Democrats v. Faith

My headline is seriously over-simplified, but hopefully provokes a little thought about a debate between Cathy Young and Stephen Bainbridge. To quickly sum up, Young says that Republicans who cry victimhood because Democrats oppose pro-life judges on religious grounds have a double-standard. Or at at least, they are guilty of playing the "religion card" just as Democrats play the "race card," "gender card," "gay card," or whatever.

Bainbridge counters with a "disparate impact" theory - that even if the Democrat motivation is purely secular and not religiously-motivated at all, the fact that most filibustered judges happen to be religious is enough to demonstrate Democratic dastardliness.

I find Bainbridge's analogy flawed in at least one respect. Disparate impact is a theory of evidence, not a cause of action. That is, I can't sue a potential employer because he hires 30 percent of white applicants but only 4 percent of black applicants. But I can show the disparate impact of his hiring policies as evidence of discriminatory intent. In Village of Arlington Heights v. Metro Housing Development Corp (1977), the Supreme Court held that:

"Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action [may] provide an important starting point. Somtimes a clear pattern, unexplainable on grounds other than race [or, here, religious bigotry], emerges from the effect of the state action even when the governing legislation appears neutral on its face. The evidentiary inquiry is then relatively easy. But such cases are rare. ...[I]mpact alone is not determinative..."

Granted, that was a race case, but the rules should be basically the same thing. Discrimination based on race is every bit as improper as discrimination based on religion, and for the same reasons. Bainbridge can't just point out disparate impact and declare he's made his case.

That nit being picked, it seems that Young is arguing that there is no such thing as religious discrimination against Christians, or that if there is, we aren't seeing it here. Assuming there is such a thing, I wonder what would convince Ms. Young that Senator Schumer et al have crossed (pardon the religious imagery) the line? Joe Biden reading from the Satanic Bible on the Senate floor? Hillary Clinton firebombing a Baptist church in Alabama? Harry Reid burning a copy of the Bible on Crossfire?

Between the obvious case of a Democratic Senator saying outright, "I sure do hate those Christians" on tape and the insufficient case of mere disparate impact, does Young think there is some point in the middle where the Left has gone too far? If so, I haven't seen any indication of it. And that strikes me as odd. It may be that self-professed people of faith comprise the majority of Americans, but that does not preclude the possibility of discrimination by any means, especially when the purported discrimination is coming from a procedure - the filibuster - used by a minority against the majority.

Young responds to Bainbridge's critique with two main points. First, that there is an exception to the disparate impact rule where the allegedly discriminatory practice is job-related. Thus, in possibly the first disparate impact case, Washington v. Davis (1976), the fact that more blacks than whites failed a written test to become a D.C. police officer was tolerated because police officers need to know how to read and write, and they have to know the subjects tested.

But Young fleshes out this point by asking, "Is Prof. Bainbridge saying that a judge's views regarding the legality of abortion are not 'job-related'?" I don't mean to speak for Bainbridge, but it seems the point is not the judge's views of the legality of abortion that come into play, but how the judge came by those beliefs. I don't understand how a judge who says "murder should be illegal because the Bible condemns it" is any less qualified to be a judge than one who says "muder should be illegal even though I'm an atheist." Assuming, arguendo, that the disparate impact analogy is apt, it doesn't matter whether a judge thinks about the legality of abortion, only that 90% of Christian applicants are denied the job while 10% of atheists are denied the job (picking my numbers out of the air, of course).

The second point made in response is that hey, you conservatives aren't supposed to like disparate impact in the first place. Well, I'm a conservative, and I wouldn't totally chuck the doctrine based on conservativism alone. If you have stark numbers like the 90-10 example I gave, the employer has some serious explaining to do. It may be that the decision gets a lot harder near the margins, but then again, in what area of law is that not the case? It is no real solution to say "disparate impact has its problems, so we'll just ignore discrimination claims." If disparate impact is the best we have, it's the best we have.

The second problem with Young's point is that whether conservatives like the law or not, it is in fact the law. And if it is "liberal" law (although I doubt such a tidy categorization is apt), isn't that all the more reason for conservatives like Bainbridge to measure liberals against that law? That is, if liberals howl when blacks, for example, are disparately impacted, why shouldn't conservatives point out their awkward silence when Christians are disparately impacted?