Discrimination

Does Yale Law School's Antidiscrimination Policy on Subsidies for Student Employment Discriminate on the Basis of Religion?

The answer is no, despite conservatives' claims to the contrary. But that does not entirely resolve questions about the wisdom of the policy.

|The Volokh Conspiracy |

Yale Law School recently adopted a policy under which students cannot get school-subsidized grants to support public interest summer jobs, postgraduate fellowships, or targeted loan forgiveness for those working at relatively low-income jobs, if the job in question is with an employer that discriminates on the basis of race, religion, veteran status, marital status, veteran status, or—most controversially—sexual orientation. The policy change was in large part the result of student protests against a Federalist Society-sponsored speaker from the Alliance Defending Freedom, a Christian conservative public interest law firm that had successfully represented the plaintiff in the Masterpiece Cakeshop case.  The owner of the bakery argued that the state of Colorado violated his freedom of speech and freedom of religion by requiring him to bake a cake for a same-sex wedding to which he objected on religious grounds.

In the aftermath of the policy shift, many on the right charged that it amounts to religious discrimination against theologically conservative Christian employers who refuse to hire gays and lesbians because homosexuality conflicts with their religious commitments. In a letter to Yale Law School Dean Heather Gerken, Republican Senator Ted Cruz claimed that the policy violates federal civil rights laws banning discrimination on the basis of religion, and announced his intention to have the Senate Judiciary Committee hold an investigation of the policy. Dean Gerken has issued a public statement denying Cruz's claims. Ironically, this is a case where supposedly pro-free market conservatives want to impose tighter regulations on a private organization, while the left—which normally favors expansive antidiscrimination laws—is defending Yale's freedom of association.

Who has the right of this dispute? When it comes to religious discrimination, Gerken is correct, and her critics on the right are wrong. But these sorts of antidiscrimination policies do raise other difficult questions.

I. Why Yale's Policy Does Not Discriminate on the Basis of Religion.

To see why Yale's policy does not discriminate on the basis of religion, it's worth considering the following hypothetical examples, both of which have real-world analogues:

Employer A refuses to hire gays and lesbians because doing so would violate her religious commitments.

Employer B also refuses to hire gays and lesbians. But in his case, it has nothing to do with religion, but is the result of his entirely secular belief that gays and lesbians violate proper gender roles. He thinks that gays are effeminate and don't qualify as true "manly men," while lesbians fail to live up to what he considers to be proper standards of femininity.

Under the Yale policy, law students who want to work for Employer A and those who want to work for Employer B are treated exactly the same. Both would be denied fellowship funding. This shows that the focus of the policy is discrimination on the basis of sexual orientation, not the religious (or secular) nature of the beliefs underlying that discrimination. The Yale policy is entirely neutral as between religious and secular employers.

Obviously, the policy is likely to disproportionately affect employers with religious objections to homosexuality, since those are likely to be a high percentage of those who discriminate against gays and lesbians. But, in virtually every other context, conservatives are the first to point out that a disproportionate effect on a particular group does not by itself make a policy discriminatory. For example, they rightly argue that the use of grades and test scores in academic admissions does not amount to discrimination against members of groups that are disproportionately likely to be excluded by the use of such criteria. The same principle applies here.

Sometimes, a seemingly neutral policy actually has a hidden discriminatory motive. That argument successfully prevailed in Masterpiece Cakeshop (where the Court ruled in favor of the baker because Colorado officials demonstrated hostility towards his religious beliefs). It should have prevailed in the  Trump travel ban case as well (I am one of the relatively few people who believe the plaintiffs deserved to prevail in both of these cases).

The fact that the Yale policy was adopted in response to the protests against the ADF speaker might be seen as evidence of such a hidden motive. After all, both ADF and their client in the Masterpiece Cakeshop case object to homosexuality and same-sex marriage for primarily religious reasons.

It is hard to be certain about the true nature of Yale's motives. But the strong likelihood is that the religious nature of ADF's commitments was not a decisive factor. If the Federalist Society—or some other student group—had invited a high-profile speaker who opposes same-sex marriage for secular reasons, it would almost certainly have attracted the same sorts of student protests, and led to much the same policy change by the Law School.

The anti-ADF protests were troubling for a number of reasons well-stated by legal scholar Andrew Koppelman (himself a long-time advocate of same-sex marriage). Like Koppelman, I think the Yale Federalist Society was entirely justified in inviting the ADF representative, even though I am—to understate the point—no fan of their beliefs about homosexuality (though, unlike Koppelman, I largely agree with their legal position in the Masterpiece Cakeshop case).

Be that as it may, the protests and the resulting policy were about ADF's hostility to homosexuality and same-sex marriage, not the religious nature of that hostility. A secular organization with similar commitments would have aroused much the same anger.

In this case, and others like it, many conservatives' understanding of liberal motives has things backwards. The reason why many on the left so vehemently denounce groups like ADF is not because of their religiosity, but because of the policies they advocates towards homosexuality and same-sex marriage (among other issues). As a general rule, most gay rights advocates have no problem with religion as such, and are perfectly fine with theologically liberal religious groups that take positions that are more congenial to the political left.

Many argue that religiously motivated objectors to neutral policies deserve exemptions because of the special status of religious beliefs. That is the principle underlying the state and federal Religious Freedom Restoration Acts, for example. There are good arguments for such exemptions, and I myself support them in some situations. But refusal to grant a special exemption to religious objectors is not the same thing as discrimination against religion, even if it might be problematic on other grounds.

 

II. The Danger of Slippery Slopes.

The fact that the Yale policy does not discriminate on the basis of religion does not mean that its rules are above criticism. In my view, private organizations should have broad rights of freedom of association—and that goes double for situations like this one where the school is simply refusing to subsidize students who work for a particular employer, rather than attempting to bar them from taking such positions entirely. Senator Cruz and the federal government should leave Yale alone.

But even if the feds should stay out of the matter, it is still worth asking whether Yale's policy is entirely justified. There are, I think, cases where universities can legitimately choose to deny any financial support to groups with odious hiring practices and agendas. For example, few would object to the Yale policy if it was limited to refusing to fund students working for groups that discriminate on the basis of race, such as those who refuse to hire African-Americans because they believe blacks are inferior to whites. As I see it, employment discrimination on the basis of sex and sexual orientation is comparably odious, and has an almost equally sordid history.

The case for the Yale policy is further strengthened by the fact that Dean Gerken indicates that the school will create "an accommodation for religious organizations and a ministerial exception, consistent with antidiscrimination principles." This exemption could potentially satisfy many of the concerns of those who believe religious organizations deserve special exemptions from some generally applicable rules (though I suspect that the  accommodation is likely to apply only to organizations whose primary purpose is religious, not merely those who have religious motives for various types of employment discrimination). Depending on what counts as a "religious organization," it is even possible that ADF itself would qualify for the exemption!

At the same time, it is also the case that antidiscrimination rules have a strong tendency to expand beyond the relatively easy cases to ones that are far more questionable. The Yale policy already covers some such cases, such as veteran status. There are often good reasons for employers to prefer veterans over non-veterans, or vice versa, that cannot be reduced to some kind of invidious prejudice.

