Elusive Discrimination

In what President Obama called its “thunderbolt” decision on same-sex marriage, the Supreme Court’s Obergefell v. Hodges judgement has put the matter of discrimination at the very top of America’s social agenda.

If there is one certainty in our country, it is that everyone opposes discrimination. But it is difficult to get a precise handle on what constitutes discrimination. While there is a vast literature on the subject, there is surprisingly little scholarly appetite for defining illegal discrimination. A conscientious search suggests there may be a single recent major book devoted to a serious review of the matter from several perspectives—and that published in Britain at an outrageously expensive price. It is Philosophical Foundations of Discrimination Law (2013), edited by Deborah Hellman and Sophia Moreau, and even here the commentators mostly just assume the ideal of anti-discrimination as a principle as they reach for various theories to justify it. Indeed, the very variety of theories confounds rather than clarifies.

For more fundamental dissent, one must go to the libertarian Cato Institute. Libertarians argue that every free act requires “discriminating” against one product, service, provider, friend, spouse, in favor of another. In the face of this reality, the former Federal Trade Commission Chairman Daniel Oliver questions the practicality and propriety of the whole non-discrimination approach. Oliver asks, for example, “Why shouldn’t people be allowed to discriminate on the basis of what is known as sexual orientation?” He goes on:

In a country where the right to associate is guaranteed, and the right not to associate is protected, why should people be required to associate with people they don’t want to associate with? They shouldn’t be (unless their refusal puts someone in danger of bodily harm—they run the only inn for fifty miles and a tornado is coming).

Actually, common law always recognized that, by operating a public accommodation, the owner gives a license for all to enter. But, except in the case of potential endangerment, the owner could reject access for any “good reason” since it was his property and others were there at his forbearance. To be discriminating was to make judicious choices.

The idea of generally limiting discrimination—that is, free choice—only arose relatively recently out of the felt need to reverse two centuries of horrific state-enforced slavery and legal segregation of African Americans. Even so, anti-discrimination and later affirmation action laws were originally viewed as relatively rare exceptions to freedom and even limited in time, as Supreme Court Justice Sandra Day O’Connor argued.

University of Virginia Law professor George Rutherglen’s contribution to Philosophical Foundations is to identify the U.S. Civil Rights Act of 1964 as the archetype of anti-discrimination statutes worldwide but to recognize immediately that the actual term “discrimination” rarely occurs in that law or other, related laws. Even when it appears, the catchall “otherwise to discriminate” phrase predominates, which assumes everyone knows what it means so definition is unnecessary. He comes to the surprising conclusion that no one understands “discrimination” because everyone does. And as one reviews the other contributions in the book, it is difficult to disagree with him. The other authors assume the term and go straight to elaborating their theories.

Rutherglen finds that the whole understanding of discrimination is derived from the experience of African Americans under slavery and segregation and that this understanding extended originally, by analogy, also to color, religion, sex and national origin. Since analogy is never precise, it can be applied reasonably or not depending on whose ox is being gored. While editor Deborah Hellman identifies “equality of respect” and editor Sophia Moreau “derivative freedom” as the higher principles justifying laws against discrimination, neither higher value can set the bounds to apply it universally.

On close examination, Rutherglen finds the term discrimination occupies an “uneasy middle ground between equality, liberty and other ultimate aims,” a “bridge between concrete rules and abstract ideas.” Discrimination finally “dissolves” into a “myriad of rules and exceptions” rather than being derived from any higher norm.

His greatest insight is that what is most prominent about anti-discrimination law is the many exceptions to it—for the size of a business otherwise covered by national law, for “business necessity,” for religious practices and institutions, for public order, protecting women, criminal  offense, health protection, other rights and freedoms, state programs, the armed forces, for the disabled, for age, or whether a decision being scrutinized under such a law would have been made regardless of a discriminatory act. Different legal conclusions can be reached under doctrines of implicit bias, affirmative action, positive discrimination, disparate impact, whether discrimination can be used to overcome past discrimination or, as George Washington University contributor Michael Selmi writes, whether one considers “corrective justice” or “distributive justice.” Rutherglen concludes that the term “discrimination” serves as a template for “intricate compromises” as a “catch-all” defined by its specifics.

