I ADMIRE Susan Okin’s essay, as I admire the entire body of her courageous and clearly argued feminist work. She states with great clarity and force the case for a critical examination of cultural practices that oppress women. She is right to say that the current liberal interest in multiculturalism holds grave dangers for women’s equality. The danger is increased by the fact that issues of sex equality have rarely been seen as urgent and central by the major liberal political thinkers1—a sad fact that Okin’s fine work over the years has done so much to diagnose, and to remedy.
But I am troubled by Okin’s argument, because she makes it all sound so easy. (From now on I shall focus only on religion and not on other issues of culture.) On one side, for Okin, there are these old patriarchal religions that oppress women in keeping with sexist “founding myths.” On the other side, there is the noble Enlightenment goal of a full political recognition of the equal dignity of all human beings. There is no difficulty here, other than a practical political difficulty, because religion is not seen as offering human beings anything of value. It is little more than a bag of superstitions, frequently organized around the aim of maintaining control over women. So what could be wrong with making it conform to all secular laws, including laws forbidding sex discrimination?
Far from trying to understand what might make large numbers of people in the world hold fast to religious convictions, Okin evinces contempt for religion in the very manner in which she discusses it—offhandedly, via articles in the New York Times (hardly a source she would regard as decisive if she were investigating women’s dignity!) and via popular accounts of “founding myths” that religious people will surely find disrespectful in their casualness. (What will a Christian think of the very term “founding myth”? Is the Jewish God male? Not to many Jews, male and female, who have long since argued that the idea of God—who in any case cannot be named, and who, a fortiori, does not have a gendered name—transcends gender.2 Is Islam sexist in its origins? Not to many Islamic feminists, who stress that women and men are held to share a single essential nature, and that the Koran recommends similar norms of modest conduct to both women and men.) Nor do we find any reference to the good things religion has brought into human life: its role in people’s search for the ultimate meaning of life; in consoling people for the deaths of loved ones and in helping them face their own mortality; in transmitting moral values; in giving people a sense of community and civic dignity; in giving them imaginative and emotional fulfillment—and, not least, its role in many struggles for moral and political justice. If Okin were to try, for example, seriously to understand why Jews recite Psalm 99 on Shabbat—saying to God, “Your power is your love of justice”—she would then have made progress toward stating the complexity of the issue of religion’s role in a liberal state.
Both Abolitionism and the U.S. civil rights movement were religious movements, and much of the contemporary struggle against racism in our nation has a religious foundation. The Indian struggle for independence and the end of caste hierarchy was inspired by Gandhi’s religious ideas, which had their basis in the Gujerati Hindu tradition, as well as in Tolstoy and Ruskin. Many feminists, past and present, have been deeply religious; and this is no less true in the international women’s movement. For example Ela Bhatt, founder of the Self-Employed Women’s Association in India and one of the most creative feminist leaders in the developing world, views herself as a Gandhian fighter for women’s independence from their “colonial” oppressor. The daughter of a Brahmin judge, she performed the sacred death ceremonies for her father, rites traditionally reserved for males. Many of the working women she organizes are also deeply religious and view religion as a support in their struggle for equality. Because Okin does not acknowledge these instances and many others like them, she cannot well describe the complexity of the issues raised by the relationship between religion and feminism.
Okin does mention the existence of “more progressive, reformed versions” of the major religions. But even this characterization is too simple. As a Reform Jew, I think that the core of Judaism is a set of timeless moral ideas that are imperfectly revealed in both text and rabbinic history. Thus “Reform,” to me, does not mean a “reformed version of” Judaism; it means a reform of defective historical practices in the direction of a more authentic (I’d say orthodox) realization of Judaism. By treating the original core of the religion as equivalent to certain patriarchal stories, Okin simply bypasses centuries of debate within each of the religions, debate highly pertinent to religion’s role in the search for women’s equality. For example, Reform Jews in Germany started confirming women in 1810, counted women in the minyan by 1846, abandoned asymmetrical marriage and divorce customs during the same period—somewhat in advance of secular society. My own congregation, the oldest in Chicago, voted in 1859 that “there shall be no discrimination made in favor of the male and against female worshippers.” For me, these positions represent the authentic core of Judaism—as does the more recent decision to ordain women as rabbis—and we note that, again, Judaism so defined is not behind but perhaps slightly ahead of similar developments in secular society. (There are a lot more female rabbis than female members of Congress.)
