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.