Equality and Non-discrimination

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Equality and Non-discrimination: Catholic Roots, Current Challenges

Edited by Jane F. Adolphe, Robert L. Fastiggi and Michael A. Vacca

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This volume explores ways of understanding equality and non-discrimination. Drawing on the timeless logic of realist philosophy, Catholic morality, and Catholic social teaching, the authors seek to provide intellectual clarity on many controversial questions.

The contributors are lawyers, philosophers, and theologians who offer rich insights into the modern crisis of social thought on equality. They examine various global assaults on human life, marriage, the family, and the natural dignity of masculinity and femininity. They seek to uphold the essential foundations of reality for the attainment of the common good. The contributors attempt to move beyond a positivist mentality in order to evaluate the first principles of the natural law in which all human law is grounded.

The various chapters evaluate developments and application of theories of equality and non-discrimination in the history of Western thought; in modern European practice; in contemporary inter-American practice; in the Asian setting; in the Middle East and North Africa; and in the Catholic canon law tradition. The authors strive to restore a universally valid conception of equality and non-discrimination as understood within the Catholic tradition.

Reviews

Review by Roger Kiska

June 7, 2019 • Roger Kiska • Acton Institute

The ironic thing about equality laws is that they do not promote equality. Instead, by defining individuals by a single characteristic, they tend to breed division and tribalism. Rather than looking to the uniting force of our shared humanity, equality law audaciously demands that some people are created more equal than others and that we must celebrate their particular, protected characteristics, even if doing so violates our conscience.

Special interest groups representing competing “rights holders” spend millions of dollars campaigning, and exerting immense moral and political pressure, to assure they earn a privileged spot in an “equality hierarchy.” Such has been the situation time and again in every jurisdiction, nationally and intergovernmentally, where comprehensive non-discrimination laws have been passed.

With the United States now looking to adopt its own “Equality Act,” a measure which would amend the 1964 Civil Rights Act and the 1968 Fair Housing Act to include sexual orientation and gender identity as protected classes, a comprehensive and compelling treatment of just how great a threat non-discrimination laws pose to the fundamental freedoms Americans enjoy could not be more timely. This is precisely what we get from Equality and Non-Discrimination: Catholic Roots, Current Challenges, edited by Jane F. Adolphe, Robert L. Fastiggi, and Michael A. Vacca.

Each chapter approaches the issue from a different perspective, providing us a fulfilling and comprehensive look at the issue of the principle of non-discrimination. From looking at the philosophical underpinnings of non-discrimination laws, to providing a historical analysis of the advent of the principle of non-discrimination from a Catholic perspective, to getting down into the nuts and bolts of just how menacing laws promoting sexual orientation and gender identity (SOGI) can be, Adolphe et al. cover the jurisdictional spectrum from Asia to South America, and everywhere in between. The book is a must read for those concerned about what adoption of the “Equality Act” might mean for Americans, in an era marked by what Robert F. Gorman describes in the foreword as “exaggerated subjectivism and the denial of fundamental truths rooted in reality.”

A philosophical approach to equality and non-discrimination

In the book’s first essay, co-editor Robert L. Fastiggi provides a unique introduction to equality law by suggesting an alternative hermeneutic to establishing true equality: the equal dignity of all human beings from conception until natural death, grounded in their common rational nature. Fastiggi convincingly unpacks the Catholic Church’s teaching that all humanity shares the image of God, because the rational spiritual soul is what makes us truly human.

Fastiggi suggests that the principles of equality and non-discrimination have become more complex in recent years because they are being extended to behaviors and lifestyles, not merely to persons. Not all forms of behavior, he argues, are equal. He explains that equality is rooted in biology and natural law, as well as the constant witness of cultures and religions throughout human history.

Continuing in the same vein, Ernest Caparros sums up the Christian theological premise of equality and difference within humanity. All are born in God’s image and baptized into radical equality but distinguished by their callings. He notes that this principle was diminished by the medieval understanding of societas inequalis (which is often inferred as clericalism). However, this principle was firmly re-established by Vatican II, where a proper understanding of the sharing of priests and the laity in Christ’s priesthood, each in their respective condition, was a focal point. All are mutual participants in the unique mission of the church with equal dignity, acting as different parts in one body.

In chapter three, Daniel B. Gallagher makes a case for reclaiming the natural law in order to reach a proper understanding of equality. His thesis is that natural law is the ontological priority of ends over purposes. Natural law recognizes that there are ends in things and that our purposes and choices must respect their priority. He postulates that there are four ways in which the truth of ends can be obscured: impulsiveness, moral obtuseness, immaturity, and vice. He closes his argument by suggesting that if we are to show how truth occurs, it is necessary to first show how truth is hidden.

SOGI laws and the marginalisation of Christianity in the West

From the theological and philosophical treatment of equality in the first three chapters of the book, Ryan T. Anderson decidedly changes gears and puts the issue of non-discrimination laws under a microscope. In what may be the most powerful and convincing chapter of the book, he argues that current proposals to create new LGBT protections in the United States give immense amounts of privilege to a few, while doing tremendous damage to the fundamental liberties of many. SOGI laws, he argues, diminish religious freedom, freedom of speech, freedom of conscience, and educational rights, while only giving limited exemptions to religious organisations.