Okin’s approach raises practical political problems. By suggesting to religious women and men that their religion has nothing positive to contribute to the struggle for justice, and perhaps to life more generally, she alienates potential allies and thus makes her own struggle more difficult. But two arguments cast doubt on the approach at a deeper level. The first argument insists on the intrinsic value of religious capabilities: the ability to search for the good in a religious way is one of the liberties that is most deserving of protection by a liberal state. To say this does not entail that religious conceptions of the good are better than secular conceptions; but it does say that they are prominent among the reasonable conceptions that citizens may legitimately pursue. Given the history of religious persecution in our own nation, as in many others, it seems reasonable to give this liberty a very high degree of protection. Even if many people choose not to avail themselves of such liberties and opportunities, it is nonetheless important to leave them open for people: being able to search for the meaning of life in one’s own way is a central element of a life that is fully human.
Such protections are also supported by an argument from respect for persons. Whereas the first argument focuses on capacity as a necessary ingredient of the human good, this one focuses on respect for what citizens actually pursue as a central ingredient of respect for them as persons. Even if one were convinced (as I suspect Okin is) that religion is all superstition, and that a comprehensive secular view of the good is correct, we do not show sufficient respect for our fellow citizens when we fail to acknowledge that they reasonably see the good differently. This is all the more true when we consider that the very content of religious convictions often states that they provide believers with fundamental elements of a view of life. So it is hard to see how we can respect the bearers of such convictions and yet not respect the choices that they make to lead traditional religious lives. It is indeed difficult to say how far the state should accommodate comprehensive religious views that seem at odds with secular liberal political values. But that is my point: it is difficult, rather than easy.
In short, Okin’s essay raises the larger issue of the relationship between comprehensive liberalism and political liberalism.3 Okin, to my knowledge, has never committed herself to one or the other of these forms of liberalism, but I think it is plausible to read her as endorsing a form of comprehensive liberalism, in which liberal values of autonomy and dignity pervade the fabric of the body politic, determining not only the core of the political conception but many noncore social and political matters as well.
In other words, her view resembles the views of John Stuart Mill and Joseph Raz, who see the fostering of personal autonomy in all areas of life as an appropriate goal of the state. Such moral liberals can still recognize the intrinsic worth of religious liberty and thus respect the choices of religious believers—up to a point. But, given their view that autonomous lives are better than hierarchically ordered lives, they are bound to play favorites among the religions, using the state and its persuasive apparatus to wean people away from religions that do not foster personal autonomy—as John Stuart Mill explicitly urges in On Liberty, where he excoriates Calvinism4 as an “insidious . . . theory of life” that creates a “pinched and hidebound type of human character.” Mill holds that it is perfectly proper for public policy to be based upon the view that by teaching obedience as a good, Calvinism undermines “the desirable condition of human nature.” There can be little doubt that a Millean liberal state will show public disrespect for Calvinism in all sorts of ways and will make frequent pronouncements about human flourishing and human nature that go well beyond the core of the political conception. Mill, for example, grudgingly concedes that John Knox is preferable to Alcibiades; but Pericles, he insists, is better than either one.
The political liberal, by contrast, begins from the fact of reasonable disagreement in society, and the existence of a reasonable plurality of comprehensive doctrines about the good, prominent among which are the religious conceptions. By calling them reasonable, the political liberal shows respect for them and commits herself to a political course that is as protective of them as it is possible to be, compatibly with a just political structure. She also shows respect for them by understanding political justification to require that the terms of cooperation should be accepted by different comprehensive views.
This form of liberalism will require all citizens to accept—not just as a modus vivendi, but on moral grounds—the core values of the political conception, among which will be the equality of all citizens. But notice that it requires endorsement of these values as political values, not as metaphysical values or comprehensive moral values. Thus the political liberal asks Jews and Muslims and Christians and secular humanists to accept the political equality of women as citizens, and to accept this as a salient moral fact that shapes the basic structure of society. Nonetheless, she does not ask them to accept the proposition that men and women have an equal metaphysical nature, or any other theory of human nature that some might take to ground the political claim. The claim, as John Rawls puts it, is “free-standing”—it can be hooked up in many different ways to many different comprehensive views, but it requires no particular such view for its grounding. Again, she asks citizens to endorse a political conception of autonomy: that is, the idea that each citizen as citizen is an equal chooser of ends, and that none should be debarred by the luck of race or sex or class from the exercise of political judgment. She asks the Calvinist to endorse this political view of autonomy as one that will be maximally protective of the spheres of life-formation that Calvinists, like other religious and nonreligious citizens, desire. But she carefully refrains from asserting that nonautonomous lives are not worth leading, or even that autonomy is a key element in the best comprehensive view of human flourishing across the board; and she carefully protects the spaces within which Calvinists and other non-Milleans can plan lives according to their own lights.
