Anti-Discrimination Laws (Part 2)

This article was originally published in my column at the Colson Center. It is republished here with permission. For a complete directory of all my Colson Center articles, click here.

Why Discrimination is Sometimes Good

My previous article on anti-discrimination laws looked at the controversy concerning laws recently introduced in Coeur D’Alene, Idaho. These laws forbid businesses from discriminating against a person based on sexual orientation.

I ended my last article by suggesting that discrimination isn’t always a bad thing. I’d like to now defend my claim that only some types of discrimination are actually unjust.

Let’s consider the case of gender discrimination. Most of us would probably be quick to say that gender discrimination is wrong. However, in his book The Retreat of Reason, Anthony Browne has shown that many forms of gender discrimination are necessary, laudable, defensible and uncontroversial:

“Young men pay higher rates for car insurance than young women and older men, because young men are, on average, more dangerous drivers than young women and older men. A young man who is a safe driver is thus discriminated against because of the characteristics of other people in his age and sex group….Anti-discrimination campaigners may publicly declare that all discrimination on the grounds of sex should be outlawed, but they are unlikely to agree that all men should have the right to use women’s toilets, that men should be allowed to go to women’s gyms, or to demand overturning the right of women’s clothes shops to refuse to employ men….Men pay smaller pension contributions than women for a given level of private pension, for the simple reason that, on average, they have shorter lives and so on average claim less….The various forms of rational discrimination that are widely accepted are not often called discrimination – although that is clearly what they are – because accepting that some discrimination is actually essential to the working of a society would undermine the public acceptance of a ‘zero tolerance of all forms of discrimination’. The war on discrimination would become meaningless if there were general public awareness that actually some forms of discrimination are needed.”

Given that many forms of rational discrimination are publically practiced and even enshrined in law, in order to justify a law banning any type of discrimination, we need to first establish that that type of discrimination in question is unjust. Therefore, when faced with a type of discrimination that people want to criminalize, we must always ask: does this fall into a category like forcing blacks to move to the back of the bus, which is irrational and unjust, or is it like making men pay higher car insurance premiums, which is rational and just? The answer to such questions cannot established by comparing the contested type of discrimination to other types of discrimination that we already agree are unjust, for such a comparison only works if we first assume that the former is also unjust, in which case the argument collapses into circularity.

Let me give an example of this type of circular reasoning. If I were to say that Apple computers are more reliable than PCs and that the reason I know this is because Apple computers are like the most reliable types of cars, then I haven’t actually made an argument but simply restated my conclusion twice. It is similarly illogical for someone to say that discrimination against blacks is unjust and discrimination against homosexuals is comparable to discrimination against blacks, for the comparison is only legitimate if you begin by assuming that discrimination against homosexuals is unjust, which is precisely the matter under debate. To begin an argument by assuming one’s conclusion is to reason in a way that could justify absolutely anything.

The Role of the State

Let’s assume, however, that it were possible to establish that discrimination against homosexuals is unjust, as I’m sure it probably is under certain circumstances. Now by itself this still doesn’t prove the necessity of anti-discrimination laws, for we would also need to establish that government ought to get involved in forcibly preventing this type of unjust discrimination. Just because an activity is wrong doesn’t in itself establish that the activity should be made illegal. For example, I personally believe that anyone who rides a motorcycle without a helmet is being foolish almost to the point of sin. But this is a separate question to whether there should be a law requiring helmets.

Now the issue of motorcycle helmets is different to the question of discrimination, since discrimination affects more than just oneself. However, I’ll warn you that even on this issue, I’m still pretty libertarian. When it comes to racial discrimination, I’m so radical that I think a Mexican restaurant ought to be able to practice racial discrimination and just hire Mexicans if the owners want, and those of us who find this offensive can exercise our right to eat elsewhere. I’m so radical that I think the owners of a Chinese restaurant should be able to practice racial discrimination and just hire Chinese workers if they so desire. If there is a Mormon Boy Scout troop that wants to only include Mormons, that should be up to them; if there is a homosexual Boy Scout troop that wants to ban heterosexuals, or visa versa, that should be up to them. If I have a private gym that I only want to make available to Christians, or perhaps supralapsarian postmillennial theonomists Christians, that should be up to me.

