In the decades since the stirring successes of the 1960s civil-rights movement, opposition to discrimination has become a kind of benchmark social virtue, one embraced by all reasonable people of good will. Just as references to “human dignity” often seem designed to elicit cheers without the need for substantive argument, the proper response to discrimination is to shout “boo!” and join in the collective effort to root out the practice.

But what do we mean by discrimination? And do all forms of discrimination merit the same government response as the racial discrimination that plagued the Jim Crow South? Just as consensus on human dignity tends to break down on policy specifics, so too, perhaps, does the consensus surrounding the evil of discrimination seem less impressive at second glance.

Consider Christian Legal Society (“CLS”) v. Martinez, a case currently before the U.S. Supreme Court. The conflict began when the University of California Hastings College of the Law in San Francisco withdrew recognition of the student chapter of CLS because, while the group permitted any student to participate in its events, it required that its officers and voting members affirm a statement of faith, part of which asserted that biblical standards prohibit “all acts of sexual conduct outside of God’s design for marriage between one man and one woman [including] fornication, adultery, and homosexual conduct.” As a result of having recognition withdrawn, CLS lost...

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About the Author

Robert K. Vischer, a frequent contributor, is professor of law at the University of St. Thomas and the author of Conscience and the Common Good: Reclaiming the Space Between Person and State (Cambridge University Press).