In Defense of a Liberty-Based Account of Discrimination
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Recently, legal theorists such as Deborah Hellman and Tarunabh Khaitan, have suggested that a deep distinction can be drawn between two types of theories about when and why discrimination by governments is wrongful. In her chapter in this volume, Hellman calls these two types of theory “equality-based views” and “liberty-based views”. A theory is “equality-based”, on her understanding, if it explains why discrimination is wrongful by appealing to the principle that the state must treat everyone with equal concern and respect. Such views direct courts to assess whether discrimination has occurred by asking whether the challenged law or action has failed to treat some people with equal concern and respect. By contrast, theories that are “liberty-based” appeal ultimately to each person’s right to have certain freedoms, such as the freedom to marry the person you love and to make decisions about your life together without being constrained by traits that are extraneous under the circumstances, such as your sexual orientation. Liberty-based views require courts to assess whether discrimination has occurred by asking whether the claimant really is entitled to the freedom in question, and this normally requires asking whether the allegedly extraneous trait (such as sexual orientation) really should be treated as extraneous in these circumstances—that is, whether it really should be seen as irrelevant to the institution or the decision in question. And partly for this reason, Hellman argues that liberty-based views face a fundamental problem, one which she thinks equality-based views do not face. Liberty-based views require courts to make judgments about the nature and purpose of certain social and political institutions (for instance, judgments about the nature of marriage, or the purpose of universities, or the proper boundaries of a public health care system). This is problematic, according to Hellman, because in a liberal democratic society courts should aim, as far as possible, to decide cases without presupposing controversial value judgments that some reasonable citizens might not accept. Courts should, in her words, aim to decide cases only on the basis of “thin” normative principles, those which all reasonable citizens would accept regardless of their differing moral views. One of my aims in this chapter is to offer a defense of one type of liberty-based view. I shall try to convince you, in section III of the chapter, that if we are to understand the complaints of people who face discrimination, we have to appeal at least in part to certain freedoms they have been denied. But before I do this, I want to respond to Hellman’s critique of liberty-based views. I shall try to show that there are at least three problems with this critique. First, the allegedly deep distinction between equality- and liberty-based views is not as deep as it appears: liberty-based views, too, can be understood as attempts to make sense of the value of equality. Second, it is not true that liberty-based views of discrimination require courts to presuppose any more controversial normative judgments than do other conceptions of discrimination. To show this, I shall take as my examples my own liberty-based view and Hellman’s expressivist view. I shall argue that both views require courts to make certain judgments about the nature and purpose of social institutions, but that this is not problematic from the standpoint of a liberal democracy because these particular normative judgments do not presuppose that the institution in question is morally sound or necessary to society. Third, I shall suggest that even if I am wrong about this, the most that this kind of argument could show is that the right not to be discriminated against is not the kind of right that can legitimately receive constitutional protection in a liberal democratic society. That is, even if it were correct that liberty-based views require courts to make certain controversial moral judgments, this would not show that liberty-based views are mistaken. It would show at most that, on a liberty-based view, anti-discrimination law could not be a part of what Rawls calls “the basic structure” of society, since it could not command the assent of all reasonable citizens. But this does not imply that discrimination cannot receive any legislative protection; and it does not imply that liberty-based views are incorrect.
Source Publication
Philosophical Foundations of Discrimination Law
Source Editors/Authors
Deborah Hellman, Sophia Moreau
Publication Date
2013
Recommended Citation
Moreau, Sophia, "In Defense of a Liberty-Based Account of Discrimination" (2013). Faculty Chapters. 1091.
https://gretchen.law.nyu.edu/fac-chapt/1091
