Legislating against “discrimination” and “harm”

On Feb. 11, after an acrimonious debate, the Australian government shelved a proposed religious discrimination bill that aimed to protect basic religious freedoms for churches and religious schools. As usual, the debate revolved around questions of LGBT rights, and the legislation was quickly reframed as a referendum on just how much hate and hurt religious people were to be permitted to dole out upon their hapless victims. After lobbyists succeeded in inserting an amendment that effectively emasculated the bill, by denying religious schools the ability to exclude transgender students, Christian organizations withdrew their support of the legislation and were left facing a political and public relations train wreck. The episode offers an apt warning of similar legislative battles Christians in the United States are sure to face.

Even though the bill in question enjoyed the strong support of Australian Prime Minister Scott Morrison (himself a Pentecostal Christian), it foundered on the rocks of the increasingly nonsensical—but emotionally powerful—rhetoric of late liberalism. Central to this rhetoric is an allergy against the very concept of “discrimination.” Christians should oppose unjust discrimination, but the use of “discrimination” in the Australian debate shows just how partisan the term has become. Australian swimming superstar Ian Thorpe, for instance, weighed in, charging that the bill constituted “state-sanctioned discrimination,” while one journalist complained breathlessly, “The legislation … would have granted religious institutions the right to discriminate against people who do not share their faith.”

Given that “to discriminate” simply means “to draw a distinction between,” it is difficult to see how any society could function without discrimination—state-sponsored or otherwise. If religious institutions cannot distinguish between people who share their faith and those who do not, then they are no longer religious institutions in any meaningful way. Such a point would seem almost too obvious to state, were it not now treated as violently controversial. Of course, from this standpoint, the bill’s advocates may have done themselves no favors by framing it as a bill to stop discrimination. Christians should not argue that churches should be “free from discrimination,” but that society should discriminate in favor of churches as they would with any organization built upon a particular mission, recognizing that they constitute communities organized around normative claims essential to their very identity.

But even more destructive than the rhetoric of anti-discrimination was the language of “harm,” which all but guaranteed the failure of the bill. Our societies, after all, have framed their vision of justice around the so-called “harm principle.” Individuals should be free to do or say more or less whatever they want, we have agreed, so long as they do not “harm” others. This constraint applies to religious liberty as much as any other: Religious groups should be free to practice their beliefs so long as they do not actively harm others. This seems fair enough; none of us would approve of the religious freedom to engage in child sacrifice. But what all counts as harm? There’s the rub.

In recent years, the homosexual rights lobby, and the transgender lobby that followed, have steadily redefined harm, so that standards that once focused on physical violence are now increasingly preoccupied with perceived emotional damage. Indeed, the mere feeling of danger, the feeling that one could conceivably be the victim of physical violence, is taken almost as proof that an assault has already happened. In a deeply insightful recent opinion piece, New York Times columnist Jessica Bennett lamented the phenomenon of “trauma creep,” in which every form of emotional pain is inflated to a form of “trauma” that demands society’s forceful response. Society used to know the difference between pain and harm—no longer.

There is no question that being told you are wrong can be painful. To be told that your deepest sexual desires are distorted by sin is, no doubt, profoundly painful. But is it harmful? There is no neutral ground from which to answer this question. Many medical treatments are extremely painful—but if the doctor knows what he is doing, the pain is to prevent harm, not inflict it. But only the doctor who knows the difference between sickness and health can discriminate (there’s that word again) in this way. Unless we agree on what humans are for, we cannot agree on when it is helpful or harmful to exclude or rebuke someone based on their behavior.

In part, we can deal with the phenomenon of “trauma creep” by again learning, as a society, to “just deal with it.” Christians should be mature enough not to be triggered if LGBT advocates call them “bigoted,” and LGBT persons should be mature enough not to claim irreparable harm if told they are living in sin. In part, however, we can only deal with our societal impasse on these issues by facing up to the fact that fundamentally divergent visions of the good are at stake, and thus fundamentally divergent visions of what is harmful. No rhetoric of “anti-discrimination” or appeal to religious liberty will be able to paper over this chasm. One vision for society will inevitably win out over the other. Let’s hope it is the one that speaks to the reality of God’s authority over creation order.