Anderson makes the point that such sweeping legislation is not at all necessary where more tailored policies can achieve the same ends: preventing the mistreatment of those who identify as LGBT without depriving a large portion of Americans of their substantive freedoms.

Iain Benson then looks at the current paradigm of equality as a “swindle,” a meaningless word so vague that it can evade accountability and eventually corrupt thought. He rightly points out that we live in a time where everyone thinks equality is a good idea but not one in a hundred can tell you what it means, or how it can be achieved. As he artfully contends, forms of decontextualized “equality” or “discrimination” fail to respect diversity and tend towards authoritarian societies.

Monsignor Piotr Mazurkiewicz’s chapter on the redefinition of equality and human rights in the European Union is perhaps one of the best treatments of the development of European anti-discrimination law ever written. He cuts through incredibly dense and complex legislative history, distilling the issues and how these laws came about with both surgical precision and ready accessibility. Like Anderson, he poignantly argues that giving churches a religious exemption is not the solution because, at a minimum, this gives the public appearance that churches are state-sanctioned discriminators. Not only does this appearance damage the public perception of churches and doctrine, but it will lead to those exemptions being taken away.

British Barrister Paul Diamond, who personally argued some of the leading equality and religious freedom cases before the European Court of Human Rights, paints a dark picture of Western concepts of secular egalitarianism. His argument is based on two principles: 1) there is a prevailing ideology of human rights and equality which presupposes, and thus dominates, all legal discourse; and 2) Western culture has an active animus towards Judeo-Christian belief and practice.

He argues that the aforementioned human rights ideology seeks to “domesticate” religion by passing through four stages. The second-to-last stage, where he argues the United States currently finds itself, is actively disincentivizing people from religious belief. State laws punishing Christian service providers for not participating in same-sex weddings would be an example. The final stage, to which he suggests the United Kingdom is slowly creeping, is the criminal sanction of Christian belief. He provides criminal “hate speech” laws as an example where the expression of beliefs about sexual practice or the absolute truth of Christianity can lead to criminal sanction.

The Global Emergence of the SOGI Agenda

The closing chapters of the book look at the emergence of the principles of sexual orientation in other parts of the world. Carmen Dominguez Hildago chronicles the shocking emergence of the SOGI agenda in the Americas through heavy-handed judicial activism at the Inter-American Court of Human Rights. She helpfully outlines the Atala v. Chile case and its implications before looking at the legislative implementation of sexual orientation as a privileged class at the state level. She juxtaposes the aggressiveness of the SOGI agenda at the intergovernmental level against the domestic laws of many nations in the region, which either do not recognize sexual orientation or still prohibit homosexual activity. Hildago’s strong picture of cultural imperialism over the region foreshadows more secular, culturally aggressive policies arriving in other regions in the future.

Professor Ursula C. Basset delves further into the Inter-American system. She begins by highlighting the unique nature of the 1969 American Convention on Human Rights (ACHR) as a document that explicitly enumerates a right to life from the moment of conception and places a high premium on family. She notes that the Inter-American human rights system is unique – and recounts the historical vulnerabilities its member states have faced, including inequalities based on poverty and social class. Her interpretation of Article 1 of the Convention is highly illuminating. The right to life as defined in the ACHR bases equality on our common humanity. She provides an honorable defense of the original intent of the Convention as promoting family and human dignity, then compares it to some of the case-law which she describes as contradictory, controversial, and more European or Northern American than Latin American. This chapter is a must read for anyone interested in the original meaning of the Convention and how it has broken from its roots.

Dr. Brian Scarnecchia provides an interesting and strategic chapter about the Association of Southeast Asian Nations’ (ASEAN) Declaration of Human Rights (ADHR), a document which is unique to international law in that it explicitly affirms regional values and national sovereignty. He argues that it was the intent of the declaraton’s 10 parties to insert their own cultural and regional rights, and national sovereignty, into the stream of the prevailing Westernized human rights ideology. He offers a road map to ASEAN, and advocacy groups, to protect the cultural integrity of these nations from international pressures relating to abortion and the LGBT agenda. It is one of the few critiques of human rights ideology I have come across which posits some helpful solutions to level the proverbial playing field.

Finally, Geoffrey Strickland’s analysis of religious freedom and Christianity in the Middle East and North Africa in the context of the papal visit to Turkey in 2014 delves into Pope Francis’ response to a reporter’ s question about Islamophobia and Christianaphobia. Strickland notes that the manifestation of Christianaphobia in the Middle East and North Africa has meant an attempt in some areas to eradicate Christians all together, either by displacement or genocide. The chapter offers a poignant analysis of how true equality can be created in a region where terms like fear, phobia, and other neologisms are fast becoming obsolete.

The book is highly recommended to anyone interested in the issue of equality and non-discrimination. Too much is at stake not to be informed about these key issues. Several of the chapters are powerful enough to warrant book-length treatments of their own. Professor Benson was right to say that not one in a hundred people know the meaning of equality or how to achieve it. It is my sincere hope that people will read this book and come to a more comprehensive understanding, rooted in the precious inheritance handed down by the West.


