The story begins right there, with the all‐too‐human practice of discrimination. Yet what’s wrong with discrimination? Don’t we speak, approvingly, of people with “discriminating taste?” To discriminate is simply to choose among alternatives. Each of us discriminates countless times every day.
The “problem” of discrimination arises in the context of human association. We believe in freedom of association — it’s implicit in the First Amendment, in fact — but that freedom entails not only the right to associate with those willing to associate with us but the right not to associate — the right to discriminate, on any ground, good or bad, or no ground at all. Absent that, freedom of association is compromised. It means that others choose the grounds for us. Others tell us which grounds are and are not acceptable. That’s not freedom.
Slaves understood that basic principle. Given a choice, they would not have associated with their masters on the terms their masters offered. But they had no choice. Government forced them, by law, to associate with the master. Under Jim Crow, after slavery was abolished, we saw the obverse, but the underlying issue was the same. Now dissociation, or segregation, was enforced by law, which meant that those who wanted to associate or integrate, whether on trains or in marriage, could not do so. That choice — that freedom — was denied them. Forced dissociation had replaced forced association.
We decided to right that wrong with the Civil Rights Act of 1964, but once again we got it wrong, in part. We ended the forced dissociation of Jim Crow — segregation by law — but in the process we reintroduced forced association — integration by law. It wasn’t as brutal or complete as the forced association of slavery, to be sure, but the underlying principle was the same. We told those who wanted to discriminate in their associations that they could do so only if their reasons did not include “race, color, religion, sex, or national origin.” We told them, that is, that we, not they, were going to determine which grounds for discrimination were acceptable. Over the years, various jurisdictions have expanded the class of forbidden grounds to include everything from sexual orientation to hygiene habits to creditworthiness.
Now in one domain, that change was perfectly acceptable — in fact, required. That domain is the public sector — government. And the reason is as simple as it is compelling: government belongs to all of us. Because it does, it must treat us all equally. It cannot discriminate among us except on grounds that are narrowly tailored to serve its various functions. That’s equal protection under the law.
That ownership principle applies in the private sector too, but there it cuts the other way. Because private individuals are sovereign over themselves and the entities they own or control — and only over those — they may discriminate as they wish in their associations. That means they need not associate with others, for whatever reason; nor may they force themselves on others. Private association, in a free society, must be free. It cannot be compelled or restrained by force of law. Legally sanctioned slavery compelled association. Jim Crow segregation restrained it. The 1964 Act again compels association by prohibiting a wide array of private entities from discriminating on various grounds, thus forcing them to associate with those they may wish to avoid.
But isn’t that just the point? We wanted to end “irrational” discrimination in both the public and the private sectors and so we banned it. We saw what was clearly a worthy end. Why not bring it about by force of law?
One problem with that approach, of course, is that there is no end to worthy ends and hence no end to the “good” we might seek through law. That’s a prescription for the good suffocating the right — and freedom with it. And it points to a still deeper problem: we don’t all agree on “the good.” That arises even in the case at hand. After all, one person’s “irrational” discrimination is another’s perfectly reasonable decision. In many contexts — insurance, for example, or credit, or employment — people make decisions for multiple reasons, only one of which may be “forbidden” in a given case. Do we want the government second‐guessing every such private decision? Unfortunately, that’s what we’ve come to.
But even in a clear case of private discrimination on forbidden grounds, principles fundamental to a free society are at stake under current law. To be sure, individuals have no right to violate the rights of others. But short of that, they do have a right to do wrong. Just as with flag‐burning, or Nazis marching, or much else that we tolerate in a free society, we can with perfect consistency condemn those who engage in irrational discrimination while defending their right to do it. If we had taken to heart the example of the 1947 Brooklyn Dodgers, who integrated major league baseball the right way — voluntarily, not through force of law — we would doubtless be far better off today, free from the suspicions that loom at every campus and workplace in America that some are getting ahead and some are being held back simply because of their race, gender, national origin, or some other irrelevant quality.
That would still have left us with the problem of achieving equal protection in the public sector, however, and as experience has shown, it is a difficult principle to apply. The Michigan cases, on their facts, present fairly clear examples of discrimination on forbidden grounds. But one of the ironies of the 1964 Act’s overextension is this: If the court does find that Michigan’s affirmative action policies amount to unconstitutional discrimination, then private universities will be challenged next. Had we drawn a clear distinction between private and public in 1964, as Sen. Barry Goldwater and others urged, private universities today would be perfectly free to discriminate for whatever “good” reasons they might have. Instead, they too await the court’s decision.