws upon some similar democratic principles but focuses on different cultures, can be found in Seyla Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton, NJ: Princeton University Press, 2002).
115. For discussions of the claims for descriptive representation for identity groups, see Anne Phillips, Engendering Democracy (University Park, PA: Pennsylvania State University Press, 1991);
116. Melissa Williams, Voice, Trust, and Memory (Princeton, NJ: Princeton University Press, 1998).
117. Taylor, Multiculturalism, 61.
118. For a case made for the distinctive standing in democratic societies of aboriginal groups relative to other minority cultures based on the historical injustices committed against these groups, see John R. Danley, "Liberalism, Aboriginal Rights, and Cultural Minorities," Philosophy and Public Affairs 20, no. 2 (Spring 1991): 168-85.
119. "Cultural groups have no moral claim to eternal existence, especially as against the rights and choices of their own individual members-let alone their children and their children's children. What they do have is a right to be free from circumstances under which their continued existence is made impossible because of injustices such as those faced by aboriginal communities throughout the world." Michael Blake, "Rights for People, Not for Cultures," Civilization (August/September 2000): 50-54.
120. Some critics of Taylor suggest that he values the group above the individuals who constitute it, but this misrepresents Taylor's perspective at its strongest, which is a critique of liberal neutralists who claim that for political purposes individual interests must be viewed as independent of particular cultures. Taylor argues, by contrast, that individual interests are laden with particular cultural goods and understandings, including language and a sense of valuable callings, careers, and customs. Taylor also attributes to individuals an interest in their culture's surviving over time, since people want to be assured that their descendants will share their culture. These are controversial claims about how we should understand the basic interests of individuals, but the claims are not that a group's interest takes precedence over the interests of its members. See Taylor, Multiculturalism, 51-73.
121. For a sense of how heated the controversy about culturalism can be, see the exchange between David Bromwich, Michael Walzer, and Taylor in Dissent 42, no. 1 (Winter 1995): 89-106.
122. See, for example, Antonio Cassese, "The General Assembly: Historical Perspective, 1945-1989," in The United Nations and Human Rights: A Critical Appraisal, edited by Philip Alston (Oxford: Clarendon Press, 1992), 31.
123. See also William Alford, "Making a Goddess of Democracy from Loose Sand: Thoughts on Human Rights in the Peoples Republic of China," in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, edited by Abdullahi Ahmed An-Naim (Philadelphia: University of Pennsylvania Press, 1992), 75.
124. Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999), xii.
125. See "Introduction" to Michael Ignatieff, Human Rights as Politics and Idolatry, edited by Amy Gutmann (Princeton, NJ: Princeton University Press, 2001): vii-xxxvii.
126. Morsink, The Universal Declaration of Human Rights, x.
127. See John Rawls, Political Liberalism (New York: Columbia University Press, 1993), especially 195-200.
128. Margalit and Halbertal, "Liberalism and the Right to Culture," 491.
129. Alexis de Toqueville, Democracy in America, edited by J. P. Mayer (New York: Doubleday Anchor ed, 1969), p. 517.
130. The seminal study is Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (New York: Simon & Schuster, 2000).
131. For challenges (provoked by his article "Bowling Alone: America's Declining Social Capital," Journal of Democracy 6, no. 1 [1995]: 65-78)
132. Putnam's empirical claims concerning the decline in associational memberships, see Sheri Berman, "Civic Society and the Col lapse of the Weimar Republic," World Politics 49, no. 3 (1997): 401-29;
133. Pamela Paxton, "Is Social Capital Declining in the United States? A Multiple Indicator Assessment," American Journal of Sociology 105, no. 1 ( July 1999): 88-127.
134. We can value individual freedom for a variety of reasons that find their source in many comprehensive philosophies of life as well as in democratic theories of politics that do not depend on a particular comprehensive philosophy of life. Among the principles that support individual freedom, each of which has several cultural and philosophical sources, are the dignity of persons, their equality before God, mutual respect for persons as self-originating sources of moral worth in society, and free and equal citizenship in democratic society. From each of these starting points emanates a defense of the freedom to live one's life according to one's own best lights consistent with respecting the equal freedom of others.
