Equal Rights, Special Rights, and the Nature of Antidiscrimination Law

Despite the continued belief held by most Americans that certain characteristics should not form the basis for adverse decisions about individuals in employment, housing, public accommodations, and the provision of a wide range of governmental and private services and opportunities, antidiscrimination laws have increasingly come under attack on the ground that they provide members of the group against whom discrimination is forbidden with “special rights.” The “special rights” objection has been voiced most strongly, but not exclusively, against laws that seek to prohibit discrimination on the basis of sexual orientation. This line of attack has not always been effective, but it has achieved notable success. To give one recent example, in February 1998, the people of Maine voted to repeal a relatively new state law prohibiting discrimination in employment, housing, public accomodations, and credit on the basis of sexual orientation. A leader of that repeal effort subsequently concluded that the vote demonstrated that “[t]he American people rejected the notion of special rights” for gay men and lesbians. This special rights argument has not been limited to public campaigns. Indeed, the rhetoric of special rights has now begun to move from popular discourse into the legal analysis of antidiscrimination law. This movement presents a threat to efforts to achieve equality in the United States, for it suggests that courts may conflate antidiscrimination laws that essentially mirror the Constitution’s own command4 with affirmative action provisions whose constitutionality can be determined under current law only after they have been subjected to searching judicial scrutiny.