Review by Randy Lee

2020 • Randy Lee • Commonwealth Law School, Widener University, Pennsylvania

Copyright © 2020 The Catholic Social Science Review 25 (2020): 227–262

Equality and Non-discrimination: Catholic Roots, Current Challenges reminds us that the early Church was frequently confronted with opportunities for discrimination (Ernest Capparros, “Sacramental Roots of Canon Law”). The Church, after all, was populated, by, among others, Hellenists and Jews (Acts 6:1), the circumcised and the uncircumcised (Acts 15:1– 21), slaves and free (Phil), and followers of Paul and followers of Apollos (1 Cor 3:4). There were barriers in nationality, language (Acts 2:6–12), gender (Eph 5:21–32), and wealth (Acts 5:1–11). In addition, experience revealed that even the most noble of hearts in the Church could be divided by their approaches to dealing with others (Acts 15:36–40).

Yet, despite all the opportunities for discrimination, the early Church was defined primarily by a desire to embrace all the diversity that had been drawn to it (Jn 12:32) and fashion all that diversity into “one body” (1 Cor 12:13), a body so thoroughly integrated that all its parts “were together and had all things in common” (Acts 2:44). Indeed, it was precisely the diversity of the Church that allowed it to function as a body and to minister and bless in a multitude of ways (1 Cor 12:19). If only some were apostles while others were prophets and still others were teachers, if all did not work miracles, but some, instead, had the gift of healing while others spoke in tongues and others interpreted, this meant that the Church as a whole could shepherd and prophesy and teach and heal and perform miracles and speak in tongues and interpret (1 Cor 12:28–30).

All parts of the Church were to be recognized not only as equal but as equally indispensable, and no greater honor was to be assigned to one part over another. In this body, there was to be no discord between members, but, instead, “[i]f one member suffers, all suffer together; if one member is honored, all rejoice together.” Ultimately, all the diverse parts of the Church were joined together into such perfect harmony of purpose and cooperation by Spirit and by love (1 Cor 12 and 13).

In his foreword to Equality and Non-discrimination, Professor Robert Gorman recognizes that in the current American social construct, concepts of equality and non-discrimination are of particular concern just as they were in the early Church. Indeed, Professor Gorman describes those concepts in American discourse today as “almost obsessive preoccupations” (xvii). In fact, as Jane Adolphe notes in the introduction, there are those who presently insist that “all rights could be virtually reduced to a discussion about equality and non-discrimination” (xxiii).

Yet, even as American discourse seems in consensus that “equality” and “non-discrimination” are concepts that must play a role in the ordering of our society, there remain questions about those concepts. For example, are equality and non-discrimination truly so comprehensive in their reach that all other rights can be ignored in the discussion of how to order our society? Are equality and non-discrimination ends in themselves, or are they, as they were in the early Church, means to a greater end, such as unity of being?

In addition, when we use the terms equality and non-discrimination in our discussions, what will they actually mean? As Gorman points out, “How one defines and discriminates these terms is an important matter for the health and well-being of both individual persons and of the society as a whole” (xvii). Once we acknowledge that people have “diverse talents, capacities, and personalities” and that, therefore, all people are not the same, the meaning of equality becomes tricky. Similarly, we accept as a political community that discrimination on the basis of race, for example, is necessarily “suspect.” (See, e.g., Loving v. Virginia, 388 U.S. 1, 10 (1967) (“the clear and central purpose of the Fourteenth Amendment was to eliminate all official sources of invidious racial discrimination in the States.”).

Yet, every day we discriminate between those who have passed the bar exam and those who have not in the opportunity to provide legal services, and we discriminate between those who are strong and fast and those who are slow and weak in the selection of our athletic teams. Some employers only hire from the top ten percent of the class, some only hire particular majors, and some only hire from particular schools. Obviously, then, some forms of discrimination are socially tolerable, or perhaps, even “necessary for the well-being and good order of society” (xvii) while others are not. How can we reliably distinguish between those forms of discrimination we can tolerate and those forms we cannot?

Much like the early Church, America has committed itself to trying to bring its very diverse “We the People of the United States” into an increasingly “more perfect Union.” Thus, one might expect that as America seeks to get right “the definitions of equality and inequality and the distinction between non-discrimination and necessary discrimination” (xvii), there would be room for Catholics to offer into this process the experiences and teachings of the Church. We live in a time, however, when such participation has been drawn into question. For example, Senator Dianne Feinstein recently observed during the confirmation hearing of then-Professor Amy Coney Barrett to the Seventh Circuit of the United States Court of Appeals that Professor Barrett’s Catholic faith “lives loudly” within her and that the presence of that faith within Professor Barrett should disqualify her from serving as a federal judge.

While Equality and Non-discrimination can be described as a courageous, insightful, and though-provoking work, the work’s greatest value may well be that it demonstrates that Catholicism and Catholics can play a role in helping our nation get right the meanings of equality and non-discrimination, and get them right in such a way that we are able to achieve “a more perfect Union.” From the opening chapters in which Robert Fastiggi (“Human Equality and Non-discrimination in Light of Catholic Theology and Magisterial Teachings”) and Ernest Caparros show that, indeed, the Catholic Church has grappled with these issues for millennia and has been led to insights, which merit at least consideration by open-minded decision-makers, to the subsequent chapters, which show that one can be an effective and insightful lawyer, statesman, ethicist, or social scientist and draw upon one’s Catholic beliefs, the book invites its readers to acknowledge just how much Catholics and Catholicism have to offer the current discourse on equality and non-discrimination.