Political liberalism, the type of liberalism I would defend, seems to me far more able than comprehensive liberalism to accommodate the very great value of citizens’ religious freedom. It recognizes the salience of such free searching from the very start, in the very design of its starting point; by calling the conceptions “reasonable,” it gestures toward the many contributions religions have made, and continue to make, to the goodness of human life. (Satanist cults and other groups that don’t seem to offer such good things have traditionally not been recognized as “religion” in American constitutional law.) Political liberalism also does better along the dimension of respect for citizens; for—ironically, since autonomy is what it is all about—comprehensive liberalism does not show very much respect for the choices citizens may make to live nonautonomously, as members of hierarchical religions or corporate bodies. Political liberalism insists that every citizen have a wide range of liberties and opportunities; so it agrees with comprehensive liberalism that a nonautonomous life should not be thrust upon someone by the luck of birth. Nonetheless, it respects such lives, given a background of liberty and opportunity, as lives that reasonable fellow citizens may pursue. In this way, it shows respect for their search for the good, where it differs from one’s own, and respect for them, as reasonable.
Political liberals will be likely to judge that religion merits special deference from the liberal state, given its central importance to citizens in the search for meaning, and given the content of religious convictions, which frequently specifies their central importance and the nonoptional character of the demands they make. They will rightly be divided over the difficult issue of whether such special protection should be given to all comprehensive conceptions of the good, or only to religious conceptions. From the point of view of moral and political theory, it is difficult to justify our own tradition of free exercise jurisprudence, which singles out religion for special favor and refuses to give the same favorable treatment to Thoreau’s philosophy, or to secular humanism. (This problem is mitigated, however, by the fact that such secular comprehensive views have more leeway than religion where establishment is concerned: thus the government is free to endorse environmentalism, or to celebrate Thoreau’s ideas, in a way that it is not free to endorse the ideas of Judaism or Christianity.) But from a practical political standpoint it seems likely that we have two choices only: either to give religious free exercise special protection, or to give nobody any special protection. For the nonreligious comprehensive conceptions are much more likely to be personal and nontraditional, in such a way that to give them exemptions to the draft laws or the drug laws would make a mockery of such laws. While recognizing, then, that such a policy may be somewhat unfair to nonreligious comprehensive conceptions, I would favor our traditional stance of giving religion special deference, on the grounds that minority religions have been especially vulnerable in all societies and are consequently in need of this special protection.
In theory if not always in practice, our constitutional tradition has held that the state may not impose a “substantial burden” on a person’s free exercise of religion, unless the state can show that this burden is in furtherance of a “compelling” government interest and is the least burdensome means of advancing that interest. More recently, the Supreme Court has departed from that tradition, holding that any neutral law of general applicability that has a rational basis may impose such burdens. The Smith case, which marked this change, significantly involved a substantial burden applied to a minority religion—a Native American religious group that sought exemption from the drug laws for ceremonial use of peyote. The sincerity of their religious claim was not disputed, nor was there a serious issue of public order, since they sought the exemption only for a single ceremony. Although the Court’s argument in the case could be read as focusing on the question of judicial competence to adjudicate religious claims, it also showed a striking indifference to the values involved in protecting religious groups (especially minority religious groups, where this problem most frequently arises) from substantial burdens. I believe that the political liberal should be distressed at this result and should favor the approach outlined in the Religious Freedom Restoration Act of 1993, which returned to the status quo ante, requiring the government to justify any substantial burden by showing that the burden was dictated by a “compelling government interest” and was the least burdensome manner of carrying out that interest. (RFRA was passed by an overwhelming bipartisan majority but was declared unconstitutional in 1997.) Such an approach seems to show respect for religion while also insisting on the idea that the state defends a range of compelling interests that may at times bring it into conflict with religion.
