Discrimination and Justice

Imagine the following scenario. You are at a bar or a nightclub and someone comes up to you, expressing romantic interest, and asks you for your name and contact information. This person is of the same sex as you and you, not being into that, politely explain this and turn this person down. The next day, you are notified that you have been charged with discrimination on the grounds of sex and sexual orientation. You think the charge is absurd but find yourself dragged into a long, expensive, legal battle, at the end of which, a judgement is made against you, and you are slapped with a fine that exceeds your annual gross income and which you cannot possibly pay.

“Preposterous,” you say. “That could never happen!”

Why not?

“It is not discrimination for a heterosexual to turn down an advance from someone of the same sex.”

Actually, yes it is. To discriminate is to observe a difference or make a distinction and to act as if that difference or distinction mattered. A man, who turns down a sexual advance from another man, because he himself is heterosexual, is discriminating against potential sexual partners on the grounds of both their sex and their sexual orientation.

“That cannot be right. There is nothing wrong with a person rejecting an advance from someone he is not attracted to.”

That is my point precisely. There is nothing wrong with it. Furthermore, since there is nothing wrong with it, there is nothing wrong with discrimination qua discrimination.

It is a matter of basic logic folks. A heterosexual man, being attracted only to women, will turn down advances from other men. In doing so, he is making and acting upon a distinction between men and women, and therefore discriminating. If discrimination is wrong in and of itself, then it is wrong for him to do so. Since, however, everyone who is not crazy knows that there is nothing wrong with a man who is attracted only to women turning down another man, it must therefore follow that discrimination in itself is not wrong.

As impeccable as this logic is, the conclusion will still be resisted by those who, lacking all capacity for thinking outside of the “discrimination is wrong” box, will sputter in helpless rage at this demonstration of how everything that they have been brainwashed into thinking by the news media, popular entertainment and the Stalinist indoctrination camps that are our public educational system all their lives is wrong. To pour salt on their wounds, I will point out that logic brings us to the same conclusion if the scenario is altered so that it is a lesbian rather than a heterosexual man rejecting the advances of a male suitor.

“Not so fast”, someone might object, “to arrive at the conclusion that discrimination is not intrinsically wrong from that starting point would requires that the lesbian be right or at least not wrong in rejecting her male suitor, and does not traditional Christian morality teach that lesbianism is wrong?”

Traditional Christian morality does indeed teach that lesbianism is wrong but not in a way that would affect the outcome of our argument. It is not the lesbian’s rejection of men that traditional Christian morality condemns as sinful but her having sexual relations with other women. It is modern liberalism that runs into a problem here, because liberal ethics seeks to simultaneously affirm the goodness of homosexuality and the injustice of discrimination. The lesbian’s choice of sexual partners, however, is no less discriminatory based on sex than that of the heterosexual male – or for that matter those of the homosexual male and the heterosexual woman.

It is not wrong to discriminate. That does not mean that it is always right to discriminate, of course, but it does mean that the rightness or wrongness of an act of discrimination lies elsewhere than in the mere fact of its being discriminatory. This is one of the reasons why laws against discrimination are themselves unjust.

It is a little over fifty year since the first anti-discrimination bill, the US Civil Rights Act of 1964 was passed. The United Kingdom followed suit with the Race Relations Act of 1965 and Canada with the Canadian Human Rights Act in 1977. Other Western countries brought in similar legislation and the US, UK and Canada have all subsequently amended and expanded their initial anti-discriminatory bills.

Advocates of this sort of law point to injustices of the era in order to justify the introduction of these laws but the interesting thing to note about that is that the injustices in question consisted of laws and government policies whereas the anti-discrimination bills forbade private acts of discrimination. Segregation in the southern United States, for example, the justification given for the US Civil Rights Act, was the separation of the races by laws enacted by the state governments in the late 1800s, laws which were struck down by the American Supreme Court ten years before the US Civil Rights Act, which forbade discrimination on the part of businesses, employers, and those looking to sell or rent a house, was passed.

It is one thing to tell a magistrate, responsible for hearing and settling disputes between two parties, that he is required to base his ruling on the facts of the case and not on the wealth and social status of the parties in question. This has been recognized as a basic principle of justice from time immemorial and the violation of it is the classic example of a kind of discrimination that is also an injustice.

It is a different matter altogether to tell an employer that he cannot discriminate in his hiring practices. Imagine if the government were to pass a law that says to employers “if a member of group X comes to you looking for a job, you are required to hire him, and you must never fire him.” That such a law would be a grotesque injustice to employers is easily recognizable by all sane people but laws which forbid discrimination on the part of employers inevitably translate into such laws in practice. If the law says you are not allowed as an employer to discriminate against members of group X, and a member of group X applies to be hired and is turned down, he can then charge you with discrimination and you will be faced with the burden of proving that your decision was not based on discrimination. That is not something that can be proven to a human judge, however, because discrimination takes place in the heart and mind which the judge cannot see for himself and can hardly be required to take your word for it. Therefore, the only way to protect yourself as an employer from a false charge under a law that says “you cannot discriminate against members of group X” is to treat the law as if it said “you are required to hire members of group X.”

Laws that forbid discrimination by placing the onus of proof upon the accused rather than the accuser and by presuming to dictate what we can and cannot think or feel in our thoughts and hearts violate our civilization’s traditional principles of justice and are experiments in totalitarian thought control that would be right at home in kind of Communist hellhole that Stalin and Mao ran and George Orwell satirized. Which is why, unless these laws are revoked, we can expect that someday in the not so distant future we will see the absurd hypothetical scenario with which I began this essay, become an absurd reality. It is the fundamental nature of these laws to produce such an outcome.