George Mason prof highlights antidiscrim laws’ threat to civil liberties


The interaction between antidiscrimination interests and civil liberties served as the centerpiece of a lecture and discussion hosted by the Harvard Federalist Society this past Monday. The event, titled “You Can’t Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws,” was headlined by David E. Bernstein, a professor at George Mason Law School and author of the book that served as the foundation for the lecture. Harvard Law professor Randall Kennedy also participated in the event, offering a critique of Bernstein’s comments and posing questions to the speaker.

“As young lawyers, it will soon be your job to preserve the liberalism that was the basis of our country,” Bernstein told the assembled crowd on Monday. The professor asserted that the American judiciary has established a pattern of activism that seeks to elevate antidiscrimination concerns above other legal, political and social concerns. The result of such action, asserted Bernstein, is a “threat to civil liberties,” specifically those liberties guaranteed by the First Amendment. Bernstein supported his contention by providing a series of examples in which public and private actors were denied the First Amendment rights of free speech or association. One such example was the difficulty faced by civic leaders in Denver, Colorado who sought to obtain a city permit for a Columbus Day parade. Parade planners were told that they would be given the permit on the express condition that they would not be allowed to mention the name of Columbus, for fear of creating a hostile environment for local Native Americans. Bernstein was quick to mention that using antidiscrimination laws to subvert First Amendment guarantees is not limited to liberal interest groups. He cited another example in which a franchise supermarket manager, due to religious beliefs, refused to sell pornography in accordance with company policy. The manager was fired from her position, and she subsequently enlisted the support of a conservative political interest group to sue the supermarket company.

Bernstein continued his lecture by asserting that the elevation of anti-discrimination laws over civil liberties engendered by the First Amendment arises from the fact that many social groups stand to benefit from such an arrangement. He suggested that these groups enjoy a privileged status which allows them to promote their values while limiting the speech of competing groups.

Bernstein then looked to the justifications posited by supporters of the increased influence of antidiscrimination laws. One such justification contends that the “Reconstruction Amendments” – the Thirteenth, Fourteenth and Fifteenth Amendments – supercede the First Amendment, thus placing discrimination concerns above those of free speech or association. “What we are seeing is a judicial failure to enforce First Amendment rights,” he commented. “For those who endorse anti-discrimination laws over First Amendment interests, I would ask that they imagine governmental regulation of speech by their least favorite politician.”

Bernstein dismissed this contention by arguing that the Thirteenth, Fourteenth and Fifteenth Amendments do not address issues of substantial equality. Another justification rejected by Bernstein was the idea the Reconstruction Amendments represent a set of values that are more important than the values of the First Amendment. Bernstein noted that the Constitution is not a collection of values, but a legal document in which all parts are made to be in coherence with the document’s sum total.

After concluding the lecture portion of the event, Bernstein invited Professor Kennedy to offer his own thoughts on the subject in general, and the lecture in particular. Kennedy praised Bernstein’s ability to present stimulating ideas, but challenged him to propose his own solutions to problems that may arise when valid concerns of civil liberties conflict with equally valid anti-discrimination concerns. “What are the boundaries of civil liberties when they come into conflict with anti-discrimination laws?” Kennedy questioned.

The event concluded with a question and answer session. In evaluating the presentations made by professors Bernstein and Kennedy, Joan Huffman, 3L, appreciated Bernstein’s remarks concerning the potentiality that the United States could one day implement a legal philosophy like Canada’s, in which antidiscrimination laws are seen as dominant over all others. “Such antidiscrimination run wild does not bode well,” said Huffman.

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