Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, August 2, 2017

Nondiscrimination for All

Jonathan Rauch has an article in National Affairs that offers a thoughtful take on the roots of today's SSM/religious liberty stalemate:

Culturally, what the country learned from the civil-rights movement is that discrimination is everywhere and always wrong, and therefore must be everywhere and always illegal and unacceptable. In the racial paradigm, discrimination cannot just be minimized. It must be eradicated. Every diner, drinking fountain, and swimming pool open to the public must be open to blacks. In practice, after all, any lesser standard was exploited by racists as a tool of Jim Crow. In principle, the very existence of discrimination diminished African-American dignity.

This lesson contributes to our current predicament, according to Rauch: to religious liberty advocates, once sexual orientation gains any protection under anti-discrimination laws, religious objectors will find zero accommodation for dissenting practices; to gay rights advocates, once religious objectors gain any legal accommodation, gays will be stuck perpetually in a second-class status.  Rauch points out that this framing of the issue ignores the fact that "anti-discrimination law as enacted in countless jurisdictions and as interpreted by the courts is nothing close to being as absolute as today's activists and popular culture typically suppose."

Anti-discrimination laws targeting race offer fewer context-based exceptions than disability laws; age, religion and gender protections are at various points in between:

It's important to stress that this is a spectrum, not a hierarchy. It does not rank anti-discrimination rules from "better" or "stronger" at the race end to "worse" or "weaker" at the disability end. It also does not rank the social importance of various groups or the validity of their nondiscrimination claims. It is not a competition. Rather, the spectrum reflects the natural diversity of needs, situations, and histories of groups seeking protection and of the social contexts in which they are embedded.

Can we approach GLBT anti-discrimination protections as a debate over the most appropriate spot on the spectrum (as Utah did), rather than pretend that the spectrum doesn't exist?  If so, does that hold promise for other areas where cultural divisions over moral truth have led to zero-sum legal battles? 


Vischer, Rob | Permalink