“New Immutability” vs. Systemic bias

I happened upon a long Yale Law Journal article on the concept of “immutability” in antidiscrimination law.

It makes some good solid introductory and conclusory points that I’ve been trying to make, with a lot of detailed discussion in between.

First, the question:

Why is it illegal to discriminate on the basis of certain traits, like race or sex, but not others, like experience or beauty? One answer that has been offered in the context of the constitutional guarantee of equal protection is that certain human traits are immutable, meaning they were not chosen. This concept has long endured the scholarly criticism that it is “both over- and underinclusive.” For example, it is permissible to discriminate on the basis of intelligence, which some say is innate, but not religion, which some say can be changed. In response to the argument that sexual orientation might be changed and is therefore undeserving of protection, gay rights advocates have persuaded many courts, perhaps even the Supreme Court, to adopt a different understanding of immutable characteristics. Many courts now ask “not whether a characteristic is strictly unchangeable, but whether the characteristic is a core trait or condition that one cannot or should not be required to abandon.” Or, as another judge put it, “‘immutability’ may describe those traits that are so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change them, regardless of how easy that change might be physically.”

(Footnotes omitted throughout) In other words, “immutable” doesn’t really mean “immutable” in the new regime.

So far, so fair.

This indentation is my digression:

I can assure you that religion can change. I’ve changed mine significantly twice as an adult.

But it wasn’t unequivocally a choice. Both times, a change of conviction compelled me to change religion or stand self-accused as a hypocrite. I couldn’t have truly changed religion on demand on economic incitement to change; I only could have hypocritically feigned a change under such duress.

So should there be laws against religious discrimination? I suspect that if antidiscrimination laws were amended to eliminate prohibition of religious discrimination, there would arise pockets of religiously discriminatory businesses (I’m thinking of the kinds of proprietors who thought “Christian Yellow Pages” was a great idea). Frankly and bluntly, I don’t think some weird pockets like that are intolerable.

But I suspect that there would be more: pervasive and systemic discrimination (more about that later) against adherents of a few religions. I don’t think my religious tradition would be systematically disfavored, but that some others would be. For instance, how employable would Scientologists be if the law allowed you to ask “Religion?” on an employment application? I’d be sorely tempted to use “Scientologist” as a proxy for “wacko; likely to end up jumping up and down on my sofa.”

And perhaps we’d become religiously balkanized to an extent that would surprise me. Those considerations seem to warrant keeping bans on religious discrimination in economic life.

End digression.

But the author proceeds, calling this non-immutability “the new immutability,” and demonstrating that

while the new immutability has had success in constitutional litigation for LGBT rights, it is a questionable strategy for reconceptualizing the broader project of equality law. As a normative matter, the new immutability obscures critical questions about why some characteristics ought to be treated equally, offering only the empty assertion that they are fundamental to personhood.

Since I’m not an untenured law professor, I can say what the author probably could not say, even assuming she wanted to: “the new immutability” is a questionable strategy, and insofar as LGBT rights depend on such a fishy concept, LGBT victories are fishy.

In the end, the author suggests the radically old idea that (gasp!) antidiscrimination laws should

target[] systemic forms of bias, rather than the goal of protecting immutable traits …

By systemic biases, I refer to discriminatory practices that are both structural and pervasive. Structural approaches to employment discrimination are concerned with whether institutional practices contribute to unequal opportunity, rather than the guilt or innocence of particular types of victims or perpetrators. Structural accounts of discrimination locate the causes and consequences of inequality in social and institutional practices, arrangements, and systems. They change the focus from individuals and their choices to how workplace structures “contribut[e] to the production or expression of bias.” The structural approach’s focus on the workplace itself as the cause of inequality creates an argument for legal intrusion into the prerogatives of employers. By contrast, immutability arguments look to whether the victims of discrimination, considered as a class or group, deserve protection … Thus, a structural frame would put this Article’s question not as which classes should be protected, but which forms of bias the law should disrupt.

Pervasive forms of bias connect to larger social systems of hierarchy and segregation and contribute to broader problems of inequality. The focus on pervasive biases differentiates a targeted approach from a universal one and provides a limiting principle. Unlike isolated instances of workplace unfairness, pervasive biases substantially limit the opportunities of affected individuals.

