Equality and “Anti-Discrimination”

 

A relatively new phenomenon in western legal culture is the proliferation of legislation that is designed to “fight discrimination” and to “promote equality”.  In the United States, such policies acquired certain notoriety as “affirmative action” from the 1960s onwards, whereas in Europe the EU has adopted a series of “Anti-Discrimination Directives” and has defined “equality” as one of the fundamental rights in the EU. From the perspective of this paper, “equality” and “anti-discrimination” policies have a double nature. They may, on the one hand, be viewed as mere instruments to promote a social and political agenda one may, or may not, like. (As it turns out, they are mostly used to promote the homosexualist agenda we are opposing, but that does not per se mean that they could not also be creatively used to promote our own agenda…) On the other hand, reaching beyond this merely instrumental approach, we may ask ourselves whether “anti-discrimination” and “equality” are not the expression of a new social heresy that needs to be made subject of a fundamental critique.

“Equality” and the Traditional Concept of Justice

The traditional concept of justice, which has underpinned western moral and legal thinking from antiquity to modern times, is aptly summarized in the following two sentences:

–      “Iustitia est constans et perpetua voluntas suum cuique tribuendi” – Justice is the constant and perpetual will to render to every man his due.

and

–      Justice means to treat the equal equally, the unequal unequally, and everything according to its merit.

It is obvious that the fundamental principle here is “what is due to someone” (in other words: merit), not “equality”. Equality is only a secondary principle: equal merit should be equally rewarded, but there should be no equal reward for unequal merit.

But what is equal? Should A and B receive equal pay because their work output is of equal value, or because they have worked an equal amount of time (albeit with unequal output), or because they have spent the same amount of years working for their employer, or because they both have a wife and two children to feed? It is obvious that justice to a very large extent depends on the choice of the right criterion for comparison, i.e. the tertium comparationis.

Looking at contemporary “anti-discrimination” policies, on quickly finds that their core tenet is to outlaw certain criteria such as race, religion, descent, gender, disability, or sexual orientation. These criteria, oftentimes called “suspect criteria” must never be used as a criterion for any decision, except where it can be proven that the application of such criteria is necessary and justified.

On the surface, this looks harmless, given that there still is, at least in theory, still some leeway to apply those criteria whenever there is a justification for doing so: Catholic schools, for example, may continue employing Catholic rather than non-believing teachers. A theatre may still continue to give female roles to female actors, male roles to male actors, and reserve the role of Othello to a black or the role of Dzinghis Khan to a Chinese. The necessary exceptions are in place. On the face of it, there seems to be no disagreement between the classical concept of “suum cuique” and contemporary “equality”, given that we all agree that the criteria that are used must be appropriate.

So, where is the catch?

It consists in two elements. One is that anti-discrimination policies, if applied to the contractual/commercial decisions of private persons, lead to a loss of liberty, given that people are required to provide justifications for decisions they were, until now, free to make as they liked (for more detail, see the following sub-section). The second, and more important, is that those assessing the appropriateness of the criteria used may use their power to impose their own opinions, and in particular their own moral views, on the rest of society. And those moral views are oftentimes questionable, especially when it comes to issues related to “sexual orientation“.

Indeed, while the principle that men and women should have the same rights, or that nobody should be discriminated against because of his race, does not seem to spur much controversy, there is no similar consensus with regard to criteria like religion or “sexual orientation”. The decisive difference is that, even if some may argue that most people have never chosen their religion or “sexual orientation”, such criteria have a strong bearing on morality that is inextricably associated with them. For example, while many Muslims are perfectly peaceful and honourable people, one cannot simply discard the fact that Islam is viewed by a certain quantity of its believers as a religion that must be propagated “with fire and sword”, and hence justifies violence and terror against non-believers. Is it then so irrational for non-Muslims to oppose the idea of Muslim mass immigration? Is it really unwise for those responsible for airport security to avoid hiring Muslim employees? There are good reasons to argue that it is wise to grant tolerance with regard to religious communities such as Islam as long as such tolerance does not undermine the common good. But there is a wide difference between tolerance and granting an entitlement to equal treatment to all religious communities irrespective of their beliefs.

