BURDENS ON DELIBERATIVE FREEDOM
[➡︎ read the rest of the book symposium on Sophia Moreau, Faces of Inequality: A Theory of Wrongful Discrimination (2020)]
Sophia Moreau contends that an important dimension of the wrong of discrimination lies in burdens on deliberative freedom. Discrimination may burden deliberative freedom by limiting or otherwise burdening what choices are available to a person based on assumptions about her. It may also, or in the alternative, force a person to contemplate (to a burdensome degree) how features of her identity figure into others’ decisions and attitudes about her, thereby intruding into her freedom of thought. This intrusion may be greater than (or have a more negative content or valence than) that endured by others outside her identity group and be discriminatory in that sense.
Contrast women who must think of their lower salaries and their limited mobility after dark: “it’s because I’m a woman,” with self-satisfied men who may as frequently think of their salaries and their easy comfort on the streets: “I’m the (**@@%) man!” The thoughts may be as frequent or prominent but the former sounds in the explanatory and the latter in the justificatory/congratulatory. To my mind, this makes all the difference as to whether it is burdensome. So, the burdens on deliberative freedom may sound either or both in terms of the range of what a person can choose and what costs she must factor into those choices, or in terms of an infection in the quality of her choices or her life experience, whether through invasions, disruptions or distortions of her deliberative process.
I agree with Moreau that burdens on deliberative freedom loom large in descriptions of the wrong of discrimination and are profitably considered on their own, rather than solely through the lenses of social subordination and basic goods. I also agree with her that even when, especially when, discrimination is a given from one’s perspective, as in her hypothesized case of salary and gender, that fact that impinges one’s deliberative freedom. One’s gender is an explanation of one’s condition that has no justifiable rationale but is persistently present; in trying to understand why one faces more difficult consumer choices than one’s male peers (why one’s reproductive health care is more expensive or why one must choose between a comfortable car or a comfortable flat), one must cite one’s gender. One’s gender intrudes upon one’s consciousness when it should be irrelevant but is made relevant only by others’ unjustifiable behaviors. These are important insights.
From this stance of substantial agreement, I want to explore some features of her argument that I do not understand, particularly about the role of ‘assumptions’ and voluntary choice. My puzzlement may signal a difference between us about how to analyze when burdens on deliberative freedoms are morally wrong.
I’m most interested in the taxi driver case and how to understand it. That case involves the difficult tension between visually-impaired passengers with guide dogs who need transportation and Muslim taxi-drivers for whom transporting dogs burdens their ability both to pray and to earn a livelihood. For Moreau, the case exemplifies her view that understanding what deliberative freedom requires will lead us to ask “whether the costs that a discriminatee is being asked to bear reflect her own personal choices, or whether they reflect other people’s assumptions about who she is and what roles she ought to occupy.” As she thinks through it, if drivers may refuse to transport such patrons, then “the lessening of visually impaired people’s deliberative freedoms [will be] due to the Muslim drivers’, and other people’s assumptions about them and their animals,” whereas if they must transport guide dogs, the costs drivers would shoulder would “not be the result of other people’s assumptions about them, but are simply the result of their own religion and its dictates” (72).
Two things here give me pause. First, what role does the appeal to ‘assumptions’ play? Its rhetorical force would seem to derive from something like ‘unreasonable’ or ‘stereotypical’ assumptions, assumptions that often may not hold, or hold in the main because of other unjust constrictions on a population, or where enforced conformity with them would itself be limiting. I agree that the direct or indirect appeal to stereotypes is a driving force behind some infringements of deliberative freedoms; that may be the right way to think of the runners’ cases. But, in this case, I don’t see what the appeal to ‘assumptions’ accomplishes. The drivers’ objection does not depend upon any explicit or implicit assumption that the visually impaired should stay home or restrict their mobility. (The drivers would not refuse rides to the visually impaired who use robotic guide-dogs.) The objection is that the presence of dogs requires action before a prayer space is sufficiently clean and pure to use. No assumption by the driver is necessary other than that the passenger has a dog and given the structure of the work, the cab needs to function as a prayer space.
Is Moreau suggesting that there’s an unreasonable assumption about dogs embedded within the religious belief? I won’t hazard an evaluation of that religious belief, but will just remark that it would be regrettable if the account of discrimination and deliberate freedom relied upon critical evaluations of the content of religious beliefs like this one. (At the same time, I do not deny that critical evaluations of some religious beliefs may be unavoidable, as when those beliefs involve embedded discriminatory attitudes toward some members of the population, such as the belief that men and women should occupy different spheres, bear different responsibilities, or have different-sex partners.) If that is how we are reasoning, are we ruling out accommodation of religious practices from the outset, unless we can show that the source of a restriction on religious practice rests on some irrational stereotype as in the case of the Canadian Mounties? Second, I’m also not sure how much weight the appeal to personal choices should bear. If the visually impaired person lost her eyesight due to hazardous decisions she made in the course of her artwork, would that make much of a difference? (Perhaps more controversially, I don’t think it makes a substantial difference to the bakery cases whether a Christian baker refuses to cater the wedding because it is a same-sex wedding or because it is a Muslim wedding, even if we characterize the religious differences as stemming from the observants’ choices.)
Here’s an example that combines both concerns: If, mid-career, the driver develops strong allergies to dogs, would that make much of a difference? That driver’s refusal to pick up the visually impaired passenger also constricts the passenger’s sphere of autonomy, but it has nothing to do with any ‘assumptions’ by the driver or with consequences of the driver’s choices.
