According to recent survey results, support for religiously based refusals to serve gay, lesbian and transgender people in the US has increased significantly in 2014 as discussed on the Biopolitics & Bionews channel here: https://disqus.com/home/dis... The demographic breakdown of the findings-- which you can read here https://www.prri.org/resear... refusals/ does not, of course, explain the phenomenon of increased support for these refusals. We get the usual 2 party analysis (support for refusals is mainly Republican-affiliated) with a few further age, race and ethnic variables thrown into the mix. The conflict, though, takes a familiar form. In the name of the the 1st Amendment--or some other theoretically inviolable civil right-- one group claims the right to do, or abstain from doing, something that another group holds to be in violation of their own civil rights. This pattern regularly repeats itself in the US, whether the context is serving gays and lesbians at a bakery, praying overtly or silently on school grounds, carrying unconcealed weapons around, or not long ago claiming the right to refuse serving people of color in the Jim Crow South. From the perspective of large swathes of the population the problem is one of intolerance of minorities. For those on the other side the appeal is to their own liberties, such as "liberty of conscience." As the Supreme Court is likely to hear cases resembling the Masterpiece Cakeshop case https://en.wikipedia.org/wi... which did not definitively settle the matter(see https://www.latimes.com/pol... court-wedding-cake-religion-gay-rights-20190411-story.html ) of serving gay, lesbian and queer people , it's worth thinking about some of the causes of the conflicts in question-- not only for this particular issue but the pattern of often hostile battles of political will between minorities seeking civil rights and those, typically on the Right, who claim that such rights harm them by negating their own rights (e.g. 1st Amendment right of free exercise of religion).
I.) Context: The problem requires a consideration of the meaning and practice of Liberalism in the US. I don't mean "liberalism" in the sense used in the media, i.e. left-leaning ideology that supports a variety of positions such as right to choose, LGBTQ rights etc. Rather, I mean it in the sense that political scientists do when describing our form of government, viz, Liberal Democracy. Those on the left and the right both (with fringe exceptions) claim to support this system which emerged in the first half of the 19th century. The idea is that we don't want a pure democracy which would result in majority rule, as that could lead to dreaded outcomes such as the tyranny of the majority, demagoguery either of which could devolve into a plutocracy if the wealthy elites find a way to manipulate majority voting patterns. Rather, 19th century Americans wanted to be protected from the State so that they could enjoy their own lifestyles and accompanying results as long as they do not cause harm to others. In those days, a minority right might protect those who practiced unpopular religions. If there were no civil rights (via the Bill of Rights in each state at that time) then such people could be oppressed or coerced to abstain from practicing their religion, as happened in, for example, Colonial era New England where you were expected to be a member of the State Church in good standing. If the will of the majority in a state were more important than the rights of individuals and unpopular religious groups, then we would have some form of democracy but not a distinctly liberal one. It's the emphasis on individual and minority rights that became increasingly important in the 19th century resulting in the doctrine of Classical Liberalism as expressed, for example, by JS Mill in his highly influential book, On Liberty. So we are products of an ideology that, in principle, leaves individuals with great liberties to pursue the kind of life that is most rewarding to each individual and group, just as long as it does not impinge on the liberties of others or cause harm to society. If it does cause harm, than the state has a "compelling interest" to police the matter so that nobody, in theory, is harmed.