Professor H. Jefferson Powell once observed that a people is defined as much by the questions “they think important as the answers they think correct” (The Moral Tradition of American Constitutionalism, 1993). One might add to this that a people is also defined by to whom and how well the people listen as they select their questions and pursue their answers. The United States Constitution cannot be evaluated simply by the words it brings together on paper. Instead, by its own terms, it must be evaluated by the quality of the “Union” it ultimately creates. Similarly, the quality of that Union cannot be determined simply by noting that it insists on “equality” and “non-discrimination”; rather, the quality of that Union is a function of how the Union lives out those two terms.

In Equality and Non-discrimination: Catholic Roots, Current Challenges, Jane Adolphe, Robert Fastiggi, and Michael Vacca bring together works that demonstrate that the Catholic Church and individual Catholics can bring to the discussion of equality and non-discrimination a wealth of insights gleaned from historical immersion and professional experience. It would be a Union far from perfect that would ignore their voices in that discussion.


47 Best Discrimination eBooks of All Time (42nd Book on List)

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Recommendations by Mark Zuckerberg, Brooke Lynn Hytes, Adam Wagner, Asher Wolf and 24 others.

42. This volume explores ways of understanding equality and non-discrimination. Drawing on the timeless logic of realist philosophy, Catholic morality, and Catholic social teaching, the authors seek to provide intellectual clarity on many controversial questions. The contributors are lawyers, philosophers, and theologians who offer rich insights into the modern crisis of social thought on equality. They examine various global assaults on human life, marriage, the family, and the natural dignity of masculinity and femininity. They seek to uphold the essential foundations of reality for the attainment of the common good.

The contributors attempt to move beyond a positivist mentality in order to evaluate the first principles of the natural law in which all human law is grounded. The various chapters evaluate developments and application of theories of equality and non-discrimination in the history of Western thought; in modern European practice; in contemporary inter-American practice; in the Asian setting; in the Middle East and North Africa; and in the Catholic canon law tradition. The authors strive to restore a universally valid conception of equality and non-discrimination as understood within the Catholic tradition.

Articles Referring to the Book

US Supreme Court stuns with activist ruling on anti-discrimination

June 22, 2020 • Roger Kiska • Christian Concern

The Christian Legal Centre’s Roger Kiska comments on the US Supreme Court’s recent ruling on sexual orientation and transgenderism.

On 15 June, the United States Supreme Court stunned many by delivering a landmark anti-discrimination ruling in the case of Bostock v. Clayton County, Georgia, literally legislating into Title VII of the Civil Rights Act of 1964 the concepts of sexual orientation and transgender status. What has shocked most legal analysists is that the judgment happened because of the votes of two of the court’s conservative judges, Chief Justice John Roberts and Associate Justice Niel Gorsuch, the latter of which drafted the opinion for the majority. Gorsuch began his term in April 2017, after being nominated by President Donald Trump to replace the then recently-deceased Antonin Scalia.

Title VII: Sex Discrimination

The provision in question, SEC. 2000e-2 [Section 703] reads in pertinent part:

“(a) it shall be an unlawful employment practice for an employer -(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin…”

What is immediately apparent, even for those who have not spent a single day in law school, it that the terms sexual orientation and transgenderism do not appear anywhere in the text.

Justice Gorsuch, before imputing new terms to the statute which Congress has itself refused to do on a great many occasions, writes a disclaimer into the judgment condemning the exact practice he is about to engage in:

“This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations.

The majority decision then proceeds to suggest that the term ‘sex’ in the statute is inclusive of sexual orientation and transgender status. In one of the penultimate statements in the judgment, Justice Gorsuch writes:

“The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

To be clear, if it wasn’t already clear enough from a plain reading of the text itself, sex is not synonymous with sexual orientation or transgender status; nor is it indissociable from them. Gorsuch himself admits in the judgment: “We agree that homosexuality and transgender status are distinct concepts from sex.

The courts are not the legislature

Among the many flaws in his reasoning, I think it important to expose four of them. First, he rejects the argument that had Congress wanted to add protections for sexual orientation and transgender status, it would have done so. He goes so far as to suggest that there is no authoritative way to know why Congress chose not to add these terms into the Statute, even though it had in other statutes and refused to do so on numerous occasions in relation to Title VII. He then makes the unsustainable claim that perhaps some legislators already knew that the “broad language” of sex discrimination would include sexual orientation and transgenderism.

The legal phrase res ipsa loquitur comes to mind, which literally translates as “the thing speaks for itself.” The Employment Non-Discrimination Act [ENDA], which proposed to do the same thing as Justice Gorsuch did with a proverbial sweep of his pen, has literally been introduced into every congress but one since 1994, and been rejected each and every time. From 2015, the Democrats have also tried to pass the Equality Act, which would go further that ENDA by also including sexual orientation and transgender identity into housing, public accommodations, public education, federal funding, credit and jury service, in addition to employment. It too has failed. There has been a very public debate about both laws and why they were not passed. It is frankly baffling that Justice Gorsuch would be so intellectually dishonest about the why each of those attempts failed.

