GUEST POST: When Discrimination Is Good

by Sean Sirrine

Well hello out there! My name is Sean Sirrine and I will be your guest poster for this Wednesday. I regularly, (since March), post over at Objective Justice, and I find myself strangely compelled to post over at De Novo. Today we are going to be discussing the word discriminate.

It seems to come up over and over again in the blogosphere, “this group is discriminating against that group”, and it really seems to get lawyers going. Why is that? Just like people driving down the freeway that just can’t help but slow down and look at an accident, lawyers can’t help but slow to watch the collision of powerful social forces in our lives. By definition, discrimination is the basis of law.

What is discrimination anyway? The dictionary at LaborLawTalk gives a great definition:

"To discriminate is to make a distinction."

Damn, that is the law isn’t it? Is all discrimination illegal or unwanted? No. Even in western, secular countries, governments practice discrimination. For example, governments may provide better treatment to citizens than to non-citizens. Do we have to discriminate? Do we want to discriminate? Let’s look at a few recent events that have cropped up. Maybe there is a pattern:

Jeremy Richey reported that the University of Toledo will be allowing religious student organizations to discriminate against gays. The school was attempting to discriminate against Christians, who are in turn attempting to discriminate against gays. So, if this case hadn’t been settled, we’d be getting an opinion on what portion of society can discriminate against the other. “I don’t believe in discrimination” just isn’t an option. You have to choose between one discrimination and another. Which is it?

What about this story from the U.S. Newswire in which an Islamic advocacy group claims it is discrimination not to allow oaths on the Quaran in court. It is obviously discrimination, but should the courts be able to discriminate? If they don’t have to allow the Quaran, then the state can discriminate against the Islamic; if they do have to allow it, then more questions crop up. What if some guy wants to do a Satanic ceremony for his oath, goats and all? Do the courts have to allow that? You see the pattern, eventually someone is going to be discriminated against.

Recently in the Knox County school district in Knoxville Tennessee, a principle has prohibited grade school students from reading and discussing the Bible during recess. Most of us would argue that this is a stupid thing to do, but what if it was a ban on reading and discussing porn? We’d think that was acceptable discrimination right?

How about the Federal Air Marshals? Should we allow the government to discriminate against them in not allowing them to associate with groups as freely as other citizens? Security might call for it, but it is discrimination, right? If we don’t allow discrimination for them for security reasons, then why should we allow it in the military? You see, there is no end; someone must always be discriminated against.

Finally, we have the ultimate example of discrimination that has the approval of the U.S. Supreme Court. In Cutter v. Wilkinson, freedom of religion is given a position vastly stronger than other Constitutional Rights. This discrimination may be good, hell it may be needed, but it still is discrimination. We must allow certain privileges to religious persons that we would never think of giving to other groups. If you think I’m misinterpreting the case, take a look at this article by Charles C. Haynes of the First Amendment Center.

So religion has reached that elevated ground which makes it more important than other Constitutional Rights. The courts have decided that religious groups should be able to allow discrimination, and that the government should discriminate to give more rights to religious practitioners than to other members of our culture. Well, that doesn’t sound all that cool, but as long as we give this religious protection to all our citizens, things might be okay. Unfortunately, when we say religious freedom, we’re “making the distinction” that this applies only to mainstream religions.

I recently posted on two separate stories in which Wiccans were discriminated against because they aren’t “mainstream.” In one, a judge ordered that some parents couldn’t teach their child Wiccan beliefs because they weren’t mainstream. In the other, a Wiccan wasn’t allowed to give an opening prayer for a legislative body as multiple Judeo-Christian religions were allowed. According to the 4th Circuit, this “multi-religious forum showed that more than one religious view was represented, proving the legislature wasn’t discriminating."

Why did I take the time to write this extremely long post? I just want those of you that are in the legal field to recognize that your job is to discriminate. You are always attempting to make a distinction that proves your point, and by definition you are discriminating every time you do that. Feel it, accept it, and make it your best friend.

We need to become more comfortable with ourselves and acknowledge that discrimination is necessary. Only by talking openly about these phenomena can we prevent ourselves from being overtaken by discrimination that will destroy our culture. Some discrimination is good, some is bad, and if we keep pretending that only the “other side” is discriminating, we will soon lose the distinction.

