The Nobility of Right, or why discrimination and bigotry suck as rights

Somewhere, and I forget where, Joseph Heath mentioned a concept which he called something like "the nobility of right". It was not a key concept in his thinking but I want to argue that it should be. The idea is that rights reach their fullest potential and greatest effect when they are used to defend and promote noble principles and ideas. For example, rights become noble when they extend democracy, address marginalization, provide security, end bigotry. These is a nobility in working to promote a good cause that enhances life for citizens: that creates the circumstances in which an individual can live a fuller and more meaningful life. Conversely, rights lose their nobility if they are used to defend and promote the opposite of noble causes: if one uses rights to marginalize, deny equality, oppress or harm. Heath suggested, if I am remembering what he said correctly, that this distinction, in fact, might help us in determining whether we felt the articulation of a particular right was a good idea or not.

The ways in which some people have recently been using religious freedom to defend their bigotry against the LGBTQ community is an example of the un-nobility of right. In other words, it is a misuse of rights because it impoverishes the very idea and concept of rights. It is an instance where rights are being used not to advance equality but to limit it; not to promote inclusion in the body politics but to exclude from; not to ensure the security of the person but to endanger it.

A good example of this comes from south of the border: the Trump administration's initiative to allow medical practitioners to deny care -- that is to refuse treatment -- to people on the basis of their sexual orientation. What is upsetting about this is not that there people who want to discriminate against LGBTQ people. I knew that already and I strongly suspect you did as well. What upsets me is that they are doing so by using a noble right -- freedom of religion -- to try to argue that their bigotry is just an exercise of their rights. As a Christians, I might pause to ask WWJD in this instance and I'd urge anyone considering denying service to the same thing. In other words, I'd argue that denial of service is not a defence of Christian beliefs but a contradiction of them -- but we can save that discussion for another day. Here, I want to address the issue of rights and whether or not we have a right to deny medical services (a dangerous step, to be sure) to individuals on the basis of their sexual orientation or gender identity. I am arguing no. There is no such right, in an ethical and moral sense and, moreover, this ethics has implications for other debates that surround freedom of religion.

Let's start with some basics. The key point here is that Heath is trying to disaggregate the concept of rights. Rights talk, for a very long time, has set up the concept of rights as absolutes. A right is a right is a right and, in fact, that is what makes them rights. This approach to rights may have been created for good reasons: because the prevailing view, back in the day, was that not everyone had, or deserved, rights. Women, for instance, or racialized minorities, it was argued, were incapable of full citizenship and so they could not be accorded equality with white men (nor the poor with the rich, etc.). In an effort to guard against this, I suspect, the idea of rights as an absolute developed. You either got 'em or you don't.

In more recent times, as Michael Ignatieff noted, rights talk has come to dominate public discourse. Ignatieff is not sure this is good, not because he opposes rights -- indeed, it would be a deep disservice to him to suggest that he did -- but because he believe that as a society we have substituted the language of rights for other languages that are more apt. We can leave off that discussion, too, except to note that it in no way lessens the significance of rights but instead points to a confusion of language. Things that people might want to do or wonder about or whathaveyou, come to described as rights when they are really something else.

Heath's point is that we need to look at rights and without minimizing their importance recognize that rights are not a monolithic category. We often hear about conflicts of rights (say, individual versus collective, freedom of religion versus gender equality) when this is not really what rights are all about. There is, for instance, I explain to my students, a difference between a law that is *intended* to promote equality and a law that is *intended* to maintain discrimination. Intentions, in other words matter.

Don't believe me ... why do people apologize? Because we understand that intentions matter: a mistake is something different from an intentional act. My daughter, when she was 2 or 3 took something -- a small bottle of shampoo -- from a store. It looked cute and she had not idea what stores we all about. She was not thrown in jail because intentions matter. It is, in fact, a basic element of law: a crime (excepting negligence) consist of two parts: intention and action.  We all know that intentions matter and I'd go so far as to suggest that it is the opposite point -- that intentions do not matter -- that should be under scrutiny. What does it take to argue such a point? I don't agree with this but is this not what each officer involved in the shooting of a young Black man in the US has argued: it was not *my fault* that I shot him.

One can agree or disagree with the law. That is another discussion. For example, consider a law that is intended to promote equality. One can argue about its efficacy, its morality, its usefulness, etc. These can all be valid discussions to have. But, we cannot suggest that the promotion of equality is the same thing maintaining inequality, we cannot say that one's intent does not matter. They differ intent and effect (inclusion, equality v exclusivity and inequality).  To use an example: getting rid of racism is not the same as racism.

I make this point because some disturbing things are disguised by their association with rights. If someone says "I have a right to my freedom of religion," we tend to agree because control over one's spirituality is an important thing.  When we think of freedom of religion, we think of the need for it: for protection of religious minorities against oppression. Jews in Nazi Germany is an example that comes quickly to people's minds but we can with some thought all think of other examples: of places where "heretics" are executed or the Padlock law or the Inquisition. Freedom of religion was put in place in liberal societies in order to protect individuals and allow the free expression of spiritual beliefs, the association connected with it, and the assembly (getting together) that it required.