Consider this European Union example of an acceptable exclusion from discrimination:

A charity works with gay men and women that have suffered bullying at work and in education, or violence relating to their sexual orientation. They want to only employ gay counsellors as the NGO believes they would be better able to relate to the gay victims and provide advice. This would probably be a genuine occupational requirement and not be unlawful discrimination.

Should this exemption be extended to other organizations? To religious ones? Why? Why is racial discrimination illegal, sexual-orientation discrimination shamed but discrimination against less attractive people neither—while the latter is more common and as discriminatory?

Rutherglen himself concludes that such laws can be made more coherent but to do so it would be necessary “to see anti-discrimination law clearly in all its detail, with all its uncertainties and tensions.” One should hope that a common law process would eventually sort out some reasonable resolution.

In the highly contentious area of sexual orientation discrimination and religious exceptions, lawyer Ed Whelan would set the legal norm against discrimination in public accommodations but would more narrowly define what types of behavior deserve religious exemption, although he also suggested keeping the federal Religious Freedom Restoration Act as a background default rule. New York University law professor Richard A. Epstein likewise suggested a law that would protect “routine provisions of services” from discrimination and leave protection “only for commercial activities that require personal participation in religious ceremonies or other activities against religious conscience.”

These seem reasonable but are also, in the end, further exceptions in a sea of exceptions.

One is drawn to the now-famous colloquy between Justice Alito and Solicitor General Donald Verrilli during the Obergefell oral argument (on which Law and Liberty writers Michael Greve and Richard Reinsch have commented). It is certainly possible that if the logic of Bob Jones University v. United States (1983) is followed in the light of the Obergefell decision, it will soon be possible to deny an institution the right to a tax deduction or government grant if it discriminates in favor of the traditional definition of marriage. It could even mean orthodox chaplains or religious organizations or even students who use any state resources and exclude gays for religious reasons could be excluded. Could those who discriminate religiously against same-sex marriage even be public officials as marriage license officers have been ordered to perform gay weddings or be dismissed? In his Obergefell dissent, Chief Justice John Roberts interprets the majority decision to allow one to “advocate” and “teach” religion but not necessarily to “exercise” it. What would anti-discrimination theory lead one to expect?

A Supreme Court decision written by Antonin Scalia in Employment Division v. Smith in 1990 and reaffirmed in 1993 had held that the First Amendment does not provide a religious exemption to a law that otherwise treats all equally and is neutral religiously. In reaction, Congress adopted the federal RFRA requiring the government to pass a two-part test in order to convict a person who claimed the right to discriminate on the basis of religious motivation. A judge could grant a religious exemption to a discriminatory act if he found that the state could not demonstrate a compelling public purpose for the restriction or had not used the least burdensome means of implementing it. Yet, Jones reasoning might well trump RFRA since prohibiting discrimination presumably would still be a compelling purpose and such an “overriding interest” could outweigh “whatever burden” it put on religious practice.

What is the standard? In her concluding essay in Moral Argument, Religion and Same-Sex Marriage (2009), Georgetown Law professor and EEOC commissioner Chai Feldblum is clear that conflicts between these rights and religious beliefs are inevitable but that the “government should not alleviate such burdens in such a way that it would undermine the effectiveness of equality legislation for LGBT persons.” She would allow narrow exceptions for religious institutions themselves and for those in leadership positions in religiously-affiliated institutions open to the public such as hospitals, but only to institutions “clearly and explicitly” defined by religious beliefs. But generally, once a person enters “a stream of commerce” a religious person “must be expected to adhere to a norm of nondiscrimination” regarding sexual and gender identity.

