Letter From Austria: Is Europe’s ‘Tolerant Society’ Backfiring?

Not long ago, riding the subway with my 8-year-old son to his school here, I noticed a headline in a newspaper left on a nearby seat: “Schoolteacher sues Muslim father for refusing to shake hands with her.” Compared with the alarming rise of the far-right Freedom Party here in Austria in recent months, this was minor news, but resonant. It seemed to point in some way to the clash-of-civilizations narrative feeding the xenophobic brand of politics ascendant on both sides of the Atlantic.

It’s been barely nine months since the horrifying images of a truckload of asphyxiated refugees found baking in the summer heat on the side of a highway southeast of Vienna prompted German and Austrian leaders to open their borders and issue high-minded assertions that their countries could absorb far more refugees than they had been. Since then Chancellor Angela Merkel’s popularity has plummeted. Here in Austria, the chancellor, Werner Faymann, stepped down this month after the far-right Freedom Party’s victory in the first round of presidential voting. No one here has any doubt that the party’s candidate, Norbert Hofer, rode a powerful wave of anti-immigrant sentiment to his surprising first-place finish. He lost to the runoff election against the Green Party candidate Alexander Van der Bellen today by the narrowest of margins.

Amid these powerful political currents, though, the story of the schoolteacher did capture my attention, mainly because it raises difficult questions about the legal and philosophical foundations of the liberal democratic project that Europe seeks to embody, as well as its American alternative.

In the United States, the schoolteacher would have no legal grounds to sue. As offensive as it may be to have a man refuse to shake hands with her based on her gender, the First Amendment does not permit mere offensiveness of behavior to override the freedoms of belief and the expression it guarantees. In many European countries, in contrast, the schoolteacher would at least have a case, because their constitutions provide for a far more thorough enumeration of rights. In the Austrian schoolteacher’s case, a Muslim man’s right to follow the teachings of his religion does not automatically trump her right to be treated with the same respect a man could expect.

At its core, the liberalism embodied in both the United States Constitution and its European counterparts expresses the conviction that restrictions on liberty must be justified. Among the liberties protected by both societies is the freedom to practice one’s religious beliefs or express one’s political opinion. The question in both societies then becomes where to set the bar justifying any curtailing of those practices and expressions.

In the United States that bar is set rather high. The First Amendment is a vital bulwark against the majority imposing its values or beliefs on minorities or individuals, and is at least part of the reason Americans have tended to tolerate even extreme expressions of intolerance. In Europe, where Germany’s constitution was written after the horrors of World War II and Austria’s was reinstated in 1945 with many amendments to follow, a justified fear of intolerance in its most extreme form led to the creation of civil societies that more expressly enforce the boundaries of acceptable expression. This is why you can go to jail for denying the Holocaust in Germany and Austria, but are free to peddle the ugliest Nazi ideas in the States.

But this more stringent control of the content of political expression in Europe may lead to unintended consequences. European legal systems are empowered to select for permitted expression on the basis of how liberal or illiberal it is. This leads to the paradox of an institutional intolerance toward beliefs and practices that are seen as intolerant, a conundrum summed up by Stanley Fish when he argued that true multiculturalism is impossible because the mandate to tolerate others’ cultures will always founder on those cultures’ own intolerance.

But while according to Fish’s view the principle of absolute tolerance is unachievable, there is a spectrum of possible degrees of tolerance that a liberal society may permit for illiberal beliefs and practices. Most in the United States would agree that religious communities should be prohibited from practicing female genital mutilation or polygamy, both of which are in fact illegal. But American law protects students who wear the hijab, whereas French law prohibits in all primary schools “symbols or clothes through which students conspicuously display their religious affiliation.” In the French case, tolerance is extended to those uncomfortable with religious expression, but not toward the Muslim woman’s religious expression itself.

What if Europeans, because of their well-intended concern for maintaining the principle of tolerance, are becoming entangled in a paradox similar to the one Fish identified? What if, in other words, a too-strident insistence on tolerance can produce a less tolerant society? A balance needs to be struck, but European attempts to restrict what Europeans see as expressions of religious illiberalism — from bans on veils in French schools to permitting a schoolteacher to sue a Muslim man for failure to show her a respect equal to men — may push the weight on the scale of justice beyond the tipping point.

Just as no one can say “I am lying” while referring to him or herself in the moment of speaking without falling into a paradox, the mandate to tolerate others’ beliefs implicitly excludes the very place from which it is uttered. In essence, what liberal societies are saying is, “Tolerate others’ beliefs — except when doing so contradicts this very principle.”

In order for a liberal society to ensure that its members continue to enjoy the liberties it guarantees, this excluded place needs to be held open, to be kept formal and empty. This is precisely what the First Amendment to the United States Constitution does when it prohibits Congress from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Notice that the amendment says nothing about what kind of laws Congress should make; rather it focuses on limiting the content of its legislation. The German Constitution, in contrast, which runs to over 140 articles each with multiple clauses, is essentially an exhaustive enumeration of positive rights (Austria’s is even longer).

In some cases, instead of keeping that place empty and formal, and hence subject to contestation, a society may determine its content by defining what groups, behaviors or beliefs are acceptable occupants of it. This is what is happening to Europeans as they face the challenge of assimilating a new wave of immigrants from the Middle East, many of whom are Muslim.

By keeping the excluded place of enunciation and the content of the law on the same plane, what we in fact do is surreptitiously fill that space with that content. As President Obama put it in his Cairo address of 2009, “We cannot disguise hostility towards any religion behind the pretense of liberalism.” To put it another way, we must avoid filling the open space guaranteeing tolerance with a specific image of what tolerance looks like, an image that, unsurprisingly, may have a specific national character. This is why Germans of Turkish descent or French citizens of North African descent, born in those countries and speaking no other languages than German or French, can still struggle to consider themselves German or French. In contrast, even recent immigrants to the United States commonly embrace an American identity along with that of their own ethnic and national origins.

The case of the schoolteacher embodies this subtle importation of content into the formal space of toleration. Permitting the schoolteacher to sue the father for refusing to shake hands with her reaches beyond the requirement that the Muslim father obey the law to insist that he embrace a set of values and identities even if they clash with his own. It demands in essence that he cease to be who he is and that he become instead like the other fathers in the class, who do not have religious objections to shaking hands with a female teacher.

It is a sign of a license to demonize others under the veil of a society’s commitment to tolerance, and is a harbinger, perhaps, of an electorate’s willingness to welcome into the political mainstream a candidate whose platform is built on his willful denial of their society’s dark past.

William Egginton is a professor of humanities at the Johns Hopkins University. His most recent book is The Man Who Invented Fiction: How Cervantes Ushered In the Modern World.

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