Posted by Eugene Volokh: Antidiscrimination laws as restraints on liberty: Some people, responding to my [1]post yesterday on gay rights legislation, questioned whether antidiscrimination laws restrain others' liberty.
Well, of course they do. Your right to choose whom to associate with, whom to do business with, whom to select to speak for you, and so on is an important part of your freedom of action, just as is your right to build a home on your property, or to ingest or not ingest what substances you wish, or to pursue whatever profession you like, or a wide range of other freedoms. That's true even if the selection is for someone who does relatively remote and impersonal tasks (for instance, when you choose whether or not to patronize some pizza company, based for instance on your dislike of the company's politics). It's especially true when it involves choosing who will work closely with you (as a partner or a secretary), who will help raise your children, who will be a student or a teacher at your educational institution, who will speak on your behalf or on behalf of the organization to which you belong, who will live with you as a roommate, and so on -- all things that many antidiscrimination laws affect. Nor is this interference with freedom of choice eliminated when the legal system concludes that certain choices are "irrational." Your freedom includes the freedom to do things that others think are irrational. People may think that using certain drugs, overeating, riding a motorcycle without a helment, riding a motorcycle with a helmet, or choosing to marry or date someone based on race or height or weight are "irrational" choices. But restraints on such supposedly "irrational" behavior are still restraints on liberty. Partly this is because others may err about what's irrational, or may ignore others' preferences that are nonrational (e.g., taste in food, entertainment, people, etc.) but still quite important. And partly it's because freedom means the freedom to make choices that others think silly as well as those that others think wise. And all this just involves the direct restraint on liberty. There are also indirect ones: For instance, banning sexual orientation discrimination in employment makes it harder for employers (whether big or small ones) to make employment decisions that have nothing to do with sexual orientation. The legal system is far from a perfect finder of truth, especially when it comes to people's motives; even employers who don't discriminate on one of the prohibit bases face (1) the intrusion into liberty and privacy that results when they have to defend their actions in court, (2) occasional incorrect discrimination verdicts that take away their property even when they didn't discriminate, and (3) the resultant deterrent effect even on nondiscriminatory decisions on their part. Now of course one can still argue that these restraints on liberty (1) aren't that huge, and (2) are justified by the benefit that the restraint yields to others, or by the harm that the liberty inflicts on others. One can therefore conclude that people shouldn't have the liberty to discriminate, at least in certain ways. That's a perfectly plausible argument (though the general version of it is far too big an issue for me to deal with on the blog). And of course it's an argument that is often accepted both as to some antidiscrimination laws and as to many other laws, whether copyright and patent laws, libel laws, or even laws banning theft, trespass, rape, and murder, all of which do affect people's liberty of action. But it seems to me that we shouldn't deny that antidiscrimination laws do burden liberty. The broad gay rights program isn't just about increasing the freedom of gays; it is also about decreasing the freedom (though its backers of course think that this is a legitimate decrease) of those who don't want to associate with gays in various ways. Thus, "Why do you oppose our proposals? It doesn't affect you if gays are free to have sex the way they please, marry, adopt, etc." is not an adequate argument -- the broad program would affect others, and the first steps (including ones I support despite this danger, such as decriminalizing homosexual conduct or allowing same-sex marriage) do make it politically easier to enact the next steps. References 1. http://volokh.com/archives/archive_2004_08_07.shtml#1092183534 _______________________________________________ Volokh mailing list [EMAIL PROTECTED] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
