Unjust discrimination still exist, but not in the same way it used to. Civil Rights activists need to stop living in the past and adjust their work to current realities.
I was recently on a radio program, commenting about the U.S. Supreme Court decision that struck down Arizona’s law requiring proof of citizenship when people register to vote. One caller seemed quite happy with the decision because, it seemed, he believed there is widespread racism. I responded that those who make such allegations are bound to provide some evidence, and of course he didn’t and moved on to other comments. He didn’t even seem to think it necessary to explain why the simple act of requiring such proof, since one has to be a citizen to vote, constituted racism. Indeed, when I suggested that he ought to explain what he means by “racism,” he didn’t address that either. This brief episode illustrates a problem that has been around for sometime: all too many see racism, sexism, homophobia, or some other kind of socially condemned discrimination as ubiquitous, as the cause of a whole host of ills. It is, of course, the basis for a “civil rights” mentality that easily becomes the basis for civil wrongs.
We are all aware of America’s past: slavery, Jim Crow, lynchings, voter disenfranchisement – hardly an exemplary history. We don’t live in the past, however, and we have to accept the realities as they now are. Of course, there are present cases of unjust discrimination. To claim, however, that this is an era any way comparable to Jim Crow is simply preposterous, and is often done for crass political advantage (like when the Tea Party movement is accused of racism for defending traditional constitutional principles). Such claims are also used to ignore serious policy deficiencies that often have the effect of damaging the dignity of groups they aim to help, as in the case of fostering government dependency and the consequent stifling of personal initiative.
Serious racial incidents and outrages against other groups are seldom officially generated, as in past times, but are perpetrated by fringe white supremacists and criminal hooligans as in the James Byrd, Jr. and Matthew Shepard cases. Moreover, our supposed civil rights spokesmen – usually either self-appointed or leaders of some interest group – seldom comment about the discrimination against groups that cannot claim the status of “protected.” This is what we see with affirmative action and outright quotas, as well as in the myriad cases of employers, teachers, and institutions falsely accused of sex or disability discrimination, and later raked over the coals of an investigation or legal action. In fact, cases of true official discrimination have become so hard to find that the crusaders for equality have turned to elaborate statistical schemes to supposedly “prove” discrimination. We are told that statistical studies show that the imposition of capital punishment is discriminatory because it falls heaviest on certain minority groups (usually not discussed is that capital crimes are disproportionately committed by certain demographic groups, and usually against other members of that group). Now, we see the Obama administration moving against businesses that do criminal background checks because they claim this violates the civil rights of certain minority groups – again, ignoring the fact that statistically, people in those groups have committed criminal offenses in disproportionate numbers. It is claimed that certain political structures, such as at-large city council seats, are discriminatory because they reduce the political clout of certain groups. So we have to adopt a certain view of representation that changes the character of the political institutions and ushers in a whole range of unforeseen consequences, including other types of discrimination.
“Civil rights” has become an excuse for aberrant behavior, making it all too easy to ignore the problems of poor personal formation and deep-seated sociocultural differences among different groups – such as family breakdown and the decline of religious practice – that result in more crime. As with racism, we also have lost a clear sense of what the term means. What it traditionally meant, essentially, were protections such as those in the Bill of Rights. Their purpose was to insure liberty. Too often now, we see civil rights claims being used to thwart liberty, embellish (often spurious) group claims, and advantage some and disadvantage others. Also, some of these most basic civil rights (e.g., religious liberty), are sacrificed to ersatz rights generated by ideologies that are often subversive of true human dignity. Ergo, we witness the claimed rights of “sexual minorities” and the “rights” to engage in immoral acts (such as the recent case where the Archdiocese of Cincinnati was sued for employment discrimination when it dismissed a teacher – who was also a secret lesbian – for conceiving a child by artificial insemination). We also see striking examples of discrimination by leading crusaders against it, such as the feminists who don’t see a problem with sex-selection abortion that is primarily aimed at destroying female unborn babies.
