Equal rights, special rights, and the nature of antidiscrimination law.

• Author: Rubin, Peter J.

"Well, I'm opposed to discrimination in any form, but I don't favor creating special rights for any group.... But I'm totally opposed to discrimination. Don't have any policy against hiring anyone for his lifestyle or whatever -- we don't have any policy of that kind, never have had in my office or will we have in the future."

--Robert Dole, Republican nominee for President, October 17, 1996.

1. INTRODUCTION

   Despite the continued belief held by most Americans that certain characteristics should not form the basis for adverse decisions about individuals in employment, housing, public accommodations, and the provision of a wide range of governmental and private services and opportunities, antidiscrimination laws have increasingly come under attack on the ground that they provide members of the group against whom discrimination is forbidden with "special rights."

   The "special rights" objection has been voiced most strongly, but not exclusively, against laws that seek to prohibit discrimination on the basis of sexual orientation. This line of attack has not always been effective, but it has achieved notable success. To give one recent example, in February 1998, the people of Maine voted to repeal a relatively new state law prohibiting discrimination in employment, housing, public accomodations, and credit on the basis of sexual orientation.(1) A leader of that repeal effort subsequently concluded that the vote demonstrated that "[t]he American people rejected the notion of special rights" for gay men and lesbians.(2)

   This special rights argument has not been limited to public campaigns. Indeed, the rhetoric of special rights has now begun to move from popular discourse into the legal analysis of antidiscrimination law.(3) This movement presents a threat to efforts to achieve equality in the United States, for it suggests that courts may conflate antidiscrimination laws that essentially mirror the Constitution's own command(4) with affirmative action provisions whose constitutionality can be determined under current law only after they have been subjected to searching judicial scrutiny.(5)

   Addressing this special rights objection is thus extremely important. It is important in the popular sphere, both because this rhetoric seems to resonate with many people and because it undoubtedly plays a role in shaping popular perceptions of the nature of all antidiscrimination law.(6) If popular support for the principle of antidiscrimination erodes, the national goal of equality for all individuals without regard to their membership in certain groups will be pushed further from our grasp. And it is important jurisprudentially, because the continued viability of legislative attempts to prohibit discrimination may depend upon blunting its force.

   A first purpose of this Essay is to attempt to explain the success of the special rights objection to antidiscrimination law. To some extent the rhetoric of "special rights" or "special entitlements" may be used intentionally by opponents of new or proposed antidiscrimination laws simply to confuse the public about the nature of those laws.(7) One of the reasons the claim of special rights is rhetorically powerful is because it tars antidiscrimination law with the brush of racial and gender preferences. Many Americans believe such preferences amount to discrimination against those who do not receive them, and that they are antithetical to the idea of equal treatment for all.

   Perhaps because the special rights line of argument has been understood as merely misleading, the most common response to the rhetoric of special rights until now has been that laws against discrimination guarantee equal rights, not special rights.(8) Antidiscrimination law, of course, is animated by the very idea of equal treatment. And, to the extent that the special rights argument gains its force from obfuscation, this defense should, at least potentially, prove effective.

   But the powerful and persistent resonance of the idea that antidiscrimination law provides special rights or entitlements to those who are protected suggests that there may be more sustaining the special rights objection than supporters of antidiscrimination law have recognized.

   In this Essay I re-examine antidiscrimination law to identify certain characteristics of the law -- or of those who seek its protection that could lead people to be receptive to the idea that an expansion of that law will confer "special" rights or entitlements. Part II identifies three such characteristics that may help explain the popular force of the special rights objection to laws prohibiting discrimination. The first two involve mechanisms by which the law operates, mechanisms that may lead people to believe the law requires the provision of special treatment to members of the protected group. The third involves the persistence of particular normative beliefs about the specific people who seek legal protection against discrimination.

   The presence of such characteristics suggests that the language of special rights may reflect and in turn reinforce a perceived truth about antidiscrimination law. Acknowledgment of these characteristics is thus likely to be a necessary prerequisite to any effective attempt to address this increasingly successful line of criticism of and attack on laws against discrimination.

   As this Essay will also demonstrate, the same characteristics of the law that can lead people to believe that equal rights laws provide special rights may, ironically, help to explain the failure of those laws to eradicate completely the sense of discrimination felt by those they are intended to protect, in the workplace and elsewhere. Those who are supposed to be protected by laws that prohibit discrimination of course often feel that they receive less than equal treatment, despite the laws against discrimination.(9) A second purpose of this Essay is to suggest some ways -- both legal and extra-legal -- that these characteristics can be addressed, both so that laws against discrimination will be less susceptible to attack on the ground that they provide those whom they protect with special rights, and so that discrimination laws may be more effective in combating unequal treatment.

   Finally, although it is not the primary focus of this Essay, I will briefly argue in conclusion that the special rights objection should not call into question the continued value -- or the constitutionality of antidiscrimination law. Indeed, each of the aspects of antidiscrimination law that may fuel the special rights objection actually reflects in its own way the continuing disadvantaged position of the members of the protected class. Far from demonstrating that antidiscrimination laws are no longer useful in assuring equal treatment for protected individuals -- either because they are unnecessary or because on balance they do more harm than good the vitality of the special rights objection actually demonstrates the continued need for such laws.

   That antidiscrimination law may nonetheless be seen from some perspectives as providing special entitlements to the protected class in fact suggests only the limited utility of a binary equal rights/special treatment disjunction for purposes of assessing the compatibility of legislative enactments with the command of equal protection. In particular, to the extent one's characterization of a particular provision reflects a normative judgment about the character of the class it protects, the use of these labels may actually invite courts to introduce into their analyses their own stereotyped ways of thinking. Different, more nuanced tools of analysis are therefore needed to measure the consistency of any law with the constitutional mandate to provide "equal protection of the laws."

2. BACKGROUND AND ANALYSIS: THE NATURE OF ANTIDISCRIMINATION LAW

   Antidiscrimination law is the primary means by which organized society protects individuals against disadvantageous treatment on the basis of their membership in certain groups, archetypally racial or ethnic minority groups. An antidiscrimination law reflects a conclusion that a common characteristic of a group -- for example, skin color, gender, or sexual orientation -- ought not to form the basis for disqualifying its members from some good, for example, a job, a home, or the opportunity to serve one's country. The legal prohibition against governmental classification on the basis of characteristics like these -- characteristics that society has concluded should not matter in certain circumstances -- is part of the fundamental law of the United States. It is enshrined in the Equal Protection Clause of the Fourteenth Amendment to the Constitution.(10)

   In popular discourse, the distinction between laws prohibiting discrimination against members of certain groups and affirmative action laws that provide special benefits to members of these groups is breaking down. Laws to protect members of different groups from discrimination are decried with increasing frequency on the basis that they will provide those groups with "special rights" or preferential entitlements. This characterization is used most frequently to describe the extension of the protection of antidiscrimination law to groups that have not previously been protected. The argument that antidiscrimination laws provide special treatment for members of the group that is, or may be, newly protected from discrimination is thus frequently used to oppose laws that prohibit discrimination on the basis of sexual orientation. For example, the opponents of municipal ordinances in Colorado prohibiting discrimination on the basis of sexual orientation succeeded in enacting Amendment 2 to the Colorado Constitution, a ballot measure that prohibited any such ordinances, largely through arguments that homosexuals should not be given special entitlements.(11) Similar tactics were used in the recent successful campaign to repeal by popular...