President Obama’s overreaching executive order is the latest example illustrating that the very government that the Constitution charges with protecting religious freedom is now the primary threat to religious freedom. The administration has brazenly bypassed Congress and declared that the only religious non-profit organizations it will do business with are those willing to line up with the administration’s doctrine and theology on sexual behavior. That’s the kind of government entanglement with religion that the Founders sought to prevent and that the First Amendment prohibits.
Ryan Anderson outlines four problems with Emperor Barry’s new establishment of “”progressive” religion, including the lack of a BFOQ exception.
Today’s mantra “that’s discrimination!!!” is the kind of vacuous wooly-headed outrage that the status of 1L is meant to purge. There has never been a general principle in law that discrimination is wrong; rather, there has arisen a principle that invidious discrimination against members of groups that have been historically persecuted or disadvantaged is wrong.
In other words, sometimes discrimination is okay. Sometimes, possession of a trait, or absence of a trait, is a BFOQ: a bona fide occupational qualification.
I’d go further to say that sometimes it’s deeply wrong not to discriminate, even against a member of a group that has been historically persecuted or disadvantaged. And to anyone who disagrees, I have two-word response: Greg Ledbetter.
Rather than beginning with a description of the Civil Rights movement and then looking for similarities to gay rights, my arguments goes in the opposite direction. That is, I begin with the extraordinary success of gay marriage advocacy and then ask what the Civil Rights movement would have looked like if it had followed the gay rights strategy.
Imagine the following “alternative history.” It is the early sixties, and while it should be obvious to everyone that all human beings are the same in every important respect, racism is alive and well. The white political leaders most sympathetic to the plight of African Americans decide to make the case for this moral sameness by arguing that black people are really white. “Look past their skin,” they say, “and you will find that they are just as white as we are.” This argument is so effective that the discourse about race in America changes nearly overnight. Anyone who wants to talk about the distinctiveness of African American culture is accused of racism. Even black leaders who want to draw attention to black history and its unique challenges and achievements are shut down. There is no black pride movement, no discussion of the particularity of black culture, and no effort to find room in public discourse to reflect on the uniqueness of black life in America. Blacks continue to have their own history and culture, but those differences cannot be named, analyzed, and celebrated. For the purposes of social justice, blacks have become white.
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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)