The civil rights mentality has also at times created official endorsement of something akin to “mob rule.” One thinks here of the Rodney King case of 1992, when race riots – in which street gangs played a large part – erupted in South Central Los Angeles after a state jury acquittal of police officers on charges of brutality for their actions in trying to subdue repeat criminal King (who was especially aggressive, possibly because of alcohol and drugs). The response of the federal government – the Republican George H. W. Bush administration – was to prosecute them for civil rights violations. Their ultimate federal conviction smacked of double jeopardy, even if technically it was not. In the George Zimmerman case, police initially thought there were no grounds for criminal charges. When civil rights firebrands claimed that it just had to be racism, the state in irregular fashion pushed to prosecute. It is not clear, in spite of his exoneration in state court, that the federal government may still not find grounds to indict him. Do such episodes signal a new pattern of official civil rights violations (that is, in the name of supposedly stopping racism)?
Does this not sound like a utilitarian version of justice? Is it right to pursue questionable prosecutions because a segment of the community, which itself may be biased and has only part of the facts, clamors for it? Does even racial peace justify sacrificing one man or a group of men? Is that truly a recipe for inter-group harmony and mutual understanding? Does that insure that community will hold together on anything but the thinnest of threads?
Quite the contrary, it has been commented that the civil rights mentality, with its absolutist notion of rights and unwillingness to show any spirit of accommodation (the disability rights area is a crying example of this), divides group from group. Such a scheme is impervious to the need for civic friendship, which Aristotle said was essential for a political order and was so characteristic of the culture of America’s founding era.
It is time now to do what no one wants to suggest: rethink and reform the civil rights laws. We need to start by asking the basic question of whether many of the subjects that we unquestioningly include in this category are best governed by law. For example, should employment decisions so readily be subjected to legal interference? Does this not give an intrinsic advantage to those in a protected group to get what they want, even when they don’t deserve it or have acted wrongly? That is, the threat that they might sue, even though they might lack standing, gives them considerable leverage. Should as many different categories of people be given civil rights protections as those who currently benefit from them? Should sex, disability, or even religion – to say nothing of having a tendency to same-sex attraction – be treated the same as race? Criminal civil rights laws, as in the Rodney King case, are problematical. Open-ended, unspecific criminal statutes that do not set out clearly what actions are illegal offend both the ethical requirements for a just law and our common law tradition. Moreover, there is reason to question whether government’s power to institute civil rights lawsuits against individuals should not be considerably narrowed. Recently, the attorney general for the State of Washington commenced a civil suit against a photographer who for religious reasons declined to provide services for a same-sex “wedding,” even though the homosexual partners did not make a complaint. As a starting point for reform, those who believe their civil rights have been violated should have to provide unmistakable proof that it occurred.
Further, we should consider that existing law actually interferes with putting into practice some points of Church social teaching, such as that their particular nature makes some jobs unsuitable for women and that a flat-out regimen of “equal pay for equal work” between men and women goes against the need to remunerate more those who head families (Laborem Exercens, 19). Let us remember too that whenever the Church condemns discrimination, it is unjust discrimination. She favors equal opportunity; she does not insist that all be treated exactly alike in every way. It is not so clear that much of what passes for “discrimination” nowadays is unjust by any true standard. The tendency of the civil rights mentality to, effectively, accord “favored” status to certain groups is also troubling. While the Church opposes unjust discrimination and seeks to protect minorities (see Gaudium et Spes, 29 and Pacem in Terris, 94-96), she also makes clear that minority groups may not – in the words of Pacem in Terris – “exalt beyond due measure anything proper to their own people” (97).
This is one more subject about which a full-fledged national debate is needed, even if in the Obama era, where “civil rights” is the ready hook to use to demonize dissenters from many parts of the ruling orthodoxy – it can hardly be expected.
Stephen M. Krason’s “Neither Left nor Right, but Catholic” column appears monthly (sometimes bi-monthly). He is Professor of Political Science and Legal Studies at Franciscan University of Steubenville and Co-Founder and President of the Society of Catholic Social Scientists. His most recent book is The Transformation of the American Democratic Republic. This column originally appeared in Crisismagazine.com and may be freely reproduced so long as this is noted.