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Tolerance for Intolerance

A recent article in the New York Times’ philosophy forum, The Stone, by William Egginton, focused on Austria as a symbol of Europe and asked, “Is Europe’s ‘Tolerant Society' Backfiring?”  Egginton brought up the case of a (presumably Austrian) female schoolteacher who sued a Muslim father for refusing to shake hands with her. He pointed out that Austria and much of the rest of Europe’s policies of tolerance are, in fact, tilted to the Left, so that gender respect trumps religious freedom ( the Muslim man's refusal to touch the hand of the woman). He contrasted Europe, which, in many of its countries, forbids disrespectful speech and insults, but also, as in France, forbids expression of one’s religion in clothing in public schools, to the United States, where disrespectful speech is allowed (so-called “hate speech” is, in fact, protected by the constitution) as is expression of one’s religion. Egginton’s point with regard to Europe was that the European version of tolerance contains a built in paradox:  “an institutional intolerance toward beliefs and practices that are seen as intolerant.” Intolerance in Europe, as Egginton points out, is based upon a restricted set of liberal principles, developed after WWII, when the greatest fear was of a resurgence of Nazi racism. “Holocaust Denial,” for instance, is a crime in many European countries, as is denial of other instances of genocide in many countries, and of  Communist atrocities, in several former Soviet countries, such as the Czech Republic and Hungary. Hate speech is also illegal in several European countries, such as France and Germany where it is illegal to “assault the human dignity of others by insulting, maliciously maligning" certain groups. Egginton’s point, with regard to Europe, is that its definition of intolerance is ill fitted to groups who do not embrace what has been the majority European liberal point of view. This is leading to a problem, both with immigrants, such as many Middle Eastern Muslims and African Muslims, whose religious views are viewed as intolerant to most Europeans, and with new right-wing political groups, who blame the European view of liberal tolerance for the influx of immigrants and the loss of the White, Christian national identity, which, in their minds, defined their countries. While Egginton sees American laws, which embrace a more open and less circumscribed version of freedom of speech, as not causing the conundrums resulting from Europe’s restricted view of tolerance, he also wonders how well the U.S. tolerance would fare if it were faced with three million Middle Eastern refugees suddenly arriving within its borders.

The paradox highlighted by Egginton does exist in America. Since 1973, the “woman’s right to choose” has taken precedence over religious beliefs in determining U.S. laws on abortion. However, the issue continues to seesaw back and forth. In 2014, the Supreme Court ruled that a family-owned business, such as Hobby Lobby, had the right, under the Religious Freedom Restoration Act, to refuse to allow its employee health insurance plan to include contraceptive drugs and devices because they violated the business owners’ religious values. A case involving the right of  religious institutions that are not churches, such as the order of nuns, “The Little Sisters of the Poor,” to an exemption from the Affordable Care Act’s requirement to include contraceptives in health insurance coverage—a right given to church’s under the ACA—was  recently brought before the Supreme Court, although it was sent back to the court of appeals in order to “secure a compromise.”

While several U.S. Supreme Court decisions, dating back to 1949, and exemplified by the 1969 Brandenburg vs. Ohio decision involving the Ku Klux Klan, have ruled that “hate speech,” so long as it does not immediately incite violence, is allowed in the U.S., many institutions, most prominently universities, continue to ban it. The hate speech issue involves two points, one is the paramount nature of free speech in the U.S. constitutionally based legal system, and the other is the difficulty in defining hate speech. In Europe, holocaust denial might be considered hate speech, but not in the U.S. However, the University of California recently attempted to define “anti-Zionist” speech as anti-Semitic hate speech and to ban it from their campuses. The difficulty of defining hate speech without embracing an individual’s or group’s viewpoint is illustrated by the University of California controversy, where some of the same people who objected to labeling anti-Zionist speech as hate speech, were in favor of banning language that, in their minds, demeaned individuals on the basis of their race, including so-called “micro-aggressions,” which might only implicitly demean an individual or race. The UC trustees had used the same argument about anti-Zionist speech, including support of the BDS movement against Israel, as an example of a microagression that implicity embodied anti-Semitic hate speech.

