The Volokh Conspiracy

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Volokh Conspiracy

Defending a Libertarian Position on Antidiscrimination Laws

Antidiscrimination laws are here to stay, but they must not trump constitutional rights.


My essay, The Boundaries of Antidiscrimination Laws, has been published in an excellent new book, The Cambridge Handbook of Classical Liberal Thought, edited by the University of Chicago Law School's Todd Henderson. Here is the abstract for my essay:

Because of the long, sorry history of American racism, perhaps nothing is more harmful to the libertarian "brand" than skepticism of antidiscrimination laws that apply to private parties. Yet race is only one of many protected categories under modern anti-discrimination laws. The proliferation of antidiscrimination laws protecting groups ranging from people over age forty to members of motorcycle gangs explains why even libertarians who are especially sensitive to America's history of racism are loath to concede the principle that the government may ban private sector discrimination. There is no natural limit to the scope of antidiscrimination laws, because the concept of antidiscrimination is almost infinitely malleable. To concede the general power of government to redress private discrimination through legislation would be to concede virtually unlimited power to the government.

Besides the political ramifications of opposing popular civil rights legislation, many critics of adopting a laissez-faire posture toward discrimination in the private sector seem to believe that antidiscrimination laws somehow magically transform members of despised minority groups into full equal citizens in the eyes of the majority. Antidiscrimination laws can plausibly accelerate trends toward greater tolerance of minorities. These laws can also force a local majority, such as southern whites in the 1960s, to heed the values of a national majority, such as non-southern whites, who by 1964 had turned strongly against racial segregation. Antidiscrimination laws are unlikely, however, to provide much protection to a minority group when the majority of the voting population is hostile to that group.

Given their strong anti-statist presumptions, libertarians will generally remain presumptively opposed to the panoply of modern private sector antidiscrimination laws. That said, the basic federal laws banning discrimination in employment, housing, and public accommodations, as originally conceived in 1964—before the courts and civil rights bureaucracies devised problematic doctrines like "disparate impact" liability—were relatively benign. If everyone from farmers to military contractors to ACORN is able to successfully lobby the government to protect their interests, it's not especially troubling that members of minority groups, who have more legitimate grievances than most legislative supplicants, also use legislation to protect their interests. Indeed, it would be troubling if there was a sudden popular move to repeal antidiscrimination legislation, if it were unaccompanied by broader libertarian political trends, because it would suggest that opposition to such laws came arose from hostility to minority groups, not from opposition to Big Government.

Libertarians can and should insist, however, that a line be drawn at the point where such laws infringe on the constitutional rights to freedom of speech, freedom of religion, expressive association, and other civil liberties. The laudable goal of the ever-broadening antidiscrimination edifice is to achieve a fairer, more just society. Laudable goals, however, don't justify giving the government excessive authority, or disguising the implications of doing so.

Relatedly, many anti-Israel activists, alarmed by state legislation seeking to penalize boycotts of Israel in various ways, have lately been trumpeting the "right to boycott" that such legislation would allegedly invade. There is, in fact, no right to boycott an entity on ideological grounds in American constituitional law as it stands today. The case of Rumsfeld v. FAIR makes this abundantly clear. Law schools claimed a First Amendment right to exclude military recruiters from campus, i.e., to impose a boycott on the military. The Court said there is no such right. As Eugene explained yesterday, the Court's opinion did not depend on the fact that the law schools in question were recipients of federal funds. So if the government decrees that banning discrimination against an entity, including boycotts of that entity, are illegal, the Constitution isn't going to help you. That conflicts with libertarian ideals, but once our system has accepted the notion that "discrimination," even on ideological grounds, is not constitutionally protected, then it doesn't matter if the law shields racial minorities, motorcycle gang members (an actual protected class in Minnesota), the military, or those associated with Israel from discrimination, which includes boycotts.