Academic bureaucracies are, to understate the point, not notable for their self-restraint in such matters. There is therefore a danger that the YLS policy will expand over time, in various problematic ways. If Yale's policy for funding student employment becomes subject to a growing list of ideological constraints, it is likely to undermine ideological diversity at the school, and undercut the whole purpose of the funding policy—which is to enable students to work for a wide range of public interest employers.

Gerken emphasizes that the policy is strictly limited to cases of employment discrimination, and will have accommodations for religious groups. But these constraints could be eroded over time. It may be that the slippery slope risk is so great, that it's not worth going down this route in the first place. As a practical matter, it is unlikely that more than a very small number of Yale law students will seek out subsidies to work for organizations that discriminate in the ways the current policy seeks to forbid. Letting those few slip through the cracks, as  it were, may be a price worth paying to avoid slippery slopes. At the very least, Yale and other schools with similar policies should consider the risk, and establish institutional barriers to guard against overexpansion of these sorts of policies.

NOTE: I have more than the usual number of personal connections to the subject of this post. I am myself a Yale Law School graduate (Class of 2001). In the summer of 1998, I had a Yale-funded summer fellowship to work at the Institute for Justice, a libertarian public interest law firm. Current YLS Dean Heather Gerken is a friend and a professional mentor of mine. I am also a longtime member of the Federalist Society, and was a member of the Yale Law School student chapter during my time as a YLS student.

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  1. “At the very least, Yale and other schools with similar policies should consider the risk, and establish institutional barriers to guard against overexpansion of these sorts of policies.”

    Does anyone, aside from the sanguine Somin, really believe that Yale and other schools will actually follow through with this? Asking for a friend.

  2. “As a general rule, most gay rights advocates have no problem with religion as such, and are perfectly fine with theologically liberal religious groups that take positions that are more congenial to the political left.”

    Eh, I’m not so sure that’s quite right. The left, as a general matter, tolerates religious groups that submit to left-wing ideology. And is very intolerant of any that don’t submit. But that’s not a matter of not having a problem with religion as such, it’s a matter of being willing to tolerate it only so long as it never gets uppity and asserts any right to disagree with the left.

    That’s not religious liberty, it’s just not totally unremitting hostility.

    1. Brett : The left, as a general matter, tolerates religious groups that submit to left-wing ideology.

      If we move beyond the parochial concerns of modern America, there’s actually a good solid history of the left being vehemently and violently anti-religious. See the French Revolution, the Russian Revolution, the Spanish Civil War etc. And even now we see one or two lefty expressions of delight at the burning down of an 800 year old symbol of Christian oppression and patriarchy in Paris.

      Unlike many leftist ideas, hostility to religion is not inerently nutty (if you’re a lefty.) Religions in general, and Christianity in particular, have traditionally tended to be stalwart supporters of the established legal order, and traditional morality. The Spanish Republicans didn’t burn churches full of priests and their parishioners by accident. They felt they had it coming.

      1. Right. My point was that the left coming up short of the sort of unremitting hatred that would have them attacking even religions that modify their church doctrine to agree with the left’s platform, is not the same thing as not being hostile to religion.

        The left isn’t bothering to attack religions that are willing to become religious fronts for leftism, that’s all. I suppose it’s something, but it isn’t much.

        1. Agreed. Even the Bolshies decided they could put up with a tame Russian Orthodox Church.

      2. Lots of atrocities during the Spanish Civil War, Lee. Many more committed by the Nationalists than the Republicans.

        JFTR.

        1. Not really the point though is it ?

          I’m wasn’t claiming that Spanish lefties were worse than Spanish righties – I was merely claiming that the Spanish lefties had a lot of anti-Church animus, and that this was far from unusual.

        2. “Many more committed by the Nationalists than the Republicans. ”
          An assertion without any real evidence.
          Even left laenin wikipedia says they are similar sized:

          “Some estimates of the Red Terror range from 38,000[11] to ~172,344 lives.[12] Paul Preston, speaking in 2012 at the time of the publication of his book The Spanish Holocaust, put the figure at a little under 50,000.”
          “Estimates of executions behind the Nationalist lines during the Spanish Civil War range from fewer than 50,000[12] to 200,000[124]”

          1. leaning, not “laenin”

            1. lenin, perhaps ?

        3. But in the lead up to Franco’s putsch there were an awful lot of leftist atrocities. Getting into a scoring game over the Spanish Civil War is an inherently partisan game where you can get any differential you want just by picking a different start date. Pick 1931 and you get an answer the right would love. You can play this game forever

          1. And after the war there were a lot of Nationalist ones.

            And, for Bob, I based my statement on Wikipedia, which has a section on the atrocities, and cites several historians. It also mentions that

            “Franco’s forces were determined to remove the “Protestant heresy” from Spain,” and killed a number of Protestant ministers, so perhaps the hostility was not entirely one-sided.

            1. Oops. I see Bob also looked at Wikipedia. He missed these:

              British historian Antony Beevor wrote in his history of the Civil War that Franco’s ensuing “white terror” resulted in the deaths of 200,000 people and that the “red terror” killed 38,000.[323] Julius Ruiz contends that, “Although the figures remain disputed, a minimum of 37,843 executions were carried out in the Republican zone, with a maximum of 150,000 executions (including 50,000 after the war) in Nationalist Spain”.[324]

              Nationalist atrocities, which authorities frequently ordered so as to eradicate any trace of “leftism” in Spain, were common. The notion of a limpieza (cleansing) formed an essential part of the rebel strategy, and the process began immediately after an area had been captured.[333] According to historian Paul Preston, the minimum number of those executed by the rebels is 130,000,[334] and is likely to have been far higher, with other historians placing the figure at 200,000 dead.

              1. I can quote estimates the other way.

                Estimate is just Latin for guess.

                1. So do it so we can judge the relative value of the estimates!

                  1. How can you judge “relative value” from a one sentence quote? You have to read the book/article, look at the methodology and for a hot button issue, examine the political views of the writers.

                    In any event go to wikipedia, they have Red And White Terror articles for your reading pleasure.

    2. I’m not sure what you mean by “tolerates” here.

      In the US, at least, it’s not up to “the left” to tolerate or not tolerate, but even liberals and leftists are entitled to their opinions.I don’t see what’s wrong with holding a negative view of some religions, or thinking that some of their attempts to influence policy are wrong-headed, and amount to an effort to impose their religious beliefs on others.

      1. Here’s a concrete example: The Little Sisters of the Poor. None of their employees were complaining about the lack of contraceptive coverage. The government none the less attempted to force them to provide the coverage.

        Given the lack of complaint by the employees, what motivation was there here save to force a religious institution to violate its principles?

        1. ” The government none the less attempted to force them to provide the coverage.”

          If none of the employees are going to make use of the contraceptive coverage, what’s the “moral objection” to having it in their insurance plans? Are they morally outraged that people have contraceptive coverage in their insurance plans, thereby causing no contraception?

