Sex, Culture, and Justice: The Limits of Choice (22 page)

In contrast, religious associations tend to welcome women from birth, encouraging parents to bring their daughters up within the faith. The exclusion comes later, once membership is settled and women are firmly situated in the religious structures. It is then that women are denied access to the priesthood, or to a religious divorce, or to equal rights more generally. These categorical exclusions are not best concep- tualized as partners to freedom of association, for association has al- ready taken place prereflexively. Instead, they are partners to the main- tenance of inequality and domination.

The fact that individuals tend to inherit rather than choose their religious association also has implications for the internal diversity of religions. If religions were associations of which only adults could be members, on condition of acceptance of prescribed religious tenets, it might well be reasonable to expect enduring internal agreement on those tenets.
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However, once religions are inherited, diversity and dis- agreement are likely. For some individuals will find themselves, at some stage in their adult lives, firmly believing in some of the religious tenets they have been taught while rejecting or being skeptical of oth- ers. Depending on the relative weight that is placed on the competing tenets by either the individual or others, the individual may feel that either her skepticism
or
her belief dominates. One person brought up as a Christian may reasonably come to think that her belief in the doctrine of ‘‘Love Thy Neighbor’’ is insufficient to maintain her Chris- tianity in the light of her doubt about the existence of Jesus. Another may reasonably conclude that her skepticism as to the biblical or other justification for a ban on women priests in no way undermines her Catholicism, given her firm belief in the New Testament, transubstan- tiation, and so on. Indeed, one might say that if it really is the case that it is fundamentally impossible to be a Catholic and endorse female priests, then no Catholic women will come forward and apply for the

1. Ruth Abbey pointed out to me that some religions do have ceremonies to mark the transition into both adulthood and full membership in the religion. Thus Jewish Bar and Bat Mitzvahs, Catholic First Communion, and so on might count as occasions for marking volun- tary adult entry into the religion. In order for such ceremonies to fulfill the normative role of making religions voluntary associations, however, two conditions would have to be met. First, ceremonies could take place only when individuals were sufficiently mature to make respon- sible choices—for example, at age eighteen rather than the onset of puberty. Second, it is difficult to categorize religions as voluntary associations as long as children are brought up within one particular religion and encouraged or expected to participate in it in some form long before any adult membership ceremony.
   

   priesthood under new laws enabling them to do so. If some women do come forward, however (as we might expect given that there are many current supporters of allowing women to be priests),
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   the belief that women cannot be priests under Catholicism starts to look like one that is contingent, possibly on the nature of the incumbent power struc- tures within the Church.
   

   Against this claim, two points might be raised. First, it might be argued that individuals’ freedom to be Catholics
   as such
   is threatened by state legislation forbidding a ban on women priests, since Catholi- cism is a religion based on the authority of the pope.
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   As a result, any state decree that overrides papal authority undermines the fundamen- tal basis of the religion. However, as Cass Sunstein notes, all laws place restrictions on what individuals of any religion may do, whether or not their religious leaders endorse those restrictions, and thus the very concept of law undermines religious authority.
   50
   If murder were de- creed by the leader of a religion or culture based on authority, such as the
   fatwa
   placed on Salman Rushdie, most liberals would concur with Barry that ‘‘anyone who killed Rushdie would deserve to be treated as a common murderer.’’
   51
   Thus, the question is not ‘‘does legislation against gender discrimination outlaw Catholicism as such?’’ but rather ‘‘is gender equality one of those issues which is of sufficient impor- tance to merit intervention?’’ I believe that it is.
   

   Second, opponents of Catholic women priests might claim that those women who wish to be priests are not, for that reason, ‘‘true’’ Catholics. It is beyond the scope of this chapter to examine this claim in detail, since it raises the enormously difficult question of how to define which tenets are crucial to, and constitutive of, a religion or other belief system. One option is that it would be appropriate to ask whether the leaders of a religion would be prepared to see the religion die out or shrink significantly rather than give way on the tenet in question.
   52
   In other words, if there were a shortage of priests so acute that it threatened the survival of Catholicism and could be rectified
   

2. A useful source on this issue is John Wijngaards,
   The Ordination of Women Catholic Internet Library,
   which argues against the theological justifications for preventing women from being ordained. In particular, the site argues that women
   were
   ordained as deacons in the third to ninth centuries.
   

