June 18, 2010

Discrimination with Regard to Discrimination

Justin Katz

Hadley Arkes examines the Supreme Court case Christian Legal Society v. Martinez, which is addressing the question of whether the Hastings Law School of the University of California in San Francisco can refuse to recognize a student group for Christians that excludes anybody with "unrepentant participation in or advocacy of a sexually immoral lifestyle." The controversy arose, predictably, because the group counts, as one such proscribed lifestyle, active homosexuality and advocacy thereof.

In order to validate its revocation of the group's official recognition in such a way as to appear not to be engaging in invidious discrimination, itself, the university defined its policy such that any recognized group must accept any participants, even those with antipathetic beliefs. "To a questioner not quite believing, Dean Leo Martinez confirmed that a chapter of the Jewish Anti-Defamation League would have to admit Muslims, and a gathering of black students would have to admit Ku Klux Klan members and, presumably, skinheads." More: the university proclaimed that ill-fitting members must be eligible for leadership positions.

Thus, if they were disposed toward an oppressive lark, a group in the campus majority — say, far-left liberals — could join, take over, and entirely subvert the message and activities of a campus minority — say, traditionalist Christians.

The point that I wish to raise comes up with the judges' attempt to understand how distinctions could be made between unacceptable discrimination and discrimination that remains permissible as the expression of truly held beliefs:

[Lawyer Michael] McConnell said that of course those kinds of racist groups could be barred because they were founded on discriminations based on "status," not belief. Presumably he meant that the wrong in discrimination based on race and sex inhered in drawing adverse moral inferences about people as though race or sex actually controlled or determined their character. But the distinction between "status" and "belief" did not explain itself, and so Justice John Paul Stevens chimed in: What if a group was simply founded on an earnest "belief" in the inferiority of black people and the superiority of whites? Justice Anthony Kennedy was tempted to give a certain standing to claims of "belief" as a ground of association that could claim a certain standing to be respected, mainly because the beliefs were held. Earnestly held, that is, and not to be tested by any indecorous probing into their truth.

The question pressed by Sotomayor can be answered only by explaining why a moral discrimination based on race would be wrong in all instances, whereas discrimination based on "sexual orientation" simply could not claim the same standing. For one thing, the moral discriminations based on race or sex worked by making moral predictions about the conduct or the moral worth of people based solely on their race or sex. But the groups defined by homosexual acts or "sexual orientations" are marked as groups precisely by the acts they commit. People are described as "arsonists," for example, when they commit arson, and the recoil from arsonists is a recoil from the crime of arson.

The problem here is that any activity we could name could be directed to a hurtful or wrongful end. Sexual acts, whether heterosexual or homosexual, can be deployed as assaults to injure and degrade. Some people may be "oriented" to rape, or to sadomasochism or bestiality. Even gay and lesbian activists will argue over the question of whether they regard members of the Man-Boy Love Association as standing legitimately in their circle, with a "sexual orientation" they respect.

McConnell (and Arkes) head in the rhetorical direction of when exclusion should be allowed, but one can reach the same point by stating when it should not be. Employing the distinction between "status" and "belief," one could argue that a white supremacist group would have to be recognized if it would not bar a black man who believed in his own inferiority. That this is absurd — and the group could be reasonably rejected for that reason — does not prove that it is equally absurd to hypothesize about people with homosexual inclinations who believe their desires to be wrong; it proves that race and sexual orientation are substantively different.

As Arkes explains, discrimination based on race assumes an inferiority of the person on the basis of his or her ethnicity. It is a statement of superiority without any possibility of dispositive proof of individual equality. In the case of sexuality, the individual is not presumed to be less deserving of standing and respect as a human being. He or she is considered to be in error on a particular matter, but questions of essential worth and character are available for him or her to answer positively or negatively, to impress or to disappoint, in equal measure to those whose sexual lives conform with traditionalist standards.

When political correctness undermines our ability to make such distinctions, we lose the ability to devise objective rules that tolerate those with whom we disagree. Everything, that is to say, comes down to expressions of power — whether the university administrator is empowered to impose his or her own views as the measure of discrimination, or students in an active majority can subvert and suppress the organized expression of contrary views.

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I expect this thread to be bombarded by off-topic, snarky, personally insulting posts that demonstrate the posters' complete inability to understand the point of the article.

Posted by: BobN at June 18, 2010 9:13 AM

So far I see only your comment, making you and Justin bedfellows, so to speak.

Posted by: OldTimeLefty at June 18, 2010 11:35 AM

"or students in an active majority can subvert and suppress the organized expression of contrary views."

Makes me think of the Brown students who destroyed all of one issue of the campus paper because it carried an ad
for a talk opposing "restitution" for blacks. I don't recall that there was ny serious attempt to find the perpetrators.

Funny how "hot topics" lose their flavor. I don't think "restitution" is the word I am looking for, but I now forget what term was current.

Posted by: Warrington Faust at June 18, 2010 1:36 PM

It's "reparations" and it's pure bullsh*t.My family came here around 1904-05 on both sides-they didn't own slaves.End of story.Reparations advocates can kiss my ass.
I don't object to reparations to Japanese Americans because the actual victims were alive-imagine being in a resettlement camp while your son is off fighting a war.And losing your property.All carried out by a hero of the progressive left.
Maybe affirmative action is a sort of reparation program if you think about it.Although Hispanics also benefit from it and they were NEVER slaves.

Posted by: joe bernstein at June 18, 2010 2:17 PM

Reparations. They still like to use Johnson's old "shackled runner in a footrace" analogy. Because ethnicities are analogous to competing teams, apparently.