    3. “most gay rights advocates have no problem with religion as such”

      Who can say that with a straight face?

      1. Anyone who doesn’t think all religeon must be anti-gay.

        1. “advocates” are always fanatics

          They think chicken sandwiches are anti-gay, not a strectch to think they also hate religion

        2. But how much does that apply to gay rights *activists*?

      2. Do you think no gay people are religious?

        1. Ordinary people, sure. Not “advocates”

          1. Why not “advocates?” And how do you define that term, anyway. Is it distinct from “supporters?”

            And here’s a further question: Why is it unreasonable to have a problem with organizations or sets of beliefs that cause their followers to hate you, and want to make your life miserable.

            1. No one hates gays or attempts to make their lives miserable, unless you consider not giving a “marriage” license to celebrate that a man likes to erupt inside another man’s anus “making their lives miserable.”

            2. bernard, just accept that Bob knows WAY more about homosexual men than you do.

    4. “Eh, I’m not so sure that’s quite right. The left, as a general matter, tolerates religious groups that submit to left-wing ideology. And is very intolerant of any that don’t submit.”

      I’m generally intolerant of religions that insist on inflicting their religious practices on me, whether or not I share their religious convictions. (I’m also generally intolerant of evangelism in general as applied to me. If I want your opinions on religious matters, I’ll ask you for them.)

      I can see being “intolerant” of those religious folks who pretend that their own intolerances are divinely mandated. (Number of times Jesus told his followers not to bake cakes for gay people: 0)

      1. ” (Number of times Jesus told his followers not to bake cakes for gay people: 0)”

        You can’t really be this obtuse, can you?

        1. What’s the matter, can’t count all the way up to 0?

  3. Anyway, in terms of their proposed religious exception, what of students which select such jobs based on their own religious beliefs?

    1. What of it?

      They’re free to pursue whatever job opportunities they like.
      The question is whether or not YLS should pay/cover the costs for it.

      1. Considering that some of that money is coming from what the students pays, both in tuition and in student fees, and perhaps donated later as an alumnus, why *shouldn’t* YLS pay or cover the costs for it?

        That money doesn’t appear in the coffers of Yale from thin air, after all.

        1. Hell, if the student ever buys a coke in the student lounge, why shouldn’t COKE have to pay for the student’s internship? That money didn’t fall into the corporate coffers from thin air, after all.

          1. If Coke were to offer to help all their customers into internships, then yes, they should be mindful of what kinds of internships they should offer their customers.

            1. Why do you keep going irrelevant? Coke Zero has no sugar in it, so OBVIOUSLY they owe internships to every student in America!

              1. You’re the one who’s gone irrelevant. The fact is, Coke doesn’t offer student internships. If they did, and tried to offer an internship that wasn’t sufficiently politically neutral, then they would have to answer to the people who buy their product.

                Yale wants to put political restrictions on the internships they provide. The students who pay tuition and the alumni who donate money SHOULD have a say on the policy.

  4. “If Yale’s policy for funding student employment becomes subject to a growing list of ideological constraints, it is likely to undermine ideological diversity at the school”

    Not much chance of that, as you’d have to have diversity to start with…

  5. What form would anti-gay discrimination generally take, in the context of a group which is in a position to offer jobs/internships to Yale Law students?

    Presumably, a group might discriminate with a conduct policy forbidding extramarital sex, with marriage defined the way it was defined before 2015.

    That would certainly qualify as discrimination, since the hypothetical group fails to recognize gay marriage.

    1. This Statement of Faith from the Careers section of the ADF Web site does seem in tension with Yale’s policy:

      “We believe God immutably creates each person as male or female, which reflect the image and nature of God. Rejecting one’s biological sex rejects the created image of God.

      “We believe God designed marriage as a unique conjugal relationship joining one man and one woman in a single, exclusive, life-long union. God intends sexual intimacy to only occur between a man and a woman joined in marriage.”

      https://adflegal.org/about-us/careers/statement-of-faith

  6. Professor, please correct me if I am summarizing your argument incorrectly… you state that the YLS program currently is not discriminating on the basis of religion, but might change to do so at an unspecified time in the future.

    OK, but isn’t it true that any program at any school could change to do so at an unspecified time in the future?

    Note: I was employed full-time while in law school, and therefore didn’t investigate “summer-internship” programs, which were seeing substantial curtailment while I was in law school, anyway. In contrast, the vocational-education institution I worked at, which trained paralegals, included a mandatory externship at the end of the program. AFAIK, students were not limited by the ideology of the employer, so long as they were, in fact, practicing law.

  7. Good to see Prof Somin sticking his head above the parapet and correcting RBG on her yarmulke fallacy.

    Sure most folk who like to wear skullcaps are Jewish. But the Pope wears one too, so that’s all right then. Zillions of Jews, one Pope. Tomayto Tomahto.

    1. Ginsburg’s hypothetical refers strictly to a yarmulke, not a skullcap worn by non-Jews.

      1. 🙂

        Yeah, I wonder why she chose “a ban on yarmulkes” rather than “a ban on skullcaps.”

        But even then it’s still a bust. Caught short a religious Jew could borrow the Pope’s skullcap in perfect religious safety. And ditto the other way round. A skullcap worn by a religious Jew is a yarmulke because it’s a skullcap worn by a Jew for religious purposes.

        That which we call a yarmulke, by any other name would be the same thing.

        1. Ginsburg presumably didn’t say “a tax on skullcaps” because she believes such a tax wouldn’t be a tax on Jews.

          The fact that a religious Jew could skirt the tax by borrowing the Pope’s skullcap doesn’t have any effect on Ginsburg’s conclusion that a tax on skullcaps made specifically to be worn by Jews for religious purposes (i.e., a tax on yarmulkes) would be a tax on Jews.

  8. Employer A wears a yarmulke in accordance with their religious commitments.

    Employer B also wears a yarmulke. But in his case, it has nothing to do with religion, but is the result of his entirely secular belief that yarmulkes are comfortable.

    So you see, a tax on yarmulkes is not a tax on Judaism.

    1. I think that concisely sums up Ilya’s position here.

      1. I don’t think so.

        It is not a question of the employer’s opinions, but of its hiring practices.

        Employer A is an orthodox Jew who wants to hire only orthodox Jewish summer interns.

        Employer B is an orthodox Jew who does not discriminate in hiring.

        The policy only affects B, not A.

        1. Bernard, it’s important to understand that this policy isn’t about the private for-profit sector. It’s about subsidies for public interest jobs, which many law schools offer (look up LRAP). These are nonprofits, charitable organizations, educational organizations, religious organizations, and the like. This was generally applied in a non-discriminatory way, for example probably any 501c3 qualifies. This is a major shift by Yale and essentially excludes any explicitly religious organization, since naturally a religious group will be comprised of people who share certain common beliefs.

          1. “essentially excludes any explicitly religious organization”

            No. It explicitly excludes any organization (of whatever sort) that wishes to discriminate in hiring against gay people (or the other list of things). The organization is being discriminated against not because it is religious, but because it chooses to discriminate. A religious organization that does not discriminate is unaffected by this policy. Non-religious organizations that do decide to discriminate ARE affected by this policy.

