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Friday, October 16, 2009

When Is "Discrimination" Discrimination?

Rick has a good post below about the faith-based initiative involving "discrimination," in the sense of religious organizations receiving government money while still only hiring adherents of their religion.  Rick suggests that we really shouldn't think of this as "discrimination," because the word has such bad connotations -- people instinctively think that whatever is discriminatory is unjust and, by extension, probably illegal.  And, of course, the rhetorical use of the label "discrimination" works both ways.  A frequent defense of Rick's position is a counterclaim of discrimination:  Because the Sierra Club can hire people committed to its cause while receiving government funds, it is simple discrimination to deny a religious group the right to religiously staff.

Maybe instead we should consider accepting we need to accept the label of "discrimination" and focus on the resulting issues: when is discrimination appropriate and when is it inappropriate?  This is a hard question.  Take the frequently made claim that discrimination against gays and lesbians is sex discrimination, pure and simple.  In a sense, that's true.  I discriminated against men when I was looking for my spouse; my gay guy friends discriminated against women in looking for theirs.  But that sort of discrimination, most people think, isn't a problem, for some reason.

So a lot of hard questions.  Some traits are relevant for certain things but maybe not for others -- you can question whether felons should be denied the right to vote while not questioning the felon-in-possession laws.  Some traits are generally irrelevant but occasionally matter -- we gave up worrying about blind people as judges, though we still exclude them from being bus drivers.  Sometimes private parties have a right of intimate association that we find normatively appropriate -- I have atheistic, Jewish and Christian friends all of whom would not marry outside of their religion and I see no problem with that.  Sometimes we find discrimination morally inappropriate but stress the limits of government -- I really would not like it if a friend of mine admitted that he would not date people of another race, but I don't know if I'd want the government to come down on him for it.  One acknowledgment: I remember Larry Alexander having a great article on these sorts of issues in the Penn Law Review some years back and probably have unwittingly stolen some of this from him.

Posted by Chris Lund on October 16, 2009 at 12:51 PM | Permalink


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I do practice L&E, in Chicago. I also clerked on the Sixth Circuit just before you did, so perhaps we met there at some point.

Posted by: Jason Bent | Oct 20, 2009 12:05:05 PM

Chris, thanks for the kind words -- I can certainly say the same about your piece on the history of the chaplaincies, which I enjoyed very much. Look forward to meeting you in person sometime. That's interesting about the list-serv debate...any sense for what the respective camps' standard of measurement for 'bad discrimination' looked like? Was it, in fact, something akin to "disparagement" (the standard used by Eisgruber and Sager for religious establishments, I believe) or "demeaning-ness" (to coin an intentionally uncouth neologism)? I'm not sure that standards like these will do much to stanch my pessimism, though I think most people would probably agree with you about the power of theory to organize our intuitions.

Posted by: Marc DeGirolami | Oct 18, 2009 2:20:53 PM

Jason -- Thanks, I'll check it out. After I wrote this, I did some Westlaw searches and found a symposium on this topic in the San Diego Law Review in 2008. All good reading... Jason, I don't know where I think I know your name from -- do you do L&E, by any chance? (I did at Dechert in Philadelphia for several years.)

Marc -- Those are really good points. (And yes, I personally discriminated along a whole lot of lines in choosing my spouse, probably utilizing some criteria I'm not even aware of.) But maybe I'm more optimistic than you. I'd like to think that there may be a structure to our intuitions about discrimination and that when we break it down, it won't be "entirely unrepresentative of the way that life is actually lived." But I agree that that often happens with theorists... =)

One interesting event that happened recently that supports your position: a debate on the law & religion listserv about whether Christians who now discriminate against gays and lesbians (imagine a Christian landlord refusing to rent to a gay couple) are equivalent to those who discriminated against African Americans in the 1960s. There was utter, utter disagreement -- really incomprehension -- between the groups on both sides of the line.

Btw, Marc, nice to finally meet you. I read your piece on the Problem of Religious Learning and learned a lot from it.

Posted by: Chris Lund | Oct 18, 2009 10:34:57 AM

Nice post. Discrimination is often much more than "appropriate" or "inappropriate." In many cases, it is to be prized:

A discriminating palate
A discriminating sense of style
A discriminating intellect
A discriminating eye
A discriminating reader

I wonder whether it is fruitful to try to develop a taxonomy of discrimination, let alone devise a series of rules for when discrimination is ok, and when it isn't. We collectively discriminate against the less intelligent and less academically accomplished all of the time, and that seems more than merely appropriate; it seems exactly the right and best thing to do. You say that you discriminated against men in the selection of your wife. True enough, but it is not implausible to think that you did much more than that. You discriminated on the basis of looks (to some extent, perhaps?); you discriminated on the basis of intelligence; you discriminated on the basis of likes and dislikes, points in common and points of difference, and so on, in countless ways that it would be pointless to try to categorize with the terms "appropriate" or "inappropriate." [Whether you yourself did this I of course don't know! By "you," I mean "we"].

It might be that Rick's post is not really about the true meaning of discrimination and its actual social value or disvalue (about which it is not worthwhile, in my view, to attempt to develop an overarching theory, though I'm sure that won't stop theorists from trying to boil down the social practice until it is thoroughly comprehensible and entirely unrepresentative of the way that life is actually lived), but about the ways in which discrimination is now used as a kind of pejorative signaling device for "kinds of activity we disapprove of."

Posted by: Marc DeGirolami | Oct 16, 2009 1:31:14 PM

Deborah Hellman recently published an interesting book on this question, "When Is Discrimination Wrong?" Her thesis (I am oversimplifying) is that discrimination is wrong, and should be unlawful, only when it is "demeaning." There are some difficult issues tied up in determining whether or not certain discrimination is demeaning, though, and she does attempt to address some of them.

Posted by: Jason Bent | Oct 16, 2009 1:22:02 PM

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