Freedom of association, sex discrimination law, and the Natio n of Islam

[lweinberg]

Dear David,
         Thanks.  I would have predicted your conclusion that employment
discrimination not be regulated, based on your stance vis-a-vis freedom to
associate.  There you have your slipper slope.  Let  us assume employment
discrimination laws will survive other contemporary attacks for the sake of
thinking about this.  Employment can be seen as part of the ability to
sustain life.   Pervasive private denials of the ability to sustain life
produce beggary, homelessness, and ultimately death.  There are women
sitting in alleys in Islamist countries who could tell you all about
this.  There are black people who can tell you about uncles who were not
let into any place they could sleep or eat, much less work.  Pervasively,
in the aggegate, we know what this was.  There is no reason the First
Amendment should be set up as a shining beacon in honor of  de facto Jim
Crow.  So I think there are real discontinuities and singularities built
into our new-found appreciation of the freedom to "associate."  But if,
like other rights, it "balances," then perhaps we can domesticate it.  I
speculate that at the point of demonstrable injury, the right of the
excluded for the protections of anti-discrimination law may trump.  I am
not a big fan of moral equivalence, so why should I be a big fan of
constitutional equivalence on the same facts?
Best,
Louise


At 01:04 PM 2/15/02, you wrote:
>Louise,
>
>I tend to believe that if you weaken the First Amendment to benefit
>certain groups, the weakness will remain when those groups need
>protection.  I understand the contrary position, which, put crudely, is
>that constitutional law is not seperable from politics, so if your side
>has the advantage, one should press it without worrying about the
>long-term consequences, because future judges, if they are on the other
>side, will ignore or distinguish precedents they don't like regardless.  I
>think this is a serious argument, but I am inclined to think it's wrong,
>that "law" does have some staying power regardless of judges' personal
>preferences.  I have a probably too brief discussion on this in my book
>manuscript that argues for protecting the First Amendment against
>antidiscirmination laws.
>
>David
>
>
>In a message dated 2/15/2002 12:13:59 PM Eastern Standard Time,
>lweinberg at MAIL.LAW.UTEXAS.EDU writes:
>
>
>>Dear David,
>>        Good point.  But that still does not explain why we must strike
>> down laws that represent unusual political success for them.
>>Best,
>>Louise
>>
>>At 03:21 PM 2/14/02, you wrote:
>>
>>>Once the state gets the power to intervene with regard to whether
>>>private associations may choose their affiliates, in the long-run "the
>>>hated" are unlikely to be the beneficiaries of state action, and will
>>>more likely find themselves subject to both private and government
>>>hostility, as in the Jim Crow South.  Why would we think that "the
>>>hated" will have particular success in the political market?
>
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