An Excuse to Discriminate?

Joseph Backholm is senior fellow for Biblical worldview and strategic engagement at the Family Research Council. This article appeared in WORLD Magazine on October 7, 2022.

In a nation filled with strange new developments, one of the most alarming is the belief that a primary purpose of the Constitution is to protect us from “discrimination.” In September, the Washington Post ran an op-ed with the headline “When did religious freedom become an excuse to discriminate?” The article laments that, “in the name of religion, businesses assert a right to refuse to hire LGBTQ people, public school teachers a right to misgender students and others a right to discriminate against terminally ill patients exploring end of life options.”

The use of the word “discriminate” in that headline is intended to scare the reader and alert us all to something supposedly gone horribly wrong. But what the Post refers to as “an excuse to discriminate” is actually a basic exercise of religious liberty.

In generations past, the political left was defined, in significant ways, by the sentiment “I may disagree with what you say, but I will defend to the death your right to say it.” Now, they are defined by “speech is violence.”

While a significant portion of the American public is comfortable with a coercive government, the Constitution still operates. A Kansas teacher was just awarded a $95,000 settlement from the school district that had suspended her for refusing to use “preferred pronouns,” an acknowledgement by the school district that their speech codes are beyond defense. The Supreme Court ruled just months ago that a football coach cannot be fired for praying within sight of his players, and ruled that targeted school choice programs cannot discriminate against religious schools. Even the Biden Administration seems to acknowledge—if begrudgingly—the legal right of religious organizations to operate free of government micro-management. After initially threatening to defund a school lunch program operated by a Christian school because of its Christian beliefs, the Administration withdrew the threats after lawsuits were filed.

So, when did religious freedom become an excuse to discriminate? From the beginning. We discriminate any time we make a moral judgment. The primary purpose of the First Amendment has always been to prevent governments from labeling the beliefs of people they disagree with as “dangerous” and punish them as a result. The biggest change is in the marketing. The things we once celebrated as “freedom” are now ridiculed as “discrimination.”

The difference between “discrimination” and “choice” is in the eye of the beholder.

Besides, those who claim to oppose discrimination don’t really mean it, they just discriminate differently. The same people who demand that the government require bakers and florists to bake and decorate are less offended when dress designers refuse to make a dress for Melania Trump. PayPal recently decided it would not do business for a group called “Gays Against Groomers.” As the name suggests, “Gays Against Groomers” is a group of gay-identified people concerned about the “recent trend of indoctrinating, sexualizing and medicalizing children under the guise of ‘LGBTQIA+’”—things for which the left now demands support. Putting aside the outrageous way PayPal chooses to discriminate, the fact is, it does discriminate, as does everyone demanding an end to “discrimination.”

What should be obvious—but clearly is not so obvious to many—is that the difference between “discrimination” and “choice” is in the eye of the beholder. If you believe in freedom only for those you agree with, you don’t believe in freedom. You believe in a government that protects people who are like you and punishes people who are not. That is precisely the settlement the framers of the Constitution were looking to prevent when they wrote the Constitution.

We have laws for a reason and there are some things (including some forms of discrimination) that should not be tolerated, but too many of us have allowed our desire to see people be kind to each other become justification for a legal war on individuality and fundamental freedoms. Instead of a world in which the government supervises all our interactions, we should prefer the world our founders created; a world in which we can all be outraged by each other’s decisions but are free to make them anyway.

The real news is not that the Constitution protects the right to “discriminate” but that anyone would think otherwise. Bake the cake or don’t. Use the pronouns or don’t. Either way, you are discriminating. When charged with discrimination, conservatives should call the bluff.