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Stanley Fish and the Myth of Neutrality

July 21, 2010

Sometimes I wonder if Stanley Fish is a closet neocon. In recent months, Fish has described Sarah Palin’s Going Rogue as “a good autobiographical read” and suggested that Bush will not be remembered as a “figure of fun and derision.” Now Fish is arguing, along with Justice Samuel Alito, that the Supreme Court’s ruling in Christian Legal Society v. Martinez represented the triumph of political correctness over freedom of religious expression. Fish, who once defended affirmative action and multiculturalism in a series of debates with social conservative Dinesh D’Souza, is sounding more and more like his former adversary these days.

What happened? Philosophically speaking, not much: Fish has always insisted that truth claims are necessarily local and partisan; truth, on Fish’s account, simply refers to whatever “works” within a given set of cultural assumptions. The real shift has been in the relationship between political correctness and postmodernism (at least, as Fish understands it). In the culture wars of the 1990s, conservatives like D’Souza typically made appeals to neutral standards (e.g. “if Harvard only admits students with an SAT score of 750 or above, it should expect the same of black students”) in defending what seemed to liberals like mere white privilege. In recent years, however, conservative Christians have tended to be the ones playing the identity-politics card, as in much of Sarah Palin’s 2008 campaign rhetoric.

So no, Fish is not a neocon. Just a postmodernist and, what is more, a controversialist.

Now I am not a postmodernist myself — but I do think Fish’s critique of the Christian Legal Society v. Martinez ruling stands. There may be moral or legal merits to the Supreme Court’s decision that the University of California-Hastings College of Law had the right to deny official recognition to a Christian student group that required a statement of faith precluding “homosexual conduct”; but it was quite clearly not a “viewpoint neutral” decision, despite Justice Ginsberg’s assertions to the contrary. As Fish explains, the College’s “all-comers” policy — which barred discrimination of various types on the part of student groups — depends on a problematic distinction between belief and conduct:

. . . the belief/conduct distinction, a close relative of the mind/body distinction and the private/public distinction, itself embodies a very specific viewpoint (one the government is not entitled to have or enforce) concerning just what a religious belief is, and as such it discriminates against religions that do not respect, indeed cannot respect, the belief/conduct distinction. The Statement of Faith C.L.S. members are asked to sign and the canons of conduct they are asked to observe mark it as that kind of religion, one that demands not just assent to a set of doctrines, but conformity to a code of behavior. C.L.S. members must not only believe certain things; they must comport themselves in ways dictated by their belief, and so must the organization itself if it wishes to be true to the beliefs it declares, the beliefs around which it organized in the first place.

So when Ginsburg insists that the all comers policy “aims at the act of rejecting would-be group members without reference to the reasons motivating that behavior,” she treats the act (of requiring members to affirm and adhere to C.L.S.’s doctrinal and behavioral tenets) as if it were just a disagreeable manifestation of prejudice unrelated to the group’s beliefs, as if it were distinct from the “reasons” animating the group’s existence. She appears to think that, were C.L.S.’s membership rules relaxed in deference to Hastings’ all-comers policy, the organization’s beliefs would survive intact; for it’s just an extrinsic procedural change, isn’t it?

Clearly it is not. At a certain point, non-discrimination policies come into direct conflict with religious expression, and courts, college campuses, and other institutions must necessarily choose between favoring one set of values or another. Let’s hope that they choose wisely.

7 Comments leave one →
  1. July 23, 2010 8:18 am

    “Jesus saith unto him, I am the way, the truth, and the life: no man cometh unto the Father, but by me.” John 14:6

    “We did not send any messenger before you (O Muhammed) except with the inspiration : “There is no god except Me; you shall worship Me ALONE.” Koran 21:25 (My apologies to my Muslim friends if this spelling is not the correct spelling of Koran/Quran/etc)

    “You shall have no other gods before me.” Deuteronomy 5:6

    Religion is fundamentally divisive. Certainly, there are forms of faith tempered by ethical reason. But is compassionate consideration, as a very human and unspiritual endeavor, that allows us to get along despite our differences.

    In short, I’m not really sure how you allow any religious organizations on Campus if you are going to ban one. Homophobia and groupthink are ugly, but in my opinion censorship is much more ugly.

  2. innocentsmithjournal permalink*
    July 23, 2010 4:25 pm

    N — It’s not at all clear to me that divisiveness is a feature unique to religion. The University of California-Hastings “all-comers” policy is, as Fish points out, itself divisive insofar as it excludes Christian groups like the CLS. Similarly, the state, despite its posturing in this and other cases, simply can’t be neutral with regard to competing value systems. Ginsburg’s belief/conduct distinction was not itself “viewpoint neutral,” but favored one type of religious group over another. More generally, the ruling favored gay equality over religious expression — values that were, in this particular case, incompatible.

    In short, discrimination (or, if you prefer, censorship) is inevitable.

  3. Catullus permalink
    July 24, 2010 2:45 pm

    Divisiveness is inevitable, too. Sometimes that’s the only refuge of the truly honest. We should be grateful for that sort of divisiveness, even when it involves discrimination.

    Far too many progressives have forgotten that repugnance doesn’t disappear simply because you get rid of the club where it congregates. This limited vision was inevitable when identity politics trumped economic populism as the linchpin of emancipation. Instead we take the low road: “none of my money will go to that Christian club!” In my day, we Trotskyists just saw funding of these guys as a cost of access. We had other ways to show them how we felt.

    A fine post, innocent smith. Keep ’em coming.

  4. July 26, 2010 8:45 am

    I don’t know that I claimed anywhere that divisiveness is unique to religion, though I suppose I did infer that they are particularly good at it. That seems like a subjective characterization, but not one without merit to me.

    Do we as society, as human beings, have the right to compell people in private clubs or institutions, in their homes, or in their minds to correct their values? I am certainly on board with legal protections against systemic discrimination within the public space. People should certainly not denied admission to university because of their sexual orientation. But from my cursory reading that isn’t what is at issue here. Its about a student club wanting official recognition and having that denied due some of their, albeit misguided, values. This smacks of quelling disent to me.

    I’m inclined to think that in an open forum focusing on the merit of ideas, superstitious homophobia won’t hold up anyway.

  5. innocentsmithjournal permalink*
    July 26, 2010 11:22 am

    N — It sounds like we are in agreement that Hastings failed to balance its commitment to non-discrimination with a respect for freedom of religious expression. Granting official recognition to a Christian student group simply doesn’t rise to the level of “systemic” discrimination against homosexuals — which is (or should be) the real concern.

    My point was simply to agree with Stanley Fish that the Court’s decision depended on a value judgment and was therefore not viewpoint neutral.

    I like the point you and catullus make about the importance of preserving an open forum for debate. Suppressing CLS only encourages the Christian right by giving it a cause to rally around. If we want to build support for equality in an area where it actually matters — marriage — allowing CLS to air its views in broad daylight could potentially do a lot of good.

  6. DogTags permalink
    December 11, 2010 6:32 pm

    One point lost in this debate is the incorrect assumption that “secularism” is a lack of belief. By insisting our government be “neutral” toward religion, we insist it favor the secular religion. Atheism and secularism are not absent faith. Their faith is in the non-sovereignty of God and in the sovereignty of man. (This religion necessarily leads to the rise of the despotic, all-powerful State. Secularists, who have no mechanism for moral standards cannot bear the consequences of their religious beliefs, so they borrow from a superior one, namely, a Judeo-Christian ethic. But, since they have no inner moral restraint, they require an external one. Hence, the need for totalitarian government.) This secularism is a religious belief that has been established contrary to the admonition of the First Amendment.

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