Liberalism, Feminism, and Group Rights

Abstract

1. IntroductionThe U.S. federal government could exempt Lakota from laws prohibiting smoking mescaUne or Buddhists from military conscription. A local government could exempt Mormons from laws prohibiting polygamy or Amish from laws prohibiting child labor. A school board could exempt fundamentalist Christian children from a curriculum requiring study of On the Origin of Species or Muslim children from policies prohibiting wearing hats in school. These are all possible group rights. As per these examples, three features characterize such rights. First, they can be granted eitiier by law or mere policy. Second, they are granted to a proper subset of those governed by the institution that grants them. Third, individuals receive these rights qua members of a religious, cultural, or ethnic minority group. While this characterization does not fully specify the property being a group right, it suffices to focus discussion.Some opponents of group rights, most notably Susan Okin (1999a, 1999b), think that liberal institutions should be wary of granting group rights, even if such rights advance some liberal values. For group rights, such opponents claim, often undermine a basic commitment of liberalism, the commitment to women's equality (i.e., to a minimal feminism). This concern motivates the following argument:(1) Some group rights, if granted, would harm women more than they would harm men (i.e., would harm women differentially).(2) Liberal institutions typically will fail to distinguish harmful from innocuous rights.(3) Liberal institutions should not grant rights that would harm women differentially.(4) Therefore, liberal institutions should not grant group rights.1What follows challenges this Okin-inspired argument against group rights. The challenge focuses on (2), the claim that liberal institutions typically wiU fail to distinguish harmful from innocuous rights. A subsidiary argument motivates (2): male members of minority groups often determine which rights to request and how to frame requests; they often present requests to representatives of liberal institutions who know little about the requesters' group; consequently, the procedures by which rights are granted are likely to ignore women's welfare; so, liberal institutions typicaUy will fail to distinguish harmful from innocuous rights. This subsidiary argument, although important, overstates the case. On one reading, (2) suggests that one who considers requests too hastily typically will fail to distinguish harmful from innocuous rights. On another reading, (2) suggests that one who considers requests quite carefully typically wiU fail to distinguish harmful from innocuous rights. The Okin-inspired argument is sound only given the latter reading. On that reading, however, (2) is false. For, if reviewers carefully deploy appropriate guidelines, they typically wiU distinguish harmful from innocuous rights.The bulk of the paper (§3-4) develops preliminary guidelines for distinguishing harmful from innocuous rights. The guidelines consist of two types of questions. Reviewers should emphasize certain questions when they initially are inclined to grant a requested right (§3). Such questions help one avoid granting rights that Uberai institutions should refuse based on their commitment to women's equality. Reviewers should emphasize other questions when they initially are inclined to deny a request on the ground that the requested right would harm female members of the rightrequesting group (§4). Such questions help one avoid denying rights that liberal institutions should grant despite their commitment to women's equaUty. Although the guidelines are preliminary, the paper aims both to exemplify the sort of reasoning that would generate more thorough guidelines and to suggest that effective guidelines are attainable.22. Three PresuppositionsBefore proceeding, three presuppositions should be acknowledged. First, it is presupposed that, unless the Okin-inspired argument is sound, Uberai institutions should grant some group right; i. …