With particular regard to “sexual orientation” it must be noted that this is clearly the most controversial of all “suspicious grounds”. While some say that nobody should suffer any disadvantage because of his “sexual orientation”, which is innate and unalterable, and that everyone should be entitled to act in accordance to this orientation, others reply that the problem is not any “sexual orientation”, but a deliberately willed behaviour that is counter-natural and intrinsically immoral, and that “anti-discrimination” should not be the sanctimonious pretext for promoting such immorality.

This is thus, to say the least, a conflict of values on which society is deeply divided, and there is ample ground to argue that it would be absurd to frame this debate in terms of “discrimination” and “equality”. By prohibiting “discrimination on grounds of sexual orientation”, the law attempts to exclude all moral judgments from a debate on what is essentially a moral issue. In fact, the true question here is not about the discrimination of a group, but about the morality of that group’s behaviour, and whether it should be tolerated, accepted, or even promoted. Indeed, one could even question the applicability of the auxiliary word “to be” to issues related to homosexuality: can one really “be” homosexual in the same sense as one is male or female, black or white, old or young, healthy or handicapped? Are homosexuals really discriminated because of an innate “orientation”, or is it not their behaviour that is found repulsive by many? If any unwelcome behaviour can be traced back to innate “orientations”, would it then not be a discrimination of kleptomaniacs to prohibit theft, a discrimination of alcoholics to prohibit drunk driving, or a discrimination of pyromaniacs to prohibit arson?

It is not our purpose here to answer all these questions. But it can safely be said that sodomy is with good reasons considered both immoral and unhealthy by many, and that, as a consequence, the inclusion of “sexual orientation” in laws on anti-discrimination appears to be a strategy to promote a cultural revolution that is widely disapproved both in western societies and, even more so, abroad. Of course it is possible to imagine situations where homosexuals may be victims of discrimination (for example if, in a given country, real or suspected homosexuals were prevented from obtaining a driving license, or if violence directed against them were not punishable). But such situations do not appear to occur frequently. Instead, it is more than obvious that anti-discrimination legislation, where it exists, is used to inappropriately curtail the freedom of opinion and expression of all those who have moral reservations against sodomy (e.g. persons who express the view that sodomy is not a normal sexual behaviour, or parents who try to educate their children in conformity with their own moral values), and to silence them. It can thus with right be said that “sexual orientation” is the free-rider among the individual anti-discrimination issues: uncontroversial issues such as the protection of handicapped people are used to surreptitiously advance a highly controversial agenda.

“Equality” and Freedom

It is uncontested that the state should treat all citizens equally, and that politicians or public servants are not free to distribute benefits and advantages, or to impose disadvantages in whatever way they like. But for private persons the possibility of making their own choices is one of the constitutive elements of personal freedom. Each and every attempt to extend the applicability of “anti-discrimination” rules to the domain of contracts between private persons or privately owned companies is thus tantamount to a restriction of liberty: entrepreneurs are no longer free to decide whom they want to hire, house owners are no longer free to decide whom they want to have as tenants, etc.

Besides mere communication, the conclusion of contracts is the most important means of social interaction. Restrictions of the freedom of contract are therefore a restriction of freedom at large – and they must therefore be applied only with the greatest caution. While the application of anti-discrimination rules to the state has been put in place to protect the liberty of citizens, this very same liberty is undermined when anti-discrimination policies interfere with their private lives. What is benign in one case, is insidious in the other. The question is whether “equality” is such important a policy objective as to justify such restrictions of contractual liberty.

In a free society, people should be allowed to have personal preferences, and to act accordingly without being subject to any censure or scrutiny. This includes also the possibility to make choices that are “discriminatory”. Where such a liberty is not respected, society will soon become totalitarian. As the historical experience clearly shows, equality always stands to some extent in contradiction with liberty, and a society can only be free if a certain degree of inequality is accepted. In a certain sense, therefore, contemporary “anti-discrimination” policies appear to be a new strategy to re-animate socialism, albeit under a different name. They lead to expropriation as well as to a severe curtailing of personal freedom and to a totalitarian intrusion of state authorities into the private sphere.