I want to be quite clear on this: freedom of religion was never about hate. It was not about refusing to help people. It was never about denial of care, that is turning one's back on someone in need. It was a positive right that allowed people to address something that is good about humanity: spirituality. Its recent recasting as a negative right -- as in, I have right to hate, to ignore, to leave in harm's way -- is a disturbing trend not simply because it, in effect, it says "some people are worth saving and helping and others are not" and claims that the right to make that decision falls not on reasoned dialogue or collective agreement but on an individual and his or her prejudices. It is a disturbing trend because it involves the recasting of rights as something that can be used to oppress and marginalize, to maintain biases, as opposed to circumventing them.

This is, I suspect, why even the alt-right is shy about saying precisely what they mean. No one, for instance, talks about the right to hate. Instead they say things like "the government should not tell me what to think." But, this is a bit disingenuous. The point of rights is precisely *not* to tell someone what to think but to guarantee protection, security, etc., the right to think. This policy of Trump's -- along with his policies viz the military -- say, in effect, you have the right to ignore a person in need if you don't like them. The reason most people -- excepting extremists -- don't talk about "I hate" because they recognize that they will sound horrible.  They sound horrible because their religion is about love (love of God, love of your neighbour) and because there is no right to hate. You might hate somebody or something. That is your business, but is this how you want to define yourself: as a hater?

In Canada, the situation is not nearly as grave but much of the evangelical opposition to the Trudeau Liberals is coming very close. There is more to say on this point but some evangelical Christians have argued that their rights are being infringed because they cannot use state funds to organize anti LGBTQ and anti-abortion programs or policies or institutes or campaigns or whatever it actually is.

What we can note is the same process. No one is saying "I want money from the government to promote inequality, to harm and marginalize, to recreate the conditions in which, say, gay bashing was normal." There is a reason why they don't say that: no one would be one their side. Instead, they say "I have a right to my views." You do, but is that the same thing as getting paid to subvert and endanger someone else?

I would argue it is not. A person will think what they will think. But, you do not have a right to get paid (or, to pay others) to subvert someone else's equality or safety.

Let me return to religion. I lament this recent turn in evangelical politics for another reason: it makes Christians look bad. We are not -- or, should not be -- about hate. We should not be about trying to find a way for the state to pay us to force gays and lesbians back in the closet. We should not be looking for the state to protect anyone's bigotry. Imagine the alternative: would you be OK if a secular group were funded to run an anti-Christian organization? I really hope freedom of religion has not been reduced to the right to hate because if it is ... the battle is already lost.

Marginalization and Free Speech: Steps Beyond a Toxic Environment

To recap: WLU dropped the ball on the free speech issue, even if we assume that the TA is guilty.  I mean not to single out WLU. I'm sure most institutions have similar problems, perhaps even my own, because we don't often think about procedures until we actually need them.

What about the people who have been affected by a toxic environment? What about those whose identities are denied by Transphobia? These are good questions. Surely, someone reading my blog might say that I have spilt a great deal of text laying out procedures to defend someone who I am assuming is guilty. I've explained why and why the rule of law, as it were, is so important to democracy, transparency, and, I'd argue, post-secondary education, among other things. Procedures are not add-ons. They are not things we should discover after the fact as a way of addressing issues that arise from situations such as what happened at WLU. If we only use these procedures after the fact to ensure that the alt.right were given their day in court but that was all ... then that would be a pretty poor use of procedures, even if it would, I am saying, still be a necessary one.

Those who ask: what about the other side? What about the LGBTQ community? Why are you not saying anything that protects them, affirms their identity, provides a positive learning environment for them? I think these are necessary questions and I think addressing these issues is necessary as well. If we simply stopped with procedures that protected those who discriminated but not those who suffered from discrimination (in my example, I assume the guilt of the individual involved), members of marginalized communities would have a very similar complaint and concern to the one I outlined in my last blog.

I want to belabour this point because I think that the response to this question has, in fact, been pretty poor. It amounts to various elements of one of the following:

• That's life, grow up. People these days are just too sensitive. Back in my day, no one took offense. 
• That is too bad but it is the price we pay for living in a free society. I don't agree with discourse that marginalizes someone but the fact is that we have to accept it or we don't have free speech.
• Good education will be disturbing because thinking is disturbing, challenging, it takes us to new places and by challenging our preconceptions necessarily makes us uncomfortable. 

None of these standard responses -- which, I freely concede could be said in a way that sounded more sophisticated -- really, in my view, is an effective response to why historically marginalized communities must accept continued marginalization so that I -- as mainstream a Canadian as you are going to get -- can enjoy free speech. Said differently, if we are going to protect speech, we also need to be well aware of the power relations and inequalities that can infuse that protection. To do otherwise would be naive and academic. If we pretend that conflicts over speech occur only in idealized situations where there are no victims, there is no marginalization, there is no violence against marginalized communities ... then, we are not really discussing a real issue, are we? We are making up a hypothetical situation and applying it to the real world *as if* that hypothetical situation were the real world and it just is not. I will, in fact, go so far as to argue that a failure to address real world issues is disingenuous and irresponsible. I think each of these positions are flawed and I'd like to take this blog to address them. 