135. Nancy Rosenblum, Membership and Morals (Princeton, NJ: Princeton University Press, 1998), 32.
136. Kateb, "The Value of Association," 39.
137. Brian M. Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge, England: Polity Press, 2001), 155-93.
138. See Rosenblum, Membership and Morals, 101ff; and Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (New York: Oxford University Press, 1995), 234 n18.
139. Rosenblum, Membership and Morals, 4.
140. Hofer v Hofer 13 DLR (3d)1 (SCC), 984 (1970).
141. For a justification of unions, see Stuart White, "Trade Unionism in a Liberal State," in Freedom of Association, edited by Amy Gutmann (Princeton, NJ: Princeton University Press, 1998), 330-56.
142. George Kateb, "The Value of Association," in Freedom of Association, edited by Amy Gutmann (Princeton, NJ: Princeton University Press, 1998), 60.
143. Emphasis added. The various standards offered by theorists of choice bear a strong family resemblance to one another. Many are versions of John Stuart Mill's "harm principle": "the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection . . . to prevent harm to others" (Mill, "Introductory," 13). Brennan's case against the Jaycees draws on the Millean harm principle. Kateb's standard is in the same family; it recognizes that liberty may be limited for the sake of protecting an equally or more valuable liberty or another "vital claim" of individuals. In all these cases, the harm can be treatment as a civic unequal, rather than a separate harm that is caused by civic inequality.
144. "The mutual adjustment of the basic liberties is justified," Rawls writes, "on grounds allowed by the priority of these liberties as a family, no one of which is in itself absolute." Rawls, Political Liberalism (New York: Columbia University Press, 1993), 358.
145. John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press of Harvard University Press, 1999), 202.
146. Nixon v Condon, 286 US 73, 83 (1932). Emphasis added.
147. Robert Post, "Prejudicial Appearances: The Logic of American Antidiscrimination Law," California Law Review 88, no. 1 ( January 2000): 1-40.
148. Minnesota Human Rights Act, cited in Roberts v United States Jaycees, 468 US at 615 (1984).
149. Minnesota Statute 363.03, subd 3 (1982).
150. The term "place of public accommodation" is defined in the act as "a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public" (363.01, subd 18). Quoted in Roberts v United States Jaycees, 468 US at 615 (1984).
151. Roberts v United States Jaycees, 468 US at 624 (1984).
152. "Different opinions about the value of the liberties will, of course, affect how different persons think the full scheme of freedom should be arranged." Rawls, A Theory of Justice, 202.
153. Different opinions are often part of the realm of reasonable disagreement. For a cogent explanation of the democratic search for fair terms of social cooperation and the Rawlsian concept of the reasonable, see Joshua Cohen, "A More Democratic Liberalism," Michigan Law Review 92, no. 6 (1994): 1521-1543.
154. Roberts v United States Jaycees, 468 US at 639. The Jaycees, like almost all associations, have some significant expressive purposes. If it were sufficient for a voluntary association to claim some significant expressive purpose to immunize itself from state regulation, then almost all associations would have immunity from nondiscrimination laws, rendering these laws impotent to protect civic equality.
155. Judith Shklar, American Citizenship: The Quest for Inclusion (Cambridge: Harvard University Press, 1991), 84.
156. Opening up the informal associational channels of commerce to women is an extension of opening up occupations themselves. One way of undermining equal economic opportunity for women would be to keep the informal associational channels of commerce closed to young women or open to them only as the subordinate associates of young men, which is what the Jaycees had institutionalized before the Roberts decision, quite in keeping with the longstanding civic inequality of women.
157. Rosenblum, "Compelled Association," in Freedom of Association, 87.
158. For a call for a sociological account of employment discrimination, see Robert Post, "Prejudicial Appearances," 31-40.
159. Rosenblum, "Compelled Association," 87.
160. From the Boy Scouts Handbook, quoted in Boy Scouts of America v Dale, 530 US at 667 (2000).
161. The dissenting opinion by Justice Stevens ( joined by Justices Souter, Ginsburg, and Breyer) points out that prior to the expulsion of James Dale, the Boy Scouts had never explicitly associated being morally straight or clean with not being homosexual. But when pressed to defend their exclusion, the organization's leadership made explicit the view that being homosexual is inconsistent with being a civic equal because homosexuals cannot be morally clean in some civic (and explicitly not religious) sense of moral cleanliness.
