Thursday, April 2, 2015

"What the Foes of the Religious Freedom Law Get Wrong"

A reader recommended the following article for inspection.  The title of the post is the title of the Daily News article by S.E. Cupp.  

Cupp has some good observations:

The Indiana law, based on dozens of laws already enacted in other states, does not give businesses a “get out of gay free” card, if you will. It does, however, allow a business owner to raise religion as a defense when an anti-discrimination lawsuit is presented. There are no assurances that this defense will be upheld by a court of law.
But the outrage over Indiana’s law is outrageously inconsistent. Are Connecticut and Massachusetts, two liberal states with similar laws (whose governors are, not incidentally, mulling runs for President), also “backwards” and “intolerant”?
What about all the businesses that have scolded Indiana or threatened to pull out or halt expansion? Apple CEO Tim Cook, who came out himself last year, tweeted his disappointment in Indiana, saying that “Apple is open for everyone.” Apple still does business in Russia, though, where discrimination against gays isn’t merely a possibility but in fact codified into law. The company did briefly halt sales in Russia on Tuesday — not because of its laws endangering the rights of gays but because of the ruble’s plunging value.  
Hillary Clinton tweeted that she was “sad this new Indiana law can happen in America today.” But Clinton is happy to receive donations to her Clinton Global Initiative from Saudi Arabia, where homosexuals are actually beheaded.

But I take issue with other details in the article, specifically in the paragraphs I shall label [A] [B] and [C]:

What no one in this debate seems to be disputing is the idea that more anti-discrimination laws — whether to protect religious freedom or homosexuals — are actually the solution to end discrimination.
But that’s the real question we should be asking.
The thought that, with reams of laws and regulations already on the books, the government can ban discrimination in the private sector through endless, redundant, poorly-worded and ill-conceived laws like the Indiana RFRA is not just wishful thinking — it’s dangerously naïve. Libertarians have long been skeptical of this notion, and have often suffered the price for resisting the ever-expanding scope of government control of private-sector practices.
For raising questions about the Civil Rights Act, for example, former presidential candidate Barry Goldwater and future presidential candidate Rand Paul are called bigots. But while most people agree that the Civil Rights Act was important legislation, others rightly and bravely wonder: Where does it end?
[A] David E. Bernstein in an essay for CATO, a libertarian think tank, put it this way:“There is no natural limit to the scope of antidiscrimination laws, because the concept of antidiscrimination is almost infinitely malleable ... Is a school admitting students based on SAT scores? That is discrimination against individuals (or groups) who don’t do well on standardized tests! Is a store charging more for an item than some people can afford? That is discrimination against the poor! Is an employer hiring only the best qualified candidates? That is discrimination against everyone else!”
[B] What Pence and others have done is cede immense authority to the government to police discrimination when, in fact, the free markets are a far better way to do just that. The businesses that hire the best people and serve the most customers, regardless of their gender, sexual orientation or any other qualifier, will be economically rewarded and favored by the markets.
[C] Look, discrimination is an ugly blight and we should want to stamp it out. We need broad laws like the Civil Rights Act to protect minority classes from being excluded from economic, political and civil society. But we should all be skeptical of the idea that the government can solve discrimination with more and more laws, when the culture and the markets are far better motivators.
As a free-market conservative, Pence knows better than others that big government solutions — redundant and arcane laws wrought by countless committees that merely give more business opportunities to trial lawyers — rarely solve our most complicated problems. His sin here isn’t one of bigotry, it’s one of surprising liberalism.

Let me start with [B].  Cupp says that Gov. Pence has given "immense authority to the government to police discrimination."  But that is just untrue.  The RFRA laws place (modest) limits on government--specifically the courts--on the extent to which the government can side against citizens acting on the basis of religious beliefs. It is not at all clear how RFRA laws give government more authority let alone more power to police discrimination.

Regarding [A] and [C] there is an apparent contradiction.  On the one hand, I am in agreement with Bernstein.  Bernstein correctly deploys the term "discrimination" which most people in the debate fail miserably to do.  Discrimination is a morally neutral term.  Everyone discriminates; everyone makes discriminations all the time.  When grading essays I discriminate against poor writing.   Scientists discriminate between atoms, molecules, and compounds.

If you go to the Oxford English Dictionary, it is not until one gets the sixth definition of "discrimination" that one gets anywhere close to a non-neutral definition, and even here the definition is morally neutral:

6. orig. U.S. Unjust or prejudicial treatment of a person or group, esp. on the grounds of race, gender, sexual orientation, etc.

Even this definition is itself morally neutral since the "or prejudicial treatment" clause is itself morally neutral (e.g. extreme prejudice against Nazi's killing Jews is in fact morally good).  So the only definition which is morally negative is itself ambiguous.  "Discrimination" is thus a morally neutral term and discrimination is a morally neutral action.

Cupp appears to agree with Bernstein, citing him approvingly.  But then in [C] he says that "discrimination is an ugly blight and we should want to stamp it out."  How is that compatible with "discrimination" as a morally neutral term and with the claim that "antidiscrimination is infinitely malleable?"  It does not appear to be.  What is wrong with discrimination?  Is it unfair discrimination that we should stamp out?  Unjust discrimination?  Discrimination against maximizing interest fulfillment or pleasure?  Cupp does not tell us; instead he unwittingly falls into the progressive pitfall of a semantic distortion.

Philosophical maxim: Define your terms.
Conservative maxim: Do not engage in the semantic distortions of the left, nor use terms which they have loaded with certain connotative meaning and emotive force.  Instead, challenge the left to define their terms and clearly state their arguments.

Example: If someone tells you that discrimination is wrong or that we should stamp out discrimination, ask them what "discrimination" means.  Then follow the arguments (if there are any) to get to the underlying presuppositions.

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