The first point is simply empirically wrong. Back in the day, people did take offense to being called names, to being denied equality, to being subjected to marginalizing behaviour, to having the legitimacy of their identities denied. The difference was that they lacked the power to do anything about it. Thus, LGBTQ people did not walk about happy about the denial of their equality, the rejection of their voice, the contention that their identities were illegitimate. In often small but profound ways, in fact, they attempted to assert themselves into politics but it was dangerous. Violence was a normal part of their lives. They could not turn to authorities for help. And, they might even have been rejected by parents and loved ones if the truth about who they were came to be publicly known. The silence of the past is not indicative of acceptance. It is indicative of power inequalities that denied voice to the LGBTQ community. 

Regarding the second point, a fairer question to ask is this: who pays the price? If I (Andrew Nurse) pay the price for my (Andrew Nurse) own free speech that is one thing because that is fair. If I ask someone else to pay the price for my rights and benefits ... well ... that can be fair in some instances but it is not inherently fair. Imagine if I want to buy a car. I do and so I get to drive it. If, however, you (reader) are forced to buy a car with your money that I get to drive ... is that fair? One of the concerns I have about the whole "free speech" debate is that Canadian society seems to be asking marginalized groups (LGBTQ, Black Canadians, First Peoples) to pay the price for White Settler Canadians free speech. Put in this way, you can see the issue that I am having and why I think this idea is problematic.  It is made even more problematic because historically marginalized groups are being asked to pay the price for the free speech of historically non-marginalized groups. This is odd. We are asking someone else to have *their* identity denied or to be insulted with racialized epitaphs so that *I* can enjoy free speech.

Let me spin this point out one step further: you can actually see how upsetting this issue is when we see right-wing intellectuals complaining about what the so-called "radical left" teaches and researches and complains against tenure and research grants.  Many of my friends who are moderates or center-right in their politics complain vociferously when someone says Canada is illegitimate or that Canadians should be asking First Peoples for permission to live on Indigenous land. Why? Interestingly for reasons similar to the concerns expressed by LGBTQ activists regarding the incident at Wilfrid Laurier: it denies the legitimacy of their identity. Said in other words, many of those arguing that it is a drag but marginalized minorities just have to pay the price for the free speech others enjoy, actually become quite upset when they are asked to pay the price. At the most extreme, they then start to argue against tenure and that research grants be canceled. In the US, I gather, some political right-wingers have gone even further and setup web sites where one can report supposedly unfair treatment by leftists and radicals.

As to the third point: maybe. I will confess that I don't really understand this point. There are many things in the world I find disturbing: homelessness, global warming, violence against women are three. But, exactly why learning, say, that there is a solution to homelessness is disturbing is not at all clear to me. Moreover, as a faculty member of long-standing, I work to develop a positive educational environment as does just about every other instructor I know. So, exactly why we have to upset people to educate them is not clear. Yes, history is upsetting when we teach the holocaust or the genocide in Rwanda or Jim Crow. Hence, when I teach similar things -- say, about residential schools -- I work doubly hard to promote a positive environment: to telegraph my intentions, let students know in advance about the disturbing character of the lesson that is coming, to find good news stories to integrate into the lesson (say, stories of healing and recovery), to use appropriate artistic representations (say, from artists who were in the schools and which they have made available in the public sphere), to be available to talk to students after class (say, having a discussion sessions), to provide resources for those who might need them, and the like.

I will likely now jinx myself, but in the twenty years I have been teaching about residential schools, I have not had a single complaint. I am sure students were upset. I was. Who could not be? But, no one has been upset to the point of complaining about me. No one said that I created a toxic environment. And, I think that says something ... not about me but about students. It says students are willing to accept upsetting learning if there is a point to that learning and that point is clear. In other words: if the instructor has done their job. And, this seems to me to be something different from saying "let's debate the legitimacy of someone else's identity" or "let's get a bunch of straight people together to determine whether gay people are equal."

The difference might be subtle but it is important. One can create an education that challenges students and one should, but that is different from upholding marginalization or legitimizing violence.  It is one thing to teach a difficult subject matter (wars, violence, etc.) but another thing to teach in a disturbing way, particularly as there are steps one can take (other than not teaching material) to address the matters one might want to address.

Finally, in this regard, one might ask a foundational question: what is the aim of teaching and how is it best accomplished. If one's aim is encourage, say, "critical thought," (which is a pretty standard aim), then the question one has to answer is: how is this best accomplished. Is it best accomplished in a positive and supportive learning environment or in one strewn with controversy, with upset, and disturbed students? I don't know about you folks, but I am actually at my lowest in terms of learning potential when I am frustrated and angry or when I feel marginalized.

To conclude: more needs to be said. What I have tried to do here is to contest three standard arguments used for upsetting/disturbing students that are often connected to pro-free speech arguments. I find they have few merits and many problems. They ask others, as it were, to pay our bills; they don't provide an environment conducive to critical thought, and they tend to replicate problems rather than providing solutions.