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Opening Arguments

Thou Shalt Not Discriminate

It's difficult enough to find good, thoughtful articles about the great RFRA freakout that try to look at both the discrimination and refligious aspects, let alone one that tries to put the whole issue in historical and constitutional perspective. Here's one, by Damon Linker, who says of himself, "I find myself standing with the handful of center-left and libertarian commentators whose positions might be described as conflicted. I strongly support gay marriage and yet also believe it's essential to protect the religious freedom of those who reject it."

His column in part is a reaction to a piece by National Review's Yuval Levin, who argues that, despite the Constitution's prohibition against establishing a national religion, we do in fact have a non-traditional state religion, a "Church of the Left" from which traditionalist believers are (barely) tolerated dissenters:

Where I dissent from Levin is in his characterization of this emerging state religion as a "Church of the Left." In reality, it's far broader than that — a culmination of cultural and legal trends stretching back more than 50 years and widely supported by Americans on both sides of our nation's political and cultural divides.

A more accurate name for it might be the Church of Anti-Discrimination.

The Civil Rights Act of 1964 banned racial discrimination in "public accommodations" (retail establishments and other entities that serve the general public). The purpose of doing so was quite clear and justifiable. It was an effort, once and for all, to smash Jim Crow's grip on the South by forbidding private business owners from discriminating against African Americans.

If anti-discrimination law applied solely to race — if it had been treated by legislatures and judges as a singular remedy necessary to address America's uniquely pernicious history of governmentally and legally facilitated white supremacy — then today's clashes over gay rights and religious freedom would never have arisen. But in the decades since 1964, the U.S. has seen a proliferation of anti-discrimination laws at the local, state, and federal levels. There are now federal laws banning discrimination in public accommodations on the basis of color, religion, national origin, sex, age, pregnancy, and disability. (As libertarian law professor David Bernstein points out, state and local laws sometimes go much further, to "cover everything from sexual orientation to political ideology to weight to appearance to membership in a motorcycle gang.")

Perhaps even more remarkable than the proliferation of these laws over the past half-century is the fact that, as legal scholar Douglas Laycock has noted, almost no one ever wins an exemption from them. That includes religious believers who make claims under RFRA (in either its federal or various state versions).

Thou Shalt Not Discriminate has become the highest commandment of America's state religion, and it is nearly always inviolable.

The Thou Shalt Not Discriminate faithful can't (or in many cases, won't) aknowledge at least two things. One is that blacks are abolutely unique in American history. No other group of people were brought here against their will, then subjected to state-sanctioned discrimination long after they won their freedom. So they are uniquely entitled to remedies no other group can maked as strong a claim to. Sorry, gay marriage advocates and sex- and old-age discrimination sufferers, you are not entitled to a Selma.

The other is that there is a distinction between treating someone badly because of their membership in a group and refusing to take part in an activity one objects to. If society won't make that distinction, you might as well just forget about religious liberty, because it will no longer exist in this country.

Oour fixation on discrimination of the bad kind has also made us shy away from discrimination of the good kind. It was once a compliment to say someone had a "discriminating" personality, i.e. the determination to make judgments of quality based on the best evidence available. Sometimes that evidence is scant, but a decision still has to be made. At one point in our early history discrimination was a survival skill.