A Catholic Legal Theory Perspective on Discrimination

Thanks to Amy and Rob for beginning an exchange on “discrimination.”

Catholic Legal Theory could begin to address the question of discrimination that there is a certain understanding of equality about the human person and the incumbent dignity of the human person that emerges from the fact that everyone possesses the divine image of God—each person, each human being, each member of the human family has an equality before God and for humans to alter this or to attempt to alter this is wrong (it is unlawful discrimination).

But in the human world, things are a bit different due to some other considerations as St. Paul reminds us when he points out that we receive different spiritual gifts (1 Corinthians 12:1-11): “there are a variety of gifts, but the same Spirit; and, there are varieties of service, but the same Lord…”

When we use the gift of right reason, we can see how this plays out in our lives. By way of illustrating my point, we may all enjoy sports to some degree, but we are not all the equal of great athletes. We may all enjoy music, but we are not all the equal of great composers and performers. We may all appreciate great literature, but we are not all great authors, novelists, or poets. And so it goes. Here we see discrimination that is part of our lives and that is inseparable from our human condition and existence. This discrimination is not wrong. It helps to distinguish our individualities as St. Paul suggests.

I do not find the criterion of “demeaning” as has been described to be determinative in assessing whether human actions in the treatment of others constitute discrimination that is antithetical to the dignity of each member of the human family and, therefore, wrong. This criterion may be useful in some circumstances of thinking about discrimination, but its helpfulness diminishes and disappears when a subjective standard is employed to assess whether the “demeaning” that takes place is inappropriate discrimination. If Michael Jordan and I are playing a game of pickup basketball, I think I will be trounced. I may experience humiliation and sense that I have been demeaned, but I have not been the subject of improper discrimination. By objective standards, I have not been demeaned; I have not been the target of inappropriate discrimination. In the realm of the law, the famous Casey “mystery of life” passage that I have critiqued on several occasions in the past illustrates the fundamental flaw of the subjective determination when the isolated, autonomous individual becomes the standard by which human conduct is judged.

When it comes to CLT developing some standards or criteria for assessing what is constitutive of discrimination, both lawful and unlawful, I submit that it is the tool of objectivity that enables those involved with the enterprise to transcend individual caprice which is vital for the success of the assessment. What is most helpful to begin the process of developing standards and criteria is a proper, i.e., objective, understanding of human nature that takes stock of the physical and metaphysical dimensions of the human person and the dignity that is the due of each.

RJA sj