I am inclined to analyze the case in what seems to me to be a different way. We all need access to transportation to play an active and equal role in the public sphere, to work, to maintain relationships, and to engage with other dimensions of our social and natural environment. Many disabled people depend on others for such transportation. Their equal standing in society depends upon their having such access on roughly the same terms as anyone else. It is untenable that their access to transportation should be differentially unpredictable or unreliable depending upon who is driving. Whether their disabilities are involuntary or the result of voluntary activity does not bear upon whether we should ensure that access. It is regrettable that observant Muslims must choose between employment as a driver and observation of their religious practices; it is also regrettable that those suffering from allergies should have to choose between employment as a driver and their health. I think parties on both sides of this dispute stand to suffer an important curtailment of their set of choices and both stand to have to contemplate and consider aspects of their identity that should not have such a strong bearing on their mobility or employment.
To resolve this tension, I would, like Moreau, plump in favor of the visually impaired passenger in our current environment. My reasons wouldn’t be that religion is chosen and visual impairment isn’t, but that there are other jobs so that exclusion from this work is not exclusion from employment altogether; that public accommodations must be open to all for them to perform their functions as public accommodations; and that the current architecture for providing these public accommodations does not have sufficient flexibility to accommodate drivers who cannot share space with dogs.
Further, I think it is important to resist the idea that there are insidious assumptions at work here. I think the problem isn’t a faulty assumption about dogs or visually impaired people but a contingent feature of our social organization that places these needs in conflict. A different system of public transportation (self-driving vehicles; pervasive subways and light-rail) would not impose these dilemmas.
The deliberative costs to the Muslim driver and the importance of access (especially for immigrants) to economic positions that do not require specialized labor skills give us reason to be uneasy with this resolution and to strive for it to be only temporary. Assuming the technological feasibility, we would have reason to bear the social costs of funding self-cleaning vehicles so that Muslims did not have to choose between their religious obligations and employment as drivers. Or, in the alternative, we would have reason to pay all drivers enough so that taking breaks long enough to find prayer spaces (or to lactate or to meditate) was not in conflict with earning a living wage; if that were prohibitive, we would have special reason to fund longer paid breaks for Muslim (and allergic) drivers after they have picked up fares with dogs to allow them to clean their cars or drive to a suitable prayer space. In the meantime, Muslim drivers who, when faced with the choice between working and observant religious practice, choose regular prayer should be eligible for unemployment benefits and not regarded as voluntarily unemployed.
I do not disagree with Moreau’s broad point that when considering burdens on deliberative freedom, we need to be attentive to whether social burdens are consequences of people’s values and their choices. At the same time, some consequences are artificially generated, in whole or in part, by social architectural choices that arbitrarily create conflicts between different choices and identities worth deliberating about and protecting in their own terms. These consequences bear no intrinsic connection to the value or choice in question. One’s decision to be a practicing Muslim has no intrinsic connection to an employment market where entry-level jobs are concentrated on providing public accommodations within close personal space. The conflicts these consequences reflect need not reflect any untenable assumption about people and their roles, although often their persistence without other adjustments may reflect a negligent under-valuing of the deliberative freedom of some people or of some roles.
Apart from how to characterize this particular example, I sense that the difference between us may be more one of emphasis than of a major rift. I agree with Moreau that thinking in terms of respecting a person’s autonomous choices is central to understanding and valuing deliberative freedom. I am perhaps less convinced that the issue of respecting her as capable of autonomy is always what is at issue. Though it surely is sometimes, I don’t see issues of capability as arising in the case of the visually impaired rider, the case of the athletes, the case of the Mountie, or the bakery case. In some of these cases, there may be a failure to protect a range of options or to ensure their options are not colored by considerations of identity that need not have to intrude, but that failure may be motivated by and/or express a insufficient respect for or effort to protect the exercise of a person’s autonomy, not her capability to do so. To exercise independence, one shouldn’t have to calculate extra waiting time because of the conditions of mobility given one’s disability; the extra waiting time results from insufficient responsiveness in the social environment to the needs of autonomous visually impaired people, not a lack of respect for the capability of the visually impaired to be autonomous.
Also, I am unconvinced that assumptions about how people ought to be are the main driver of untenable deliberative burdens. I would place more emphasis on acknowledging the burdens on various sorts of choices that haphazardly result from conflicts generated by social architecture and ameliorating them in order to protect purer deliberation about the values associated with the choice in question. In attempting to be independent, one shouldn’t have to deciding whether to be a practicing Muslim, one shouldn’t have to consider whether it would come at the cost of employment; in deciding whether to get married and makes decisions to arrange said wedding, one shouldn’t have to consider how others feel about one’s choice of partner and how to find market agents who approve of one’s choice of partner. These aren’t the right sorts of reasons to influence these decisions about religious practice or marriage. To the extent the social environment renders them subject to that influence, the environment generates untenable deliberative burdens.
* Professor of Philosophy and Pete Kameron Professor of Law and Social Justice, UCLA.
 Timbaland, in MIA and Timbaland, Come Around, Kala (XL Recordings, 2007).
 I defend an account of accommodation that emphasizes the importance of protecting spheres of deliberation from the intrusion of reasons that are intrinsically unrelated to the subject matter but contingently made relevant by social structure in “Egalitarianism, Choice-Sensitivity, and Accommodation,” in Reason and Value: Themes from the Work of Joseph Raz (edited by Philip Pettit et al., Oxford University Press, 2004), pp. 270-302.