The Founders and Slavery

[David Cruz]

On Wed, 19 Apr 2000, Michael McConnell wrote:

> [snip]  Thus, instead of protecting religious
> association rights in the workplace more vigorously than we do other
> forms of association, we do the opposite (lumping the preference for
> working with members of one's religion along with racism, sexism, and
> other invidious discrminat[ion].

Michael seems to me accurately to have identified one aspect of the
current regime of antidiscrimination law.  But one might also observe that
"we lump[] the preference for working with members of one's religion along
with" animus against co-workers of false or inferior religions.  The
latter, of course, looks more like the forms of "invidious discrimination"
Michael notes.  Religion may seem different in that desires for
coreligionist affiliation may at least appear to be benign more often than
desires for racially based affiliation or gender-based affiliation, or,
conversely, because the harm from religiously based affiliation decisions
may seem less grievous than harms from, say, racially based affiliation
decisions.  (This latter formulation, however, seems to rely on a
treacherously high level of abstraction that may obscure the cultural
aspects of race and potential differences among the histories and forms of
religiously or racially based preferences.)

-David B. Cruz, USC Law (Cal.)