Martha Minow, Is Pluralism an Ideal or a Compromise?: An Essay for Carol Weisbrod, 40 Conn. L. Rev. 1287 (2008).
Abstract: How much room should a secular democracy ensure for religious and ethnic subgroups - and when it does so, is this a matter of normative principle or instead a compromise of principles? A prime context for this question arises with conflicts between women's equality advanced by national constitutions and international human rights, on the one hand, and state deference to traditional cultural and religious norms, on the other. Informed by Carol Weisbrod's scholarship, this essay argues that accommodations for minority groups by liberal democracies do not require a compromise when convergence between values can be achieved. When convergence cannot be achieved, compromise is not always wrong and can on occasion be justified to pursue social stability and to express competing principles embraced within the liberal democracy, but compromise cannot be justified if it involves capitulation to threats. Neither compromise nor convergence can resolve deep differences over whether the group or the individual should be the focus for legal protection or whether rights, duties, or compassion should be the organizing basis for law. Governance devices, including decentralization in the form of federalism and private ordering through corporations, fraternal groups, contracts, and families, help liberal societies manage potential conflicts between minority group practices and mainstream individual rights, and also support the kind of pluralism that can enrich the entire society. An edited and updated version of this article is reprinted as a chapter in: Gender, Religion, & Family Law: Theorizing Conflicts between Women’s Rights and Religious Laws (Lisa Fishbayne Joffe & Sylvia Neil eds., Brandeis University Press 2013).