Posted by: Dan at June 18, 2010 2:18 PM

You're correct, Joe. The reason we don't hear about reparations so much anymore is because they are being paid out every single day under affirmative action hiring/enrollment programs and special awards, opportunities, and scholarships.

Actually, I doubt most people over 40 realize just how out of control affirmative action has become in this country. The more prestigious/competitive the program or job, the more severe its effects have become. I graduated from law school not that long ago and the preference given to minority students in admission and then later government and firm hiring was shocking to me (it takes a lot). Most minority students received substantial scholarships/financial aid, even those who had doctors and lawyers as parents and were quite well-off, despite the fact that their admissions test scores were significantly lower on average. There were special minority student organizations that received university money to host house parties and nights out with people of all the same color - it created a toxic environment of racial clansmanship out of one that would have been absolutely fine and inclusive without them. And there were special jobs fairs/networking events that white students were not allowed to attend (I tried). My white friends who were in the top 20% of the class graduated unemployed and in debt, while my black and Hispanic friends who were in the bottom 20% all had jobs lined up by 3L year. Don't even get me started on Affirmative Action, this stuff isn't even the half of what I witnessed.

Posted by: Dan at June 18, 2010 2:52 PM

Thus, if they were disposed toward an oppressive lark, a group in the campus majority — say, far-left liberals — could join, take over, and entirely subvert the message and activities of a campus minority — say, traditionalist Christians.

Conservative christians have beaten them to the punch if you're talking about about completely subverting Christ's message. Snarky enough Nelson.

Posted by: Phil at June 18, 2010 3:58 PM

Dan writes:
"Actually, I doubt most people over 40 realize just how out of control affirmative action has become in this country."

My daughter enrolled at Dartmouth as a "Hispanic", that made her the only blue eyed, DAR, FFV, DofC qualified, descendant of slave owners, Hispanic there. She had to live in the Hispanic dorm (they had 18 separate "affinity dorms"). She eventually sneaked out of that dorm and moved to an Asian dorm, everyone there was polite and spoke English. Ah, the Ivy League. The "long grey line" has much to learn from them.

Here is one that would blow the Ivy League away. At the Institute in Virginia there are "cadet sentinels", 24 hours a day, seven days a week. They are armed with rifles, bayonets fixed. Stealing newspapers (or anything else)would be creating an "incident of dishonor". There are no "degrees of honor", so there is only one penalty. That is immediate expulsion, and your name is never to be mentioned again. My daughter's room at Dartmouth had a sign "Keep door locked, high theft rate".

Posted by: Warrington Faust at June 18, 2010 5:29 PM

I'd love to hear a representative from Dartmouth explain how having a "racial affinity" is not the same as being racist. The mental acrobatics of it would be almost as entertaining as hearing the Michigan Law attorney argue that an 8-12% minority admissions target is constitutional but a 10% quota is not. It would be be quite funny if it weren't so repugnant.

Posted by: Dan at June 18, 2010 6:05 PM

My daughter is legitimately a non-White(on her mother's side) Hispanic,althoough she has my last name(actually now her husband's(Scottish)and she never once wanted anything based on her "race".Anything she achieved was based on her work product.
Phil-seriously,what are you trying to say?I couldn't follow.I hope you're not defending minority initiated segregation.There is no excuse for any of it.
Not being a Christian,I still find your comment pretty weird.What is the anger at Christians?Are you angry at Moslems?Jews?Buddhists?
I guess you could say I'm a Deist.Not much there to get angry at because I don't give a tinker's damn what anyone else believes,and I sure don't want to preach my beliefs to anyone.Religious beliefs that is.
Political beliefs is another story.

Posted by: joe bernstein at June 18, 2010 6:34 PM

Joe writes:
"My daughter is legitimately a non-White(on her mother's side) Hispanic"

The same is true of my daughter, her mother is Cuban. As with many Basque descended Cubans, she is blonde and blue eyed. There was a time she would have recoiled as being called Hispanic. I understand that she now revels in it. I understand she regularly visits Cuba to bring medical supplies (a bottle of aspirin is all that is required) and aid the people she previously referred to as "Cuban assos". Her present husband was Clinton's friend at Oxford. I think there is probably more going on than I know to inspire her "Hispanic" concerns.

Posted by: Warrington Faust at June 18, 2010 9:08 PM

Dan writes:

"I'd love to hear a representative from Dartmouth explain how having a "racial affinity" is not the same as being racist."

The explaination offered at the time had something to do with attracting foreign students.

There was some to do about it while my daughter was there, I found it hard to take an interest. I took little interest in any of it. When I took her up there to begin classes, I was physically removed by faculty, working part time at "computer pass out". They assumed I was trying to steal a computer. I couldn't understand it, I was wearing a blue blazer and Guccis. A Mac? I'm a businessman. I didn't do them any physical harm for fear of embarrassing my daughter. At the Institute, the faculty members if not reported, would be required to report themselves to the Commandant. Accusing a parent of attempted theft, without evidence, would be a serious "incident of dishonor".

More about "affinity". When my daughter was at prep school in Cambridge, there were some black students. She tells me that they self-selected out. They sat with each other at lunch, didn't associate more than required with white students, etc. I remember that the school (BB&N) decided to drop two "units" of American History (I have never understood what a "unit" is) to add more "units" of African History.

Posted by: Warrington Faust at June 18, 2010 10:03 PM

I guess we all have the freedom not to associate with people we don't want to
because of race,religion,or national origin.It's foolish because you miss out on some nice folks.
Of course some people eat cheese that smells like a two week old corpse during a heat wave.
Whatever floats your boat.

Posted by: joe bernstein at June 18, 2010 10:57 PM
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