Civil-Rights Law as Lawyer Full-Employment Act

The data that Eric Kaufmann presents and explains about ideological prejudice, social intolerance, and “affective polarization” (“Political Discrimination as Civil-Rights Struggle,” July 12) are as disturbing as they are depressing. Progressive authoritarianism is a growing problem, particularly among young elites and thus at the commanding heights of business, culture, and education. But the solution Kaufmann proposes – expanding anti-discrimination law to cover political belief – is worse than the disease.

There’s a reason why legal protections for ideology are currently found only in places such as Seattle and Washington, D.C.: They’re progressive innovations, one more barnacle on the crusty hull of employment law. Each time a new protected category is added to civil-rights laws that were originally enacted to break Jim Crow – talk about “systemic racism”! – it further burdens employers and enriches lawyers. Indeed, Kaufmann’s proposal is a lawyer full-employment act, with easily foreseeable litigation about whether a particular ideological belief is a “bona fide occupational qualification.”

“Legislators and courts would need to define terms tightly,” Kaufmann allows, but how confident are we that they would, or will long continue to do so? If discrimination “on the basis of sex” can be read 50 years later to include sexual orientation and gender identity – see last year’s Bostock v. Clayton County, which did just that to federal employment law – then even the tightest statutory definitions will loosen over time. In other words, the idea that narrow exemptions for political parties (what about think tanks?) from a ban on political discrimination won’t eventually be read to allow forced adherence to corporate diversity/equity/inclusion statements is laughable. And then we’re back where we started, except with more billable hours.

Ilya Shapiro Vice President, Cato Institute

Eric Kaufmann responds: Ilya Shapiro makes some valid points in response to my piece. Civil-rights law has mushroomed far beyond its original intent since its inception, with activist interpretations of categories such as sex. But in my estimation, this concept creep stems from wider culturally leftist currents in elite society. In countries such as Canada, Britain, and Sweden, which have a different legal history from America’s, we find the same anti-conservative prejudice, cancel culture, and woke attacks on white majorities and the nation. While it would be nice to abolish protected categories to focus on individuals, this is not realistic for the foreseeable future. The worst of all worlds is what we have now: protecting the Left’s sacred groups while leaving the field open for increasingly pervasive anti-conservative discrimination and violation of people’s freedom of expression and conscience.

Adding categories would offer at least some ideological balance and better reflect the reality that discrimination with regard to political creed is the most pervasive form that currently exists. This will act to check the excesses of conventional discrimination claims, since the removal of current asymmetries will focus progressive minds on what it feels like to fall afoul of protected categories. Progressive cities have ideological protections because the Left needed them: Conservatism was once the main threat to liberty and equal treatment. Today, the identity Left is the main illiberal force in society, and so it is likewise natural for conservatives to seek protection.

The status quo is not an option. The rising generation is far more illiberal, and woke activists are increasingly moving toward an Orwellian society that persecutes wrongthink and discriminates against conservatives, whites, and males. I’m no fan of lawyers, but cutting a few checks to them to stay progressive authoritarianism in the major organizations of society is an easy decision. Restraints on the ability of a few small and peripheral conservative businesses to fire or discriminate is a cheap price to pay to prevent powerful elite institutions from realizing their goal of eliminating cultural conservatism and color-blind liberalism from the nation’s power centers.