Without some way of determining whether a particular form of discrimination is bad, all distinctions will lose their value. Any argument you make can be countered by simply showing you discriminated. Was it good or bad? Nobody will know, because nobody will be willing to admit that discrimination can be good.

Learn to master discrimination and you will become an unstoppable force in the legal world. Make it your enemy, and you will never truly understand the law.

About the Author: Sean Sirrine, who posts at Objective Justice and De Novo, describes himself as a "libertarian that is heading off to law school."

Comments

[Sean Sirrine]

I just wanted to say a little thank you to Evan Schaeffer for letting me guest post today. That is super cool of him, and something I hope I can "repay" him for someday. (Maybe I'll have to make my own mugs.)

Also, I wanted to thank you, his readers for putting up with my rant for the day. There is nothing better than reaching new readers, even if it is only for a day. I hope you liked the post, but if you didn't, you're more than welcome to e-mail me and tell me why I'm wrong. Those are my favorite e-mails to read.

[mythago]

Lawyers are actually the last people to get all het up about 'discrimination,' because we know that some kinds of discrimination are legal, and whether it is or isn't depends on the cirumstances.

Sean, you're throwing a whole lot of stuff into the blender here--Establishment Clause, anti-discrimination policies at universities, obscenity law--which in this case isn't much of a mash-up.

I think your point about 'learning to master discrimination' is going to seem pretty risible to actual lawyers.

[TP]

what mythago said. I mean no offense, Sean, but any lawyer who doesn't actually know that the notion of 'discrimination' in and of itself is sometimes entirely pedestrian and innocuous hasn't been paying very much attention.

I also echo mythago's point that, as a matter of both doctrine and practice, it's somewhat perilous to conflate the notion of discrimination under EC jurisprudence, with that used in Free Speech jurisprudence, with that used in the employment context.

[Preddy]

Wow. That has to be the most banal post I've ever read.

[Mike]

Sean, I liked your post, but you're mistaken on this point: "In Cutter v. Wilkinson, freedom of religion is given a position vastly stronger than other Constitutional Rights."

One can sue for the violation of any constitutional right under 42 U.S.C. Sec. 1983. But post-Employment Division v. Smith, the Free Exercise clause didn't provide any meaningful constitutional protection (and thus, by definition, no cause of action was available). The Free Exercise Clause was a constitutional right in words only.

RLUIPA rememdies that by allowing a religious person whose rights have been violated (but whose injustice might not amount to a a FEC violation) to sue. Thus, rather than being given a "position vastly stronger than other [c]onstitutional [r]ights," RLUIPA puts the exercise of religious freedom on equal footing with other (textual) fundamental rights.

It's a shame Congress even had to enact RLUIPA. But given the short-shift religious freedom was given by the Court, Congress had to do something. What Congress did was place religious exercise on an even, not elevated, place in the constitutional landscape.

[Sean Sirrine]

Wow, it sure is nice to see that folks around here aren't commenting anonymously.

Mythago and TP,

Thanks for your comments, but I think you're wrong about lawyers getting worked up about discrimination. Just take a look at what interests of the likes of Eugene Volokh, Eric Mueller, Ann Althouse, Stephen Bainbridge, Mark Kleiman, etc. Yeah, not all lawyers get into it, but those that like to concentrate on Constitutional Law do.

I may not have written as eloquently as you would have, but I think my point got across even to you. Yeah, there are many different types of discrimination law that many people would say have no relation to each other. They definitely do have something in common however; discrimination is the cornerstone of American law.

Preddy,

Sorry I'm banal, I'll make sure to send you the law review article I plan on writing on this subject. Hopefully it will be more to your liking.

Mike,

Thanks! I'm glad somebody liked it. Although I understand the argument you are making I have to respectfully disagree. The decision in Cutter v. Wilkinson gives religious groups the "right" to discriminate against other protected groups..

If I form a religion that doesn't allow blacks, or doesn't allow women I can use government facilities, get government money, and be sponsored by government agents. If my organization weren’t religious this wouldn't be so. So, as I see it, religious groups can trump the rights of those that would normally be protected.

