Stanley Fish and the Myth of Neutrality

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.