3. I am grateful to Zofia Stemplowska and Patti Lenard for observations on this point.
   

4. Cass Sunstein, ‘‘Should Sex Equality Law Apply to Religious Institutions?’’
   

5. Barry,
   Culture and Equality,
   280.
   

6. I am grateful to Ce´cile Fabre for this suggestion.
   

   only by ordaining women, would the papal authorities allow the ordina- tion of women? There is currently an active campaign within the United States to allow married men to enter the clergy so as to alleviate the shortage of Catholic priests, which suggests that this question is a live one.
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   White considers this issue. He writes:
   

   Even if we are satisfied that a disputed exclusion rule can rea- sonably be seen as protecting a specific expressive commit- ment, in evaluating the legitimacy of the exclusion rule we should also consider whether this expressive commitment it- self really is central to the association’s purposes as these cur- rently stand. Is the exploration and/or propagation of the rele- vant values or beliefs central to the activity of the typical association member? Do they feature prominently in the moti- vation of the typical person joining the association, or in the self-understandings of current members? If not, then it is far from clear that the disputed exclusion rule really is serving an important integrity interest.
   54
   

   Although White argues in terms of freedom of association, with the implication that adults choose whether or not to enter the religion rather than inheriting their membership, these questions make sense only if we drop this assumption. For if we follow the assumption, and focus on groups that have rules excluding adults from joining groups in the first place (such as the Masons), it is somewhat question-begging to consider only the views of existing members or ‘‘the typical person joining the association’’ when evaluating those rules. Since the group, as currently defined, has as one of its beliefs the idea that a certain group (women, for example) should be excluded, it follows that it is not currently possible to be a group member while believing that women should be admitted. So long as the criteria for belief and mem- bership are set by
   existing
   members, there is limited possibility for change in the criteria. Any member changing their mind on the exclu- sion of women would cease to be a ‘‘true’’ believer. White’s questions only have critical force, then, if we abandon the idea that religions are
   

7. See the 2002–3 edition of United States, Bureau of Labor Statistics,
   Occupational Out- look Handbook
   .
   

8. White, ‘‘Freedom of Association,’’ 388.
   

   like clubs with lists of rules that must be adhered to in order to gain membership. Instead, religions are groups in which the rules of associ- ation are essentially contested and unclear. The idea of a ‘‘true’’ Catho- lic is thus extremely problematic, and aspects of Catholicism frequently are questioned and sometimes reformed.
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   In a liberal society at least, gender inequality is one issue that most requires reform.
   

   Gender, then, cannot be accepted by liberals as necessarily intrinsic to religious practice, but other factors can. Under state intervention in discriminatory cultural norms, a religion would be able to insist that its divorce rules were religious in character (perhaps allowing divorce on the grounds that one partner refused to attend religious worship or to recognize religious festivals), but would be unable to apply those rules unequally to men and to women (both men and women should be able to divorce their spouses on those grounds). In other words, religious groups should be able to place religious restrictions on the actions of their members, but those restrictions should not fall more heavily on one ascriptive group inside the religion than on another. There will be limits on the kinds of restrictions which are permissible, just as liberalism places limits on individual freedom. However, these limits will not need to be very significant if the restrictions are to apply to all, as powerful group members will have clear disincentives to advo- cate practices that disadvantage themselves.
   

   Alternative Jurisdictions
   

   Ayelet Shachar makes jurisdictional proposals that differ from but focus on the same problems as the equality tribunal. Shachar directly engages with the issue of how to legislate for both multiculturalism and gender equality. She takes as her starting point the fact that the demands of minority cultural groups are often in conflict with wom- en’s equal rights. This forms what she calls ‘‘the paradox of multicul- tural vulnerability,’’ which occurs ‘‘whenever state accommodation pol- icies intended to mitigate the power differential between groups end up reinforcing power hierarchies within them.’’
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   Shachar develops the approach of ‘‘joint governance’’ to solve this paradox without abandon- ing either multicultural accommodation or equal citizenship.
   