            You seem to be making the mistake that any religious group MUST discriminate against gay people. This is not the case. They choose to do so, or not.

            1. The “gay people” issue is mostly a red herring. A religious organization cares whether you share their core religious beliefs.

              Somin’s post says Yale will exclude a graduate from their subsidy programs if they are employed by “an employer that discriminates on the basis of . . . religion.”

              An employer that discriminates on the basis of religion is almost the definition of a religious organization. Not quite maybe, but almost. It’s basic freedom of association. This is like supposing that an Islamic mosque must offer its lead Imam position as open to evangelical Christians, and vice versa.

              1. ” A religious organization cares whether you share their core religious beliefs.”

                Why is it their business what core religious beliefs their employees have? They’re free to choose/limit/restrict what beliefs their members share. They’re free to ensure that their employees are capable of doing the job they’re expected to do.

                A hog farm should not have a policy against hiring Muslims. It might, however, have a policy against hiring people who won’t touch a pig. A religious organization’s role as a religious organization is (largely) separate from its role as an employer.

                1. This is disingenuous. What is the purpose of raising hogs? To sell them to market. Thus, it doesn’t matter if they hire a Muslim willing to handle a pig.

                  What is the purpose of a religious organization? To help the society be moral, in ways that they consider to be moral. If you’re to be employed by such a society for such a position, shouldn’t you agree with the society’s mission?

                  1. The ADF is not a religious organization in the sense of a church.

                    1. It’s a religious organization in the sense of “freedom of association”, “freedom to peaceably assemble”, “freedom to petition the government”, and “freedom to exercise religion”, among other things.

                      Where in the Constitution does it say that the only religious organizations that are protected are churches?

                  2. ” If you’re to be employed by such a society for such a position, shouldn’t you agree with the society’s mission?”

                    Why? If I’m a plumber, my skills lie in the plumbing area, and if an organization hires me as a plumber, it is because they need an employee who understands, and can do, plumbing. Religious belief is not required to do plumbing.

                    When a murderer is caught and put on trial, he needs a lawyer. Is it required that he get a lawyer who believes in murdering? Or is a lawyer who is skilled at defending accused individuals from criminal charges what he needs?

                    1. So you’re saying that atheists should be comfortable being hired to further the goals of a Christian organization — and that the Christian organization should trust the atheist not to sabotage their efforts?

                      It’s one thing to defend a murderer, even if he’s guilty: you are there to make sure that his trial is fair, and that the prosecutor isn’t going to pull a fast one in an effort to get your client off the hook, or to hire a plumber to make sure the toilet flushes correctly — there’s no philosophical compromises necessary in such situations. But I’m not going to hire a plumber to install copper pipes when the plumber insists that lead is the only way to go, and we have procedures for a defendant to remove a lawyer — even an appointed public defender — if it’s clear that the lawyer isn’t representing his client properly, as vile as the client might be.

                      So yes, even in your “counter-examples”, there are situations where the person has to be at least *partially* philosophically aligned with the client.

                2. “A hog farm should not have a policy against hiring Muslims. It might, however, have a policy against hiring people who won’t touch a pig.”

                  That’s your opinion. Others of a more libertarian viewpoint might argue that freedom of association is more important, at least outside of unique circumstances where a discrete and insular minority faces pervasive discrimination in society such that they can’t find jobs, hotels to stay in, places to eat or shop, etc.

                  Religious nonprofit organizations are different, though. Religious beliefs, principles, education, charitable pursuits, advocacy etc are literally their “business.”

                  1. “That’s your opinion. Others of a more libertarian viewpoint might argue that freedom of association is more important”

                    Sure, abstract principles of free association are more important than issues of hiring qualified employees. To some people.

                  2. You make the mistake of assuming that James Pollock is interested in libertarian principles. From other issues he has argued in the past, I can confidently say that I wouldn’t be surprised if he were to be comfortable with the repeal of the entirety of the Bill of Rights.

          2. “This is a major shift by Yale and essentially excludes any explicitly religious organization”

            Not all religious people are bigots; not all religious organizations are bigoted.

            The argument that bigotry is improved by superstition (or by a pretextual claim cloaked in superstition) is unpersuasive. It’s still bigotry.

            1. And the same can be said about bigotry: bigotry cannot be improved by secularism.

        2. And is purported to be not religious discrimination on the basis that somebody might have a secular reason for the practice.

          Just as you might have a secular motive for wearing a beanie. But probably don’t…

          In any case, does the ADF actually discriminate in hiring against non-practicing homosexuals? I couldn’t find anything at their website saying they do. Is this just assumed because of their advocacy?

          1. If they don’t, what’s the problem?

            1. Um, that Yale won’t let their students intern there on the same basis they could someplace else? Apparently on the basis that Yale doesn’t like their ideology?

              1. That’s not completely accurate. Yale does not have to “let” their students intern anywhere. A student could chose to intern wherever he or she wants. It’s just that Yale won’t provide a subsidy to that that it would to a different group that Yale approves of.

              2. That’s not accurate at all.

                It is discrimination in hiring that the Yale policy objects to. As long as ADF doesn’t do that they can be as bigoted as they like.

              3. Again, Brett, that’s not true.

        3. “It is not a question of the employer’s opinions, but of its hiring practices.”

          Is that really the case? The background — the objection to the ADF — suggests otherwise.

          As I noted below in my comment, would a group that (a) does not discriminate in employment but (b) advocates legal positions that Yale finds discriminatory still qualify or not?

          1. “would a group that (a) does not discriminate in employment but (b) advocates legal positions that Yale finds discriminatory still qualify or not?”

            Would that matter if you’re discussing YLS’s authority to decide how YLS spends YLS’s money? Is anyone, anywhere, required to donate money to organizations whose ideology is contrary to one’s own?

            1. Except this is not an issue of YLS donating to some group. Yale has a program that it supports students who intern or work for certain non-profit groups, on the theory that such are low-paying and it wants to encourage lawyers to work for public service/advocacy groups rather than in high-paying Wall Street type firms So this is an optional benefit to Yale students. As such, Yale cannot operate it in a manner that discriminates against the groups protected under federal law. (Whether this is such discrimination is not all that clear.)

              Apart from that, you write that this is YLS’s money. But in fact it was almost certainly donated by someone, again likely for the purpose of supporting public service work by lawyers. So there may be an issue of deviating from the donors’ intentions. That is beyond this post.

              1. “Except this is not an issue of YLS donating to some group.”

                In the sense that whether or not YLS will donate to some groups is the entirety of the debate?

    2. That is exactly the analogy. My analogy was going to be Yale requiring everyone who participates in this program to come to the Dean’s office and eat bacon. Hey, everyone is covered by this equally.

      It is a subterfuge. The Jim Crow South didn’t get away with literacy tests to vote and Yale shouldn’t be allowed to get away with this.

      This is a sorry article and deeply disapointing coming from a Libertarian even by the low standards that Solim normally sets.

