Though our landmark anti-discrimination laws were written in race-neutral terms, the main purpose of the 1964 Civil Rights Act was to correct laws and social conventions which discriminated against a specific group: black Americans. Talmudic scholars have a term, peshat, to describe the form of interpretation that restricts itself to a text’s surface meaning alone. The peshat of the 1964 law, then, would suggest that there should be no legal or moral difference between a white person discriminating against a black person, and a black person discriminating against a white person. But in practice the latter conduct is defined as reverse discrimination, frequently said either not to exist or not to matter. That is to say, discrimination by whites, and not against them, is what really counts as discrimination in civil rights law as practiced, despite the law’s surface appearance.A second important element of the contrast between peshat and practice in our civil rights law is that we keep identifying new classes of people, in addition to blacks, against whom discrimination is prohibited. For our purposes, the key additional prohibitions forbid discrimination by whites against racial minorities in general, by men against women, and, nowadays, by straights against gays or by the “cisgendered” against the “gender non-conforming.” Strictly speaking, the text says that all discrimination according to “race,” “sex,” and “gender” is prohibited. In practice, though, we have created certain “protected classes,” defined as those “minority groups” against whom one may not discriminate. Members of these groups have learned, thanks to the law, to see themselves as deserving special protections in the aggregate. In other words, the way we have enforced our civil rights laws since 1964 has fostered what we might call protected class consciousness. Moreover, for convenience of enforcement, we put all members of protected classes on one side of every conflict and, well, straight white males on the other.
Thursday, November 03, 2022
pshat vs practice in anti-discrimination law
From The Great Unwokening, a summer 2022 article in The Claremont Review of Books: