Caste and the civil rights laws: from Jim Crow to same-sex marriages.

• Author: Epstein, Richard A.
• Position: Visions of Equality: The Future of Title VII

The battle over civil rights law has been waged on many different fronts at the same time. Historically, the emphasis has been on the manifest injustices that dominant groups have inflicted on other groups with less political power. Economically, the dispute has been over whether civil rights legislation will increase or reduce overall levels of production. Sociologically, the question has been whether civil rights legislation can overcome hierarchy and foster a sense of community among equals, or whether it increases levels of group consciousness, which in turn leads to issues of group separation.

In most modern settings, this search for rationales has not stemmed from any doubt about the wisdom or even the necessity of civil rights laws. Quite the opposite, the desirability of these laws is usually taken for granted, and the inquiry then proceeds with the aim of finding the most powerful intellectual base on which these laws can rest. But the evident increase in racial and ethnic conflict and the massive attention to sex differences or gender relations - even the terms used in the debate will say a lot about which side an advocate is on(1) - show that the old confidence about the desirability of these laws has been shaken by an ever-increasing awareness that things have not turned out quite the way the supporters of civil rights legislation had hoped.

That sense of disappointment is evident in the disagreement over fundamental objectives. On the one hand, commentators commonly proclaim that the purpose of civil rights legislation is to make institutions and individuals ignore those differences of race and sex that are morally irrelevant from a proper point of view.(2) That line of argument works well when the question is whether someone from a privileged class - usually, but not always, a white male - should be allowed to indulge a "taste" for discrimination against individuals who fall outside that preferred group. But the language of moral irrelevance quickly disappears from view when the question is whether affirmative action programs should redress grievances against particular groups, or whether considerations of diversity should permit - or require - institutions to take into account matters of race or sex in order to obtain the proper internal institutional balance,(3) independent of whether the individuals involved have been the targets of past discrimination. These two conceptions clash in uncomfortable ways and have led to a certain amount of bobbing and weaving in an effort to justify state-imposed preferences that to the undiscerning eye may look like forms of reverse discrimination, all for motives that could vary from lofty to suspect, depending on the interlocutor's point of view.

The utter ambivalence over the nature and justification of civil rights laws is not easily remedied, and perhaps we should not even try to supply the needed rationalizations. I have stated as openly, forcefully, and frequently as I can: these laws should be repealed as quickly as possible to the extent that they regulate the behavior of private parties in competitive employment markets, and indeed in other competitive markets, such as education and housing.(4 )The point of this argument is that open markets can allow separate and distinct institutions to forge their own policies on discrimination. Burning questions of diversity and affirmative action need no longer be collective issues, and governments do not have to decide, once and for all, whether they believe in color-blind rules, affirmative action, diversity, or strict proportionality, nor do they have to do the mental gymnastics necessary to defend all these positions simultaneously. Separate institutions can go their separate ways. The overall level of social output should increase without the dangerous side effects and resentments that are brought on by ever more intrusive forms of government regulation. More important, perhaps, the truly powerful and insidious institutions of caste and domination could not survive in a world in which the presumption was set against the exercise of state power, the law of contracts enforced private bargains, the law of tort controlled private aggression, and public officials acted in a neutral and impartial fashion toward all citizens in the protection of these private rights.

The usual response, however, has not been to give up on civil rights laws but to find ways to imbue them with a new life and vitality. One way to achieve that goal is to create the kind of focus on outrages and abuses that lent the movement its great moral power in the years before 1964. It is, I think, not quite coincidence that public television often replays the clips of Marion Anderson singing "My Country 'Tis of Thee" on the steps of the Lincoln Memorial and relives the early triumphs of Thurgood Marshall in Brown v. Board of Education.(5) It iS a form of nostalgia that allows the rejuvenation of a social fabric grown weary with the travails of Benjamin Chavis.(6) More generally, the effort has been to show that the evils of racism and sexism that we face today are, in more subtle form, the same evils we have faced in times past. One way to achieve that result is to claim that we have today, again in more subtle form, the same kind of economic and social "caste" system that operated in the Old South during the heyday of Jim Crow. The social and legal barriers that are still in place prevent the emergence of the kind of social equality and economic competitiveness that would render all forms of civil rights laws unwise and unnecessary. Until that equality emerges, some form of government action is necessary to redress the injustices of the past and to restructure the society of today.

I think that any effort to portray the current social situation as the outgrowth of traditional castelike policies confuses the outgrowth of multiple and uncertain social forces with explicit legal distinctions. We must be aware of establishing formal distinctions between persons, sanctioned and recognized by law - an establishment that helps to perpetuate the same rigid class distinctions that a liberal society should seek to obviate. This result is evident in the work of radical feminists who want to impose their own vision of a just society on those who do not share their own beliefs and conviction. But it is also evident in the work of moderate institutions that are not attentive to what those feminists do.

One illustration will have to suffice. The evolution of the 1964 Civil Rights Act(7) shows how easy it is for castelike notions to creep in through the back door of the very law that was designed to expel them. The original text is the paragon of neutrality insofar as it makes it unlawful for any employer - not all people or all employees - "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin."(8) The studied effort of the section is to use impersonal language that speaks of a universal obligation, the antithesis of caste. But in just one unthinking decision, McDonnell Douglas Corp. v. Green,(9) the Supreme Court changed the ground rules under the Act from universal to particularistic when it announced that any individual could make out "a prima facie case of racial discrimination . . . by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open."(10) But it is a whopping non sequitur to declare that only members of racial minorities can be victims of racial discrimination under the statute, even if such individuals are in fact more likely to be the targets of such discrimination. The casual way in which the Supreme Court imposed formal restrictions on eligibility under the Civil Rights Act at that first stage of the prima facie case shows how easy it is to introduce castelike distinctions into a law that a few short years before had been dedicated to their elimination. From the use of protected classes, it is only a short step to the idea of affirmative action,(11) which adds the carrot to the stick and further reinforces the race and sex distinctions the statute was designed to eliminate.

In this essay, therefore, I address the notion of caste in two separate contexts: in the traditional disputes over race and sex, and in the more modern disputes over sexual orientation. In both cases the idea of caste and its kindred notions of subordination and hierarchy are used to justify massive forms of government intervention. In all cases I think that these arguments are incorrect. In their place, I argue that the idea of caste should be confined to categories of formal, or legal, distinctions between persons before the law. This more limited notion of caste supplies no justification for the enforcement of any civil rights law that purports to limit the freedom of association among individuals, whether their connections be intimate and personal, economic and professional, or religious and social. But by the same token, this limited conception mirrors the older conception of civil rights law - a conception that restored to individuals the capacity to contract and to form associations of their own choosing.(12) Judged by that standard, many laws on the books today are illegitimate, limiting associational choice between individuals, as laws once did under Jim Crow in the South, or as the pre-twentieth-century legal disabilities of women did. In particular, the current prohibitions against same-sex marriages are themselves a mistake - regardless of what one thinks of the wisdom or morality of these marriages - and should be rejected as inimical to the basic principle of freedom of association on which a liberal...