An egregious example of the liberty-killing effects of “anti-discrimination” legislation is provided by a recent decision of a British law court, in which the owners of a bed and breakfast who had followed a policy of giving rooms with double beds only to married (different-sex) couples were condemned to pay £ 3.600 in punitive damages for to a homosexual couple who claimed to be victims of “discrimination”. The judgment is not to be criticised because the judge correctly applied the relevant legislation, the Equality Act (Sexual Orientation) Regulations 2007. Nevertheless, the judge made a remarkable statement when he said:

“I am quite satisfied as to the genuineness of the defendants’ beliefs and it is, I have no doubt, one which others also hold. It is a very clear example of how social attitudes have changed over the years for it is not so very long ago that these beliefs of the defendants would have been those accepted as normal by society at large. Now it is the other way around.”

“It is clearly in my view the case that each side hold perfectly honourable and respectable, albeit wholly contrary, views.”

What the judgment spells out in remarkable clarity is that the new law makes it a punishable offence for the defendants to act in accordance with their “perfectly honourable and respectable views”. We obviously do not share the view that sodomy is honourable and respectable, but that is not the point here. But even supposing (for argument’s sake), as the judge does, that the views of both parties were “honourable and respectable”, the Equality Regulations would result in privileging the views of one side, and in outlawing the equally respectable views of the other. This is not “equality”, but it creates a new, and more radical, form of discrimination. Previously, sodomy was not tolerated because it was, on the basis of sound arguments, viewed as immoral. Nowadays, the legislator simply forbids people to act in accordance with their convictions, even if those convictions are “perfectly honourable and respectable”.

Furthermore, the judgment (or rather the legislation it applies) reveals a totalitarian and distorted concept of democracy: supposedly, if the “social attitudes” of a majority in society changes, that majority has the right to arbitrarily impose its new attitudes on the minority that does not share them, even if the minority’s views are found to be “perfectly honourable and respectable”. This results in a “dictatorship of the majority”, which clearly is at odds with democratic principles.

The necessity to preserve individual liberty is thus a strong argument against any “anti-discrimination” laws to apply to the private sector.

“Affirmative Action”: Anti-Discrimination = Discrimination

In some countries, legislators seek to achieve “equality” (in particular between men and women) through “positive discrimination”, which is also known by the term “affirmative action”. For example, Norway imposes a quota of 40% of female board members for public companies. The EU is currently discussing whether such a quota should be imposed Europe-wide.  Article 23 of the EU Fundamental Rights Charter explicitly legitimates such practices, by providing:

“Equality between men and women must be ensured in all areas, including employment, work and pay.

The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.”

This raises fundamental doubts about the meaning of “equality”. What provisions like Article 23 of the EU FRC, or the measures described there, do, is that they cancel out the concept of “equal rights” and replace it with “equal benefits”. In this perspective, membership in a company board is not a job that carries high responsibilities for the property of other people (i.e. the company’s shareholders), and hence should be occupied with the most suitable candidate, but it merely is a “privilege” or a “social benefit” that must be distributed evenly according to fixed gender quotas (or maybe, if this is allowed to go on, according to “diversity” criteria such as race, disability, or sexual habits).

This is the point where “anti-discrimination” rhetoric turns out to be self-defeating. Rather than eliminating discrimination, “anti-discrimination laws” institutionalize it, and rather than prohibiting the use of inappropriate/irrelevant criteria, they turn it into a mandatory obligation. In addition, such policies create a new class of super-privileged people (e.g. the relatively few women who actually qualify for, and are interested in, board room positions, and accumulate them), and risk to seriously jeopardize the economic competitiveness of any country that embraces them (it is hardly likely that investors will like the idea that companies should be managed by any other than the best qualified people..).

Policies such as gender quotas are revelatory of the fact that “anti-discrimination” has a truly Orwellian character. It does the exact opposite of what it pretends to do, it undercuts personal and economic freedom, and it uses benign rhetoric to conceal a truly totalitarian outlook on society.