My latest column, which takes issue with conservative complaints about the "religious bigotry" of Democrats who are blocking socially conservative judicial nominees, has elicited (via the Volokh Conspiracy) an interesting response from Professor Stephen Bainbridge.
To my argument (with which Eugene Volokh agrees) that the issue is not religious faith as such but public policy views, Prof. Bainbridge replies that Volokh and I overlook the issue of "disparate impact." Under this principle, employment practices that are not overtly unfair constitute illegal discrimination if they substantially, disproportionately and adversely affect members of a particular race, ethnicity, gender, or religion. Prof. Bainbridge argues that opposing judges with hardcore conservative views on abortion or gay rights has such a selective adverse impact on "devout Christians."
1. The human resources guide Prof. Bainbridge quotes refers to "any qualifying test that hurts minorities, and isn't job-related" (emphasis added). Indeed, the U.S. Supreme Court has stated that in order to be a violation of Title VII, an employment practice must be "unrelated to measuring job capability." For instance, job interviews that focus heavily on a prospective employee's familiarity with sports—tending to screen out women—are legally acceptable if you're hiring writers for a sports magazine, but not if you're hiring stockbrokers.
Is Prof. Bainbridge saying that a judge's views regarding the legality of abortion are not "job-related"? If the Democrats were refusing to confirm someone as, say, Secretary of Agriculture based on his or her anti-abortion zealotry, that would be mere prejudice. However, protecting the legal right to abortion is—for better or worse—a key part of the Democrats' political agenda. Thus, disqualifying judges who not only oppose abortion but passionately advocate its banning is, from their perspective, directly job-related (hence not discriminatory under the "disparate impact" standard).
2. Correct me if I'm wrong, but weren't conservatives supposed to be against nebulous standards like "disparate impact"? Creative interpretations of what is and isn't "job-related" have led to some absurd court decisions—throwing out "gender-biased" physical strength and endurance tests for firefighters, or nixing written tests for promotions in the police force because they are disproportionately flunked by minorities. Do conservatives now want to extend this "logic" to the absurd conclusion that a prospective judge's views on important legal issues cannot disqualify him from the job if those views are based on religion? (By the way, would that also apply to a "devout Muslim" who advocated the adoption of Islamic sharia law in the United States? Just wondering.)
In a way, Prof. Bainbridge's invocation of "disparate impact" confirms a point I made in my column: that the cry of "anti-religious bias" has become the "political correctness of the right," a "faith card" similar to the left's race/gender card.
This still leaves open the question I raised about a double standard toward religious and non-religious beliefs. Take a hypothetical nominee for the federal bench who has publicly stated that male dominance is essential to a healthy social system. He is (a) an evangelical Christian whose beliefs are rooted in his understanding of biblical principles, or (b) an agnostic whose beliefs are rooted in his understanding of sociobiology. It seems that according to Prof. Bainbridge, the Senate would be allowed to hold the nominee's views against him in scenario (b), but not in scenario (a). Personally, I think that this particular belief ought to disqualify him whether it's based on the Bible, the Koran, Confucius, Darwin, Nietzsche, or the Gor novels.
Conservatives have been arguing for some time that the "no establishment of religion" provision of the First Amendment should not be interpreted so as to discriminate against religious viewpoints: for instance, political views rooted in religious values are just as legitimate as ones rooted in secular moral principles. Fine. But then let's really treat religious and non-religious beliefs equally.