(Emphasis added) This idea is radical because it assumes that there needs to be an actual and substantial problem with bias in the (economic) system before we run around passing laws to protect a group that may not need protection. Pop-up workplace bigotry isn’t enough. Religious disapproval that does not manifest itself in hiring, promotion, retention, firing or other economic decisions isn’t enough.

That’s exactly what I’ve been trying to argue for years. That’s what I understood the law to be before it was hijacked by identity politics.

I would add that there needs to be some demonstration of systemic economic bias — meeting a burden of coming forward with some substantial evidence — before a bill gets any legislative thumbs up. I doubt, now as I have for 25 or so years (if not more), that proponents of antidiscrimination laws based on sexual orientation can meet that burden.

Throw in “Transgender” (the T in LGBT) or “gender identity” or whatever the term du jour is, however, and I’m not so sure how that would come out. And I’m not prepared to think through that in public just yet, except to say that like antidiscrimination laws based on sexual orientation, antidiscrimination laws based on gender identity are spookily based on a subjective and self-reported attribute, which seems to me to open some doors for real abuse by, not against, the supposed victims.

UPDATE: Ryan Anderson thinks SOGI (Sexual Orientation and Gender Identity) laws are a very bad idea.

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“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)

Some succinct standing advice on recurring themes.


The Righteous Reaction

Sister Vassa, for those not in the know, is an American-born, Anglophone Russian Orthodox nun/scholar/podcaster/blogger living in Vienna. She dispenses bursts of good spiritual advice while deadpanning about her mostly imaginary production assistants and “zillions” of adoring fans.

Saturday’s blog hit me where I live (turn down the volume if you don’t like Little Drummer Boy):

“Now the birth of Jesus the Messiah took place in this way. When his mother Mary had been engaged to Joseph, but before they lived together, she was found to be with child from the Holy Spirit. Her husband Joseph, being a righteous man and not wanting to expose her to public disgrace, planned to dismiss her quietly.” (Mt 1: 18-19)

As I prepare for the upcoming feast of the Lord’s Nativity, let me reflect a bit on Joseph’s surprisingly “quiet” reaction to Mary’s as yet unexplained pregnancy. We see no shock or dismay in this righteous man, who was confronted with a situation that, – let’s say it like it is, – looked very, very bad. And yet all Joseph wanted to do in this situation was: 1. protect Her from public disgrace, and 2. dismiss Her “quietly.” 

So this is a “righteous” reaction to the perceived sin of another human being. Today let me gratefully contemplate Joseph’s humble and quiet discretion, lest I be tempted to display shock and dismay at any perceived amorality or sinful behaviour in my surroundings. My shock and my dismay is neither righteous nor helpful. In fact, when I am judgmental I become utterly incapable of being helpful; when I try to play God’s role of Judge, I close myself off from His grace-filled mercy. I also display an infantile lack of self-knowledge, but I’ll elaborate on that point some other time.

During this Nativity Fast let me abstain from shock and dismay, that I can make my journey toward Bethlehem with a proper focus. Let me “make straight the paths of the Lord” in my own heart, that I may greet Him in the same way He is born, in quietness and humility.

(Italics added)

I assume that protecting from disgrace is not necessarily the order when

  • the disgrace has a victim or victims other than the bad actor; or
  • the disgraceful behavior is already public and others are applauding it.

But gossip about a truly private moral lapse is unwarranted.

* * * * *

“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)

Some succinct standing advice on recurring themes.


The Morning After (no pill)

I continue to be puzzled by the Colorado Springs shootings. (For the record, I’m typing this at 11:11 on 11/28.)

The press has no clue either. No longer dependent on the Police, they have been unable this far to come up with anything on Robert Lewis Dear on their own.

This suggests, does it not, a lone actor? Maybe even a “loner”?

If he had a grudge against Planned Parenthood, why aren’t there bodies of PP employees stacked like cord-wood, and why did this drag out five hours? Why did he shoot a man in a parking lot? And why was he (apparently) sniping at people a quarter-mile away?

The lack of information doesn’t stop the press from publishing, though. What they publish is a mix of speculation about why someone might go shoot up a Planned Parenthood — whereas at this point what we know is that someone went on a shooting spree based in a Planned Parenthood. Only this, and nothing more.

Cast in a prominent role: Those Videos (of Summer and Fall), which videos

  • in English, exposed ghoulish human organ trafficking,
  • in PP-speak, “created a toxic atmosphere.”

