In what President Obama called its “thunderbolt” decision on same-sex marriage, the Supreme Court’s Obergefell v. Hodges judgement has put the matter of discrimination at the very top of America’s social agenda.
If there is one certainty in our country, it is that everyone opposes discrimination. But it is difficult to get a precise handle on what constitutes discrimination. While there is a vast literature on the subject, there is surprisingly little scholarly appetite for defining illegal discrimination.
When I was young, discrimination had a good name. It was the ability to distinguish between the good from the bad and to prefer the former to the latter. My teachers tried to form my taste so that I could discriminate, and I am grateful to them – more grateful than I seemed at the time – for that.
Since then, of course, the emotional charge of the word discrimination has changed. It is now entirely negative. It means to treat people not according to their individual merits, but badly because of the supposed characteristics of their group as assumed by brute prejudice. To discriminate is to be unfair, unjust and cold-hearted. Discrimination is at the root of many ills, not least of them poverty and inequality.
But is it ever rational to discriminate on the basis of group characteristics?