"Civil rights" and one-way ratchets
Volokh, Eugene
VOLOKH at mail.law.ucla.edu
Mon Mar 25 09:37:10 PST 2002
This subthread began with a reference to an argument that
"laws created by direct popular vote should only be allowed to grant more
civil rights, not to take them away from minority groups within the polity."
I expressed opposition to this argument, on the grounds that what
constitutes "civil rights" is fundamentally -- and properly -- contested.
Marc gives lots of arguments as to why his vision of civil
rights may be more sound than others'. I don't agree with him generally --
for instance, I don't think that referenda involving the English language
affect "civil rights," except of course insofar as they violate existing
*constitutional* rights of freedom from state action, like the First
Amendment. Likewise, I believe that choosing whom one does business with,
and whom one allows on one's property, is an important civil right; that we
consider fighting race discrimination to be an important enough reason to
abridge it doesn't mean that the right is worthless or should be abridged
still further. That a right isn't absolute doesn't mean that it shouldn't
exist at all, or that all proposed restrictions on it are therefore proper.
But more broadly, this just shows that so long as an
initiative doesn't violate a *constitutional* right, courts should let
voters decide -- just as they let legislators decide -- what constitutes a
"civil" right and what doesn't. Is there a constitutional right to be free
from private discrimination based on marital status, or based on sexual
orientation? The answer, I think, is clearly "no." Therefore the voters
should generally be free to decide for themselves whether to enact such laws
or not enact such laws.
Of course, this still leaves courts to decide complex
questions about the scope of, say, the First Amendment, as the debates in
cases such as Boy Scouts v. Dale, Gertz v. Robert Welch, Texas v. Johnson,
and so on show. I think the majority in Boy Scouts v. Dale got it right,
but others disagree. But at least it's clear that there is *some* scope of
protection for expressive association -- surely there are some limits to the
government's interfering with groups' selection of who speaks for them, as
the dissenters in Dale fully agreed. The debate there is over the nature of
those First Amendment limits. But once one gets outside those limits, I see
no warrant for courts deciding what non-constitutionally-protected right is
a "civil right" that may be restricted by the legislature (since after all
that's what we mean by "non-constitutionally-protected") but not by the
voters.
Eugene
> -----Original Message-----
> From: Marc Poirier [SMTP:poiriema at SHU.EDU]
> Sent: Saturday, March 23, 2002 11:02 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Anthony Lewis forgets federalism?
>
> I sort of feel like the topic shifted but I'll bite at least one more
> time.
> I apologize if I'm covering material already discussed in this thread.
>
> The questionable "civil rights" Eugene Volokh talks about below involve
> unmarried couples or gay couples. He pits them against the "civil rights"
> of landlords. When I used "civil rights" in my first post I actually had
> in mind referenda and initiatives involving citizenship or English
> language
> requirements or limiting the way in which prior racial discrimination
> could
> be addressed. Are those civil rights or "civil rights"? They are all
> contentious.
>
> As to the right of property owners as against "civil rights" of
> non-owners,
> it wasn't that long ago that property rights were asserted against any
> obligation of private parties to allow people of undesirable race onto
> their property, on the basis of "civil rights". Or should I say
> "property?" To the extent that we are talking about who one chooses to do
> business with or to let onto one's "property," we're talking about a
> notion
> of "property" that is as contentious as "civil rights." Indeed, both with
> regard to real estate and business, the rights of the owner have been less
> than absolute, as far back as you care to go. See e.g. Joseph Singer, No
> Right to Exclude. Modern absolutist property rhetoric, which is
> legitimately concerned with the infringement of the state on the owner,
> seems to forget something that seems self evident to others of us -- that
> the way the owner treats the neighbors and other members of civil society
> is also something government sometimes should be concerned about.
>
> With regard to the religious landlord issue, where there is a smalltime
> landlord or where someone rents rooms under the eaves of her own house, I
> would recognize an exception to antidiscrimination laws along the lines of
> the "Mrs. Murphy" exception in the Fair Housing Act. (What is it exactly
> -- three or fewer units, or a room in same dwelling as the owner?) The
> justification of such as an exception as I see it is that the living
> situation is basically an expression of the landlord's personal living
> situation. But it's a far cry from that to saying for example that a
> major
> apartment building is a personal expression of the landlord's expressive
> preferences. Let alone, for example, a hotel chain or a restaurant.
> Those are businesses, for crying out loud. Obviously I'm relying on what
> Margaret Radin in Property and Personhood has termed the distinction
> between personhood property and fungible property. As messy as that is,
> maybe a constitutional court wouldn't touch it, but the antidiscrimination
> laws could and have.
>
> But (to steer us back to the question by Rebecca Zietlow and in part to
> David Bernstein's answer to it) that gets us back to the private/public
> boundary as a touchstone for managing both property and organizational
> membership as against civil right claims. The Supreme Court's opinion in
> Dale simply trampled the New Jersey Supreme Court's considered holding
> that
> the Boy Scouts were a public accommodation. The NJ holding was no fluke.
