Standing Against Indiscriminate Use of “Discrimination”

The label “discriminatory” is extremely potent, one might even say toxic, in our society today. The label brings to mind an entire framework of statutes, ordinances, regulations, professional codes, licensing criteria, funding limitations, human rights commissions, etc., not to mention the social stigma attached to being on the receiving end of an accusation of bigotry. Because of this toxicity, there is a tremendous incentive for one side of an ideological debate to tar its opposition as “discriminatory.” If the label sticks, the battle is largely won.

Opponents of abortion saw this dynamic in play in the early 1990’s. Abortion supporters filed a number of lawsuits against anti-abortion protesters arguing that opposition to abortion constituted a discriminatory animus against women as a class.

Shockingly, the majority of federal circuits agreed with the plaintiffs’ reasoning. It took a decision from the United States Supreme Court to establish that opposition to abortion could not be equated with a discriminatory animus against women—at least for purposes of the law at issue [Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 269 – 273 (1994)]. Despite this setback, abortion advocates continue to welcome any opportunity to deploy this “discrimination” argument in other contexts. If they saw an opening, these advocates would undoubtedly argue that judges who had belonged to or supported any pro-life organization (such as Life Legal Defense Foundation) should be disqualified from the bench because such association is proof of a discriminatory bias against women.

Currently, The California Supreme Court Advisory Committee on The Code of Judicial Ethics has called for comments on a new proposal that would categorize the Boy Scouts of America (BSA) as an organization that practices “invidious discrimination” on the basis of sexual orientation. (Curiously, the proponents of the change don’t seem to realize that by its own reasoning, the rule should also preclude membership in the Girl Scouts since they “discriminate” on the basis of gender.)

Life Legal Defense Foundation sent a letter to the Committee in response to their Invitation for Comment. In the letter, LLDF Legal Director Katie Short points out that as has occurred in so many controversial topics, this is no more than an attempt to silence the opposition.

From the letter:

This proposed amendment has as its stated purpose the branding of the BSA as an organization whose members must be assumed to be biased and thus unfit for the bench. The Committee states that “eliminating the exemption . . . would enhance public confidence in the impartiality of the judiciary.” On the contrary, by promoting a hierarchy of politically-favored “victim” status through pointlessly impugning the integrity of members of a venerable American institution, the proposed Amendment will communicate to the public that judges are being told by the California Supreme Court what to think, whom they may associate with, and what are permissible opinions to hold, and that only those who toe the line will be allowed to sit on the bench. The public can hardly expect impartiality from the judiciary in such a climate of intolerance.

One can easily envision other scenarios where the discrimination hammer could be brought down on other ideological opponents. Want to curb illegal immigration? You harbor a bias against Hispanics. Concerned about affirmative action in college admissions? You’re biased against minorities. Have strong views on foreign policy in the Middle East? That’s just a guise for religious bigotry.

“Because pro-life organizations such as LLDF itself deal in politically volatile subjects, the term ‘discriminatory’ often gets hurled our direction,” comments Ms. Short. “Since pro-life organizations may be the next on the California Courts’ list of ‘discriminatory’ organizations, we stand with BSA to fight this unfair designation.”

Read LLDF’s letter to the Advisory Committee here.