Reasonable and Unreasonable Discrimination

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Racial discrimination has provided social liberals with high powered rhetoric for the sexual revolution by drawing an analogy to discrimination in sexual matters, yet people intuitively know that the analogy is wrong. Sexual differences are far greater than racial differences, so that regarding race, there is no rational basis for discrimination, whereas in sexual matters there is. But because the cultural left is bent on fundamentally changing the world to the point that we perceive things differently, it is continually advancing skillful (or at least passionate) arguments that push against reality, with the result that over time, more and more people accept radical ideals. Our commitment to God’s revelation requires that we always push back, no matter how much people have come to take a distorted picture of reality seriously.

The first point in pushing back is to note that the real positions taken are non-negotiable; orthodox Christians are irrevocably committed to obeying God as He has spoken in Scripture, rationalists are committed to self-determination, i.e., making a world that conforms to their wishes. Each side finally proves only that it can accumulate evidence in support of its commitments, and yet with the uncommitted public, offering the arguments and evidence are important.

The first thing that needs to be said about discrimination is that it is not necessarily bad. The word simply means to choose one thing rather than another, and so it is an inescapable part of life (and an inescapable part of freedom). If we could not discriminate at all, we would not be free at all. If we could not discriminate between food and poison, our life span would be much shorter.

To prohibit “discrimination” is to close off choice; the discrimination prohibited in law forbids adverse action against a category of persons. In prohibiting adverse action the government is clearly saying through antidiscrimination law that past adverse actions against a given category of people were both pervasive and wrong. One can argue that this is not so for that particular category of persons, that there may be rational justification for adverse decisions and the matter should be left to personal judgment, but once the claim that a particular class has been oppressed is enshrined in law, courts will not listen to dissenting opinions about the law’s antidiscrimination doctrine. After a category of persons has been designated as “protected,” there can be no adverse actions against people in the category because of membership in that class in whatever the antidiscrimination law touches. There remains a private world of personal relationships that the law does not touch, but it gets smaller as more and more areas in life are regulated in the name of “fairness.” Ironically, the more the state guarantees the rights of individuals through antidiscrimination law and policy, the more the state comes to control all social relationships.

There is really only one category of persons for which such antidiscrimination protection is really justified, namely race. Guaranteeing racial equality in law was the original purpose of the 14th Amendment, which judicial activists have used to write their own constitution, superseding the written one. After giving the amendment this narrow reading in its first interpretation of the amendment, the court proceeded to use the amendment’s guarantees of civil rights first to mandate laissez-faire economics against state efforts at social protection (before Franklin Roosevelt’s remaking of the court), then to mandate the deconstruction of traditional cultural authorities after the Roosevelt Administration transformed the court. From the original purpose of giving citizenship and full civil rights to the freed slaves, it is now used to advance a more general concept of “fairness” or “equality” in all social relationships.

That civil rights doctrine should have this much more modest goal, restricted to ensuring racial equality, is well supported by science and common sense. The races of mankind are a mere variety of the human species, indeed, it is not clear exactly how they should be classified, to be point that some more politically correct thinkers deny that race is objective at all (a view seemingly endorsed by the European Union). At times it is claimed that racial inequality is a scientific reality (most famously by the Yale professor Arthur Jensen in the second half of the twentieth century). But such claims have not been generally accepted. Christians, however, do not need to base our belief in racial equality on changing scholarly opinion. We can appeal to Scripture to show the unity of mankind (Acts 17:26). This would be a possible point of controversy between religion and science, were it not for the fact that secularists today are passionately anti-racist (which was not the case before World War II). Thus it happens today that the Christian religion and secularists agree in this area. The systematic racial discrimination that was popular practice before the Civil Rights Act of 1964 was indeed irrational and harmful. For so great suffering as it caused, racial segregation had no adequate basis in the truth.

But while racial differences are superficial, sexual differences are profound. There are exactly two sexes, and except for rare physical abnormalities (which still do not involve any lack of clarity about every person having the chromosomal structure of one sex or the other) each person clearly belongs to one sex or the other. The objective difference of male and female holds throughout the human species, through all time. The same binary sexual difference is observable throughout the more developed species of the animal kingdom, and even among some species of plants. After these objective physical differences, psychological differences, if not always exactly the same across cultures, are nevertheless found throughout the human species. The most general psychological distinction, between male aggression and female nurture, is found throughout the human species and is obvious in other species.

Besides discrimination based on sex, other kinds of discrimination addressed by the law in contemporary society include religion and sexual orientation. Both of these categories suffer from the dubious claim that discrimination based on them is clearly irrational. Both are really behavior based categories, with no immutable characteristic. The government of a free society should not be in the business of protecting behaviors about which people disagree from the discrimination (i.e., freedom of choice) of private citizens. Religious behavior, finding its source in beliefs about ultimate reality, should find what protection it can in the guarantee of the free exercise of religion. Sexual behavior is a more immediate reality to us and can be better judged by ordinary reason. But antidiscrimination doctrine is about restricting freedom of personal choice in one’s relation to other people, and should not be used to protect personal behaviors. If it so used, it has the effect of requiring affirmation of behaviors one believes are wrong.

And so legal and social practices that exclude one sex or the other, or which exclude persons whose self-defined sexuality departs from the natural basis of sexuality in human anatomy (which basis is shared with all other sexual species), may be reasonable. One does not know that that discrimination based on sexual nature is always reasonable, but the objective reality of sexual nature and its common (if not absolutely invariable) characteristics throughout nature (such as the noted male aggression and dominance, and female nurture) means that it must be presumed reasonable, a matter open to the personal choice of individuals and businesses.

Likewise, other nonracial categories of religion, disability, and age, while it may be a charitable thing for them to be accommodated by private parties, are not so clearly unreasonable bases for discrimination as to require a categorical prohibition of discrimination by all private parties. Freedom of choice in these matters is better left up to the good judgment and moral sense of citizens, rather than restricted by what is, in effect, a state imposed morality.

Notice that only the racial category in the logo at the beginning of this article depicts an ordinary human being with no special characteristics. Has the reader ever heard the expression “African-American rights,” “Hispanic rights,” “Asian-American rights,” etc.? The author has not, and suspects that most or all readers have not either. The logo unwittingly expresses the point of this article, that only with race is there truly an equality between human classes, in all other cases, there is a special characteristic which for which the state by legal dogma mandates shall be regarded as “equal” to the absence of the characteristic, and never to receive adverse judgment. Again, we should all, as a matter of our own character, treat everyone charitably, perhaps commendably making accommodation for a person’s special characteristics. But that individual action should be the result of individual virtue towards one’s neighbor. There may be good reasons for adverse judgment by private parties in a given situation. Freedom for nonracial discrimination should be preserved in a free society, not forbidden by law.