What criteria would decide? In Hollingsworth v. Perry (2013), the de facto overturning of California’s Proposition 8 referendum limiting marriage to between one man and one woman, Justice Elena Kagan had argued that not allowing same-sex couples to marry “stigmatized” them and thus invalidated marriage exclusion even if homosexuals were treated equally under all other laws. Justice Anthony Kennedy in Obergefell repeated the “stigmatizes” charge as fundamental in evaluating due process. But as John Safranek wrote, forcing states to treat such marriages equally fails to

realize that opposite-sex couples opposed to same-sex marriage would suffer the legal and political insult of having their marriages equated with ones they viewed as discrepant and inferior to theirs. There is no neutral marriage statute. Every marriage law will violate some citizens’ equality, and in fact most legislation does. Any political minority can suffer stigma.

In his dissenting opinion in Obergefell, Justice Clarence Thomas argued that dignity is inherent in human nature and “government cannot bestow dignity or take it away.”

Even the basic categories are vague. What qualifies as belonging to a category deserving of anti-discrimination protection? Asked by The Washington Post about Rachael Dolezal—the daughter of two white Christian missionaries who claimed to be Black in order to assume several race-related professional offices including head of the Spokane Washington NAACP—Jelani Cobb, an Africana Studies scholar at the University of Connecticut, responded:

Dolezal has been dressed precisely as we all are, in a fictive garb of race, whose determinations are as arbitrary as they are damaging. If blackness is a matter of African ancestry, then we should set about the task of excising a great deal of the cannon of black history up to and including the current President.

So, is race fictive? How about sex—in regard to, for example, the transgendered? Would it be discriminatory to reject a woman who used to be a man from playing on a women’s sports team? Senator and former professor Elizabeth Warren (D-MA) repeats her unsubstantiated claim to Native American status in her book A Fighting Chance (2014). Can one get antidiscrimination protection merely by saying one is in a protected category? If the categories themselves become indeterminate, defining animus against someone claiming membership in the categories can only get more unclear than it already is.

One cannot ignore that the whole antidiscrimination edifice is subjective. There are actually more discrimination complaints filed today at the Equal Employment Opportunity Commission than in the earliest desegregation years: 88,788 last year in fact, and 141 cases actually filed in court. The Civil Rights Division of the Department of Justice bragged in 2013 that it had filed more cases than any other year in its history. Is it possible that actual discrimination even before adding gays to the mix is worse than it was before the civil rights laws were initiated?

Does the fact there are no real standards mean the whole edifice, except perhaps in favor of the source of the analogy—that is, race—should be repealed? It would be impossible politically. Permitting even the small proprietors allowed to discriminate under federal law a broad “good reason” right of denial of services in public accommodations would be a radical move. Some owners would discriminate for what they would consider good personal reasons but others would see as objectionable. There would be inconveniences and even some pernicious discrimination—although discriminators would bear the costs of fewer customers or less capable employees. Few major firms, moreover, would want to incur those costs, as economist Gary Becker’s The Economics of Discrimination (1957) has demonstrated.

The more likely future is that courts will keep adding exceptions as they or others add new categories protected from discrimination. But as this increasingly complex balancing of group rights and exceptions metastasizes, equal treatment recedes further from accomplishment, while the aggrieved keep making more demands pushing society ever further from that constantly-receding ideal.

Donald Devine

Donald Devine, senior scholar at the Fund for American Studies, and the author of America’s Way Back: Reconciling Freedom, Tradition and Constitution, was director of the U.S. Office of Personnel Management during Ronald Reagan's first term.

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  1. gabe says

    Nice, thoughtful essay!

    “Libertarians argue that every free act requires “discriminating” against one product, service, provider, friend, spouse, in favor of another”

    1) One can go further and argue, as did Huxley in the “Doors of Perception” that Man is the *discriminating* animal; that his very consciousness and reason are the result of a capability to *discriminate* between background, “white noise” (impinging sense data) unrelated to the purpose at hand and those data or sense elements necessary for reasoned action.