162. Boy Scouts of America v Dale, 530 US at 696 (2000).
163. Rawls, A Theory of Justice, 230.
164. Richard Epstein, "Free Association: The Incoherence of Antidiscrimination Laws," National Review LII, no. 19 (October 9, 2000): 38-40.
165. Laura Parker and Guillermo X. Garcia, "Boy Scout Troops Lose Funds, Meeting Places." USA Today, October 10, 2000, 1A.
166. For a defense of nondiscrimination in public schooling, see Amy Gutmann, Democratic Education (Princeton, NJ: Princeton University Press, 1999).
167. See Robert D. Putnam, Robert Leonardi, and Raffaella Y. Nanetti, Making Democracy Work (Princeton, NJ: Princeton University Press, 1994); and Bowling Alone, 66.
168. These and other social problems associated with declining membership in voluntary groups may be real even if Putnam somewhat overstates his empirically sustainable case when he claims, far more generally, that "social capital makes us smarter, healthier, safer, richer, and better able to govern a just and stable democracy." Putnam, Bowling Alone, 290.
169. See Carol Padden and Tom Humphries, Deaf in America: Voices from the Culture (Cambridge, MA: Harvard University Press, 1988), 2 and passim.
170. Kim Isaac Eisler, Revenge of the Pequots: How a Small American Tribe Created the World's Most Profitable Casino (New York: Simon & Schuster, 2001).
171. David D. Laitin, Identity in Formation: The Russian-Speaking Populations in the Near Abroad (Ithaca, NY: Cornell University Press, 1998), 21.
172. See, for example, K. Anthony Appiah, "Race, Culture, Identity," in Appiah and Gutmann, Color Conscious: The Political Morality of Race (Princeton, NJ: Princeton University Press, 1996), 30-105.
173. See Susan Moller Okin, Justice, Gender and the Family (New York: Basic Books, 1991)
174. Iris Marion Young, Intersecting Voices (Princeton, NJ: Princeton University Press, 1997)
175. Judith Butler, Gender Trouble (New York: Routledge, 1999);
176. Catharine A. Mackinnon, Feminism Unmodified (Cambridge, MA: Harvard University Press, 1987).
177. See Ian Shapiro and Will Kymlicka, Ethnicity and Group Rights (New York: New York University Press, 1997);
178. Nathan Glazer, Ethnic Dilemmas: 1964-1982 (Cambridge, MA: Harvard University Press, 1983).
179. See Benedict Anderson, Imagined Communities (London: Verso, 1991).
180. For general theoretical statements about social construction of identity, see Ernesto Laclau, ed., The Making of Political Identities (London: Verso, 1994);
181. Judith Butler, Ernesto Laclau, and Slavoj Zizek, Contingency, Hegemony, Universality (London: Verso, 2000).
182. Eisler, Revenge of the Pequots.
183. See Amartya Sen, "Goals, Commitment, and Identity," Journal of Law, Economics, & Organization 1, no. 2 (Fall 1985): 347.
184. Sen offers a trilogy of ways that economists think about motives of reasonable action, all of which are "private." The three are self-centered welfare, self-welfare goal, and self-goal choice. He then argues that there are nonprivate ways of thinking and acting based on identification with others and commitment to the welfare of others. Identity and commitment also can be manifest in ascriptive identity group politics.
185. The debate between defenders of interest-driven and identity-driven politics therefore suffers from a problem parallel to the one that plagues the debate between primordial and constructivist views of ascriptive identity: "Neither side comprehends that each is looking at only one face of Janus." Laitin, Identity in Formation, 20.
186. There is also another argument against those who would differentiate between groups like the KKK and NAACP on grounds that only one represents the interests of a subordinated group. Even the KKK can credibly claim to represent a subordinated group: nonaffluent white Southern men who feel themselves to be increasingly marginalized in society and may in fact be increasingly marginalized. This is not a major argument against the asymmetry view, however, because it does not recommend supporting any ascriptive group simply because it represents subordinated individuals.
187. David B. Wilkins, "Identities and Roles: Race, Recognition, and Professional Responsibility," Maryland Law Review, 57, no. 4 (1998): 1521-1522.