Legal sophistry

Second, the majority decision suggests that there is no need to look at legislative history to discover that the term sex must also include sexual orientation and transgenderism. Looking at legislative history is an analytical process seeking to determine what the original legislators actually intended to protect when they drafted the language in the first place. Here again, the majority engages in sophistry so blatant that it would make Protagoras himself blush. Justice Gorsuch suggests that appealing to legislative history applies only where ambiguity as to the plain meaning of a term exists. He suggests that no ambiguity whatsoever exists, arguing that it is self-evident that the term sex also includes sexual orientation and transgenderism. Perhaps Mr Gorsuch should open up a dictionary to see that this position is not nearly as self-evident as he believes it to be.

Comparative jurisprudence

Third, a comparative legal analysis clearly evidences that sexual orientation and transgender status are not the same as sex. America’s neighbour to the North, when enacting its signature piece of federal anti-discrimination legislation, the Canadian Human Rights Act, drafted separate protected categories for both sexual orientation and gender identity, apart from sex. Similarly, in the United Kingdom, gender reassignment and sexual orientation are protected separately from sex in the Equality Act 2010.  Under European Court of Human Rights Jurisprudence, sexual orientation and gender identity are also clearly separated from the protected characteristic of sex. Whereas sex is clearly enumerated in Article 14 of the Convention (prohibition against discrimination), the Courts have always placed gender identity and sexual orientation within the category of “other status”, a catchall phrase used at the end of Article 14. The EU’s employment anti-discrimination law, likewise clearly enumerates sexual orientation apart from sex. It was the Court of Justice, and not the Commission or Council, which later categorised gender reassignment to be included within the meaning of sex in EU law. Perhaps Gorsuch took his activist cue from the EU court in coming to his reasoning in Bostick.

Religious and moral freedom

Lastly, the majority tries to distance itself from the consequences of its ruling by suggesting that their ruling has no bearing on the question of religious freedom, sex segregated bathrooms, dress codes and locker rooms by suggesting that none of those laws were currently before them and are yet subject to adversarial testing. Gorsuch then points to the fact that exemptions have been carved into Title VII for religious organisation and that further protection for religious freedom exists in the form of the Religious Freedom Restoration Act 1993, which he fails to mention was ruled to be unconstitutional in relation to enforcement against individual states in the case of City of Boerne v. Flores.

A recently published book on precisely these issues, ‘Equality and Non-Discrimination: Catholic Roots, Current Challenges,’ edited by Jane F. Adolphe, Robert L. Fastiggi and Michael A. Vacca, provides some truly invaluable insights about extending sexual orientation and gender identity into anti-discrimination law. In the book, Ryan T. Anderson argues that the creation of new LGBT protections gives immense amounts of privileges to a few, while doing immense damage to the fundamental liberties of many. SOGI laws, he argues, diminish religious freedom, freedom of speech, freedom of conscience and education rights while only giving out limited exemptions to religious organisations in return. In a later chapter of the book, Monsignor Piotr Mazurkiewicz’s poignantly argues that giving churches exemptions is not the solution because at a minimum, this gives the public appearance that churches are state sanctioned discriminators. Not only does this appearance damage the public perception of churches and doctrine, but it will lead eventually to those exemptions being taken away.

Culture follows the law

More than this however, what the Supreme Court has essentially done has been to create virtues of both sexual orientation and transgenderism. Culture follows law. Acts discriminating against someone on the basis of sexual orientation or gender identity, whether based on a Christian conviction or not, may in short order be viewed by culture as being as heinous as racism or sexism.

Furthermore, by unconditionally accepting, for example, that one of the claimants who was biologically a male was now in fact a female, the Court may have unwittingly ushered in the pandoras box that comes with such an assumption. Moral opposition to transgenderism in the workplace, the failure to use that person’s desired pronouns and even rules about sex segregation of bathrooms and changing facilities can now all lead to charges of a hostile work environment.

The Bostick ruling also comes days after the Trump Administration finalised a Health and Human Services Department regulation essentially saying that gender identity is not a protected characteristic in relation to sex discrimination in health care. The new rule defines gender as being synonymous with an individual’s biological sex. While Bostick does not directly address this issue, as it deals exclusively with employment and not health care, a big question mark arises as to how, if the new rules are legally challenged, the courts would address Trump’s new regulations given the majority’s ruling in Bostick. If nothing else, Monday’s ruling muddies the legal waters much more than it provides any sense of clarity to these very serious jurisprudential questions.

The establishment of a ‘judiciocracy’

The issues involved with gender identity and sexual orientation, and the disputes that arise from them, are very real, volatile and far reaching. Reasonable minds differ about these things. Congress’ refusal to pass ENDA and the Equality Act despite countless attempts to introduce them are proof that this is the case. What we saw from the Supreme Court this past week was the establishment of a judiciocracy, where 5 people can legislate from the bench of behalf of 328 million Americans, despite Congress’ crystal clear rejection of those very principles. Even if you are among those celebrating the Bostick decision, a time may very well come when a group of 5 decide to fundamentally affect your rights and beliefs you hold near and dear.

Monday’s ruling evidenced the worst form of judicial paternalism. In the end, Lewis Carroll’s Humpty Dumpty appears to have been absolutely correct when he said: “when I use a word…it means just what I choose it to mean—neither more nor less.” So too, when the Supreme Court says sex means sexual orientation and transgender status, it appears to be so. For as Humpty Dumpty then explains to Alice who queries him as to how he can make words mean so many different things, “The question is which is to be the master-that’s all.