> It was treated at length (especially in Justice Handler's concurring
> opinion) and NJ has elsewhere interpreted public accommodation broadly to
> involve university eating clubs and shopping centers. Curran, the
> California Boy Scouts/ gays case, came out the other way on public
> accommodation. Why shouldn't the Supreme Court have simply let states
> develop different notions of where the public/private boundary lies under
> state law? (Cf PruneYard, where California's state law went further than
> the federal constitution in requiring access to a shopping center, and the
> Court allowed the access requirement to stand against the claims of the
> owner.) Hurley, the St. Patrick's Day Parade / gays case, is of course
> another case where the state determination as to the public nature of the
> parade was given no deference by the Supreme Court.
>
> I wonder whether PruneYard (another private property/access balancing
> case)
> would come out the same way after Dale?
>
>
> Marc R. Poirier
> Professor of Law
> Seton Hall University School of Law
> One Newark Center
> Newark, NJ 07102
> 973-642-8478
>
>
>
>
>
> "Volokh, Eugene"
> <VOLOKH at MAIL.LAW.UCL To:
> CONLAWPROF at listserv.ucla.edu
> A.EDU> cc:
> Sent by: Discussion Subject: Re: Anthony
> Lewis forgets federalism?
> list for con law
> professors
> <CONLAWPROF at listserv
> .ucla.edu>
>
>
> 03/22/2002 11:09 PM
> Please respond to
> Discussion list for
> con law professors
>
>
>
>
>
>
> I wonder whether the argument cited below assumes away the key
> question of what "civil rights" really means. When a state law bars
> housing discrimination against unmarried couples -- or for that matter
> discrimination against gay couples -- some see it as advancing the "civil
> rights" of the tenants; others see it as restricting the "civil rights" of
> landlords. If Boy Scouts v. Dale had come out the other way, the same
> would be true as to laws barring sexual orientation discrimination by
> private expressive associations.
>
>
> Now I realize that some people don't believe that the right to
> choose with whom one does business, and whom one lets into one's
> association, really qualifies as a civil right -- or believe that it may
> often qualify as a civil right, but not when certain kinds of
> discrimination are involved. But others don't believe that the right to
> live on someone else's property, or join someone else's group, over the
> owner's objection really qualifies as a civil right; and still others
> believes that it does qualify as a civil right when race discrimination is
> involved but not when sexual orientation or marital status discrimination
> involved.
>
>
> Eugene
>
>
> Marc Poirier writes:
>
>
> As for the "one way only" argument, I believe it has been made in the
> policy literature with regard to state initiatives and referenda that
> would
> seek to curtail civil rights. The argument is that laws created by
> direct
> popular vote should only be allowed to grant more civil rights, not
> to
> take
> them away from minority groups within the polity.
>
>
> Marc R. Poirier
> Professor of Law
> Seton Hall University School of Law
> One Newark Center
> Newark, NJ 07102
> 973-642-8478
>
>
>
>
>
>
>
>
>
>
> David Bernstein
> <DavidEBernstein at AOL To:
> CONLAWPROF at listserv.ucla.edu
> .COM> cc:
> Sent by: Discussion Subject: Re:
> Anthony Lewis forgets federalism?
> list for con law
> professors
> <CONLAWPROF at listserv
> .ucla.edu>
>
>
>
>
>
> 03/22/2002 05:57 PM
> Please respond to
> Discussion list for
> con law professors
>
>
>
>
>
>
>
>
>
> States and localities already frequently provide broader
> antidiscrimination
> laws than the federal government. Many jurisdictions prohibit
> discrimination against gays. Others prohibit discrimination based on
> political affiliation, membership in a motorcycle gang (Minnesota),
> height
> and weight, looks, employment status, and more. Title II of the '64
> Act
> does not apply to sex discrimination; most state public
> accommodations
> laws
> do. In New Jersey and other jurisdictions, unlike federal law,
> discrimination in "public accommodations" is prohibited by small,
> private
> clubs (see Frank v. Ivy something or other--interesting aside: Ms.
> Frank is
> now a professor at Drake Law School). Many of these state and local
> laws
> conflict with the First Amendment and related constitutional
> provisions
> (e.g., right of intimate association). Two have already been
> overturned by
> the Supreme Court (Dale and GLIB--three if yo! u count the
> cross-burning
> case). I am not aware of any antidiscrimination laws that have been
> threatened with federal preemption.
>
>
>
>
>
> In a message dated 3/22/2002 4:43:37 PM Eastern Standard Time,
> RZietlo at UTNET.UTOLEDO.EDU writes:
>
>
>
>
>
> This success
> could be preempted by a federal law that either provides less
> protection than some state and local laws, or that prohibits
> "preferential treatment" for gays and lesbians. Has anyone ever
> considered the argument that states should have the power to provide
> more individual rights than the federal government without
> preemption
> by
> the federal government? I understand that this "ratchet" type of
> theory
> would run counter to the historical example of the federal fugitive
> slave laws that Professor Curtis mentioned earlier. Moreover, this
> idea
> of states as laboratories of experientation to give more (not fewer)
> civil rights to their citizens, would turn conventional wisdom
> (that,
> at
> least since the Reconstruction Amendments, the federal government
> should
> be the prinary enforcer of civil rights) on its head. I'd be
> interested
> in hearing other comments about this proposition.
>
>
> Rebecca E. Zietlow
> Associate Professor of Law
> University of Toledo College of Law
> (419) 530-2872
> rzietlo at utnet.utoledo.edu
>
>
>
>
>
>
> David E. Bernstein
> Associate Professor
> George Mason University
> School of Law
> http://mason.gmu.edu/~dbernste
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