Robert Driscoll has an outstanding post up at National Review Online titled “This is What a Trump Civil Rights Agenda Could Look Like.”
Like many libertarians and limited government conservatives, I had significant concerns about Trump’s temperament and fitness to lead. Nevertheless, Trump has been duly elected President, and all of us must hope that he governs wisely for the good of the country. With luck, he will surround himself with cool heads who will help him flesh out a pragmatic conservative governing agenda. Driscoll’s advice is very much in that vein. Nonetheless, I have some disagreements and a few thoughts of my own to add.
The first item on Driscoll’s list is “Gay Rights” and proposes that Trump should propose an amendment to federal employment discrimination laws that would prohibit employers from discriminating against gay, lesbian, and bisexual employees. As Driscoll notes, Trump has spent most of his adult life in socially liberal circles in Manhattan, and he appears as or more personally tolerant of LGBT individuals than any prominent Republican politician in living memory. For libertarian-leaning Republicans like me who have long supported same-sex marriage, this is a welcome development. (One of the weirder aspects of social media in 2016 are the panics about LGBT persons being under unique threat under a Trump administration; for good or ill, Trump is a unique figure and should be understood as such, rather than as simply everything progressives don’t like about the GOP turned up to 11.) Further, as Driscoll states, such an amendment would be politically popular, especially if it contains strong protections for religious employers. I also appreciate the spirit of magnanimity in which the proposal is made and agree that Trump should look for issues on which he can make common cause with Democrats, liberals, and progressives.
Nonetheless, an important potential concern is the effect that such an amendment would have on speech in the workplace. Title VII has been interpreted as banning not just discrimination in hiring on the basis of race, sex, etc., but also workplace harassment based on those characteristics. To be actionable, harassment must be both severe and pervasive; an employer is also not liable if it can be shown that she acted promptly to remedy any harassment reported to her. In general, employers aren’t liable in cases where the alleged harassment involved only speech.
Still, because it’s hard to figure out just where the lines get drawn, many savvy employers try to crack down on any speech or conduct that could be deemed to be within a country mile of harassing. The result is a world in which employers have to take seriously the possibility that a Goya painting is sexual harassment and must discourage hanging potentially offensive New Yorker cartoons in cubicles. No, an amendment to Title VII wouldn’t directly require employers to ban heated lunchtime debates about same-sex marriage in the break room or offer “Careful Communication” webinars that discourage allusions to Seinfeld or The Simpsons that might be misunderstood to be anti-gay. But given the way that harassment law has developed, it is inevitable that some litigation-averse employers will adopt such measures. That would be particularly ironic given that many of the President-elect’s most ardent supporters view Trump as “an icon of irreverent resistance to political correctness.”
A different issue on which a Trump Civil Rights Division could potentially make common cause with some progressives is in stopping discrimination against women in higher education. As I discussed in this essay co-written with Gail Heriot, some colleges and universities have admitted to discriminating against women in admissions to maintain gender balance in their student bodies. At public universities, such discrimination is illegal. Yet this prohibition goes largely unenforced, perhaps because left-leaning feminist groups see tension between opposition to sex preferences in admissions and their support for racial ones. But it is an odd result that feminist groups are essentially left looking indifferent to the situation of young women denied admission to the colleges of their dreams just because of their sex. A Trump Educational Opportunities Section that helps reverse this trend could do some real good.
Although I am not a real expert in such matters myself, I would also encourage Trump civil rights appointees to develop a positive civil rights agenda with regard to discrimination based on religion and free exercise. Yes, some progressives see concerns about religious liberty as merely about accommodating Christians who hold traditional views about LGBT issues. Laws protecting religious liberty do this, yes, but they also protect the religious liberty of Sikhs, Muslims, Jews, and members of other minority religions. Indeed, one study has found that members of minority religions are especially likely to bring free exercise cases. This isn’t surprising, given that members of small religious groups are less likely to have the clout necessary to influence legislation in their favored direction. Thus we have religious liberty cases like Holt v. Hobbs, in which the Supreme Court unanimously ruled that an Arkansas prison policy which prohibited a Muslim prisoner from growing a short beard in accordance with his religious beliefs violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) or litigation concerning kosher diets for prisoners. A Trump Civil Rights DOJ should meet with leaders of groups like the Becket Fund for Religious Liberty and the Louis D. Brandeis Center for Human Rights under Law (specializing in combatting anti-Semitism) for counsel regarding how to best safeguard religious liberty.
Finally, I agree with all of Driscoll’s remarks about the Voting Rights Act. I would add only that it is important for Trump appointees to make sure that all sections of the National Voter Registration Act (NVRA) of 1993 are enforced equally. As is discussed further in this essay, NVRA was a bipartisan compromise, intended both to broaden participation in elections and to prevent election fraud. Democrats in Congress in 1993 tended to be more concerned with the former problem, whereas Republicans tended to emphasize the latter. NVRA likely could not have gotten through the legislature had it not contained provisions designed to address both problems. Yet the Obama DOJ largely declined to enforce the election fraud provision and emphasized only the sections on turnout. This was an abuse of enforcement discretion that was deeply at odds with the spirit of compromise in which the statute was passed. An administration that enforces all of NVRA would be a welcome change.