The equality juggernaut: the vilification and criminalisation of dissent

October 30, 2019 • Roger Kiska • Christian Concern

Roger Kiska comments on various cases both in the UK and USA that show that fundamental rights are being eroded in the name of ‘equality’.

It is getting more and more difficult to deny the strong political motives behind the increasingly aggressive equality agenda. Fundamental rights such as freedom of expression, freedom of religion and freedom of conscience are being laid to waste in the name of tolerance and preventing offence. Policy shapers are making no distinction between actual discrimination against those who identify as LGBT and reasoned or moral opposition to LGBT campaigning points, even the most extreme ones. This reality has been on full display in both the United Kingdom and the United States in recent weeks.
 

The United Kingdom

Just this month in the United Kingdom, a 74-year-old Christian school governor with 40 years’ experience as a nurse was suspended for questioning why parents had not been properly consulted about the introduction of a school Pride month and LGBT themed books into the school library. This despite a statutory obligation to consult with parents on these issues.

An Employment Tribunal ruled that transgender rights override religious freedom, holding that Genesis 1:27 is “incompatible with human dignity.” Conscience, the Tribunal reasoned, was no justification for not using someone’s desired gender pronouns.

The Department for Education provided guidance to Local Authorities to sniff out and stamp out parental dissent to LGBT elements being introduced into schools, irrespective of whether the school had a religious ethos or not. Among the strategic advice provided by the Department to Local Authorities is to have Council Members issue joint statements showing “strong support” for teaching about LGBT, contacting the police, placing ‘spies’ among disenfranchised parent groups to gather evidence against them, and having early warning systems in place where parents seem to be showing “too much” interest in what their children are learning.

The UK’s Sentencing-Council has also issued binding sentencing guidelines calling for harsher jail sentences for those convicted of criminal intolerance against gay and transgendered people than for cases of domestic burglary.
 

The United States

In the United States, the situation has not been much better. The U.S. House Foreign Affairs Committee has just passed a bill which would, among other things, create a list of foreign individuals who “violate” the rights of LGBT people largely preventing them from entering the United States. The Global Respect Act calls upon U.S. government state actors, with the assistance of NGO’s and campaigning organisations, to actively seek out incidences and individuals guilty of committing acts of intolerance or crimes against those who identify as LGBT.

The proposed language of the bill would put anyone of the list, whether directly responsible for or complicit with, among other things, denying personal liberty or participating in degrading treatment of LGBT people. The preface of the bill highlights opposition to Pride events and statements opposing LGBT rights among ongoing international homophobic incidences. If passed, the Global Respect Act can create a situation where activist LGBT organisations could effectively bar anyone who opposes LGBT campaigning points from entering the United States by lobbying for them to being placed on the proposed list.

The bill could have a heavy toll on freedom of expression and freedom of religion. It would also heavily discriminate against countries who have, because of their own policy decisions, culture and religious beliefs, not adopted the same privileges for LGBT people as exist in the United States. Implicit in the bill is a strong sense of ideological colonialism.
 

A new kind of inquisition

As Ryan T. Anderson, in  Equality and Non-Discrimination: Catholic Roots, Current Challenges (edited by Jane F. Adolphe, Robert L. Fastiggi, and Michael A. Vacca) so helpfully points out: “Antidiscrimination laws are about government coercing people to live according to the majority’s values. Religious liberty laws are about removing government coercion and allow­ing people to live by their own beliefs.

The Equality agenda is creating a new kind of inquisition where the campaigning group who shouts the loudest, gets to define which fundamental rights are to be respected and which are to be disregarded. This is bad for the principle of legal clarity; bad for the rule of law; and bad for the preservation of a democratic society….fail…fail…fail.

As evidenced by the exponentially growing number of incidences where moral and religious opposition to anything even tangentially related to LGBT issues has led to punishment, we seem to be navigating into an area of unprecedented government coercion. Without freedom to hold and express dissenting views, the democratic principles we have fought so hard over the centuries to preserve will quickly be lost. To those who so hastily and unconditionally welcome the equality agenda, my advice is: buyer beware.


The equality juggernaut: the vilification and criminalisation of dissent

2021 • Shaun de Freitas • Journal of Law & Religion

The eleven essays that make up Equality and Non-discrimination: Catholic Roots, Current Challenges address an array of topics directly or indirectly involving equality and nondiscrimination and stem from a broad range of expertise, including philosophers, theologians, and jurists. The contemporary relevance and accompanying concerns of equality and nondiscrimination relate especially to what is stated by co-editor Robert Fastiggi in the opening chapter: “The principles of equality and non-discrimination have become more complex in recent years because they are being extended to behaviors and lifestyles and not merely to persons” (8). This naturally introduces var- ious interpretations arising from foundational beliefs (whether religious or nonreligious), which also overlap with matters of moral importance. Bearing this in mind, differing views on the mean- ing of equality and nondiscrimination are inescapable, and included here are views stemming from the religious also. Editors Jane Adolphe, Fastiggi, and Michael Vacca have gathered views implicating equality and nondiscrimination that are aligned more specifically (although not exclusively so) with Catholic teachings and thought.

