Civil Rights Laws

Some people criticize the civil rights laws as impingements on personal freedom—specifically, the freedom to choose those with whom one associates (that is, to discriminate). However, given present-day conditions and values, it seems obvious that there is a compelling governmental interest in ending invidious discrimination based on race, gender and other “non-chosen” human characteristics, such as age and, in an emerging consensus, sexual orientation. Because of this compelling interest, treating liberty as a fundamental right would not prevent laws that are narrowly tailored to address these problems of discrimination, as long as the laws use the least restrictive means that achieve the purpose.

In some respects, moreover, invidious discrimination trenches on interests that are themselves protected by fundamental rights, such as the right to vote or the right to be free from discriminatory state action. Indeed, rooting out invidious discrimination typically enhances liberty itself, trading a specific and narrow subtraction from the liberty of some to obtain a general expansion of the liberty of others. In any case, even if liberty is treated as a fndamental right, that would not mean it should be automatically elevated over other recognized fundamental rights.

In situations where fundamental rights arguably clash, the best accommodation reasonably possible has to be attempted. Probably little is gained, and much may be lost, by adding a second-decider (a court) with the power to override the first decider (the legislature) in calibrating these accommodations. As long as it is clear that the legislature has made a good faith, evidence-based effort to reconcile the conflicting fundamental rights, judicial deference would presumptively be the best policy.


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