The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


A constitutional right to discriminate?


When is there a constitutional right to discriminate, whether under the free speech clause, free exercise clause, the right to intimate association, or otherwise? The Supreme Court will likely confront that question in the Masterpiece Cakeshop case, as it has in the past in the private club cases (Roberts v. U.S. Jaycees), in the St. Patrick's Day Parade case (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.), in the Boy Scouts case (Boy Scouts of America v. Dale), and in the church employee case (Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC).

Lower courts have had to consider it in other cases as well, such as the roommate selection case (Fair Housing Council v. You might imagine similar questions in other situations as well: Say a state legalizes prostitution but concludes that prostitutes who promote their services to the public are "public accommodations" much as some courts have found wedding photographers to be public accommodations—could a prostitute be penalized for discriminating among prospective clients based on the clients' sex, sexual orientation, marital status, disability, religion, race, and so on? (I think that, even under Lawrence v. Texas, there is no constitutional right to engage in sex as a commercial venture, but would it still be unconstitutional for the government to insist that, if such commercial sex is legalized, it has to be furnished on a nondiscriminatory basis?)

The issue has also been arising for abortion; here, for instance, is a press release by the Wisconsin Attorney General's office:

Today, Attorney General Brad Schimel announced that he is leading a 20-state collation supporting state laws that ban abortion based on disability, gender, or race.

"Discrimination based on disability, gender, and race should never be tolerated, especially when practiced against our most vulnerable citizens: the unborn," said Attorney General Schimel. "If states have the right to ban discrimination in employment, they certainly should have the right to enact laws protecting the unborn from this unjust discrimination."

On March 24, 2016, Indiana enacted a law prohibiting abortions based on disability, gender, or race, and to regulate the respectful disposition of human remains. A federal judge struck down Indiana's law, and Indiana appealed the case to the United States Court of Appeals for the Seventh Circuit. On Wednesday, Wisconsin filed a brief in support of Indiana; the brief was supported by the following: Alabama, Arizona, Arkansas, Georgia, Idaho, Kansas, Louisiana, Missouri, Nebraska, Nevada, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, The Michigan Attorney General, and Governor Phil Bryant of the State of Mississippi.

Abortion anti-discrimination laws address alarming new abortion trends. According to most estimates, 50% or more of pregnant women in the United States who are informed that their child will be born with Down syndrome eliminate that child. Other journals and news reports put this figure at 67% or even as high as 90%. These practices are partly due to the pressure that some women experience from doctors to abort unborn children with Down syndrome. Moreover, gender-selection abortions are also common in some communities in the United States.

On October 25, 2017, Congress heard moving testimony from Frank Stephens, a disability-rights activist who himself has Down syndrome. "A notion is being sold that maybe we don't need to continue to do research concerning Down syndrome. Why? Because there are pre‐natal screens that will identify Down syndrome in the womb, and we can just terminate those pregnancies." Mr. Stephens explained that recent efforts to "eliminate" Down syndrome are nothing more than "people pushing [a] particular 'final solution' [ ] that people [with Down syndrome] should not exist. They are saying that [people with Down syndrome] have too little value to exist."

By supporting laws like Indiana's ban on abortion discrimination, Attorney General Schimel affirms Mr. Stephens's poignant claim that those like him are equal human beings. These laws advance the vital cause of demonstrating to society that all human beings-including women, racial minorities, and those with disabilities-have lives "worth living."

Mr. Stephens's testimony can be found here:

See also Frank Stephens, Testimony Before House Subcommittee on Labor, Health and Human Services, and Education 1 (Oct. 25, 2017):

For the decision striking down the Indiana antidiscrimination statute, see here. I think that many constitutional rights do involve the right to choose whom to speak to, whom to employ as a speaker or as a minister, whom to live with, whom to marry, whom to have sex with, and which fetuses to abort—and that right to choose can't be trumped based on the government's interests in preventing discrimination, whether against born humans or against potential future born humans.

This isn't a general right to discriminate in most aspects of life (hence Dale Carpenter's and my position in Masterpiece Cakeshop itself); but where a constitutional right is generally present, it often includes the right to choose how and with whom to exercise the right. And while one can debate whether there is a right to abortion, once the court has recognized such a right, it shouldn't be restricted in the name of equality.

In any event, though, I thought I'd flag the contrary view, because it's an excellent illustration of the broader issue.