Sex, Culture, and Justice: The Limits of Choice (21 page)

The demand-led nature of this method of intervention in cultural practices is crucial. It would be up to individual Jewish and Muslim women, for example, to approach the tribunal and ask for the law of equal treatment to be enforced and a religious divorce granted. The tribunal would not intervene in religious divorce proceedings until it had been asked to do so by those concerned. This approach has a num- ber of benefits. First, it avoids Barry’s totalitarian scenario, and thus ensures that fundamental liberal principles of individual liberty and limiting state power are not infringed. Second, it helps to ensure that the liberal intervention is not totally alien to the culture in which the intervention takes place. If Jewish and Muslim women are in complete agreement with their religious courts that women and men should not be granted divorce on equal terms, then they will not take their cases to the tribunal. No one, on this approach, is ‘‘forced to be free.’’ Third, and similarly, this approach will often reveal the extent to which prac- tices supposedly integral to a culture are in fact endorsed only by partic- ular dominant groups within that culture. If, as seems likely, there are Jewish and Muslim women who do not see unequal divorce laws as crucial to the practice of their religion, we have reason to believe that the integrity of the religion will not be destroyed if it changes one of its customs.
35

One disadvantage with the tribunal approach, however, is that it may not be sufficient to undermine the influence factor. If the influence is particularly effective, disadvantaged individuals will not take their cases

34. Ibid., 55.

1. This seems likely for the simple reason that every Jewish or Muslim woman petition- ing a religious court for divorce presumably feels that she has good grounds to be granted one. If any women are denied a religious divorce, there must therefore be a mismatch be- tween the beliefs of at least some women and the dominant members of the religious com- munities. In other words, not all members hold the rules of divorce as interpreted by the courts to be an integral part of their religion or culture.
   

   to the tribunal or may avoid seeking divorce. As I argued in Chapter 2, a Bourdieuean analysis of social construction alerts us to the possible need for the impetus for change to come from outside, perhaps through imposed structural changes. For this reason, it is quite proper for the state to engage in advertising or education campaigns inform- ing individuals of their new rights and encouraging use of the tribunal. If the cultural practice is sufficiently principled and universally upheld within the culture, it will withstand such external influence. If there is dissent within the culture, however, then the influence factor will be gradually undermined as more people refuse to accept its discrimina- tory effects.
   

   A second problem with the tribunal approach is that it will be very difficult for individuals to risk ostracism by complaining about the norms of their cultural or religious groups, especially to outsiders. The tribunal approach will require some individuals to act bravely, perhaps against their own immediate self-interest. Going to tribunal may, for the first who do so, be tantamount to leaving the group.
   36
   The tribunal approach, however, is preferable to freedom of exit in that it improves the situation for others and weakens the unjust norm. Unlike exit, which reinforces the validity of unequal practices through the expul- sion of dissenters, laws against unequal practices provide a clear signal that such practices are unjust. In response, religious courts are likely to change their rulings over time as they are forcibly reversed, or incur fines, on appeal to the equality tribunal. This gradual process of change from within is the method of change most consistent with liberal prin- ciples. It would not be acceptable for a liberal state to force reluctant women to seek a divorce when they had grounds for doing so, even if there were good reasons for suspecting that such women were reluc- tant only as a result of pressure from within their culture. Much as we might regret such a situation, we cannot use state power to enforce our ideal state of affairs. Barry understands this point well. As he argues, ‘‘The move from principle to intervention has to be mediated by practi- cal considerations. . . . liberals are not so simple-minded as to imagine that the answer to all violations of liberal rights is to send in the Ma- rines.’’
   37
   Barry should not, therefore, suppose that the only way to se-
   

2. The difficulty of pursuing such a path cannot be an objection for Barry, however, because such an objection entails recognition of the difficulty and thus the insufficiency of freedom of exit.
   

3. Barry,
   Culture and Equality
   , 138.
   

cure equal rights for women within cultural groups is to send in the police.