But what about the really nasty type of racism that has been such a problem in American society? Shouldn’t there be laws against that? Perhaps, but when we look back over the history of racism and segregation in this country, we see that most of the progress towards integration has been the result of courageous acts by individuals and not government policies. In fact, the times when government tried to get involved through policies like forced bussing or affirmative action, it often only succeeded in inflaming racial tension, as Thomas Woods showed in his book The Politically Incorrect Guide to American History. It wouldn’t surprise me if we find that anti-discrimination laws make a similar mistake, creating unnecessary new social tensions between homosexuals and Christians.

The Freedom to be Bad

I have suggested that even if it could be shown that discrimination against homosexuals is always wrong, we would require further argumentation to prove that such discrimination should be made illegal.  The same applies to discrimination against Christians.

The non sequitur move from “X is wrong” to “X should be illegal” usually hinges on the implicit notion that it is the state’s job to redesign society from the top down, and that in a free society no one should have the freedom to be bad. However, this is a questionable assumption at best.

All property rights assume, at some level, that the law should give us a certain degree of freedom to be bad. Your body is your property, your thoughts are your property, your earned possessions are your property and your business is your property. To coerce someone under threat of violence to use their own property in a way he or she does not want to is a violation of the basic principle of freedom. Similarly, to argue that anyone has a ‘right’ to property that is not theirs, whether it be someone else’s body, money, business or thoughts, is antithetical to the principles of a free society.

Now, to be sure, there are other principles that come into play which sometimes justify the state stepping in and removing someone’s freedom in one area so that freedom can be preserved in another area. For example, it is legitimate to force citizens to surrender a degree of freedom over their own money in the form of taxation, in order that the state can afford to hire law enforcement officers to protect our property in other areas. Similarly, if I have a river that runs through my property and I am dumping pollutants into it, then the state is justified in stopping me, in order to preserve the property of those who live further downstream.

Therefore, some degree of coercion can be necessary in order to preserve liberty. However, before we can appreciate the times when this type of coercion might be justified, we have to first understand that the cost of freedom is that people will behave in ways you may not always agree with. Put simply, in a free society people should have the freedom to be bad. This perspective is lost once we start to view the state as a nanny tasked with the vocation of making us good – a viewpoint which lurks implicitly behind much of the recent anti-discrimination policies

I’d like to close this post with a couple quotes from C.S. Lewis, taken from two different essays in his collection God in the Dock.

“The modern State exists not to protect our rights but to do us good or make us good – anyway, to do something to us or to make us something. Hence the new name “leaders” for those who were once “rulers.” We are less their subjects than their wards, pupils, or domestic animals. There is nothing left of which we can say to them, “Mind your own business.” Our whole lives are their business.”

“Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busy-bodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.”


Anti-Discrimination Laws (Part 1)

This article was originally published in my column at the Colson Center. It is republished here with permission. For a complete directory of all my Colson Center articles, click here.

Earlier this month the town of Coeur D’Alene became the fifth city in Idaho to pass laws forbidding discrimination against LGBT people in the areas of employment and accommodation.

Although the law does not apply to religious organizations or to people who are renting a room in their home, many Christians in the community fear that their freedoms could be under assault. (See the Spokesman review article ‘New CdA law opens rift over equality’ for a good summary of some of these concerns.)

As someone who lives in the town adjacent to Coeur D’Alene, I take a personal interest in this law. I know people whose family businesses could be affected by this change and who could be sentenced to six months in jail if they refuse to hire homosexual staff to work alongside their kids.

What it Looks Like in Practice

Let me give an example that is close to home of how this might play out in practice.

My wife and I own a small business selling essential oils. It’s just a family business, but next year we hope to expand to the point of being able to hire a secretary two days a week to work in our home alongside me and my children. Now suppose I advertised for this position and two people apply, James and Chris.

Imagine that after interviewing both applicants, I discover that Chris is a practicing homosexual. Now in principle I don’t mind my older children working alongside homosexuals in our family business because I want them to learn to be comfortable around others who have a different lifestyle, even as our Lord was comfortable eating beside tax collectors and sinners. However, I haven’t explained to my younger kids about homosexuality and I don’t want them to be exposed to it for another few years.