The past couple of decades have witnessed an assiduous increase in criticism that reflects deep concern about the substantive limitation placed on religious interests in societies that are labeled as democratic and, by implication, plural. The reason for this criticism is the dominance of nonreligious views on conduct regarding, for example, sexual orientation and gender identity, the status of unborn life, the interests of the child, and the parameters of freedom of religion itself—topics that recur frequently throughout Equality and Non-discrimination. The dominance of such nonreligious views has implications for the degree of plurality that a true democracy should reflect. Taken as a whole, the book serves as an informed and reasoned voice that challenges dominant views of substantive moral matters (see examples above), which in turn have bearing on the parameters of freedom related to, for example, religious associations and agencies, businesses, and the rights of health care practitioners and civic officials (such as marriage officers). Included in this book is the unveil- ing of disparities as well as partisanship in contemporary human rights jurisprudence against the background of equality and non-discrimination.

The first three chapters (1–41) mainly focus on theological and philosophical insights on equal- ity emanating from Catholicism. In this regard, their authors—Fastiggi, Ernest Caparros, and Daniel B. Gallagher—provide insights worthy of note. Included here are views that assert the com- mon origin and dignity of human beings as having been created in the image of God and qualify the affirmation of foundational rights. The idea that the image of God is anchored in the rational nature common to all is also tightly intertwined with natural law theory: natural law requires the alignment of the nature of something with the purpose of that same thing (which implies the need to differentiate between our mere feelings and the nature of the thing we are involved with). This idea related to natural law in turn provides signicant insights into views on conduct related to sexual orientation, gender identity, euthanasia, and abortion. In the next chapter (42–62), Ryan Anderson critically focuses on protection of LGBT rights in the United States. Concerns rising from activities in the business sector pertaining to sexual orientation also enjoy some focus. In this regard, valuable insights are presented on a topic that is of contemporary relevance and urgency in a number of liberal democracies. Anderson concludes with convincing proposals as to how public policy proposals for new LGBT protections can be improved upon to lessen the violation of those who hold other convictions.

Taking due cognizance of forms of unjust discrimination that necessitate across-the-board con- sensus based on race, for example, equality should not be comprehended as a uniform measure to which everyone should subscribe, and this is elaborated on by Iain Benson in chapter 5 (63–75). Benson reminds readers of the inclusion of respect for difference and context as part of the essence of the law—equality does not imply sameness; rather, it serves as a derivative of other rights and that differences in moral views precede the application of abstract concepts such as equality. Equality understood as a derivative of other rights implies that equality should allow for people to hold and practice their own views on, for example, marriage, and that parents should decide for themselves what their child is to be taught at school regarding sexual morality. Inferred from this is that the law is preceded by belief (whether religious or nonreligious) and that consequently it is not only for the nonreligious to lay claim to what the law should be. Laws that violate religious interests should therefore also be open to limitations. A word of caution is also directed against employing equality in a manipulative manner to further a specific view, to the exclusion of others, on matters of moral significance. By referring to specific scholarship in support of the decontextualization of equality (under the banner of “deep equality” [67–73]), Benson proves such scholarship to be littered with vagueness and confusion, which in turn runs counter to respectful coexistence. Benson rightfully warns, “The new language of ‘inclusion’ or inappropriate decontextualized applications of ‘equality’ and non-discrimination that suggest the ‘binding into’ without a respect for the ‘difference from’ poses a threat to the variety of differences that undergirds ‘deep diversity’” (74). This chapter therefore provides convincing arguments in support of the furtherance of diversity in societies that pride themselves on being democratic and plural. This is especially of relevance for the protection of the right to freedom of religion in liberal democracies that substantively relegate meanings that religion attaches to equality and discrimination concerning matters of moral weight. The importance of this chapter is also confirmed against the background of John Gray’s warning in Two Faces of Liberalism, directed at a type of liberalism that understands toleration as an “instrument of rational consensus, and a diversity of ways of life is endured in the faith that it is destined to disappear.”1 An ideal of ultimate convergence on values is typified by this liberalism. In contrast to this, says Gray, there is a liberalism that views toleration as a condition of peace.2 Different views of living are welcomed as features of diversity in the good life, and the coexistence of conflicting views is supported.3 Different views on equality and nondiscrimination should therefore be welcomed in democracies that label themselves as diverse, tolerant, and democratic.

In certain of the chapters that follow, selected regional policies, human rights instruments, and court judgments are described, explained, and in some instances appositely critiqued in respect of the protection of matters related to sexual orientation as a category of nondiscrimination and freedom of religion. More specifically, the chapter (76–103) by Monsignor Piotr Mazurkiewicz elaborates on the observation that the European Union’s nondiscrimination policy, although having contributed toward the equal treatment of men and women, has undergone changes that rely on a departure from natural law and the consequent basing of EU legislation on a “weak anthropological foundation” (100). The Inter-American system also enjoys focus (133–48) as contrasts in LGBTQ issues regarding states in the Inter-American region are brought to the fore by Carmen Domínguez Hidalgo. Hidalgo emphasizes the Inter-American Court of Human Rights’ recent recognition of sexual orientation as a ground for protection and briefly elaborates on the first judgment in this regard, Atala vs. State of Chile4, as are the various legislative approaches taken by states in the Inter-American region toward sexual orientation as a category meriting protection (in a broad sense). Hostile forms of secularism toward Christian beliefs in the modern application of human rights law in the United Kingdom also receive attention in a chapter by Paul Diamond (104–32) and explanations are directed at selected court decisions on how and why the doctrine of equality and nondiscrimination has had an adverse effect on the right to freedom of religion. Diamond proffers that the discrimination paradigm has become problematic regarding antidiscrimination and equality policies, which pit sexual orientation against religion, giving preference to a specified take on sexual orientation as part of the political choices the courts make. The pitting of sexual orientation against religion, in turn, constitutes a blanket enforcement by the civil authorities of meanings related to major moral matters that are not always in agreement with religious interests and that consequently lead to dire outcomes for the inclusion of certain views on equality and discrimination.

