Discrimination with Regard to Discrimination
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.