Freedom of association, sex discrimination law, and the Natio n of Islam

[lweinberg]

Dear Eugene,
         In your appreciation of freedoms of association, I am glad you
nevertheless see the health and safety issues.  (I can tell, Eugene, you
have never worn a dress long enough to trip over or had your field of
vision circumscribed by a projecting mask, but a burka would almost
certainly pose a safety issue in a subway.)  Notwithstanding your
rhetorical stance, you acknowledge that you agree with me.  Both of us
say  that there does come a time when a refusal to associate is too hurtful
not to be regulated.  In other words, a legitimate state interest in the
welfare of the hated can trump the right to hate.  That was what I was
trying to suggest.
         On the other hand, when the state reinforces hateful behaviors, I
think we can find little in the way of legitimate interest to justify
it.  When the state has positive law forbidding association rather than
discrimination, you get the horrors of apartheidt.  This is not an
exaggeration.  American pre-war Jim Crow society, in which black people
could not find places they could sit down, drink water, or escape verbal
and even physical abuse, was a society that de jure as well as de facto
regularized discrimination and gave full rein to the freedom of
association.  In such a world lynchings and other mob violence came to seem
a natural outgrowth of the culture of prejudice.  Authorities would look
the other way, or even take part.
         Why should not police officers be expected or even have a
statutory duty to come to the help of a Catholic schoolgirl as she tries to
walk to school through a hostile neighborhood in Ireland?  Even in the
absence of danger to her physical safety, even if her walk were an intended
provocation, it is not clear to me why she should be required to run the
gamut of -- as the Supremes would say -- a hostile environment, in order to
take her chosen path to school.  Consider the hostile environment in which,
even after Hill v. Colo., desperate unfortunates must run an even more
frightening gamut to exercise a constitutional right, afforded  the grace
of only a few feet of space.
         In thinking about these variations on a theme, it seems to me
perhaps the only difference between us would be over how soon the
authorities can (I do not say must) intervene to protect the shunned from
the hatred of the undereducated.  The associational freedoms you emphasize
-- at the expense of the freedoms of the excluded I emphasize -- have
something in common with radical left-wing multiculturalism.  Both ideas
encourage identity cliques to form and discourage a tolerant and friendly
pluralism -- in other words, a civil society.   I suppose I am suggesting
that the question, how soon and by what measure a legitimate state interest
in "the king's" peace kicks in and empowers the state to protect the hated,
should be at least as important to us as the question, how much respect
must a state furnish to hateful advocacy.
Louise Weinberg


At 01:56 AM 2/14/02, you wrote:

