Antidiscrimination Law and Social Equality.

• Author: Hills, Jr., Roderick M.

By Andrew Koppelman. New Haven: Yale University Press. 1996. Pp. x, 276. $32.50.

In the so-called Culture Wars(1) that now rage over issues of sexual morality, gender equality, and familial responsibilities, "antidiscrimination laws" loom large as a focus of controversy. Some conservatives sound alarms that antidiscrimination laws are barely concealed weapons aimed at their beliefs. According to this view, antidiscrimination laws stigmatize traditional moral beliefs by outlawing action based on such beliefs -- for example, by outlawing discrimination against gays and lesbians in certain commercial contexts. Conservative critics charge that the message sent by such laws -- their "social meaning" -- is that the religious believer who disapproves of homosexuality is just as bigoted as a racist (whose actions are also prohibited by similar legislation).

In response to the state's "endorsement" of homosexuality, conservative critics argue that they should be entitled to prohibit such legislation and thereby protect themselves from what they believe to be an unjust stigma.(2) The State of Colorado(3) and Justice Scalia in his dissent in Romer v. Evans(4) both defended Amendment 2, a state constitutional provision banning "gay-rights" laws in such terms, as a reasonable means of preventing state and local governments from stigmatizing the disapproval of homosexuality as the moral equivalent to racism.

Andrew Koppelman's(5) new book, Antidiscrimination Law and Social Equality, largely agrees with this assessment of antidiscrimination laws -- but he celebrates the egalitarian "message" that such laws allegedly send. In Koppelman's view, laws that prohibit private discrimination on the basis of race, gender, and sexual orientation serve the purpose and have the effect of stigmatizing "arbitrary" or "unjustifiable" prejudices based on morally irrelevant characteristics. These laws stigmatize such discrimination as bigoted and evil. In Koppelman's view, such private discrimination reinforces social inequalities that the government must eliminate. When such discrimination is pervasively practiced by private landlords, employers, public accommodations, or other commercial enterprises, it generates a stigma against the burdened groups that deprives their members of "equal concern and respect."(6)

To eliminate this privately generated stigma and give citizens the equal respect to which they are entitled, a liberal state ought to engage in a "project" of "cultural transformation" (p. 5). The government -- presumably, the national government, although Koppelman never explicitly says which level he has in mind -- ought to "force employers to conduct some reeducation of their workers" (p. 254), "monitor[ ] . . . culture" to create a new "orthodoxy" about social equality (pp. 112-13) or "to create liberals" (p. 218).

According to Koppelman, antidiscrimination laws are one tool that the State can use to pursue this "project of cultural transformation" (p. 2). By forbidding discrimination based on certain characteristics, the government allegedly declares that such discrimination is morally wrong -- that the persons who stigmatize persons on the basis of such characteristics are, to that extent, engaged in a shameful practice arising from bigoted motivations. And, when the remedies for such discrimination include "sensitivity training" or special programs in public school, antidiscrimination laws can more directly alter the "souls" of its citizenry by changing their beliefs and desires through legally mandated "reeducation" (p. 254).

From these quotes and many others, it is easy to see that Antidiscrimination Law makes ambitious and, to some readers, chilling claims on behalf of governmental regulation of culture and belief. Such assertions seem to confirm the worst fears of the opponents of what is sometimes derisively termed "political correctness -- that antidiscrimination laws are a Maoist-style tool by which government can "reeducate" its citizenry into changing their religious convictions and associational liberties in order to enforce a new egalitarian orthodoxy.

However, such a description of Antidiscrimination Law would be an unjust caricature -- albeit one that Koppelman invites with his heavy-handed use of terms like "reeducation" and "cultural transformation." Koppelman is deeply concerned with balancing the alleged need to eliminate social stigma against the need to preserve freedom of speech and association. Indeed, in his final chapter, he makes an extended argument against hate speech codes and governmental suppression of pornography, arguing that such regulation cannot be justified by the purpose of fostering social equality.