I know that my kids will all be working alongside whoever I hire, and I also know that if I hire Chris to work in our family business that something might easily come up that could create confusion for my children, such as if Chris referred to what he did on the weekend with his boyfriend. I am also aware that, as a general rule, homosexuals can often feel threatened by those who believe homosexuality is immoral, and I don’t want to be under the stress of having to hide the books and magazines in our house that might alert Chris to the fact that I am “homophobic.” Therefore, even though Chris is more qualified to do the work than James, I decide to hire James based on these considerations alone.

Now suppose that I share my thought processes with someone who I think is trustworthy but who actually goes and tells Chris that I discriminated against him because he is a practicing homosexual. In such a situation, Chris would be able to sue me for unlawful discrimination and I would be forced to either pay a heavy fine that could bankrupt the family business, or serve six months in jail and have a prison record for the rest of my life.

Racism, Segregation and Anti-Discrimination

To the Coeur D’Alene city council men tasked with making the decision, it was a very straight-forward matter: we don’t allow discrimination on the basis of race or religion, so why should we allow it in the case of sexual orientation? In their simplistic way of thinking, laws banning discrimination against homosexuals are no different in principle to the laws that banned slavery or segregation.

After my friend Pastor Stuart Brian went to the city council meeting to protest the new law, he recalled that he was asked on several occasions by Councilman Kennedy to give a description of the difference between discrimination on the basis of religion versus discrimination on the basis of sexual orientation.

As this question suggests, the debate is being framed in terms that seem to force Christians into a position that is arbitrarily inconsistent at best and bigoted at worst.

Bad Reasons to Oppose Anti-Discrimination Laws

To many conservative Christians it seems obvious that the laws banning discrimination on the basis of religion and race are appropriate, yet it seems equally obvious that religious liberty should permit us to discriminate against homosexuals. Faced with this seeming inconsistency, the best many Christians have been able to do is to simply assert that the latter type of discrimination is okay since homosexuality is bad and contrary to the public good. But didn’t the advocates of segregation and racism make similar arguments, namely that equal treatment of certain races was contrary to the public good?

Other Christians have taken refuge in the non-argument that the new law is unjust because it didn’t have the support of the majority of citizens. But again, it is hard to see how such an argument doesn’t open Christians up to the charge of inconsistency, since on other issues the Christians constituency castigates law-makers who simply follow majority opinion.

Still other Christians have argued that we should be able to discriminate against homosexuals because homosexuality is unnatural, leads to sexual diseases and is contrary to simple biology. The problem with this view – apart from committing the is-ought fallacy – is that for many people homosexuality seems natural, and unless we are prepared to invoke meta-ethical considerations rooted ultimately in the Christian worldview, it is far from obvious that homosexuality isn’t as natural for certain people as heterosexuality is for others. As for the argument from sexual diseases, heterosexuality can also lead to sexual diseases, so if this argument proves anything it proves too much.

Even so, I do think it is appropriate for Christians to oppose these types of anti-discrimination laws, but we need to think carefully about our justification in doing so. In particular, we need to stop letting the other side to dictate the terms in which the debate is framed.

The Burden of Proof

Let’s return to the question that Councilman Kennedy posed to Pastor Stuart Brian. If discrimination on the basis of religion or race is unacceptable, why should discrimination on the basis of sexual orientation be tolerated?

Framed as such, the burden of proof is made to rest with the Christians opposing anti-discrimination measures to show that there is a principled difference between discriminating against a homosexual vs. discriminating against a Jew, so that the former can be justified while the latter is not. But this is backwards. The burden of proof properly always rests with the affirmative – with those who are putting forward a case for something.

To give a basic example, if I assert ‘A is true because of X, Y & Z’ and you are arguing against me, it isn’t actually necessary for you to prove ‘non-A is true’ in order to undermine my argument: all you need to do is simply demonstrate how X Y and Z do not logically entail A.