188. James T. Patterson, Brown v Board of Education: A Civil Rights Milestone and Its Troubled Legacy (Oxford: Oxford University Press, 2001), 73.
189. "Status Report on Probe of Election Practices in Florida during the 2000 Presidential Election," http://www.usccr.gov [accessed June 28, 2001].
190. For the importance of distinguishing between misfortune and injustice, see Judith N. Shklar, The Faces of Injustice (New Haven, CT: Yale University Press, 1990).
191. The NAACP's explicit aim is consistent with this best case scenario. It is "to ensure the political, educational, social and economic equality of minority group citizens of the United States and eliminate race prejudice. "NAACP online," http://www.naacp.org/ [accessed June 28, 2001].
192. Hazel Rose Markus, Claude M. Steele, and Dorothy M. Steele, "Colorblindness as a Barrier to Exclusion," in "The End of Tolerance: Engaging Cultural Differences." Daedalus 129, no. 4 (Fall 2000): 248.
193. Jason Lamberton, The NewsHour with Jim Lehrer, transcript, February 19, 2001.
194. NAD now explicitly recognizes the diversity of its ascriptive group: it "recognizes that diversity within the deaf community itself, and within the deaf experience, has not been acknowledged or explained very clearly in the public forum." "NAD Position Statement on Cochlear Implants," October 6, 2000. http://www.nad.org/infocenter/newsroom/papers/CochlearImplants.html [accessed June 28, 2001].
195. For theories and principles of obligation, see Michael Walzer, Obligations: Essays on Disobedience, War and Citizenship (Cambridge, MA: Harvard University Press, 1970);
196. A. John Simmons, Justification and Legitimacy: Essays on Rights and Obligations (New York: Cambridge University Press, 2001).
197. For arguments about special obligations as applied to the example of African American professionals, see Wilkins, "Identities and Roles," 1502-1594.
198. See also Appiah and Gutmann, Color Conscious: The Political Morality of Race.
199. James Baldwin, "Introduction to Notes of a Native Son, 1984," in James Baldwin, Collected Essays, edited by Toni Morrison (New York: Literary Classics of the United States, 1998), 810.
200. See, for example, John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1999), 293-301.
201. For a related perspective, see Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, MA: Harvard University Press, 2000), 231-36.
202. See John Stuart Mill, "Introductory" and "Of Individuality" in On Liberty.
203. "With all due respect, and in all good fellowship," DiIulio replied to Falwell, "predominantly white, exurban, evangelical and national para-church leaders should be careful not to presume to speak for any persons other than themselves and their own churches." He continued that in contrast to "predominantly exurban, white evangelical churches, urban African American and Latino Faith communities have benevolent traditions and histories that make them generally more dedicated to com munity-serving missions, and generally more confident about engaging public and secular partners in achieving those missions without enervating their spiritual identities or religious characters." Thomas B. Edsal and Dana Milbank, "Blunt Defense of 'Faith-Based' Aid; Bush Aide Rebukes Evangelical Critics of Administration Plan." Washington Post, March 8, 2001, A8.
204. I examine alternative interpretations of the Establishment Clause coupled with the Free Exercise Clause in "Religion and State in the United States: A Defense of Two-Way Protection," in Obligations of Citizenship and Demands of Faith: Religious Accommodation in Pluralist Democracies, edited by Nancy L. Rosenblum (Princeton, NJ: Princeton University Press, 2000), 127-64.
205. Richard John Neuhaus, The Naked Public Square: Religion and Democracy in America (Grand Rapids, MI: William B. Eerdmans, 1984), 36.
206. By secularly based arguments I mean nonreligiously based arguments. John Rawls also contrasts secular with religious arguments. He uses secular to mean nonreligious arguments that are rooted in a comprehensive conception of the good, since he assumes that religiously based arguments are rooted in a comprehensive conception. But neither secular nor religious arguments need to be so comprehensively rooted. Both religious and secular arguments may or may not overlap with public reason, which in Rawls' view is not a comprehensive conception of morality. For a more detailed discussion of the distinction between religious, secular, and public reasons, see Amy Gutmann, "Two-Way Protection," in Freedom of Association, edited by Amy Gutmann (Princeton, NJ: Princeton University Press, 1998), 142-143.