9. One example of reform in Catholicism is the Second Vatican Council, documents of which can be found at http://vatican.va/archive/index.htm/.
   

10. Shachar,
    Multicultural Jurisdictions,
    17.
    

Shachar’s approach is a great improvement on alternative accounts that pay no attention to the risk of injustice inherent in abandoning women to the particular rulings of minority cultures. She considers the problems of multicultural accommodation and makes many apt criticisms. Many of her criticisms are shared by this book, such as the criticism of unequal Orthodox Jewish divorce law according to which a woman may not divorce without her husband’s consent. However, de- spite her criticisms of many multicultural policies, Shachar does not want to abandon them altogether. The approach that she adopts aims to avoid the ‘‘‘either/or’ types of solutions to the paradox of multicul- tural vulnerability,’’
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where the choice is between accommodation on the one hand, and universal citizenship regardless of culture on the other. In other words, despite heavily criticizing multicultural accom- modation, she ends up endorsing some—problematic—features of it. Shachar’s arguments in favor of multicultural accommodation do not stand up to the weight of evidence she offers that it can lead to oppres- sion and inequality.
58
As a result, in some cases of injustice that Sha- char considers, she misidentifies the source of the injustice.

For example, Shachar describes the case of Julia Martinez, a mem- ber of the Santa Clara Pueblos who married outside the tribe. As a result, according to the kinship rules of the tribe, her children were not deemed to be tribal members. Tribal membership was important for the children, Shachar tells us, since membership would have qualified them for health care given solely to Indians. One child was denied emergency health care when she suffered a stroke, and Martinez filed a lawsuit. In hearing the case, the U.S. Supreme Court practiced multi- cultural accommodation and upheld the tribal kinship system. Shachar concludes that the case illustrates the problems with multicultural ac- commodation since the Court ‘‘effectively gave legal sanction to the deprivation of benefits and the systematic maltreatment of a particular

57. Ibid.
,
146.

58. One argument that Shachar briefly deals with, and endorses, is the multiculturalists’ claim that ‘‘any society, no matter how open and democratic, will always have certain cultural, linguistic, and historical traditions which welcome some of its members more completely than others, because the institutions of that society have largely been shaped in their image’’ (ibid., 23). I discuss this issue at length elsewhere (Clare Chambers, ‘‘Nation-Building, Neu- trality and Ethnocultural Justice’’) and do not have the space to do so here. The thrust of my argument is that if this majority culture is liberal, that very fact renders any particularity unproblematic from the point of view of justice. As a result, I do not take Shachar’s recount- ing of this multicultural claim to be convincing, and certainly not decisively so.

category of group member—some Pueblo mothers (and their chil- dren)—so long as it was in accordance with the group’s traditions.’’
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The problem, Shachar argues, lies in the Supreme Court’s recogni- tion of the patrilineal kinship system, whereas it ought to be the case that children of tribal mothers also have a right to membership. Hence the injustice is suffered by ‘‘a particular category of group member.’’ Although it is unjust to discriminate in this way, Shachar’s criticism seems to miss the key injustice of the case. The injustice lies in the fact that an extremely ill child was denied emergency health care because of her cultural membership or ethnic background. The injustice would have been equally great if the child had been wholly non-Indian. Turn- ing any child—or indeed any adult—away from emergency health care on the grounds of ethnic or cultural origin must surely be unjust from any egalitarian perspective. The injustice is not suffered solely by some category of group member, but by
anyone
not considered to be a group member. In other words, the major source of injustice is the absence of a state healthcare system such that individuals can obtain health care only through membership of some particular group, whether that group is cultural or, in the case of a private scheme, financial or occupa- tional. The key injustice in either case is that one must be a member of such a group to receive treatment, not merely that the boundaries of the group are drawn incorrectly.