Let’s take a real world example. If a politician argues that Obamacare is economically affordable because a similar program was economically affordable in Massachusetts, I don’t actually have to prove that Obamacare isn’t economically affordable in order to refute his argument: all I have to do is show that the evidence he is appealing to doesn’t support his conclusion – that, for instance, the example of Massachusetts is not sufficiently similar to Obamacare for the conclusion to be sound, or that what is true of a part is not necessarily always true of the whole.

In the case of anti-discrimination laws, the burden does not rest with those of us who oppose the creation of new offenses to demonstrate that discriminating against homosexuals is different from discriminating against blacks or Buddhists; rather, the burden properly rests with those who put forward such laws to themselves demonstrate that discrimination against homosexuals is equivalent to the types of discrimination we agree to be unjust, and then to show how such considerations are sufficient to justify the creation of new civil or criminal offenses.

The problem, of course, is that the debate about anti-discrimination laws rarely ever gets down to this level. Instead, it is simply assumed from the outset that all discrimination is bad. So we have what amounts to the following syllogism, in which the first premise is simply assumed without adequate reflection:

  1. All discrimination is unjust.
  2. X is a case of discrimination.
  3. Therefore, X is unjust.

The problem is the universal quality of the major premise. In the real world, only some types of discrimination are actually unjust. This may sound controversial, but it actually isn’t. In Part 2 of this series I will show that it is actually uncontested that certain types of discrimination are not only justifiable, but also rational and appropriate. Building on this, I will suggest that laws banning discrimination against homosexuals hinge on questionable notions concerning the role of the state.

Stay tuned.

Further Reading

For background into the controversy in Coeur D’Alene Idaho, see the following resources:

Hollowing out the Habits of Attention (Part 2)

This article was originally published in my column at the Colson Center. It is republished here with permission. For a complete directory of all my Colson Center articles, click here.

In my earlier post on attentiveness, I lamented the decline in book reading that has become a regular feature of contemporary life.

Most people realize that reading is in decline, as distractions like the i-phone, Facebook and text messaging assert their hegemony over our mental spaces. Professor Katherine Hayles, who teaches English at Duke University, expressed the concerns of many when she confessed, “I can’t get my students to read whole books anymore.” When English graduates don’t even like to read anymore, you know things are getting serious.

What has bypassed most people, however, is that the main reading problem we face as a society is not simply that people aren’t reading enough; rather, the real problem is how we read. Increasingly, we find that when people pick up a book, they often come to it with the same set of expectations they bring to the internet. Activities like Facebook and Twitter exert their dominion over our minds precisely because they condition us with a certain set of expectations that become ubiquitous and which remain with us even when our computer or i-phone is turned off.

More specifically, our constant saturation in digital distractions is training us to be satisfied with triviality, to be content with dialogue that is shallow, brief and disconnected. In short, we begin to expect books to give us the same buzz that an i-phone provides, and when it doesn’t we quickly get bored.

One result of this is that the actual process of reading has undergone a shift. A study in 2008 by the group nGenera looked at the effect of the internet on the young.  They interviewed six thousand children who had grown up using the internet. The Lead researcher wrote that “Digital immersion has even affected the way they absorb information. They don’t necessarily read a page from left or right and from top to bottom. They might instead skip around, scanning for pertinent information of interest.” The thing that made this study so alarming was that it showed that the way we read webpages—skipping around, scanning, getting the information we need and then moving on to something else—is affecting our thought life even when we are not at the computer.

The internet is literally re-wiring our brains, making it increasingly difficult to sustain the type of thoughtful interplay between author and reader that gives book-reading its unique quality. When we do read books, it is becoming typical to take frequent breaks to check our phone for messages or to go on Facebook to see what our friends are doing. Indeed, everything about our digital distractions militates against the experience of patient attentiveness.

If you think I’m exaggerating, ask yourself or your friends the following questions.

  • Do you find books boring if they do not give you the same fix that things like text messaging and IM provide?
  • Do you find it hard to have a meal, or a long conversation with someone, without feeling compelled to check your messages in the middle?
  • If someone challenges you about your use of social media like Facebook and text messaging, do you feel defensive and find it difficult to engage in a rational conversation about it?
  • When you sit down to read a book, do you find yourself skipping and scanning for relevant information like you would do on a webpage?