207. John Rawls defines secular reasoning as "reasoning in terms of comprehensive nonreligious doctrines." Rawls, "The Idea of Public Reason Revisited." 64 The University of Chicago Law Review (Summer 1997): 775, 776.
208. Rawls, Political Liberalism (New York: Columbia University Press, 1993), 212-254.
209. Robert Merrihew Adams, "Moral Faith," The Journal of Philosophy 92, no. 2 (February 1995): 77.
210. Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1999), 42-44.
211. Adams, "Moral Faith," 81.
212. Rawls, Political Liberalism, 131-254.
213. King's famous "I Have a Dream" speech is exemplary in this regard. See Martin Luther King, Jr., A Testament of Hope: the Essential Writings of Martin Luther King, Jr., edited by James M. Washington (New York: HarperCollins, 1991), 217-20.
214. See Gutmann, "Religion and State in the United States: A Defense of Two- Way Protection," in Rosenblum, ed., Religion and Law, 127-64.
215. King, A Testament of Hope, 293.
216. For a typical example of an appeal to constitutional principles in the context of a publication intended for a religious readership, see King, "The Current Crisis in Race Relations," in A Testament of Hope, 89-90.
217. Alexis de Tocqueville, Democracy in America, edited by J. P. Mayer (New York: Doubleday Anchor ed., 1969), 448.
218. Michael McConnell, "Accommodation of Religion: An Update and a Response to Critics," 60 George Washington Law Review 60 no. 3 (March 1992): 685-742, 739.
219. http://www.ppc.net/index.html [accessed October 31, 2001].
220. Aldon D. Morris, The Origins of the Civil Rights Movement: Black Communities Organizing for Change (New York: Free Press, 1984), 4.
221. See also Doug McAdam, Freedom Summer (New York: Oxford University Press, 1988);
222. McAdam, Political Process and the Development of Black Insurgency, 1930-1970 (Chicago: University of Chicago Press, 1982).
223. Examples of the connection between charity and a separatist politics span major religious groups, including some Christian fundamentalist movements in the United States that are antiblack, some Black Muslim fundamentalist groups that are antiwhite, the Israeli party of Shas, and the Islamic Jihad. All provide significant welfare goods as a means of effectively maintaining their political power over their constituents (whether or not by intention).
224. Putnam, Bowling Alone, 66.
225. For a discussion on the federal government's role in creating and supporting major civic associations in the United States, see Theda Skocpol, Marshall Ganz, and Ziad Munson "How Americans Became Civic," in Civic Engagement in American Democracy, edited by Theda Skocpol and Morris Fiorina (New York: Russell Sage Foundation, 1999), 27-71; especially 47, 49.
226. Robert Wuthnow, "Mobilizing Civic Engagement: The Changing Impact of Religious Involvement," in Skocpol and Fiorina, eds., Civic Engagement, 338.
227. Putnam, Bowling Alone, 77.
228. World Church of the Creator website, press release of October 29, 2001, http://www.wcotc.com/ [accessed February 5, 2002].
229. Rabbi Menachem Mendel Schneerson, http://www.washington-report.org/backissues/0300/0003105.html [accessed February 5, 2002].
230. Sheikh Safar Abd Al-Rahman Al-Hawali, http://www.memri.org/ [accessed February 5, 2002].
231. For the former, see National Conference of Catholic Bishops, The Challenge of Peace (Washington, DC: National Conference of Catholic Bishops/United States Catholic Conference, 1983)
232. for the latter, see Pastoral Letter of Catholic Social Teaching and the U.S. Economy (Washington, DC: National Conference of Catholic Bishops/United States Catholic Conference, 1985).
233. Michael Walzer, Obligations: Essays on Disobedience, War, and Citizenship, (Cambridge, MA: Harvard University Press, 1970), 121.
234. Wisconsin v Yoder, 406 US 205 (1972).
235. For a discussion of the justification of conscientious refusal, see Rawls, A Theory of Justice, 331-35.
236. Employment Division, Department of Human Resources of Oregon v Smith, 494 US 872 (1990).
237. To say that an exemption is desirable, on grounds of nondiscrimination, is not yet to say that it is constitutionally required, although it is a step in that direction. Whether legislatures or courts are the best agents for deciding upon such exemptions is a question worthy of further analysis.