If we return to Barry’s original justification for rejecting state inter- vention in discriminatory cultural norms, we see that that justification provides an even more compelling argument
against
intervention in employment practices—an argument that liberals do not want to make. As described above, the fundamental condition a culture must meet if it is to be immune from internal state interference is that its members must be able to exit freely. In Barry’s words: ‘‘The only condition on a group’s being able to impose norms on its members is that the sanc- tions backing these norms must be restricted to ones that are consis- tent with liberal principles. What this means is primarily that, while membership of the group can be made contingent upon submission to these unequal norms, those who leave or are expelled may not be subjected to gratuitous losses.’’
38
An employing organization conforms perfectly to this condition. The men-friendly employer could be de- scribed as making membership of the group—employment in the bank—contingent on submission to unequal norms—promotion of male drinking companions only. He does not subject those who wish to exit from the group to gratuitous losses, which, for Barry, do not include the loss of the intrinsic benefits of membership such as salary or networking. True, the leaving employee needs some form of subsis- tence, which the salary originally provides; but particularly in a society which provides a welfare safety net, the employer cannot be held re- sponsible for the lifetime subsistence of all ex-employees. Moreover, the unequal norms to which the members of the investment bank must submit are not backed up in state law—it is quite possible for his employees to avoid the norms by exiting. Why, then, should employers be subjected to antidiscrimination legislation from which cultural groups are exempt? Just as Orthodox Jewish women are free to choose to leave their culture and religion if they do not wish to submit to unequal norms, so too employees are free to choose to leave their em- ployer if they do not wish to submit to his unequal promotion practices. In fact, the freedom of an employee to leave a discriminatory em- ployer is rather greater than is the freedom to leave of a member of a culture or religious group. In general, what matters to employees is having a job. Within certain restrictions of type of work, salary, and

38. Ibid., 128.

location, it is not of fundamental importance that an individual have any one particular job. If the salaries and job descriptions are roughly equivalent, an individual’s fundamental interests will not be harmed by working at one investment bank as opposed to another. While it may be the case that someone develops a connection to their particular job, or prefers one company to another, the state does not need to and should not intervene merely to satisfy these sorts of preferences.
39
If a female employee at the discriminatory bank really dislikes its sexist promotion practices, she is free to leave for a job at another bank. For a member of a religious group, however, what really matters is not membership in a religious group as such, but membership in one par- ticular religious group. The reasons for this preference are obvious and compelling. In a religious group, she will have strongly held and fundamental beliefs in many of the teachings and practices of the reli- gion—even if she rejects some of those practices which are discrimina- tory.
40
In a cultural group, a member will have a similar affinity with its practices, some of which—such as ceremony, music, or dance— may be very difficult to replicate outside the group. The member of either a religious or cultural group will have very strong ties to others in the group, ties which are likely to be stronger than those within an employing organization, since many of them will be based on family relationships and lifelong friends. It will also be easier for an employee who leaves one company for another to retain her friends in the first company, since changing jobs is common and does not imply rejection of those in the company left behind. When individuals leave cultural or religious groups, however, those remaining in the groups may feel deeply hurt and betrayed by the rejection of their values and commu- nity. In short, what matters to an Orthodox Jewish woman seeking equal rights of divorce is membership in the
Jewish
community, not membership in any (religious) community. Her ability to exit is thus

1. There are some exceptions to this rule of substitutability between jobs. For example, if there is only one employer in a certain field in one part of a country, then it might matter very much to the individual that she is employed by that particular employer, if her skills are nontransferable. However, such an employer would fail to meet the criterion of free exit, since specialist employees who leave will suffer gratuitous losses. Under Barry’s scheme, then, such an employer would not be able to impose unequal norms.
   

2. In general, liberalism is not particularly well equipped to deal with conflicting identity positions. Thus a Muslim woman in a liberal society, for example, might face conflicting loyalties to her culture, her religion, and the rights and principles endorsed by the wider liberal community in which she lives. The question of which identity she focuses on with regards to a particular outcome is not best conceptualized in terms of free choice.
   

   much less real than is the ability of a woman to leave a discriminatory employer.
   41
   

   The conclusion to be drawn from this example, it ought to be clear, is not that egalitarian liberals should abandon laws against sexual dis- crimination in employment. The conclusion, instead, is that formal freedom of exit is insufficient to excuse a cultural or religious group’s imposition of unequal norms. Just as the state properly intervenes in discriminatory employment practices, so too it ought to intervene in discriminatory cultural or religious norms, even where those norms are not enshrined in state law, and even where members are ‘‘free’’ to leave the groups in the sense described by Barry.
   

   One final possible objection should be considered. Barry is keen on the idea that an egalitarian liberal can and ought to allow discrimina- tion for employment within religious groups on grounds of belief—for example, that Christian churches should sometimes be allowed to em- ploy only their coreligionists. As he argues: ‘‘It seems uncontroversial that discrimination based on religion should be permitted when it comes to a church’s choice of candidates for the priesthood or its equiv- alent.’’
   42
   This position is indeed uncontroversial, and my scheme does not contradict it. One simply cannot be a priest unless one believes. It is clearly part of what is required to do the job. Similarly, it is part of what is necessary to doing many jobs well that one should believe them to be at least minimally worthwhile. A stockbroker would be justified in refusing to employ someone who argued that global capitalism is evil and that share trading ought to be abolished. Commitment to the fundamental ideals of the company is something which all employers expect, and the state does not forbid such an expectation. What a com- pany is not entitled to expect, however, is that an employee subscribe to all its practices and all its ideals, where those ideals are not crucial to the workings of the company and where they are discriminatory. A stockbroker may restrict employment to those who are interested in and committed to the company’s profit-maximization, or to the smooth running of global markets, but it cannot legitimately restrict employ- ment to white men, or to those who are also members of a Masonic Lodge or the Republican Party.
   