      1. “Yale shouldn’t be allowed to get away with this. ”

        Who, exactly, should be doing the correcting, and what methods should they have at their disposal?

        And after you’ve established the principle that Yale Law School can’t spend its money as it sees fit, whose money is safe?

        1. I would humbly propose that the Civil Rights Act of 1964 is unConstitutional, because it violates our rights to freely associate. I would go so far as to say that, if it weren’t for the Civil Rights Act, Yale should be free to act as it does, and if its students don’t like it, they could find another law school for their learning and interning purposes.

          So long as we’re going to fight discrimination, though, and even apply it to private entities such as Yale, then we already have the infrastructure to support an end to discrimination against students who wish to intern at places Yale doesn’t like. Those students merely have to file complaints to the right Federal departments and sue in the right jurisdictions in order to right the alleged wrongs.

          Thus, it becomes merely a question of “should the Government’s anti-discriminatory apparatus be applied to Yale”?, not “Who, exactly, should be doing the correcting, and what methods should they have at their disposal?” because we already have an answer to that particular question.

          And if it’s wrong for the Federal government to decide who Yale can and cannot approve of, then maybe, just maybe, it’s wrong for the Federal government to interfere with the free association of private entities, regardless of who gets discriminated against in the end, or why.

    3. A yarmulke is inextricably linked to being Jewish. Refusing to hire gays is not inextricably linked to being religious.

      1. Note that “Jewish” denotes a particular religion. You just switched levels of abstraction in the middle of an argument, hoping we wouldn’t notice.

        We did notice.

        1. My argument does not depend on the level of abstraction. A tax on religious head coverings would discriminate on the basis of religion.

  9. “The reason why many on the left so vehemently denounce groups like ADF is not because of their religiosity, but because of the policies they advocates towards homosexuality and same-sex marriage (among other issues).”

    Yale’s policy has absolutely nothing to do with the public policies that groups may advocate or their position on same sex marriage.

    Instead, the policy is targeting any groups who dare to exercise their freedom of association. The most significant part isn’t even the sexual orientation item, its the “basis of religion” item. A religious group is basically by definition a group of people with certain common religious beliefs. Such nonprofits are responsible for most of the invaluable charitable work that is done in this world. This policy targets all of them for discrimination. The principle at work is that freedom of association will not be tolerated when it comes to religious people or groups. Whether Yale has its own right to discriminate in this illiberal way is a separate question.

  10. Tax the endowment and then Yale will be more tolerant.

    Can’t Yale and its ilk see what happened to labor unions when they became completely associated with one political view?

    1. Your position is that Yale should become more tolerant by appeasing bigots?

      Can conservatives see what is happening to the Republican Party as America’s electorate becomes less rural, less white, less intolerant, less religious, and less backward?

      1. “Can conservatives see what is happening to the Republican Party as America’s electorate becomes less rural, less white, less intolerant, less religious, and less backward?”

        Can progessives see what is happening to the Democrat Party as they unleash their bigotry against the rural, the perceived white, the people who are sick and tired of being called racist at each and every turn, the people who have a sincere belief in a Supreme Being and who believes that morality should have *some* place in American life, and the people who put food on the table and dig out the coal that generates our electricity?

        It’s not so much that Yale can be tolerant by appeasing bigots, it’s more of an issue of which bigots Yale is appeasing.

        And at this rate, the next Democrat is going to win by an even *larger* “popular” vote margin, and *still* wonder why they keep losing the Electoral College — because they aren’t figuring out how to appeal to the people outside the Clinton Archipelago.

        It’s because of bigots like you that Trump won the Presidency. And if bigots like you continue to double down on your bigotry, you “progressives” are going to be shut out of the White House for a *very, very, very* long time.

  11. I’m pleased to see the freedom of association mentioned.

    I have been wondering when the various anti-discrimination regimes will reach far enough to affect the general right of free association. It seems we may be getting close.

    Racial anti-discrimination has it’s basis in law dur to the Constitution’s 13th, 14th and 15th amendments. Other categories are not so clearly authorized.

    If one may not discriminate against for example veterans, can one discriminate against non-veterans? I understand that the Federal Civil Service gives a permanent advantage to veterans over non-veterans in employment and advancement within the Federal Civil Service.

    1. They’ve been affecting the general right of free association for decades now. You cite the 13th-15th amendments, but aside from the 13th’s prohibition of slavery, those don’t reach private action, they’re specifically addressed to state actions. But since the 1964 civil rights act, private discrimination, including choices of who to associate with, has been regulated.

      The reach of such laws has been growing like a cancer lately, though.

  12. “The reason why many on the left so vehemently denounce groups like ADF is not because of their religiosity, but because of the policies they advocates towards homosexuality and same-sex marriage (among other issues).”

    Religiosity of any kind is just fine . . . . . so long as it doesn’t involve anything I disagree with! Everybody agrees so long as nobody doesn’t.

    If your religiosity includes something I disagree with . . . . surprise! That’s not your religiosity. I’ll need to redefine it a bit so that I’m OK with it.

    If your religion teaches brutal violence and jihad against others, or the establishment of an oppressive theocratic caliphate, I may need to pretend that it doesn’t. If your religion teaches that there is only one God and the only way to him is through his son Jesus Christ, that’ll need to be a bit more inclusive. Just some minor tweaks and someday, we’ll all make it into the new age religion yet to come.

    1. “Religiosity of any kind is just fine . . . . . so long as it doesn’t involve anything I disagree with!”

      There’s the kind of religiousity in which the rules of the religion are applied to members of the religion. Eating kosher means no eating pork, and each person that has dietary laws decides for themselves whether or not to observe them.

      Then there’s the kind of religiousity in which attempts are made to apply the rules of a religion to people who are not members of that religion. “WE can’t have pork, therefore YOU can’t have pork, and neither can anyone else”.

      If your religion tells you it’s only OK to have sex with your spouse, and that spouse better be a different gender than you are, and you honor that requirement within your own marriage, great! But if that dude over there thinks that all sex is evil, and wants to use the power of government to enforce that rule on everyone… probably not a problem, as there’s only one of him and it takes a majority in the legislature to pass laws. But when there IS a majority of legislators who’d like to enforce their religious views upon non-members of their religion, as in the case of, say, Iran, then you gets a problem.
      Non-establishment is supposed to prevent that problem in the U.S., but isn’t always 100% effective.

      1. That is complete fucking nonsense Pollock. Free expression and free association mean just that. People have a right to assemble and a right to advocate for whatever their public policy position is. Their doing so does not cause them to forfeit their right to free exercise of relgion.

        Sorry, freedom means freedom, not “its okay to do what you want as long as we approve”

        1. “That is complete fucking nonsense Pollock”

          Yes. Try reading what I actually wrote next time, and understanding it, before commenting on it, in future.

      2. People who believe that marriage should be limited to one man and one woman also have secular beliefs as to why that isn’t just a good idea, but necessary to be enforced for the stability of society.

