One could say that any effort to combat racial inequality is itself race conscious and therefore discriminatory. So far, no one has been bold enough to make this argument against laws prohibiting intentional discrimination on the basis of race or sex, but opponents of gay rights have made just such an argument, attacking laws that prohibit discrimination on the basis of sexual orientation as "special rights." In 1996, in Romer v. Evans the Supreme Court invalidated a state constitutional amendment in Colorado that eliminated civil rights protections on the basis of sexual orientation. Justice Scalia, in dissent, described this amendment as "merely prohibiting … special protections," insisting that the basic civil rights banned by Amendment 2 gave gay men, lesbians, and bisexuals "favored status because of their homosexual conduct." (My italics.)
Of course, for the gay person looking for a job or an apartment and facing bias at every turn, basic protection against discrimination doesn't seem like favoritism. But taken out of their social and historical context, all civil rights can be made to look like special rights. Civil rights laws aren't just derived from abstract principles of justice—they also reflect a policy decision about how to best direct the scarce resources that must be dedicated to the enforcement of the law and the litigation of disputes. Federal law doesn't demand that employers treat all of their employees fairly in every respect; it prohibits only unfairness that's based on race, color, sex, religion, national origin, age, and disability. (I hope we'll add sexual orientation to this list soon.) No one doubts that civil rights laws were intended to, and do in fact, disproportionately benefit those groups most likely to suffer from the prohibited types of discrimination: racial minorities, women, religious minorities. So because racial and sexualdiscrimination are illegal, but discrimination against people with abrasive personalities or antediluvian political views is not, you could argue that civil rights laws benefit people like Sonia Sotomayor at the expense of people like Antonin Scalia.
So is it discriminatory to prohibit discrimination? Of course not. This country has a long and ugly history of specific types of discrimination, such as discrimination on the basis of race. Although things have changed for the better, racism isn't a thing of the past yet. And the continuing effects of past racism still limit opportunities for many racial minorities today. Addressing these injustices isn't doing anyone a special favor—it's simply doing justice. The majority in Ricci ignored the social and historical context that defines civil rights law, just as it ignored more than three decades of judicial precedent and the explicit endorsement of Congress, which wrote disparate impact law into Title VII in 1991. By means of shameless judicial activism, it turned the civil rights tradition against itself and against social justice. The logic that condemned New Haven's awkward but defensible attempt to avoid the discriminatory effects of its promotion exam can be extended to condemn any attempt to prevent any form of discrimination. It will take only a sympathetic plaintiff, a hapless defendant, some bad facts, and some clever lawyers to make even the most well-established civil right look like a special privilege.
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