3. For the similar claim that opportunities are subjective and not objective, see Susan Mendus, ‘‘Choice, Chance and Multiculturalism,’’ 33, and David Miller, ‘‘Liberalism, Equal Opportunities and Cultural Commitments.’’
   

4. Barry,
   Culture and Equality
   , 168.
   

   Barry accepts this principle as regards employment, but rejects it for religion on the basis of individual choice. For Barry, the Catholic Church cannot be forced to ordain women priests, because some Cath- olics sincerely believe that the sacraments can be administered only by a man. It therefore becomes part of what is necessary to being a priest that one is a man. Barry argues, then, that ‘‘freedom of religious wor- ship for individuals, which is an undeniably liberal value, can be achieved only if people are free to attach themselves to churches with a variety of doctrines. (It should be noted that this is not an argument from the value of diversity but from the value of individual choice).’’
   43
   This argument fails. Ordaining women priests would not force individ- ual Catholics to receive the sacraments from a woman; if there were both male and female priests the choice of individual worshippers, male and female, would be increased. Barry might reply that some individuals want to attach themselves to groups that don’t allow other individuals to choose certain things, such as worship with women priests, but such preferences cannot be protected by liberals when they violate such a fundamental value as gender equality, and are hardly best defended by an appeal to ‘‘individual choice.’’
   

   More important, it is misleading to focus on people’s freedom to ‘‘attach themselves to churches.’’ As we have seen, religions are to a large extent groups into which people are born and of which they find themselves already members. While individual choice might be in- creased by allowing individuals to choose from whom they receive the sacraments, it is threatened by forbidding those whose identity is prere- flexively bound up with a certain group from participating in it fully. A ban on women priests harms the choice of women who wish to become leaders of the religion in which they find themselves. It also threatens other liberal values. Equality is clearly violated, not only by the ban itself, but also by the effects it has on the understandings of children who grow up within the religion: that women are not equal to men in the arena of worship, that women are not fit to lead their fellow worshippers, and that the voice of women does not need to be heard when religious leaders are formulating policy. The lack of female voices within a religion’s leadership is also likely to have grave conse- quences for the basic rights of women members: unequal marriage and divorce laws, female genital mutilation, and the prohibition of con-
   

5. Ibid., 174. See also Nussbaum,
   Sex and Social Justice
   , 111.
   

   traception—all threats to women’s individual choice—are less likely to be reformed if women do not participate in the religion’s leadership.
   44
   While it might sometimes be acceptable, therefore, for an appeal to individual choice to justify allowing groups to endorse unequal norms if adult individuals really do choose whether or not to join (the example of employment shows even this principle to be doubtful), it cannot be acceptable for similar norms to apply to a group into which children are born and to which their attachments are not chosen.
   

   The fact that religious associations gain many of their members through upbringing rather than choice means that arguments phrased in terms of ‘‘freedom of association’’ are misleading. For example, Stu- art White correctly argues that freedom of association entails the right to exclude, and proposes that associations should be allowed to exclude categories of people (women, for example) in certain carefully defined circumstances. The most relevant here is White’s claim that religious groups have a particular interest in excluding those ‘‘who have . . . characteristics which can reasonably be seen as incompatible with sin- cere profession of their beliefs (which may sometimes include ascrip- tive characteristics like race or gender).’’
   45
   This interest, White argues, should be ‘‘regarded as having a strong presumption of legitimacy’’ given the fundamental importance of ‘‘freedoms of conscience and ex- pression.’’
   46
   

   While White’s analysis may accurately reflect the claims of religious leaders, it is problematic in that it does not easily apply to cases where members of the excluded group find themselves part of the religion by upbringing but are excluded from certain aspects of the religion on adulthood. Religions that exclude women do not usually exclude them from the religion
   tout court,
   but rather exclude them from bearing cer- tain rights or fulfilling certain functions within the religion once they are members. If the issue really were one of excluding women from religious association, the religion would be akin to a men-only club or society such as the Masons—an organization that women could never enter and, as a result, one in which they would never find themselves.
   

6. Nussbaum argues, rightly, that access to contraception (not to mention freedom from female genital mutilation) is a basic human right (
   Sex and Social Justice
   , 101–2, 118–29). However, she is reluctant to use state power to force religions to allow women to officiate (111, 197). These issues cannot reasonably be separated.
   

7. Stuart White, ‘‘Freedom of Association and the Right to Exclude,’’ 385. 46. Ibid., 386.