        We still forbid certain pairs of people from being married, to this day: siblings, parent/child, and first cousins, at least one party is a minor, all come to mind. There are certainly arguments to be made that it’s in society’s best interest that these limits are important. Why shouldn’t the the sex of the people involved be a limit that’s up for debate?

        As an anarcho-capitalist, I would go so far as to say that marriage should only be a contractual affair, between two people — but we are nowhere near there. We insist on having government formally recognize marriages. Considering both the secular *and* religious implications concerning marriage, this will *always* be a contentious issue, so long as it’s the *State* that’s in charge of marriage licenses.

        1. “As an anarcho-capitalist, I would go so far as to say that marriage should only be a contractual affair, between two people — but we are nowhere near there.”

          You can set up whatever kind of contractual marriage you like… with as many people as you like… and nobody is stopping you.
          Whether the government recognizes your contractual relationship, and uses it to grant several powers and rights automatically, is a different question.
          Just like how you can organize your business however you like, but if you want the government to give you a liability shield, you have to do it in one of the ways they offer that grants a liability shield.

          1. When you say “nobody is stopping you”, you are ignoring the big elephant in the room: the government *is* stopping you, by making it difficult to recognize contractual relationships.

            So long as we accept that the government is interfering with these contractual relationships (usually by ignoring them in courts of law), then it’s fair game for us to argue over *why* certain relationships should hold more value over others.

      3. Agree with you there. It seems a similar concept was referenced in the Bible when Paul said “What business is it of mine to judge those outside the church? Are you not to judge those inside?” I also think your distinction may be partly relevant to the question of what constitutes “religion” under the original meaning of the 1st amendment (it can’t be all of the things in the world that are called “religion” many of which fall into your latter category).

        But this isn’t really pertinent to the issue at hand.

        First, Somin is trying to draw a distinction between “religiosity” and “the policies they advocate.” But there is no such distinction, necessarily. Somin is trying to define what someone else’s religiosity is. But religiosity could involve a belief that one must work to outlaw same sex marriage, or establish a worldwide caliphate and kill infidels and apostates.

        Second, I would point out that advocating “policies,” even toward homosexuals, isn’t necessarily an “attempt . . apply the rules of a religion to people who are not members of that religion.” Questions like who gets what federal tax benefits, who has to pay for someone else’s abortion, whether the government should redefine marriage, and so on are largely questions not of what should be allowed so much as what is the proper role of govt, what should govt subsidize and encourage, etc.

        Finally, we can’t even say that attempting to apply the rules of a religion to others is necessarily a bad thing! It would be nice for our theorizing if it were that simple, but it’s not. Religious belief has long been the usual foundation for the adoption of higher moral principles. Just for one small example, Christians abolished slavery in the United States and Great Britain after years of tireless advocacy founded on what they believed from the Bible.

        1. Christians and Christianity were vividly on the other side of the slavery debate — and fight — too. That some wish to disregard that point does not diminish it.

          1. And who was on the abolitionist side of the slavery debate? Also Christians. In Great Britain and the U.S., everyone was “Christian” at that time and society was Christianity, so in some sense you’re correct, but it was Christians all around. Except the abolitionist Christians were believers who took a moral stance that was deeply unpopular and did not benefit them in any way but cost them socially; the others were going along with tradition, economics and general cultural norms.

            So your assessment seems Western-centric. Are you knowledgeable enough to give a more global assessment? Keep in mind slavery continues today.

          2. What side of the debate was the Democrat party on?

            1. Before or after the bigots (mostly southern) migrated from the Democratic Party to the Republican Party?

              1. Not sure you’re keeping up on current events. Bigotry is alive and well in the Democrat party. Interesting how that party has consistently spearheaded most everything vile in this country for over 100 years. Or maybe it was just some people doing something?

                1. Try the view without your partisan goggles. You’ll find plenty of wrongdoing in both parties, and won’t sound so silly insisting that everything bad is concentrated in one or the other.

                  1. No, MKE is right: while there’s plenty of wrongdoing in both Parties, one Party has been more consistently vile (particularly in terms of race relations) over the last 100 years than the other. And it isn’t the Republicans who have been consistently vile.

            2. “What side of the debate was the Democrat party on?”

              Easy. There isn’t a “Democrat party”.

              1. Now you’re being pedantic. It’s useful, I guess, because it means you get to evade the question.

                For those in the audience who don’t know what side the Democratic Party was on, with regards to slavery, I’ll provide a tiny little hint: it was on the side that gave us the Civil War, the KKK, Jim Crow, a segregated military and segregated city housing.

          3. Yes, we know full well that there were religious Democrats who fought tooth and nail to protect slavery. That doesn’t mean that slavery is automatically religious; it’s been a normal part of the human condition up until Christians decided it shouldn’t be.

            Fortunately, anti-slavery politicians were able to beat the Democrats in the resulting civil war. Too bad that Democrats maintained power to implement Jim Crow laws, and it took decades to get rid of those.

            1. If you genuinely objected to the old-timey Democratic Party bigots, conservatives and the Republican Party wouldn’t have welcomed them so enthusiastically when those morally deficient slack-jaws wanted to leave the Democratic Party.

              Carry on, clingers. So far as your betters permit, that is.

              1. Omar and AOC left the party?

              2. Fun fact: those morally deficient slack-jaws *never left* the Democratic Party. They stayed behind. Well, except for Strom Thurmmond. The rest never felt alienated enough by the Democratic Party to leave, and even Bill Clinton and Jimmy Carter had to pay homage to the old-time racists of the Democratic Party.

                The only reason the South went reliably Republican — and it has done so in only the last 40 years — is because the younger generations grew up and stopped being racist. When they stopped being racist, they became Republicans.

        2. “Somin is trying to define what someone else’s religiosity is.”

          We all do that. Furthermore, we all get to do that. Just because you label your actions as “religious” doesn’t mean that I have to agree with you.

          “Finally, we can’t even say that attempting to apply the rules of a religion to others is necessarily a bad thing!”

          “Religious belief has long been the usual foundation for the adoption of higher moral principles.”

          Yeah, no.

          “Christians abolished slavery in the United States and Great Britain after years of tireless advocacy founded on what they believed from the Bible.”

          Christians PRACTICED slavery in the United States and Great Britain, after years of tireless advocacy founded on what they believed from the Bible.

          Yes, we can. I did.

          1. “Just because you label your actions as “religious” doesn’t mean that I have to agree with you.”

            But does that justify being bigoted against the person you disagree with?

            ““Religious belief has long been the usual foundation for the adoption of higher moral principles.” Yeah, no.”

            That’s why it’s so easy to look at the ancient world where Judaism rose up, and where Christianity rose up, for that matter, and find an absence of infanticide, a respect for property, respelct for individuals, a strong emphasis towards liberty, and other highly moral principles.

            And just a major correction: Democrats used Christianity to defend slavery. Other Christians decided that slavery needed to end, and worked tirelessly to end it. Up to the point where Christians decided that slavery needed to end, no one was actively working to end slavery.

    2. Religiosity of any kind is just fine . . . . . so long as it doesn’t involve anything I disagree with!

      That’s not remotely true. I disagree with Christian theology but if you believe it, fine.