    2) Yes, each and every *free act* of commerce involves discrimination. Yet, one must ask, “For how long will this be permitted to continue?” Given that we have previously been compelled to purchase a specific product (Obamacare – now known as SCOTUScare), how long before, in the interests of overcoming past discrimination against certain protected classes, the Legislature (backed by some additional judicial prestidigitation) determines that we must buy / support products / services offered by those same protected classes. Think not? – Well, just look at all of the minority business quota impositions for all those who seek to do business with a local government.

    Just asking, folks!

    The author of this essay covers a wide range of potential issues, yet provides no “solutions. This is not intended as a critique of Mr. Devine – only as a preface for a question: Given that there are no easy answers, to whom should we turn for the determinations – the Legislature or the Black Robes?

    • R Richard Schweitzer says

      Perhaps one path to an answer might be found by examining whether or not there is a particular obligation and determining its nature on the part of the discriminating participant in a relationship.

      Historically (for at least the past 500 years) under “our” legal system judges determined the nature of obligations by examining relationships (and the intents of the participants in relationships).

      In more recent times, legislators have become involved in delineating relationships in order to establish Rules of Policy for a *conceived* social order that may or may not be congruent with an *existing* social order.

      That would take us to the nature of the relationship, which is different between individuals in varying circumstances from that of the states and their mechanisms as instruments of discrimination (or of the prevention of discrimination in certain relationships of individuals).

      Currently, both legislators and judges appear eager to supply corrective forces in human relationships. Those applied by legislators, when found disruptive, are subject to corrections by Democratic process. It remains to be seen how those applied by judges, which may be equally disruptive, are to be corrected.

  2. R Richard Schweitzer says

    Perhaps the “problem” is *not* – discrimination.

    After all, the capacity for discrimination is a valuable characteristic in humans and can be invaluable to animals in general.

    Perhaps there are really several distinctly different problems *involving* discrimination.

    There are problems associated with the *means* of its expression or exercise; such as the use of governmental force and legislation (or even regulations).

    There are the problems associated with the objectives (economic, political and social, etc. – mostly motivational) of its expression; and matters of intent.

    There are problems with the intensities of expressions and exercises of discrimination.

    Perhaps the problem is *not* that people who discriminate are no darned good. Perhaps the problem is that not everybody is darned good enough for everybody else.

  3. gabe says

    “Perhaps the problem is *not* that people who discriminate are no darned good. Perhaps the problem is that not everybody is darned good enough for everybody else.”

    And no Legislature or Judge is ever going to “fix” that – especially, given that it is our nature to make reasoned (or some approximation thereof) judgments.

    Awwhh!, what the heck, if Spock could do a “Vulcan mind-meld” maybe the National Science Foundation can begin working on a procedure to “mind-meld” all of us recalcitrant dodos into accepting the latest fashions.

    ” It remains to be seen how those applied by judges, which may be equally disruptive, are to be corrected.”

    I have come to the conclusion that the determinations of judges are far more destructive of the constitutional order than those of legislators – partly due to the UNDUE deference accorded the Judiciary based primarily upon a) past Judicial conduct / performance (tradition / 100+ yrs ago) and b) the need for the populace to overcome (or contend with) the weariness (and from Tocqueville, the “unquietude”) consequent to continued social disruption.

    Sadly, the Black Robes currently present themselves as Jesuitical hacks! One wonders: How many *STATE* Exchanges may pass through the eye of the Administrative State’s needle?

  4. gabe says

    “One cannot ignore that the whole antidiscrimination edifice is subjective. There are actually more discrimination complaints filed today at the Equal Employment Opportunity Commission than in the earliest desegregation years: 88,788 last year in fact, and 141 cases actually filed in court. The Civil Rights Division of the Department of Justice bragged in 2013 that it had filed more cases than any other year in its history. Is it possible that actual discrimination even before adding gays to the mix is worse than it was before the civil rights laws were initiated?”

