Emblems of Pluralism

This article is reprinted with permission from the May 27, 2003 edition of the New York Law Journal. © 2003 ALM Properties Inc. All rights reserved. Further duplication without permission is prohibited.  

5/27/2003 N.Y.L.J. 2, (col. 3)
 

After World War I, the League of Nations imposed the so-called "Minority Treaties" upon a number of countries. Typical of the treaties was the Polish Minority Treaty, signed at Versailles in 1919, which provided that all Polish nationals were entitled to equal rights, regardless of creed, religion or belief. Specific provisions were provided for the benefit of Polish Jews, including one which mandated their right to enjoy their own Sabbath.
 

It is noteworthy that the impetus for the Minority Treaties was not humanitarian, according to Carol Weisbrod, author of "Emblems of Pluralism; Cultural Differences and the State." To the contrary, the drafters had a more practical concern, namely to avoid future wars such as those which had occurred in the past because of the oppression of minorities. For all their good intentions, Ms. Weisbrod reports, the Treaties "generally are viewed as a failure. They did not prevent the Second World War and they did not ultimately protect vulnerable minorities.'
 

Echos of the Minority Treaties can be heard today as the United States attempts to mold Iraq into a model state for the Middle East. During the course of their state-building process, American policy makers have repeatedly enunciated three fundamental principles. First, the new Iraq must not constitute a threat to its neighbors. Second, it must continue to operate as a unified, single entity, within its current borders. Third, any new government must respect the rights of all ethnic and religious minorities.
 

Arguably, if the third goal can be achieved, the first two will fall into place. Any governmental system that tolerates the free exercise of different ethnic and religious practices and beliefs -- particularly practices and beliefs that are intolerant toward free exercise by others -- will be able to maintain its territorial integrity without breaking apart. And while practicing tolerance at home, that government will be unlikely to undertake aggressive military action abroad.
 

It seems fundamental that all good things flow from a healthy respect for pluralism. But how tolerant can a state realistically be before it disintegrates into quarreling factions? Must there not be limits set by even the most tolerant political system? These, and other intriguing questions, are raised by Ms. Weisbrod, a professor of law at the University of Connecticut. Unfortunately, she provides no answers.

'Emblems of Pluralism" is a collection of problems that defy easy solutions. Ms. Weisbrod looks at the challenges posed by minority groups from all angles. She presents many examples of the quagmires faced by courts, politicians and theoreticians when dealing with the practical issues presented by non-mainstream groups.
 

In the United States, where the free exercise of religion is enshrined as one of our most basic rights, the superior authority of the civil law has had to be established time and again. It may not be a surprise that the Mormons, once a despised minority in this country, were never permitted the "right" to practice polygamy. More interesting is the fact that the Amish, generally considered among the most peaceful and benign of minority groups, have been at the center of a number of cases where the limits of religious freedom has been at issue.
 

Some Amish cases have involved the practice known as "shunning," a mechanism by which a non-conforming church member is excommunicated by the community. Although rare, there have been cases where shunned individuals have sought relief from civil courts. In one well-publicized case in 1947, the judge instructed the jury that "Sincerity of religious belief ... is no valid legal excuse to deny anyone his guaranteed human rights." The result was that the shunned member won civil damages and injunctive relief, with "tragic" consequences: a minister was forced to sell his farm to satisfy the judgment, but the individual church members never truly accepted the shunned man back into their community, and he eventually committed suicide.
 

Thus, American courts, entrenched in a tradition that respects minority rights and values religious freedom, have imposed harsh penalties on members of minority religious groups where their practices are deemed unacceptably abnormal. Surely this is a thought to keep in mind as America attempts to export its famed "tolerance" throughout the world.

Ms. Weisbrod asserts that there are two contrary models for building a pluralistic society, one "horizontal" and the other "vertical." The spirit of the former, she maintains, is captured in a painting completed in 1888 by Erastus Salisbury Field entitled "Historical Monument of the American Republic," a copy of which graces the cover of the book. The painting portrays an imaginary collection of what can only be described as pre-modern, stone skyscrapers, each one in a different architectural style and yet all delicately and carefully interconnected. Perhaps not coincidentally, they resemble multiple Towers of Babel, built in an alternative Babel where the builders were able to overcome any linguistic or cultural differences in order to achieve a magnificent result. Ms. Weisbrod notes that the painting "seems to represent a conception of federalism involving the federal government and the states -- hierarchical, integrated and titanic -- that is dominant in American history."
 

To convey the mood of a vertical pluralism, Ms. Weisbrod chooses another painting, entitled "The Peaceable Kingdom," by Edward Hicks, painted in 1834. This painting illustrates the signing of a peace treaty between a group of Quakers and three Indian tribes in 1682, alongside figures taken directly from Chapter 11 of Isaiah, wherein the prophet envisioned, "The wolf also shall dwell with the lamb, and the leopard shall lie down with the kid, and the calf and the young lion and fatling together; and a little child shall lead them." Mr. Hicks' painting has them all, the wolf, the lamb and the rest, co-existing in perfect harmony.
What the two paintings plainly have in common -- but which Ms. Weisbrod fails to point out -- is that they each, in their own ways, portray complete and utter fantasies. Neither represents the real world. Each represents an unattained, and, by all evidence, unattainable utopian vision.

David C. Wrobel is a member of Wrobel & Schatz.
5/27/2003 NYLJ 2, (col. 3)