>         Hmm; it seems to me that the post below powerful illustrates the
> profound dangers that an excessive egalitarianism -- and for that matter,
> my hobbyhorse, the "hostile environment" theory -- can pose for liberty.
>
>         1)  To begin with,  I appreciate the concern for the "welfare of
> women in New York," but I would think that if a woman in New York thinks
> her spiritual welfare is advanced by wearing a burqa, that personal
> choice should be entitled to some respect.
>
>         Yes, I know that personal choice can be influenced in all sorts
> of possibly bad ways by the group among which one lives or was
> raised.  But that's also true of the choice to marry or not to marry, to
> have kids or not to have kids, to have sex or not to have sex, and for
> that matter to choose what religious or political views one holds.  The
> premise of our freedom is that it's better for people to make these
> choices, however flawed they may be, free of government compulsion,
> rather than for the government to make such choices for us.
>
>         In particular, I don't think that under existing First Amendment
> law we can "assume" that this practice, "repugnant" or not, can be
> suppressed.  Since the safety hazard rationale does indeed seem quite
> pretextual, what we have is a law that singles out a religious practice
> for suppression, and thus violates the Free Exercise Clause (cf. Lukumi),
> and that restricts a form of expressive conduct precisely because of the
> message it expresses -- whether to outsiders, to fellow Muslims, or to
> the women themselves -- thus violating the Free Speech Clause (cf. Texas
> v. Johnson).  The state may be intending to "protect the welfare of
> women," but it is doing so through the means of singling out religious
> practices and practices that carry a certain expressive message -- the
> First Amendment means that even the worthiest of ends cannot be
> accomplished through certain means.
>
>         Smoking bans, it seems to me, are singularly inapposite, because
> they restrict conduct neither because of its religiosity nor because of
> the message it sends.  Likewise, keeping a woman involuntarily shackled
> is and should be a crime for reasons quite unrelated to the religiosity
> or expressiveness of this conduct; likewise, female circumcision of
> children causes serious harm to them -- to my knowledge, a substantial
> diminution in the ability to experience sexual pleasure -- for reasons
> quite unrelated to the religiosity or expressiveness of the conduct.
>
>         2)  I'm not sure what these examples have to do with freedom of
> association, but shifting to that, it seems to me clear that this freedom
> does indeed often involve, quite correctly so, the freedom to hate or
> shun.  The right to choose one's friends, one's spouse, one's dinner
> guests, or one's coreligionists without government compulsion indeed
> includes the right to shun people, and even the right to hate them.
>
>         For instance, a refusal of some people to marry some other people
> might indeed cause various unegalitarian effects, but it doesn't follow
> that the government may restrict the right to marry in the cause of
> egalitarianism.  A refusal to make friends with certain people or to
> invite them over to dinner may create a "hostile environment" for them,
> but it doesn't follow that the government may restrict one's choice of
> friends or dinner companions in the cause of egalitarianism.  The specter
> of people "hating," "shunning," or "hostile environments" cannot be
> universal solvents of individual rights.
>
>         And this extends, I think, to the right of expressive
> association.  A religious or a political movement is simply the aggregate
> of its leadership and its membership.  If there is a right to associate
> together in order to worship or to express certain views, it has to
> include the right to select who will be the speakers, who will be the
> listeners, and in many groups who will be those who choose the
> leaders.  The Nation of Islam and the Catholic Church are equally
> entitled to set up their own selection criteria, even if some see this as
> "hateful" or as "shunning."
>
>         3)  What then would be the remedy for practices that are seen as
> inegalitarian, or harmful to women's welfare?  Well, how about
> persuasion?  Perhaps people -- Muslims or otherwise -- might try to
> persuade people that the burqa is inappropriate, just as members of
> various religious groups have tried (sometimes successfully and sometimes
> not) to persuade their coreligionists that, say, limiting the clergy to
> men is inappropriate.  They might even use social pressure, including the
> threat of shunning and hatred, to try to get these groups to change their
> ways (as some are trying to do with the Boy Scouts).
>
>         In fact, if there's an antidiscrimination statute out there,
> presumably it's because egalitarian sentiments are pretty powerful in
> society at large.  Trying to change people's views about what they think,
> whom they worship with, what they wear, and whom they join in political
> movements shouldn't be that hard, from a position of such strength.
>
>         But if that doesn't work -- well, then, it seems to me that this
> is just the nature of freedom: the freedom to practice one's religion, to
> wear burqas, to organize political movements, and even to think thoughts
> and symbolically express views that some see as contrary to New York's
> view of "the welfare of women," free of government control.
>
>         Eugene
>
>
>-----Original Message-----  From:   lweinberg
>[SMTP:lweinberg at MAIL.LAW.UTEXAS.EDU]  Sent:   Wednesday, February 13, 2002
>7:53 PM  To:     CONLAWPROF at listserv.ucla.edu  Subject:        Re: Freedom
>of association, sex discrimination law, and the Nation of Islam
>
>Can we assume that there must be some sex-discriminatory practice so
>repugnant to the civil authorities that they can step in to protect their
>female citizenry?  Could New York prohibit the burka for women riding the
>subway on the pretext that it was a safety hazard?  On the factual
>findings that it presented a safety hazard?  Is there any direct
>regulatory ground on which New York could prohibit the burka for women in
>public places in New York, as some towns prohibit smoking?  Could New York
>outlaw female but not male circumcision?   If the religious traditions of
>X required men of the X persuasion to keep their women locked up at all
>times bound and shackled to some immovable object in the home, could New
>York criminalize the practice?  In none of these examples is there a
>desire to target the religious practice or expression as such but only to
>protect the welfare of women in New York.  Yet I suppose that even the
>most expressive but exclusive practice can become so pervasive as to make
>life as uncomfortable for women as it has been in Afghanistan.  Going
>beyond these questions, I wonder why freedom of association should amount
>to a freedom to hate or shun, in cases in which there is obvious injury
>from the exclusion, as in Dale.  In cases in which the shunning practice
>is pervasive, what you have is a governmentally-protected hostile
>environment for the excluded or hated or shunned group.  At some point, is
>there a government obligation to protect the group from a hostile
>environment, analogous to the duty the Supreme Court's reading of the
>anti-discrimination statutes places on some employers? Louise
>
>At 08:37 PM 2/13/02, you wrote:
>I immodestly note that in my article, The Right of Expressive Assoication
>and private Universities' Racial Preferences and Speech Codes, 9 Wm. &
>Mary Bill Rts. L.J. 619, 629 (2001), I state that after Dale "the
>Constitution protects the right ... of the Nation of Islam to exclude women."
>
>In a message dated 2/13/2002 9:19:11 PM Eastern Standard Time,
>VOLOKH at mail.law.ucla.edu writes:
>
>        Donaldson v. Farrakhan, 2002 WL 210029 (Mass. Feb. 13), holds that
> the Nation of Islam has the constitutional right -- under the freedom of
> expressive association, rather than the Free Exercise Clause -- to
> exclude women from a men's meeting at a mosque where Louis Farrakhan was
> giving a speech.
>
>
>
>
>
>
>
>David E. Bernstein Associate Professor George Mason University School of
>Law Home page:
><<http://mason.gmu.edu/~dbernste>http://mason.gmu.edu/~dbernste>
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