A closer look at the American Convention on Human Rights is the focus of the chapter by Ursula Basset (149–62). Basset highlights the uniqueness of this human rights instrument in its protection of the unborn and the importance it attaches to family life (also with the focus on the interests of the child in the context of the dissolution of marriage). Basset concludes by briefly referring to instances where the application of equality and nondiscrimination against the background of the American Convention on Human Rights has been controversial and contradictory in the case law related to it—for example, on the protection of the unborn. In his chapter on the Association of Southeast Asian Nations’ Declaration of Human Rights (163–89), D. Brian Scarnecchia states that regional values in that declaration may be understood as a countering response to Northern/Western cultural and regional values (which have been influenced substantively by post- modernism) related to, for example, certain types of sexual orientation and abortion. Recommendations for the state members and peoples of the Southeast Asian nations to disregard these Northern/Western cultural and regional values more effectively are also presented. In the final chapter (190–204), Geoffrey Strickland briey investigates Christianophobia in the Middle Eastern and North African regions and Islamophobia in the West, also bringing to the fore the view that the irrational fear of Islam in the West is more accurately described as fear of the violence associated with Islam as witnessed in certain countries in the Middle East. Strickland aptly argues that, focus- ing on our shared humanity, the goodness of life, and the ugliness of violence result in a qualitative leap that distances us from speaking of tolerance and takes us towards true equality and nondiscrimination “that sees not Christian, Jew, or Muslim, but rather the human person” (200).

As alluded to earlier, there is mounting criticism that reflects intense concern due to the substantive limitations placed on religious interests in societies labeled as democratic and plural. Such limitations seriously violate the fundamental right to freedom of religion and negate the furtherance of diversity, hereby questioning the proper functionality of democracy itself. Not only is religion substantively relegated to the private sphere in liberal democracies around the world; it is also (as alluded to earlier) dominated by a type of liberalism that propagates a subjective measure (or single morality) related to various and important types of behavior in society. Equality and Non-discrimination: Catholic Roots, Current Challenges acts as a counterweight to such a liberalism that propagates a one-size-fits-all approach to right and wrong, moral and immoral. As alluded to earlier, this volume acutely and informatively addresses and challenges views and practices related to matters of deep moral concern that are propagated and enforced by the governing authorities in liberal democracies around the world. Disparities and other concerns related to human rights jurisprudence are also brought to the fore, hereby questioning the application of the law in a number of instances within democratic societies and in regional human rights mechanisms (also regarding the application of equality and nondiscrimination). The scholarly contributions that make up the volume blend to form a credible source for vindicating and promoting views aligned not only with Catholic thought but also with Christian thought in a broader context.

Also, Equality and Non-discrimination: Catholic Roots, Current Challenges sends a clear message that views aligned with the religious on matters of moral importance and inextricably connected to views on equality and nondiscrimination deserve to be taken seriously and to be given their rightful place in any society that carries the label of being democratic and free. This message also aligns with Paul Horwitz’s call for a more emphatic engagement by, for example, judges, pub- lic officials, and citizens with their fellow citizens’ views on questions of religious truth. Horwitz is of the view that what is demanded is a “recogni[tion] [of] the importance of attempting to under- stand and empathize with the worldviews and truth-claims of others, and to give full weight to those views when we shape the legal rules that apply to all of us. It does not require us to pit our own religious beliefs, or those of others, against the ‘public good.’ Instead, it requires us to form our view of the public good with an appreciation of others’ diverse perspectives in mind.”6

The understanding that Horwitz describes has direct bearing on Equality and Non-discrimination: Catholic Roots, Current Challenges, as this volume contributes toward the offering of meaning—an informed and persuasive meaning, at that—to societies that reflect a plethora of diverse interests, which in turn need to be taken heed of by “the other” in such societies.

1John Gray, Two Faces of Liberalism (New York: New Press, 2000), 105.
2Gray, Two Faces of Liberalism, 105.
3Gray, 105.
4See Atala Riffo and Daughters v. Chile, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 254, ¶ 30 (Feb. 24, 2012); Atala Riffo and Daughters v. Chile, Provisional Measures, Order of the President of the Court, Inter-Am. Ct. H.R. (ser. E) ¶ 1 (Nov. 26, 2013).
5Paul Horwitz, An Agnostic Age: Law, Religion, and the Constitution (Oxford: Oxford University Press, 2011), xxii.
6Horwitz, An Agnostic Age, 283.