The landmark civil-rights bills that broke the back of racial segregation in the 1960s were not absolutist. They provided exemptions for religious organizations. They exempted "Mrs. Murphy," the landlady renting a room in her own house. At the time, civil-rights advocates in Congress made the pragmatic argument that exemptions were needed to pass the bill, but they also made the politically principled argument that exceptions would increase social comfort with the legislation while still covering the vast majority of cases — a trade they deemed worth making. So not even in those dire days, a time of genuine social emergency, did we insist on a policy of zero-tolerance.This is what I think. I think that if people on both sides stopped shouting and stopped demanding clear victory in principle for their side, they would find that they can easily get most of what they want. They just have to give up on their (generally not disclosed) goal of defeating, humiliating and punishing their opponents.
Since then, anti-discrimination law as enacted in countless jurisdictions and as interpreted by the courts is nothing close to being as absolute as today's activists and popular culture typically suppose. Employment-discrimination law offers exemptions for bona fide occupational qualifications, a conceptually elastic category that has proved, in practice, quite workable. State and federal nondiscrimination laws — as written, as judicially interpreted, and as further inflected by RFRA and its non-federal equivalents — are shot through with religious exemptions, most of which are so uncontroversial that only a few specialists even know they're there. Age-discrimination rules allow pension plans to treat old people differently than young people, and sex-discrimination rules allow single-sex elementary and secondary schools. Sexual-orientation anti-discrimination laws, where enacted legislatively, include religious carve-outs as a rule.
Then there is disability-discrimination law, which is one immense tangle of exceptions, because its "reasonable accommodation" standard is, by definition, entirely contextual. When the Americans with Disabilities Act passed in 1990, many thought it would be a bottomless pit of litigation and expense, but in practice it has proved to be surprisingly stable, affordable, and uncontroversial. In general, for every accommodation or exception that sparks a public argument (like the Hobby Lobby controversy), there are thousands that no one notices.
In fact, the pop-culture ideal of zero-tolerance nondiscrimination is possible only because of the underlying reality of ubiquitous accommodation. "The world would fall apart if you tried to pursue the logic of racial anti-discrimination into all these other areas," observes Walter Olson, a senior fellow at the Cato Institute. He is right: If Americans actually practiced nondiscrimination remotely as inflexibly as they preach it, the whole edifice would collapse.
Monday, August 14, 2017
Toward Compromise on Gay Rights and Religious Freedom
Jonathan Rauch thinks there are compromises to be made between gay rights advocates and defenders of a religious right to oppose homosexuality. He thinks the ground for compromise has already been laid out in existing nondiscrimination law, which is a lot less black and white than many people think: