Bench Memos

Clearing Up Confusion About “Discrimination”

“That’s discriminatory!” seems for many Americans today to be an observation that stifles more careful thinking about what line-drawing is legitimate and about the proper limits on the application of the norm of nondiscrimination. Indeed, it would seem that many people imagine that nondiscrimination is the ultimate American value that ought to trump everything else.

In his Public Discourse essay today—“Confusion About Discrimination”—law professor (and Bench Memos contributor) Richard W. Garnett does an excellent job of dispelling this confusion.

For starters, Garnett points out,

it is not true that “discrimination” is always or necessarily wrong.… “Discrimination,” after all, is just another word for decision-making, for choosing and acting in accord with or with reference to particular criteria. We do and should “discriminate”—we draw lines, identify limits, make judgments, act on the basis of preferences—all the time.… The practice is ubiquitous and unremarkable: We don’t blame someone for drinking Brunello rather than Boone’s Farm or for preferring The French Laundry to Arby’s.

It is an obvious point, but still worth making: It is not “discrimination” that is wrong; instead, it is wrongful discrimination that is wrong.

Americans used to speak approvingly of persons “with discriminating tastes”—of those who valued the true, the good, and the beautiful and who scorned the false, the bad, and the ugly. Americans used to understand that in the phrase “invidious discrimination” the adjective “invidious” is restrictive, and not merely redundant, of the noun “discrimination.”

Even wrongful discrimination, Garnett explains, is not always the appropriate target of government action: “Some wrongs and bad conduct are beyond the authorized reach of government policy; some are too difficult or costly to identify, let alone regulate; others are, put simply, none of the government’s business.” Further, “There is also the need for an appropriate—not a paralyzing, but an appropriate—humility about our ability to identify confidently and to operationalize through law and policy the content of our ideal of social and political equality.”

Rather than being the ultimate value, the norm of nondiscrimination is often “in tension, even in conflict” with other fundamental American commitments, including the commitment to religious liberty:

The rhetorical, moral, and legal power of the antidiscrimination norm can sometimes distort or distract our thinking about how we do and should protect religious freedom through law.…

We should not forget, though, that one dimension of the freedom of religion is, sometimes, precisely the freedom to “discriminate,” and that this freedom should be protected not simply because such discrimination is an all-things-considered tolerable wrong—sometimes it is, sometimes it isn’t—but because it is inextricably tied to something good—a human right—and is, sometimes, beyond political authorities’ legitimate reach. [Emphasis added.]

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