Moreover, Antidiscrimination Law is by no means a mere tract. Rather, it is a sophisticated and intelligent work of political theory that skillfully synthesizes an enormous literature in political and legal theory. A brief outline of the book provides an idea of the scope of its ambitions. In a rough way, the six chapters of Antidiscrimination Law can logically be divided into three distinct parts. In chapters 1 and 2, Koppelman proposes a theory to justify the use of antidiscrimination laws. Using racial discrimination as a paradigmatic case of unjust discrimination, Koppelman relies on a "process-based" and a "result-based" theory to defend the view that government ought to eliminate "malign" or "arbitrary" prejudices from private persons' hearts and minds -- an endeavor that he dubs "the antidiscrimination project" (p. 8). In chapters 3 and 4, Koppelman uses these theories to explain why the government ought to eliminate private attitudes that stigmatize women, gay men and lesbians. The fourth chapter, which attacks heterosexism," is largely an extension of the third, which attacks sexism. Koppelman argues that heterosexism is really just a species of sexism, to be eliminated for the same reasons.

Finally, in the last two chapters, Koppelman explores whether and to what extent theories of liberalism or concerns about associational liberty ought to limit the antidiscrimination project. Koppelman concludes in chapter 5 that the theories of Nozick, Rawls, and Ackerman do not provide good reasons for precluding the project altogether. However, in chapter 6 Koppelman concludes that in certain circumstances concerns about associational liberty and freedom of expression outweigh concerns about equality. Specifically, he concludes that while the government ought to be permitted to forbid sexual harassment in the workplace, the government ought not to prohibit racial "hate speech on college campuses or forbid the production or use of pornography.(7)

From this capsule description, one can see that Antidiscrimination Law is a rich synthesis of legal and theoretical topics. Weaving together various writings from numerous contemporary political and legal theorists -- primarily, those of Bruce Ackerman, Ronald Dworkin, John Hart Ely, John Rawls, Robert Nozick, Kenneth Karst, Richard Delgado, Charles Black, and Catharine MacKinnon, but also, to a lesser extent, Alan Freeman, Marion Iris Young, Thomas Pogge, Charles Lawrence, and others -- Koppelman simultaneously provides a useful gloss and summary while also developing his own comprehensive theory of antidiscrimination law. Antidiscrimination Law is essential reading for anyone interested in the relationship between antidiscrimination law and contemporary political and legal theory.

Despite these virtues, however, Koppelman's argument in favor of using antidiscrimination law to effect a massive "cultural transformation" is largely a failure. In what follows below, I will explore the two reasons why I believe that Koppelman's case for a "cultural transformation" ultimately fails to persuade.

First, as explained in Part I of the review below, despite Koppelman's heavy reliance on the concept of "arbitrary" or "unjustifiable" discrimination, he never adequately explains what it means for discrimination or stigma to be "arbitrary." This omission is troubling, because on the definition of "arbitrariness" hinges the scope of the antidiscrimination project. We cannot know if the antidiscrimination project is necessary until we define the evil that the project is supposed to address. Justifying the project without defining "arbitrariness" is like justifying government intervention to correct "market failure" without explaining what it means for a market to fail.

The second fault of Antidiscrimination Law, described in Part II. relates to the first: Koppelman provides no institutional defense of the government's role in shaping norms. There is no a priori reason to believe that the state is especially well suited for the task of determining when stigma is "arbitrary" and when it is justified. Government officials will presumably be affected by the same beliefs and unconscious prejudices that affect society at large. Why, then, should we rely on such officials to determine which social inequalities are unjust? Why not instead defer to social consensus about which sorts of stigmas are arbitrary and which are appropriate? What makes Koppelman believe that government and law will work better than social norms at separating "good" discrimination and stigma from "arbitrary" discrimination?

Koppelman does not address these issues, yet his insistence that the state must reform society seems odd in light of his own inability to define the evil that the state is supposed to cure. If, as Koppelman suggests in chapter 2, we must rely on some sort of "overlapping consensus" to tell us what sorts of private discrimination are arbitrary, then how can government justify transformation of the culture that creates that overlapping consensus? This is not to say that there cannot be good reasons to use laws to eliminate unjust norms. But, as Koppelman's discussions of affirmative action and gender discrimination reveal, deciding whether a norm is unjust requires...