I believe that this is the approach we should follow when religious practices influence the lives of women. We should ask, on the one hand, whether a proposed law (a law banning child marriage or polygamy, for example) really does impose a “substantial burden” on people’s free exercise of their religion. If the answer to this question is “no,” the law may go forward. I would give such a “no” answer, for example, in the case of the reform of Christian inheritance law in India, which ended unequal inheritance rights for women. The only change was the requirement that Christians treat women the way all other laws of inheritance already treated them, and the claim that this imposed a substantial burden on the freedom of Christian worship was simply implausible. If the answer is “yes,” then we must look at the interests on the other side. The Indian reform of Hindu law in the 1950s, which outlawed polygamy5 for Hindu men, probably did impose a substantial burden on the free exercise of Hindu religion, as did subsequent laws making dowry giving illegal.6 And yet the state’s interest in protecting its female citizens in fundamental areas of life (in relation to constitutional norms of sex equality and liberty) seemed to supply the state with a compelling interest in the proposed reforms. Nor, it would appear, could the state have found a less burdensome manner of achieving that compelling goal.7
Does sex discrimination all by itself supply the state with a compelling interest in legal change, or only discrimination that denies women certain fundamental rights? This is the most difficult issue the political liberal has to face; but she can get some help from the history of the U.S. law of religious free exercise. A classic free exercise case, Sherbert v. Verner (the case overruled by Smith) posed the question of whether mere differential treatment on the basis of religion was all by itself a substantial burden, even if the differential treatment did not do anything terribly oppressive. The Court’s answer to this question was “yes.” Mrs. Sherbert, a Jehovah’s Witness fired because she refused to work on Saturday, was then refused state unemployment benefits because she had refused suitable employment. The Court held that despite the fact that the state might never have offered such benefits in the first place, the minute it did offer them it became a “substantial burden” if they were offered on a discriminatory basis. To deny Mrs. Sherbert, because of her religion, a benefit that others enjoyed was, the Court held, like fining someone for Saturday worship, a practice that would clearly be a “substantial burden” no matter how small the fine and how great the individual’s ability to pay. So too, I think we should say, with sex discrimination: to burden women in ways that others are not so burdened is itself problematic, even if individuals are not in this way pushed into destitution.
And yet a crucial asymmetry remains: for state laws impose their burdens in a nonvoluntary manner, while religions, at least sometimes, are voluntary organizations. The religious practices of Hindus in India were rightly targeted by the secular State, because the Indian legal system makes it difficult, if not impossible, for individuals to exit from religion into the secular system, or to choose another religion. In our nation, by contrast, it seems reasonable to hold that religious organizations are voluntary. This should not prevent us from requiring religions to conform to laws by which the political conception of justice guarantees equal liberty and opportunity8 to all adult citizens in fundamental areas of life (such as bodily integrity, health, political equality, the freedoms of speech and assembly, and the opportunity to seek employment outside the home).9 At the same time, it seems illiberal to hold that practices internal to the conduct of the religious body itself—the choice of priests, the regulations concerning articles of clothing—must always be brought into line with a secular liberal understanding of the ultimate good. The state’s interest in children as future citizens will rightly dictate some uniform educational requirements, in order to ensure that liberties and opportunities are really in place. But once they are in place, then the choices of adult citizens to remain in a religious body that refuses to hire women as priests should, I believe, be respected as a part of what we agree to respect when we acknowledge that our society contains a plurality of reasonable comprehensive conceptions of the good.
I don’t like the idea of the all-male priesthood any more than Okin does. Nor do I like many of the practices of Orthodox Judaism with respect to sex equality. That is why I am a Reform Jew—and why I feel strong solidarity with Roman Catholics, female and male, who are trying to open the Church more fully to women through internal reform. But I view these attitudes as part of my own comprehensive conception of the good, which happens to be that of a Kantian Jew; I do not view that comprehensive conception as offering good reasons for state action. Such good reasons can be rightly sought only from within the core of a political conception that religious and nonreligious citizens can endorse as respectful of their differing commitments. I think it is not wildly optimistic to suppose that such a core can be found, and that it will go far to protect women’s vulnerability, while also protecting both women and men in their choice to worship in their own way. It will be found, however, only if we begin our search with respect for the different lives our fellow citizens choose to lead, and a sense of the complexity of our task.