Analogies Between Sorts of Discrimination

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Eugene Volokh makes some insightful comparisons between different kinds of discrimination. Many people create an analogy between sexual orientation discrimination (e.g. in the Boy Scouts) and race discrimination. The argument is that we outlaw race discrimination because people have no control over their race, and therefore we have to outlaw discrimination along any other lines caused by things outside people's control. Aside from the assumption that sexual orientation is entirely outside one's control (which I would say is at best only partly and sometimes true), there are too many kinds of discrimination that we don't have laws against that involve things outside a person's control for this sort of argument to work without raising the objection that such a principle would require changing too many laws to apply consistently. Discrimination according to height, age, sex, ugliness, and many other factors might be morally wrong, but we don't have universal laws against such practices. If we did, Hollywood would be put out of business, but so many other things we do would require serious revision, such as good things like men's and women's bathrooms, unenforceable things including how people vote for president (which tends to favor the taller candidate), and bad things that no one wants to outlaw such as wanting to marry someone attractive. What's worse is the fact that some of the areas where we really want to stop discrimination involve choice, such as religion or ideology, so whether someone really can change something is neither necessary nor sufficient for whether we should have laws against discriminating on that basis. A more careful and honest argument is necessary for the case of sexual orientation discrimination, one that acknowledges this.

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