      That does not obligate me to think that all policy preferences that you base on your particular interpretation of Christian moral teachings should be respected.

      1. I agree bernard. And I appreciate that you, like most Americans, are probably generally tolerant of others’ beliefs.

        I guess one of the thoughts I was trying to express is that I’m struck by Somin’s attempt to deny that this Yale policy discriminates against religious public interest groups, when it clearly does. When those groups exercise their freedom to associate on the basis of shared beliefs, that is the same thing as “discriminating” on the basis of religion. So why not just admit it? I guess because it sounds bad to our cultured ears. Sort of like discriminating against Muslims – sounds bad. But in the effort to appear or to be more tolerant, sometimes people go about defining down the religion of others to make it seem more palatable. On the other hand, people also sometimes mischaracterize others’ beliefs for the opposite reason, to make them seem more objectionable. Either way, grand moral truth claims are necessarily exclusionary and bound to be divisive sooner or later.

        In the quoted sentence Somin defined the “religiosity” of “groups like ADF” as something separate from their policy positions on homosexuals. I don’t think that was objectionable, but I think it’s interesting. Why are those things separate, and why would the average reader not even think to question it? I think it’s because the basic conceptual framework of Christianity is deeply ingrained into Western modes of thinking: the assumption of religiosity as being a primarily individualistic relationship to the divine, mankind sharing a universal condition of inherent worth and dignity and equality but also an accountability relative to the divine, etc.

        1. ” I’m struck by Somin’s attempt to deny that this Yale policy discriminates against religious public interest groups, when it clearly does. ”

          You misunderstood the claim, obviously.
          The claim isn’t that the policy doesn’t discriminate against religious public interest groups, the claim is that it doesn’t discriminate against religious public interest groups for being religious.

          1. The funny thing is that so many Democrats call out institutions as being “discriminatory” because a program disproportionally affects one minority group over another — in particular, the death penalty and long years in prison are two examples that immediately come to mind — yet we can have this particular policy that *isn’t* discriminatory, even if it means that religious groups are mostly the only groups affected by this policy.

          2. The policy does discriminate against religious public interest groups for being religious. Religious groups are, by definition, groups of people with shared religious beliefs. The policy discriminates against any groups who exercise their freedom of association in this way on the basis of religion. The policy doesn’t care about groups that may be based on shared political ideology, political advocacy or agendas, etc. The policy targets religious groups.

            1. ” The policy discriminates against any groups who exercise their freedom of association in this way on the basis of religion. ”

              So you agree with us… the policy discriminates based on what people do, not on what people are.

              “The policy targets religious groups.”

              Close. The policy targets groups that choose to discriminate in employment. If only Moses had inscribed that 11th commandment, “thou shalt not hire homosexuals in thy legal department”… or if Jesus had said “love thy neighbor as thyself, unless he’s a stinkin’ gay.”

  13. Interesting view. So, a policy entirely neutral as to sexual orientation does not discriminate? Would (in a hypothetical rational world) a policy providing that only a man (gay or heterosexual) may marry a women (regardless of whether a lesbian or not) be valid because there is no discrimination on the basis of sexual orientation? Isn’t everyone who wants to marry treated exactly the same?

    1. That wouldn’t be discrimination, because while some men marry men because they are homosexual, some men marry other men because they enjoy the tax benefits.

      The policy doesn’t discriminate against homosexuality, so it’s not illegal under Prof. Somin’s reasoning.

    2. What about women who want to marry a woman? It seems to discriminate against them.

      1. Maybe not but that wasn’t the test. Isn’t it a neutral policy? No special treatment for sexual orientation and neutrally applied.

        Of course, one can always redefine an issue to suit an argument, as aptly noted by “Bored Lawyer,” this article mischaracterizes the issue by confusing a group’s employment discrimination with its advocacy position.

    3. “Would (in a hypothetical rational world) a policy providing that only a man (gay or heterosexual) may marry a women (regardless of whether a lesbian or not) be valid because there is no discrimination on the basis of sexual orientation? Isn’t everyone who wants to marry treated exactly the same?”

      Sure. That was the status quo up to about 15 years ago. Then, the California Supreme Court rules that California’s marriage statutes didn’t actually specify that spouses must be differently gendered, and therefore, couples who wanted to be married but were of the same gender could, in fact, be married in California.

      This prompted people in California (plus some outside) to sponsor a constitutional amendment supplying that restriction to marriage… and retroactively applying that restriction to couples already married.
      That’s what was different… the taking away of rights who already had them vs. extending the rights of people.

      1. “That’s what was different… the taking away of rights who already had them vs. extending the rights of people.”

        This is disingenuous: the *only* reason why these people had rights before they were taken away, was because of a court decision that had no input from the legislature or the people, in a controversial topic that can be argued to be best handled by the legislative process.

        This is like saying that we can’t make nuclear weapons illegal (not that there’s anything wrong with peaceable citizens legally owning nuclear weapons!) because before the law made it illegal for citizens to own nuclear weapons, citizens had the right to own them, and thus the law is “taking away of rights who already had them vs. extending the rights of people”.

        1. “This is disingenuous: the *only* reason why these people had rights before they were taken away, was because of a court decision that had no input from the legislature or the people,”

          You know, that’s not really true: They had a lot of input. They just disregarded it, because it was negative.

        2. I wasn’t aware we left basic rights to the whims of the legislature.

          1. Just because we don’t leave basic rights to the whims of the legislature, doesn’t mean there isn’t a good debate to be had, as to what basic rights are.

            And, considering how historical marriage has been regulated over time (and still is regulated, btw), I see no reason why whether or not something so fundamental *shouldn’t* be subject to debate in the legislature.

          2. I wasn’t aware we left basic rights to the whims of the legislature.

            Well it kinda follows from the fact that the California Supreme Court was interpreting the California statutes on marriage that we’re dealing with statutory, not “basic” rights here. Which is the right to have the State recognise your marriage, and even insist that third parties recognise it for various legal purposes.

            If there’s a “basic” right here (which I distinguish from “constitutional” right) it is to marry according to your preferred religious rite or secular bonding ceremony. Whether the State chooses to pay attention is down to its marriage laws.

            1. “Well it kinda follows from the fact that the California Supreme Court was interpreting the California statutes on marriage that we’re dealing with statutory, not “basic” rights here. ”

              Incorrect. The right to not have statutory rights taken in an unequal way is a “basic” right. If only someone had thought to put a guarantee against unequal application of law into the Constitution…

        3. ” the *only* reason why these people had rights before they were taken away, was because of a court decision that had no input from the legislature or the people”

          It’s interesting that you think a statute has no input from the legislature.

          1. The scope of the statute in question was increased in a way inconsistent with the way the statute was originally written, and done so without legislative debate.

            That doesn’t sound like input from the legislature to me.

            1. “The scope of the statute in question was increased in a way inconsistent with the way the statute was originally written”

              That’s an interesting fantasy.

              1. Considering that the statute was originally written in a time when marriage was, without question, between a man and a woman, it’s disingenuous to interpret it to mean that it has *always* meant that two men or two women should be able to get married.