As the US grew to become a large, industrialized, increasingly urban, multi-ethnic and multi- religious society, the number and variety of different ethnic and cultural groups and subcultures with their own ways of life , religions and values multiplied almost exponentially.Much of this occurred by way of giant waves of immigration. By the 1920s, the fear of immigrants led to the curtailment of immigration which was thought to bring in "inferior races" and dreaded Catholics and Jews to the US. The "inferior races" mainly referred to southern and eastern Europeans who were thought, in the age of Eugenics, to be "feeble-minded." In 1927, the Supreme Court decided that the coerced sterilization of one Carrie Buck of Va. https://en.wikipedia.org/wi... , under the provision of the Racial Integrity Act of 1924 https://en.wikipedia.org /wiki/Racial_Integrity_Act_of_1924 was not in breach of the Constitution. It was deemed to be a compelling state interest, one that was necessary for the "protection and health of the state." In the 8-1 majority decision, Justice Oliver Wendell Holmes wrote that,
It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. https://supreme.justia.com/...The point is that the eugenics hysteria had everything to do with fear of other ethnicities, religions, skin complexions (the "swarthy Italians," etc.) alleged race groups, and cultures. It was common to see widely circulated and alarming articles and PSAs about the awful and immoral ways of life that inferior feeble-minded groups practiced, which were supposedly tearing at the moral fabric and alleged unity of the White, Anglo-Saxon Protestant (WASP) culture required for high civilization. Today we see this as intolerance-- something no pluralistic liberal society can abide. But Justice Holmes remains a hero to many "liberals" and "progressives" to this day, particularly for his positions on free speech law. What happened? It's easy enough to say, as is usually done, that we shouldn't judge people who lived in the past because it is anachronistic. But that's deeply unsatisfying if we realize that we still have our own versions of xenophobic hysteria today. If Italian Americans and Jews were once treated like lepers, we now have fear of the contagion of Latin American immigrants, people of color, married homosexuals et al. It might be true that some of this reflects in/out-group bio-social proclivities "hard wired"into all human beings genetically or otherwise. But that too fails to capture anything about the historical specificity of the dynamics in our Liberal Democracy in the US. That requires a consideration of pluralism-- the idea that different groups and values that are not always reconciled with one another are nevertheless agreed to tolerate one another in order that all may flourish with the exception of those that infringe on the rights of others, or violate the well-being of society ("the harm principle").
II.) The Limits of Pluralism and Need for Minimal Ethics:
The fact that we live in a pluralistic society means that large groups disagree on many basic issues of belief, value, behavior and culture/subculture, as stated above. Supposedly, such a society rests very largely on one agreed upon value which is "tolerance." That is liberalism. Each individual has a right to flourish within the strictures of his or her own chosen way of life as long as it does not harm others. That's the old formula from the 19th century and we still talk about tolerance as the glue of liberal democracy today (i.e. most people do) But there are meta-political issues we tend to neglect.
1) How do we determine in practice what counts as tolerance and what counts as harm? What is the nature of the political process that is supposed to help us make such determinations? There are at least-- and mainly-- 2 answers that divide people in this country.
A) Minimal State View: The first is basically a libertarian approach which states that the polity or government should *not* have a significant role in securing our rights to be tolerated. The government should be "laissez faire" /hands-off. So when the state gets involved in making sure that groups and individuals are tolerated rather than discriminated against, these people tend to get upset. Examples of government interventions in the name of protecting the liberal rights of citizens include desegregation via legislation and judicial review, and affirmative action laws designed to insure that minorities are not discriminated against in places of employment, school admissions, etc. Those on the right who see tolerance as something that "takes care of itself" if we are all left alone by the State (negative liberty) see such interventions as overreach and an invasion of their own freedoms. This is a deeply rooted strain of thinking in the US, and usually in the 20th and 21st century it arises on the Right.
B) Egalitarian Liberalism: The second approach is basically an egalitarian liberal one which states that the polity of government should have a role in securing our rights to be tolerated . So when the state gets involved in passing laws that are aimed at making sure all groups and individuals that do not harm others are tolerated and not discriminated against, it seems like a good thing. Further, if equality before the law-- and not mere negative liberty-- is seen as a prerequisite for the protection of our liberal rights, minorities will require special legal attention as they're vulnerable. This tradition led to "strict scrutiny" of minorities in constitutional law https://en.wikipedia.org/wi... . They are given special consideration. Many on the Left take the reasonableness of this approach as a given, but again it is part of a 20th century sea change in legal and political thinking-- "New Liberalism" which coalesced in the New Deal era, as opposed to the earlier "Laissez-Faire" approach of the 19th and early 20th C. This is part of the reason people on the right always demonize the New Deal and use words like "Judicial Activism" to characterize many of the civil rights decisions of the 20th century (though over time many deny they would want some of the decisions they originally opposed overturned).
Now it's bad enough to have this well known conflict between minimal state advocates and egalitarians in a perpetually unresolved state. But even that is not the deep source of the issues discussed in the OP and controversies about Tolerance generally. What is?
2)Both the egalitarian liberals and libertarian leaning contestants in our culture war have one glaring defect that neither talks about often if at all. Namely, it does not matter how you protect liberal rights (to be tolerated, left alone to flourish without discrimination etc.) if there is no broad societal conversation regarding the values and concepts that determine exactly WHEN it is the case that something is "harmful" rather than worthy of protection as a liberal right (e.g. getting served at a bakery if you happen to be gay or queer).