The press that I’ve read isn’t particularly tilting toward one language versus the other.

I continue to suspect that the police know more than they’re telling, but the media haven’t turned up anything, either, on the shooter or his background.

Most puzzling. It doesn’t fit any pattern I can recall — or can imagine. Is this truly an act so deranged as to defy Monday-morning quarterbacking?

* * * * *

“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)

Some succinct standing advice on recurring themes.

On arguing with integrity

Seth Godin’s Saturday blog was evocative for me:

Each of us understands that different people are swayed by different sorts of arguments, based on different ways of viewing the world. That seems sort of obvious. A toddler might want an orange juice because it’s sweet, not because she’s trying to avoid scurvy, which might be the argument that moves an intellectual but vitamin-starved sailor to take action.

So far, so good.

The difficult part is this: Even when people making an argument know this, they don’t like making an argument that appeals to the other person’s alternative worldview.

Worth a full stop here. Even when people have an argument about a political action they want someone else to adopt, or a product they want them to buy, they hesitate to make that argument with empathy. Instead, they default to talking about why they believe it.

To many people, it feels manipulative or insincere or even morally wrong to momentarily take the other person’s point of view when trying to advance an argument that we already believe in.

And that’s one reason why so many people claim to not like engaging in marketing. Marketing is the empathetic act of telling a story that works, that’s true for the person hearing it, that stands up to scrutiny. But marketing is not about merely sharing what you, the marketer believes. It’s about what we, the listener, believe.

Godin links to his book that fleshes out this theme.

I think Natural Law arguments come, well, naturally to me because I’ve internalized some of the Natural Law. I don’t argue that way, rather than from “Thus saith the Lord in Hezekiah 12:14,” because even if Hezekiah tipped me off to what the Lord said, what the Lord said tipped me off to the way things really are, not just to some “do it this way or I’ll hurt you in the bye-and-bye (which you therefore won’t find sweet).”

By my lights, then, I’m not entering dishonestly or manipulatively into someone’s alternative worldview, but (like Hezekiah quoting the Lord to me) pointing out to them what they truly believe because that’s how things truly are. There’s a lot of things that people “can’t not know.”

I guess this means that I don’t accept Godin’s premise that, deep down, people have divergent worldviews about deep-down realities. They merely have really, really thick ideological defenses against admitting reality (“really thick” as in “I’m not all that persuasive”).

Or maybe I don’t see what I’m doing as marketing, but as something more important than that trying to sell soup, soap, or legal services.

Now flip it over. I find very annoying people who have abandoned or never seriously professed the Christian faith, but who try to put their ideas into what they fancy as “Christian” terms — who try to appeal to what they fancy my alternative worldview. This includes, notably, things like the Facebook mêmes on the themes “if you were really a Christian you’d …” or “look how hypocritical these ‘Christians’ are.”

  • It generally comes across as insincere or as a form of browbeating a putative intellectual inferior;
  • It is generally tone-deaf to how Christians (at least Christians like me) think and talk (what I’ve branded “pretexting”); and
  • It generally posits something that isn’t really that way — that is, it tries to say that I as a Christian should believe some way (despite my perception that it’s unreal) simply because that’s what they get out of flying over something Jesus said at 30,000 feet and 500 mph.

I suppose the same could be true of a Christian from one tradition trying to translate their beliefs into one of the significantly different Christian traditions, too.

If I’m right about this “flip it over,” then despite Godin’s theory that they don’t like making an argument that appeals to the other person’s alternative worldview, they make it anyway. Do they think that the thing of which they’re trying to persuade me is no more important and fundamental than soup, soap or legal services? Generally, when people whip out their faux Christian hectoring, they’re talking about some fairly important stuff.

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I hadn’t intended to go here when I started writing, but yesterday brought news of a swarthy politician, who on the face of it, is appealing to people of faith to join him and his blond wife (“Heidi” is her name; how precious is that?!) in prayer, but who does so through a webpage that invites your public endorsement and won’t let you even sign up to pray with them unless you give him your e-mail address.

Since when does one sign up to pray in cyberspace? Does he really believe in prayer or is this a form of pretexting? Although he was targeting a different demographic than me, can I be offended anyway?

* * * * *

“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)

Some succinct standing advice on recurring themes.