Although the issue of hate speech vs. freedom of speech is an important one in a country such as the U.S., which places free speech above many other values, the paradox of whether tolerance includes tolerating intolerance is illustrated even more starkly by issues such as religious intolerance for gay or transgender sexual behavior as it translates into business practices and such things as use of gender-designated public restrooms. This has recently come up when several states attempted to pass their own versions of the federal Religious Freedom Restoration Act (RFRA) and when North Carolina passed a law restricting public restroom use to the gender one was born with and prohibited cities within the state from making exceptions to this law. North Carolina’s action prompted a backlash across the country, both from liberal groups and politicians and also many businesses, which threatened to leave the state.

The state- enacted RFRA bills and the North Carolina restroom bill concerned the right of the government to enact laws that would place freedom to follow one’s religion above the freedoms of those whose sexual orientations differed from those of the majority and violated come religions’ moral codes (North Carolina was not exactly this issue, since it actually prohibited cities from changing restroom access laws to allow a more liberal interpretation based upon an individual’s gender identification, but the discussion behind the law was often a religious one). Not only do fundamentalist Christians believe gay, lesbian and transgender identification is wrong, but so do most Muslims. Both fundamentalist Christians and many otherwise liberal devout Catholics (including the Pope) believe that contraception is wrong and nearly all oppose abortion. Whose rights should be protected, women who want to use contraception or who choose abortion, gay, lesbian or transgender individuals who want to shop wherever they want or to use restrooms that agree with their gender identity or religious people who object to providing contraception to their employees, to legalizing abortion, to serving gay people in their businesses or to transgender people using restrooms that don’t agree with the gender they were born with?

There are no easy answers to these questions. The confusion over this issue is illustrated by the patchwork of contradictory decisions by the U.S. Supreme Court, which has made decisions based upon both its liberal vs. conservative makeup and the prevailing opinions of the times. William Egginton points out that, in contrast to European countries, the U.S. has tended to take a minimalist approach to laws regarding tolerance. Our constitution and our court decisions have tried to mostly place a few, but hard and fast, restrictions on what the government is allowed to do to restrict freedom, rather than, in the European tradition, identify certain so-called “intolerant” practices that are outlawed. In most cases, these skeletal laws have only been expanded to include a wider range of “protected” groups with regard to discrimination so that gender, gender identity and sexual orientation are included along with race, ethnicity color, religion and handicap. Even such expansions are law and state-specific (North Carolina based its decision on the fact that gender identification is not protected under its constitution. Many states passing RFRA laws do not include sexual orientation as a basis for protection against discrimination).

What is apparent is that the decision as to when or where to extend tolerance is based upon one’s value system. Another way to say this is that intolerance is based on one’s value system. Whose value system trumps whose is a matter of who is in the majority. Universities within the U.S. mostly align themselves with liberal values. In the name of freedom and equality, they feel free to restrict what they consider “hate speech,” or even the public speech of people they believe espouse racist, homophobic, or even pro-conservative ideas, despite such speech being protected by the U.S. constitution. In some Western countries, including the U.K, but not in the U.S. so far, Muslim groups have tried to institute “Sharia Law” in their neighborhoods, restricting women’s attire and selling and consuming of alcohol. Such laws are commonplace in Middle Eastern countries where many Muslim immigrants come from. In the U.S. South and Midwest, RFRA laws that allow discrimination against gays and lesbians and North Carolina’s restroom law are applauded as affirmations of freedom of religion.

Arguing how to solve the dilemma of tolerance for intolerance in terms of legal approaches is complicated, but necessary. However, just as important is broadening the public conversation about this issue. This requires some effort by people on both sides of these issues to recognize the specificity of their own value systems to their geographical location, their era, their religious upbringing, their ethnic background, etc. and that other people with different backgrounds have different values, which to them are equally valid. The assumption that some values (other than perhaps a few basic ones—which not even everyone agrees on) are universally right and superior to those of others, does not agree with either academic research on value systems around the world or with everyday experience. In general tolerance is better than intolerance and where to draw the line on this issue is a very difficult choice and one that requires a great deal of tolerance in understanding others.

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