In my lead forum essay here at Law & Liberty essay, I discussed the Supreme Court’s ruling, last summer, that it would violate the First Amendment for Colorado to use its antidiscrimination laws to require a graphic-design business to provide customized, expressive, wedding-planning services to a same-sex couple. Along the way, I expressed and explored concerns about the expansion of such laws’ reach into non-state, non-economic, and even personal contexts and about the extent to which they are now defended and justified as tools for changing people’s thinking. Increasingly, I worried, the antidiscrimination project “seems less about combatting monopoly, ensuring meaningful access to the commercial sphere, or vindicating equal-citizenship rights than about marginalizing, punishing, and re-educating those with at-present disfavored views on a few currently controversial questions.”

I am grateful to Shep Melnick, Thomas Powers, and Jesse Merriam for engaging the piece and to Law & Liberty for the opportunity to reply. Their responses usefully deepen and complicate the conversation I hoped to begin.

Professor Melnick opens with the observation that the “expanded regulatory project” animating antidiscrimination law—that is, the desire to “eliminate the ‘root cause’ of inequality”—“requires a level of government surveillance of private behavior and control over speech and thought that is incompatible with liberalism.” As he describes, legal doctrines such as the state-action doctrine; traditional understandings of “public accommodations” as being, well, “public”; and the willingness of regulators to offer religious and other exemptions checked the ambitions and constrained the effects of this comprehensive egalitarian “project.” Thus, the impatience in some quarters with these checks and constraints.

After all, as some scholars and activists insist, citizens are shaped not only by what happens at work or by what officials do but also by what happens, or doesn’t happen, in families, neighborhoods, and churches. This is why, for example, Justice William Douglas famously dissented in Wisconsin v. Yoder: The limits embraced by Old Order Amish communities would, he feared, result in citizens who were not equipped to function well in the society he preferred.

The bulk of Melnick’s discussion is a valuable review of the ways in which the understanding and enforcement of Title IX illustrates the extending reach of the egalitarian project. He concludes, “[t]he challenge of antidiscrimination law is to find ways to combine vigorous enforcement of [antidiscrimination] statutes with prudential barriers that respect the public/private distinction that lies at the heart of modern liberalism.” I agree, and—perhaps presumptuously—read his essay as an insightful application of principles I tried to lift up in my own. Like Melnick, I do not regard antidiscrimination laws generally, or public-accommodations laws specifically, as impermissible intrusions or unwarranted interferences. Still, it matters that they are constructed and deployed in prudent, context-sensitive, and ideologically modest ways. Too often—as Melnick shows—they are not. 

Professor Powers highlights and digs into the “conflict between our commitment to fighting discrimination and the logic of the liberal constitutional tradition.” At the same time, he importantly emphasizes that “[o]ur question today must be how to learn to live with this new and powerful political commitment [to the “fundamental moral claim that is made by anti-discrimination policies”] and to find some way to reconcile it with our traditional understanding of things.” I agree; it is not productive—nor do I think it is desirable or defensible—to imagine strategies for eliminating all legal rules that prohibit or restrain access-limiting discrimination in certain contexts, on particular grounds, at least insofar as they do so in a way consistent with an appropriate respect for pluralism, the public-private distinction, and the bounded autonomy of non-state associations.

Powers suggests, as a “beneficial way” of “engag[ing] with the civil rights regime directly,” that we “take seriously and reflect upon” the morality—the “new moral drama”—of that regime, specifically, its claims about persons’ equal worth and equal dignity. What, exactly, do these claims mean, entail, imply, and demand? How plausible are they? Are there problems with the “moral logic” of the anti-discrimination politics these claims produce and propel? The point of this exercise, he writes, is “not to turn away from anti-discrimination as such but … to learn to live under its reign—to make it better, more fair, more amenable to reason, and thus more humane.”

These questions, of course, lead us into deep waters, and I take Powers’s point that I did not explain fully how one can accept, as I do, claims about human persons’ worth and dignity while (successfully) resisting projects of “social engineering.” (Powers invokes here the work of Law & Liberty contributor and antidiscrimination expert Andrew Koppelman. For present purposes it will have to be enough (although it is not enough) to insist that, all things considered, political authorities’ egalitarian aims should be modest, proceeding with appropriate respect for the role and rights of non-state and pre-political institutions and societies.

Professor Merriam, it appears, is more skeptical about my opening essay. It seems fair to say that we disagree about the implications of our Constitution’s text, and of our traditions and practices, for antidiscrimination laws. I do not think, for example, that either those who ratified the original Constitution or those who ratified the Reconstruction amendments thereby adopted a “freedom of association” that precludes reasonable regulation of at least some forms of discrimination in at least some settings, including public accommodations, correctly understood—especially when that regulation is consistent with centuries of practice. I am on record as an enthusiastic proponent of the freedom of association (and of the freedoms of associations) but Professor Merriam and I appear to understand its content differently.

Merriam also discusses the question of the power of Congress to enact the Civil Rights Act of 1964—a question that, I admit, I “ignore[d]” in my essay—and to regulate private discrimination in the public-accommodations context. Here, too, we disagree: I think Congress had and has the power to regulate what that Act regulates, and I would insist that it is a stretch to characterize the Act as making “private, interpersonal conflicts a matter of national significance.” I had hoped that I made clear my objection to using public-accommodations laws as tools for ideologically motivated intrusions into purely “private” conflicts. Properly designed public-accommodations regimes do not address or cover such conflicts.

In addition, Merriam believes that what I regard as an “unwelcome departure” in antidiscrimination law—that is, its deployment to correct contemporary wrong-think—is, in fact, the “logical outgrowth” of the civil-rights revolution. I am guilty, he writes, of “a type of ‘presentism’ in conservative legal and political thought.” Perhaps. In any event, it has been said that achieving disagreement, no less than achieving agreement, in an argument can be an accomplishment, and Merriam and I have. I believe that the powers of government to superintend civil-society organizations and pre-political societies and associations are and should be limited and that those limits should be jealously guarded and energetically enforced; I also think it is a mistake—one that overlooks long stretches of grave injustice in the United States—to characterize appropriately focused public-accommodations laws as “managing associational decisionmaking.”

This short reply does not, of course, do justice to the three responses, for which I am grateful and with which I will continue to wrestle.