                The fantasy is assuming otherwise.

    4. A policy that says a man can only marry a woman discriminates against gays because only a straight person can marry their lover.

      1. Yeah, and only non-pedophiles, too.

        Before you complain about the comparison, they’re working on normalizing pedophilia. I thought they’d go for polygamy first, but I was too optimistic.

        1. Of course minimum age requirements discriminate against pedophiles and with good reason. I’m not familiar with how “they” are working on normalizing pedophilia.

          1. Salon had a few articles sympathetic to pedophiles. They made the articles disappear when it was convenient for them to go after Milo Yiannopoulous when comments surfaced where he suggested that some 13-year-olds were mature enough to give consent.

      2. Josh : A policy that says a man can only marry a woman discriminates against gays because only a straight person can marry their lover.

        I’m not at all sure this works they way you want it to work. A policy that orange people can only marry orange people, and violet people can only marry violet people, would not under your rule discriminate against either orange or violet people. An orange person whose lover is violet is unable to marry his chosen lover. And likewise for the violet lover.

        The only coherent analysis that helps your argument and although it’s superficially attractive i don’t think it really is that attractive) is to look at the individual Mr X and the individual Miss Y and point ou that Mr X can marry Miss Z, but – if same sex marriage is banned – Miss Y cannot marry Miss Z.

        1. Anti-miscegenation laws discriminated against blacks because they were motivated by keeping the races “pure” in order to further white supremacy.

          1. More specifically, they discriminated against black people because they only applied to black people. At least, the one in Virginia that prompted the Loving decision did.

          2. Indeed. That was why they were so popular among Democratic States.

            1. By “Democratic States”, you of course mean states that used to be dominated by Democrats, but are now dominated by Republicans, because the racist people left the D’s and joined the R’s?

              1. Since when did the racist people leave the D’s to become R’s? Strom Thurmond did, but he’s it. All the other D’s remained D’s because that was what was comfortable for them — it is where they were welcome.

                The Southern States didn’t even become reliably Republican until the 1980’s, and even then, it’s still somewhat hit-or-miss. Democrats stopped dominating the politics of those States because the current generation isn’t nearly so racist.

                (And yes, Democrats are still racist, to this day. You can best see it when you look at the ghettos of cities they have been in charge of over several decades, both on mayoral and State levels, as well as the soft bigotry of low expectations as exemplified via “affirmative” action.)

          3. Josh : Anti-miscegenation laws discriminated against blacks because they were motivated by keeping the races “pure” in order to further white supremacy

            No doubt, though one might remark that that ship had sailed.
            However, we were discussing your formulation :

            A policy that says a man can only marry a woman discriminates against gays because only a straight person can marry their lover.

            which I attempted to apply to colored people, unsuccessfully. But you have solved the riddle by coming up with a totaly different formulation for race. Since you need two completely different formulations of discrimination for two different cases, either your formulations are arbitrary justifications, retrofitted to the case you want to make, or else you have a more general synthesis that covers all cases. Which we can then aply to the particulars of each case.

            Either way your same sex marriage formuation is inadequate as it stands.

            My point being that it’s much harder to come up with a generally valid formulation of discrimination than an ad hoc retrofit.

  14. This analysis conflates a group’s employment discrimination with its advocacy position. Suppose the ADF’s position is that it will accept in employment anyone regardless of their sexual orientation. (Assuming they are otherwise qualified — if they need a lawyer, then the person has to have been admitted to the bar, for example.) But it will continue to advocate, including in court, positions that some find discriminatory, but believes are vital for religious freedom. (For example, the successful advocacy of the baker’s position in the Masterpiece case.)

    Is that “discrmiination” under Yale’s definition? If so then Yale is disadvantaging certain positions that are, in the end, grounded in both ideology and religion. Whether that violates federal law can be debated, but frame the issue properly.

    1. No. It’s not discrimination under Yale’s policy. Read Gerken’s statement.

      It says, in part:

      We recently decided that the Law School will require that any employment position it financially supports be open to all of our students. If an employer refuses to hire students because they are Christian, black, veterans, or gay, we will not fund that position.

      1. Just commented above on your comment.

        So assuming that the ADF — the very advocacy group that started the whole kerfluffle — states that it will not discriminate in hiring, then Yale will fund it? That seems like an easy way out of this.

        Presumably, not many homosexuals would want to work for the ADF. But all they have to do is say, sure, we will hire you. But you have to work to support our mission, in whatever capacity we hire you (lawyer, paralegal, etc.)

        1. It would be a very easy way out of the “sexual orientation” discrimination issue, if the distinction between an “orientation” and one’s beliefs, practices and behaviors is recognized. Generally there is resistance to that. But it seems there is an increasingly visible contingent of so-called “ex-gay” people in religious ministries and organizations.

          The bigger problem is with the idea of not being allowed to discriminate on the basis of beliefs, ie religious beliefs.

        2. That’s how I read it.

          Follow Ilya’s link and read the whole thing yourself if you like.

  15. I too have a high level of tolerance for people who agree with me on everything.

    I guess according to Prof. Somin I’m a very tolerant and liberal person.

  16. The argument that Yale does not practice religious discrimination because their policy would also affect (hypothetical) secular people who wish to act the same way is the silliest argument I have ever heard.

    1. The claim is that the policy does not discriminate against religious organizations because they are religious organizations.

      The fact that the policy applies to non-religious organizations that practice discrimination in employment, and doesn’t apply to religious organizations that don’t practice discrimination in employment, is actually not the least bit silly. Perhaps the silliness is at your end?

  17. Suppose that Yale — or the govt — requires all employees and students to walk across a picture of the Prophet M and spit on it? It requires this behavior irrespective of religion.

    Under Professor Somin’s reasoning, this is a perfectly neutral policy that does not constitute religious discrimination because it applies to everyone.

    1. You didn’t understand the argument. Your hypothetical singles out one specific religion… the one with the prophet M… If you want a religious-discrimination-free version of that, you’re going to have to remove the references to a specific religion.

  18. It’s not ironic at all. Liberals are willing to sacrifice all principles to bring non-whites, Muslims and homosexuals up and the West down.

  19. Yale’ Law School’s statement implies (though it doesn’t actually say) that they are complying with ABA standards for accreditation.

    This would be worth some follow up: Do other ABA-accredited law schools have a policy like Yale’s? Is Yale simply doing what the ABA dictates?

    Do law schools provide stipends for student interns at the Alliance Defending Freedom? Does the ADF actually have discriminatory personnel policies (like a ban on extramarital sex, marriage being interpreted in a pre-2015 way)?

  20. “if the job in question is with an employer that discriminates on the basis of race”

    Unless that race is White. And probably Asian too.

  21. As a general rule, most gay rights advocates have no problem with religion as such

    That seems purely tautological, because it has the presumptions that “religion as such” can be defined by gay rights advocates. Of course they have no problem with religious beliefs they have no problem with.

    1. … and we should be troubled that they don’t object to things they don’t object to?

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