If you could show me how my religious group would be unable to discriminate against blacks I'd love to see it. In fact it would make my month.

[TP]

Sean,

When and if lawyers, especially academics like Volokh, Muller, and Bainbridge, do "get worked up" about discrimination, I tend to think it is exceedingly unlikely that they do so because they do not understand that some kinds of discrimination are trivial and innocuous.

There are all sorts of interesting aspects about the notion of discrimination in all sorts of different areas of law (in which discrimination refers to entirely different concepts). My point was that I think you hit on a relatively obvious and self-evident aspect about discrimination, or at least one obvious and self-evident to many attorneys.

JMO.

[mythago]

Yeah, not all lawyers get into it, but those that like to concentrate on Constitutional Law do.

Well, yes. That's kind of the point. Lawyers who are legal commentators, and who discuss Constitutional law, get "worked up" about discrimination. That's way different than your overbroad statements that lawyers (i.e., all lawyers) are drawn to discussions of discrimination in ways nobody else is.

And flat assertions are not evidence. "Discrimination is the cornerstone of American law"--not as you mean it, where "discrimination" simply means telling things apart in one paragraph, and then turns to disparate treatment and categorization in the next.

If I form a religion that doesn't allow blacks, or doesn't allow women I can use government facilities, get government money, and be sponsored by government agents.

This isn't true. Have you read Employment Division v. Smith?

[Sean Sirrine]

Again, thanks for your civility in the comments.

TP,

I agree that experts like Volokh aren't confused about these issues. However, all you have to do as look at the back and forth between Volokh and Mueller on religious text books in gradeschools to realize that even some of the experts don't know exactly when discrimination is "trivial and innocuous".

It is the defining of this grey area that I believe ConLaw experts enjoy.

Mythago,

Aren't all lawyers Constitutional lawyers? Don't all lawyers get drawn into debate, (maybe in a legal brief), as to what type of discrimination is lawful? You're probably right that many lawyers don't get "worked up" about discrimination, but I think that it is clear that some of the best lawyers in our country do.

As to my "flat assertion", maybe you could show me some legal question that doesn't revolve around a distinction. That is the definition of discrimination, "disparate treatment and categorization" are merely different forms of creating a distinction.

I have indeed read Employment Division v. Smith. My point was that Cutter, in upholding (RLUIPA), gives a special distinction to religious entities that wasn't there before. Bacause of this holding, I believe, it is possible for religious organizations to discriminate against other protected groups.

I'm sure you've read Corp. of Presiding Bishop v. Amos which exempted "religious organizations from the prohibition on religious discrimination in employment." I believe that Cutter expanded this case.

[Eh Nonymous]

I just wanted to say that

a) I liked the post, whether it was perfect or not. Warts are not a disqualifier for guest-posting, as I know too well.

b) I comment anonymously because I like it that way, but I put up a blawg, open to comments, and leave an email address. Also, you may use the name "Bob" if you wish to curse my name. Not mine, but not the point.

c) I read Emp. Div. v. Smith too, and also Cutter, and I don't think that the Supreme Court is especially careful lately to think about holding religious organizations accountable for bad behavior. The trend is, instead, to let Congress let private (religious) organizations get away with anything short of murder.

d) I agree that lawyers spend a lot of time on distinctions, distinguishing, discriminating, deciding, dividing, and slicing/dicing. That I think some conservatives are on the wrong side of right (moral right, legal right, historical right, whatever) on the affirmative action issue, or on the gender/sex/sexuality issues, doesn't mean that it's not important to discuss which lines we want to draw, and where.

Thanks to everybody who makes the comments as exciting as the posts- very, that is.

[mythago]

Warts are not a disqualifier for guest-posting

Of course. But if you guest-post, you can't be surprised if people (we hope, politely) note the warts.

I don't think SCOTUS is especially careful about anything, but they've favored a more, not less, restrictive approach to religion--in contrast with the executive branch.

[Sean Sirrine]

Mythago,

"I don't think SCOTUS is especially careful about anything, but they've favored a more, not less, restrictive approach to religion--in contrast with the executive branch."

Well, that is something we can both agree on!