The internet is hallowing out our habits of attention because our brains are coming to crave the type of triviality that the internet breeds and feeds. The algorithms that Google uses to prioritize search results and which are being replicated by social media sites like Facebook, are specifically designed to privilege information that is current over what is enduring. Consequently, it’s easy to let ourselves be trained into thinking that what is important is not what is enduring but what is current, fresh, up-to-date and transitory. Indeed, if we are not careful, things like text messages, comments on blogs and emails begin to exert more primacy over our minds than the books which point us away from the tyranny of the present to the stability of the past. (I discuss this further in my earlier article, ‘The Worldview of Facebook.’)

This doesn’t mean that the internet is bad, or that you shouldn’t use the internet to read good articles, such as the articles on this website. But we should try to learn how to use the internet in a way that doesn’t hollow out our habits of attentiveness. The Taylor Study Method recently published an incredibly helpful series of posts giving some practical steps on how to use the internet in a way that doesn’t detrimentally alter your brain. One of the main things they emphasize is the importance that we remain aware of the challenges we face in our digital age.

Again, the real challenges brought by the internet are easily overlooked, since it has nothing to do with what actually happens when we are engaged in activities web-surfing, Facebook or Twitter, but what happens when we are not engaged in these activities. Just as the problems caused by pornography sometimes only become evident when a man tries to have a relationship with a real woman, so the problems caused by social media may only become evident when one actually tries to read a book or engage in a normal conversation.

I was at a party last year where I was talking to a teenager, and a couple minutes into our conversation he began checking and reading his email on his phone. I was shocked by the rudeness of his behavior, and even more shocked when subsequent experience confirmed that this type of behavior is no longer even considered disrespectful. Since then I have angered people because I asked them to wait until we had finished our conversation before they started using their laptops to go online.

As our attention spans are being hollowed out, fewer and fewer people still read books for the sheer pleasure of doing so. As Gary Small and Gigi Vorgan wrote in iBrain: Surviving the Technological Alteration of the Modern Mind:

“Young people have created their own digital social networks, including a shorthand type of language for text messaging, and studies show that fewer young adults read books for pleasure now than in any generation before them…. After all, why spend time staring at a dull and stagnant string of words when they could be entertained and informed with fast-paced visual and auditory computer images instead?”

Not everyone avoids books because they prefer to be entertained. For many, books are avoided because they are perceived to be an inefficient use of time. In an age that tends to value efficiency above all else, our paradigm for learning tends to be based (often unconsciously) on the model of factory production in which everything has to have measurable benefits. Taking 20 minutes every morning to read from a book has enormous benefits, but they are not measureable. Thus, many people in the younger generation have concluded that it is better to save time by getting quickly getting the information one needs of the internet and then going on to the next thing. This was reflected in the all-too typical statement of a young man named Joe O’Shea, former president of the student body at Florida State University and a 2008 recipient of a Rhodes Scholarship. O’Shea said, “I don’t read books. I go to Google, and I can absorb relevant information quickly.” He continued: “Sitting down and going through a book from cover to cover doesn’t make sense. It’s not a good use of my time, as I can get all the information I need faster through the Web.”

Maybe we can get the information faster on the web, but what is being lost is the type of enlargement of being that only books can offer. Through reading we are able to expand our souls beyond our own limitations and connect with the thoughts and feelings of others. Sadly, however, the current bestsellers suggest that this is not why people are reading books: the proliferation of self-help books, biographies of famous people and fiction that is pure escapism suggests that the majority no longer reads to cultivate the imagination or improve the mind.

In a society that values efficiency over depth and productivity over quality, it is becoming increasingly hard to let books work their slow and strange magic on us, to let them change us into richer and deeper people. Reading soul-enlarging old books becomes one of the chief casualties in this cultural shift to prioritize what is functional over what is beautiful, what is transitory over that which is permanent and what is entertaining over what is enriching.

The ramifications of a loss in quiet attentiveness also affect the set of expectations we bring to relationships, and our ability to empathize with those we love. But that will be the topic of a future post in this series.