Because there is no meta-political process for locating shared standards on the details of the liberal rights both political groups claim to defend, we just drift in an a-social, atomized state where individuals and their reference groups cheer each others' ideas on as do those individuals and groups opposed to them. That is a kind of moral free-for-all which is not the same as a well-ordered pluralistic society committed to protecting rights-- be it through the state or in a minimal state context.
The deep issue, oddly enough, is not whether or not the state should be involved (that's important too, of course, but it's all ideologues ever talk about, and it won't resolve the problem). The really deep issue is having at least some basically shared standards of that which does no harm and thus is worthy of being protected under the rubric of liberal rights. That's where everyone paradoxically shuts down and says "we don't talk about those things 'cos they're private , or a matter of "liberty of conscience." But they are NOT private if they are always being contested politically--thus publicly-- by legislators, presidents and in appeals courts etc. So, we say that beliefs about religion, race, ethnicity, etc. are the "third rail of politics," i.e. you don't discuss them at dinner or on Thanksgiving or at the water cooler if you want to avoid trouble. But THAT IS the trouble. We all retreat to our little tribal dugouts and echo chambers, filter-bubbles or whatever, rather than realizing that even Liberalism with its emphasis on tolerance and privacy WON'T WORK well if there are no shared concepts of the harmful vs. tolerance-worthy, which is a sub-species of the valued and the not-valued, which is a thin form of ethics. There must be this minimal, thin conception of the good to anchor any large pluralistic society or else the disparate interest groups will drift anarchically in a moral void. Though I'm not religious, it's worth quoting one of my favorite passages from Proverbs: "Where there is no [shared] vision the people shall perish."
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While I believe it is possible to foster meaningful political discussion within and between competing groups in a pluralistic liberal framework, there are political philosophers who are far more critical of Liberalism. While I have been discussing the problem of pluralism within the familiar framework of Liberal Democracy, the founding fathers were allergic to the word "democracy" and knew nothing about the 19th century doctrine of Liberalism with its individualistic implications for interpreting rights. They thought of themselves as building a new kind of quasi-democratic (not strictly majoritarian) Republic. Civic Republicanism is a tradition that goes all the way back to Aristotle, finds itself at home in the city-states of early Renaissance Italy (e.g. Florence) and was a topic of great interest for Enlightenment philosophes like Montesquieu, who so influenced the founders. In our own era, the most famous Civic Republican philosopher is probably Hannah Arendt (there is a post on her work elsewhere on this channel).
While Liberalism emphasizes the freedom of each individual and group to pursue those ends it deems satisfactory as long as they don't violate the harm principle, Civic Republicanism holds that citizenship requires certain virtues or skills in thinking and talking about politics, such that we are not apolitical agents but active participants interested in ongoing discussion of what constitutes the public good. Thus when the Supreme Court, for example, declares that forced sterilization is or is not in the public interest, (or the right to choose whether or not to abort), the Civic Republican idea is that there will likely be a relatively coherent societal understanding of the issue, and often enough something like an agreement on what is right, wrong, good or bad in such cases. This follows on the assumption that a knowledgeable and active citizenry is more likely to come to meaningful agreements. If so, it is suggested, the quasi-anarchic nature of our value pluralist society would be improved as a result. Other labels like Participatory Democracy , Deliberative Democracy and Communitarianism make similar arguments against Liberalism which they often accuse of being "morally neutral" and excessively individualistic.
Though I still think it is possible, in principle, to achieve the minimal ethic or thin ethics I described above within the broadly liberal framework, the Harvard Political Theorist, Michael Sandel, does not.
Below is a 12 minute video in which Sandel discusses how the Bill of Rights might be understood differently by Civic Republican thought than it has been under the aegis of Liberal Democracy (with emphasis on Liberalism). It bears repeating that terms like "liberal" or "republicanism" in this context have nothing to do with the popular meanings with the usual partisan implications. Here they are theoretical terms used in philosophy, legal studies and other such contexts. I think the following video may help readers to think about criticisms of our largely taken-for-granted political ideology in Western Liberal Democracies, especially the US. It also provides an alternative interpretation of what it means to be a citizen and what the business of governing really should mean. Though I don't think the approach would work very well here, I do think Michael Sandel's impassioned presentation provides food for thought. The topic is "How might a civic republican interpret the Bill of Rights?" This is Sandel's response:
Possible Questions/Topics: Do you think Liberal Democracy can better accommodate the plethora of competing interest groups, ideologies, cultures than currently is the case? Should we pursue a unified ethic of sorts? A slightly different interpretation citizenship? What?
These questions/topics are merely suggestions.
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