    Yes, it is not only possible – it IS inevitable. And let me here publicly thank R. Richard for bringing to the forefront of (at least my) thinking the role of motivations in public policy prescription / proscription generation. It is something that we all know and have experienced whether one works in an academic setting, a law firm or a high technology manufacturing firm: It is simply this: people will do what they need to (or at least as they perceive such need) to gain advancement / advantage.
    Many years ago, when interviewing prospective candidates, I would often hear a candidate proclaim just how much he had expanded an operation (“I added such and such, increased budgets, etc). My internal response was always “You ain’t working here, buddy” We did not want someone to “grow” their personal fiefdoms – rather we wanted someone to grow the business / quality / efficiency, etc.
    Why would anyone not think that the FAS, Admin State employees are not similarly motivated. One can picture their resumes, “I added seven more protected classes and grew the OCR division by 58% – or some such thing”

    It is inevitable that ALL FAS agencies will grow so long as individual motivations are at play. After all, who wants to be stuck in a 6×6 cubicle, when a more luxurious 8×8 is available to the industrious? as well as moving up a pay grade or two.

    The same is true of politicos – similar motivations and similar resumes.

  5. John Doe says

    What one has to remember is that there is no “direct” constitutional right to freedom of association, but rather it falls under the shroud of undefined liberty described by the constitution in its preamble and otherwise. a store is not a religious organization under the law and therefore the owner cannot make it one, for the sole intent and purpose of evading a law- therefore, the court is not incorrect in stating that any claim to “religious association” does not fall within that parameter. On the other hand, if that store were a religiously-based 501(c)(3)- the argument takes a different tact altogether. Further, the courts have also stated that a religious-exception must also be reasonably based on a sincere interpretation of a generally-accepted religious text. If this were not the case, one could theoretically abuse the religious exception tactic to evade all sorts of criminal and civil laws, where the government may not be able to articulate the compelling reasoning, but where it clearly exists- i.e. the age restrictions placed on marriage by several of the states. We must also keep in mind that Oberfell V. Hodges did NOT state that the “people” had to recognize same sex marriage, but rather the decision was directed at the government for purposes of interpreting the common-law rights to marriage, and the only other way the court had out would have been to define a civil union as a marriage- which would have had the same outcome, albeit it would have de-elevated the term marriage, outside of the legal context. Further, this position was not argued by the parties. What the court did was to rely on loving and other cases where a right to marry had been brought before, in which the court in the oral arguments in Oberfell, stated eloquently that it had never treated marriage as having attributes attached to it- but rather simply relied on the term “marriage” being defined as an act done by the States. In Oberfell, the defense presented no reasoning in oral arguments why the case should have been treated any differently in that respect, lest the court overrule loving v. Virginia and several other cases it has dealt with in this vein over the years- which all except jj. Scalia and Thomas were not willing to entertain to leave open as even a hypothetical. We must also keep in mind that J. Scalia very rarely holds the majority opinion of the court, and has only written a mere handful of majority opinions over the years. He has also stated that he would not apply what we now know as 14th amendment legal theory to Brown V. Board, though reaching a similar decision on other grounds. It also occurs to me that j. Thomas’ dissenting opinion was also quite problematic, causing more questions than it solves, and perhaps undoing a sphere of case law having nothing to do with the issue of marriage law. Finally, we cant forget that the government took the legal position during oral arguments in oberfell, that the State’s tradition of using marriage as a state of legal privilege was at least, partially, founded in the purpose of pro-creation, where j. Sotamayor posed the question- as to whether or not “the state would have an intrest in denying heterosexual couples a marriage license on the grounds that they do not intend to pro-create.”- to which the government quickly back-pedaled its position.

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