238. West Virginia State Board of Education v Barnette, 319 US 624 (1943).
239. For arguments against privileging religion and conscience, see Christopher L. Eisgruber and Lawrence G. Sager, "The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct," 61 University of Chicago Law Review (Fall 1994): 1245-1316. Their constitutional arguments establish a strong case against generally privileging conscience above the law but not against the greater claims to respect of conscientious objection over ordinary objection to laws.
240. Walzer, Obligations, 123.
241. I develop this argument in "Religious Freedom and Civic Responsibility," Washington and Lee Law Review 56, no. 3 (Summer 1999): 907-22.
242. John Locke, A Letter Concerning Toleration (Indianapolis, IN: Library of Liberal Arts, 1955), 52.
243. Walzer, Obligations, 123-24.
244. The contemporary philosopher Robert Audi defends strict separation in "Liberal Democracy and the Place of Religion in Politics," in Audi and Nicholas Wolterstorff, Religion in the Public Square: The Place of Religious Convictions in Political Debate (Lanham, MD: Rowman & Littlefield Publishers, 1997), 1-66.
245. Locke, A Letter Concerning Toleration, 48.
246. New Hampshire Constitution of 1784 in F. N. Thorpe, The Federal and State Constitutions, Colonial Charters and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America (Washington, DC, 1909), vol IV (New Hampshire).
247. Joel Greenberg, "Protesting Tactics in West Bank, Israeli Reservists Refuse to Serve." The New York Times (Saturday February 2, 2002), A1.
248. Stephen L. Carter, The Culture of Disbelief (New York: Basic Books, 1993), 105-6.
249. Welsh v United States, 398 US 333 (1970).
250. The extension to nonreligious citizens in an overwhelmingly religious society is hard won, as in Welsh, which was a 5 to 4 decision without a majority opinion. An earlier decision, United States v Seeger, 380 US 163 (1965), paved the way by subsuming religious citizens who did not believe in a Supreme Being under the conscientious objection provision of the Universal Military Training and Service Act of 1948.
251. Carter, The Culture of Disbelief, 106.
252. Of course, if one thinks that democratic decision-making over schooling is illegitimate, then one will want the exception to become the rule. But recognize that this is not for the sake of respecting conscientious objection; it is for the sake of substituting parental for democratic decision-making. I argue against such substitution in Democratic Education (Princeton, NJ: Princeton University Press, 1999), 64-70, 292-303.
253. I discuss the implications for political morality of diversity within cultural and religious groups in "The Challenge of Multiculturalism in Political Ethics," Philosophy & Public Affairs 22, no. 3 (Summer 1993): 171-206.
254. A large part of what makes Israel a Jewish state is cultural rather than reli gious, but I focus here on the religious part, which is tied to the institutionalized political power of the Orthodox Jewish rabbinate. For an account of the nature of the Israeli state with respect to the closely related issue of toleration, see Michael Walzer, On Toleration (New Haven, CT: Yale University Press, 1997), 40-43.
255. Some Orthodox Jews also oppose state enforcement of Orthodox Jewish marriage because they distrust the state in matters of religion. As one Orthodox Jewish scholar suggests, by vesting religious power in the state, "Men and women are led into a far more serious halakhic transgression [violation of Jewish law] than that of living together without religious marriage." Yeshayahu Leibowitz, Judaism, Human Values, and the Jewish State (Cambridge, MA: Harvard University Press, 1992), 181.
256. Board of Education of Kiryas Joel Village School District v. Louis Grumet, 512 US 687, 129 L.Ed. 2d 546 (1994).
257. Thomas C. Berg, "Slouching Toward Secularism: A Comment on Kiryas Joel School District v. Grumet," 44 Emory Law Journal 433, 434 (1995).
258. Jeffrey Rosen, "Kiryas Joel and Shaw v. Reno: A Text-Bound Interpretivist Approach," 26 Cumberland Law Review 387, 392 (1996).
259. Kiryas Joel, 512 US 687 at 710
260. See Rachel Agostini, et al v Betty-Louise Felton, et al, 521 US 203 (1997).