While in the Journal of Gender & Law's office, I was puzzled to see that someone had tacked up a quote from Scalia's Romer dissent; apparently it's been up for a long time and I'd just never noticed it before. It's the first paragraph of the opinion and has the snappy turns of phrase that one expects of a Scalia dissent, but I find the first sentence of the second paragraph more interesting: "In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v. Hardwick, and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias."
Religious bias is on the same constitutional plane of reprehensibility as racial bias? Obviously the First Amendment prohibits the government from impeding the free exercise of religion, but it also prohibits impeding the freedom of speech, and we still have the right to discriminate privately against people whose speech we find objectionable. Surely if we're going to look for parallels in the Constitution to the prohibition on racial bias, we ought to look at sex rather than religion. Private religious discrimination doesn't strike me as being equal to racial discrimination, though it does have the same status in accommodations and employment through the Civil Rights Act of 1964.
Because I consider one's religion to be like one's politics -- a chosen mentality instead of an inborn characteristic -- I don't think it deserves the same level of protection as race or gender. This isn't to say that I would want people to have been able to fire Muslims in the wake of September 11, but I also wouldn't have wanted Communists to be blacklisted during the Cold War, and there was no barrier to that. Scalia's particular phrasing is worth noting: "opposition to homosexuality" versus "religious bias." Apparently discriminating against homosexuals is merely evidencing one's opposition to homosexuality, whereas discriminating against Muslims is bias, rather than a way to show one's opposition to Islam.