33 Pages Posted: 25 Jul 2014 Last revised: 2 Jul 2015
Date Written: July 23, 2014
The ongoing tension between religious liberty and gay rights is a striking example of our country’s profound and deep differences. But we are also divided over many other issues: immigration, criminal justice, abortion, contraception, poverty, and education, to name a few. Each of these differences pulls at the threads of a purported unity in pursuit of a “common good.” In light of our contemporary situation, this Article argues that we can and must live with deep and irresolvable differences in our beliefs, values, identities, and groups through a “confident pluralism.” A confident pluralism embraces a “right to differ” from state and majoritarian norms. It is rooted in the conviction that protecting the integrity of one’s own beliefs and normative commitments does not depend on coercively silencing opposing views.
A confident pluralism seeks to maximize the spaces where dialogue and persuasion can coexist with deep and intractable differences about beliefs, commitments, and ways of life. It is based upon two normative premises. The first is a suspicion of state power, a view that operates primarily as a constraint upon government. The second is a commitment to letting differences coexist, until (and unless) persuasion eliminates those differences. The second premise suggests that it is better to tolerate than to protest, better to project humility than certainty, and better to wait patiently for the fruits of persuasion than force the consequences of coercion.
Part I sets out the meaning and scope of a confident pluralism. Part II considers three of its aspirations: tolerance, humility, and patience. Part III examines the pluralist argument in the current political moment, and Part IV addresses its relationship to anti-discrimination norms. Part V suggests some of the legal and constitutional implications of a confident pluralism. Part VI explores more tentatively its implications for institutional pluralism, private monopolies, boycotts, and speech.
Keywords: pluralism, First Amendment, religion, association, political theory, gay rights, constitutional law
Suggested Citation: Suggested Citation
Inazu, John D., A Confident Pluralism (July 23, 2014). Southern California Law Review, Vol. 88, pp. 587-617, 2015; Washington University in St. Louis Legal Studies Research Paper No. 14-07-03. Available at SSRN: https://ssrn.com/abstract=2470788