Tuesday, September 27, 2011

The End of Relativism?

The Catholic Thing has followed up Father James Schall's gloomy prognostication of a week ago about how Catholics were being driven to the margins of public life by legal persecution, with an essay by jurisprudence professor Hadley Arkes. Discussing the California law SB48, which directs schools in the state to give only favorable accounts of certain groups. To the protected groups already in the Education Code, SB48 adds "Pacific Islanders, European Americans, lesbian, gay, bisexual, and transgender Americans."  Moreover, teachers and administrators were enjoined not to offer any instruction or “sponsor any activity that reflects adversely upon persons on the basis of race or ethnicity, gender, religion, disability, nationality, sexual orientation.”

In other words, SB48 outlaws teaching anything like the traditional view of homosexual behavior, substituting by legal mandate a view only recently adopted on a significant scale about the moral equivalence of all kinds of noncoercive sexual behavior among consenting adults.

As Arkes argues, the issue is not one of tolerating the expression of diverse views, but precisely their suppression. Children in California are to be taught, and taught only, the view of sexual morality endorsed by the state.

Virtue ethicists such as Michael Sandel have long taken issue with the modern liberal view of morality according to which the state should remain neutral in such matters, leaving such matters to individual conscience. Courts have attempted to take this line of moral neutrality, as he points out in the case of the Massachusetts Supreme Court ruling on same-sex marriage (which Sandel supports)but have come off the fence, celebrating in that case same-sex marriage as a public good. Sandel's argument is not so much that the supposed neutrality of this kind of liberalism is wrong, as that it is impossible.

The relativist argument, according to which states should avoid such judgments and leave them to individuals, is not sustainable. As opponents of abortion rights (and Sandel) argue, the question of whether abortion involves the intentional killing of an innocent human being cannot be a matter simply of individual judgment. In the slavery, if it is the wrongful coercion of another human being cannot be a matter of individual choice. To adapt a pro-'choice' bumper sticker, if you don't like abortion/slavery, don't have an abortion or own a slave.

So the relativist argument for tolerance of divergent views is best seen as an entering wedge. It may gain toleration in law and society for a behavior that has been condemned. But the aim is not tolerance or a relativist neutrality about moral judgments, but the reverse. The ground of state neutrality, as Lincoln argues with respect to slavery, is not coherent or tenable.

Similarly, as the tenor and tone of SB48 make clear, the rights of parents or of private schools will offer no haven from those who wish to impose the state's new morality on children. I am not a lawyer and I do not know how well the First Amendment's protection of religious liberty will hold against the state's bar on what it regards as “any sectarian or denominational doctrine or propaganda contrary to law.” Besides, should only people of faith have the right to dissent from the state's moral teaching? As Arkes concludes below, "The question finally is whether there will be freedom to hold back from the moral teaching being planted in the law: Will it still be legitimate in this country to call into moral question the homosexual life?"

The question, too, is not one of whether it is correct to call homosexual behavior into question on moral grounds - a question for moral theologians to debate, as well as moral philosophers or anyone else. It is whether it shall be legal to expose school students to the evident fact that teachings on the topic contrary to the state's recent ethical innovations are not so easily to be dismissed as "sectarian or denominational doctrine or propaganda;" They have been maintained by the great traditions of faith and philosophy over millennia - traditions from which California seeks to "protect" its students.

Here is Professor Arkes's essay:

From California: Another Front in the Culture Wars
By Hadley Arkes
Tuesday, September 27, 2011

From California again we get a glimpse of the future – or the future that a political class is consciously seeking to prepare for us in reshaping the culture. During the summer the legislature enacted, and Governor Jerry Brown signed into law, SB48, as an amendment to “the Education Code, relating to instruction.” That Code had already made ample provision to instruct the children of California in the contributions made by all racial and ethnic groups supplying votes for politicians. But there was an appreciation also for the contributors who were “entrepreneurs” and labor unions, and whose stories deserved to be told. With SB48 the legislature took a further step by adding: “Pacific Islanders, European Americans, lesbian, gay, bisexual, and transgender Americans.”

The schools were directed to give only favorable accounts of these groups in telling the story. But on the other side, teachers and administrators were enjoined not to offer any instruction or “sponsor any activity that reflects adversely upon persons on the basis of race or ethnicity, gender, religion, disability, nationality, sexual orientation.” There is not the least doubt about the intention to enforce this law. Nor is there much doubt about the main target of the law. SB48 bars “any sectarian or denominational doctrine or propaganda contrary to law.”

For religious teaching, read: any teaching offering a claim to truth rivaling the moral teaching in the law. That alternative moral teaching will be regarded as merely beliefs of a “denominational” character or a version of “propaganda.”

Make no mistake, Fr. Schall was quite right in his recent column: We are in the midst of a culture war. And a chief purpose of that war is to make it untenable to teach Catholic doctrine in public settings, or for Catholic institutions, in their work, to respect that teaching. But we would fall into a gentle mistake if we assumed that we are facing mainly the force of “relativism,” or that the appeal now is to the rights of parents to provide for the moral shaping of their children.

Yes, in part, to both. The force of relativism was felt first in teaching the wrongness of casting moral judgments, including judgments on the “styles” of sexuality. But there is nothing relativistic about the law in California. There is no willingness to tolerate the views of those who bear moral reservations about the homosexual life. The people who brought forth this law would draw on the “logic of morals” as Aquinas had it, and as it will ever be: they would commend and even require what is “right,” and they would condemn and forbid what they regard as “wrong.

Lincoln had all of this long ago: “If slavery is right, all words, acts, laws, and constitutions against it, are themselves wrong, and should be silenced, and swept away.” He could conceivably grant then the authority to bar the abolitionist literature from the mails – if slavery were right. And if it were wrong to cast adverse moral judgments on the homosexual life, the understandings supporting those judgments could indeed be driven out of the schools.

The classic cases on the rights of parents and education were Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). In Meyer, the Supreme Court struck down a statute that forbade the teaching of any language but English to students in grammar school. In Pierce, a statute in Oregon barred students from attending private schools between the ages of eight and sixteen. Justice McReynolds insisted that there was no “power in the state to standardize” children in this way, and that “the child is not the mere creature of the state.”

But people tend to forget that McReynolds insisted at the same time that the State had a legitimate authority to regulate all schools, public and private, to insure, for example, that teachers are of “good moral character and patriotic disposition,” and that “certain studies plainly essential to good citizenship must be taught.” And so, the people governing the schools of Massachusetts point out that same-sex marriage is now part of the law: Students should come then to understand and absorb the moral understandings contained in the law.

The state has, after all, the rightful authority to insure that any firm or association under the laws is formed on legitimate terms for legitimate ends. It will not give a license to Fagin’s school for pickpockets, and it will not even license certain marriages. Anyone who takes education seriously will have to be attentive to moral education, including the moral ends of a “technical” education. (“For what purpose are you designing those trains: to speed people to their legitimate work – or to gas chambers?”)

This question will not be solved then simply by unfurling the banner of the “rights of parents” and private schools. The legislature of California has already noted that the new law would apply to “any aspect of the operation of alternative and charter schools.” If Catholic schools continue to teach doctrines now regarded as subversive, parents will not find a path of escape by moving into the enclave of Catholic schools.

The question then is not mainly about the rights of parents and schools. The question finally is whether there will be freedom to hold back from the moral teaching being planted in the law: Will it still be legitimate in this country to call into moral question the homosexual life?

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.

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