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1999 U. Chi. Legal F. 133 (1999)
Sex Discrimination Laws Versus Civil Liberties

handle is hein.journals/uchclf1999 and id is 137 raw text is: Sex Discrimination Laws Versus Civil Liberties David E. Bernsteint Many Americans believe in two ultimately conflicting princi- ples: first, that civil liberties such as freedom of speech, freedom of association, and freedom of religion, must be protected from infringement by the government; and, second, that a broad anti- discrimination principle requires government to intervene in civil society in order to eliminate discrimination against a wide variety of protected groups, including women.1 The tension between these two ideals is increasingly apparent in cases involving the en- forcement of sex discrimination laws. Through the 1960s, most antidiscrimination activists consid- ered civil liberties and civil rights to be complementary. When southern state governments attempted to suppress civil rights protests, activists found refuge in constitutional protections.2 Meanwhile, early civil rights enforcement actions generally were targeted at large employers, places of public accommodation, and other organizations that could not plausibly charge that their civil liberties were being invaded to any significant degree.3 t Associate Professor, George Mason University School of Law. Email address: dbernste@wpgate.gmu.edu. Richard Epstein, Andrew Koppelman, Eugene Volokh, and Todd Zywicki provided helpful comments. Anyone who writes about the First Amendment and hostile environment law owes a debt of gratitude to Professor Volokh for his ex- tremely useful web site, which is available online at <httpJ/www.law.ucla.edulfaculty/volokh/harass/index.htm> (visited Nov 11, 1998). This Article benefited greatly from the research assistance of James Winn, Nathan Oman, and Danielle Giroux. The author wrote this Article while serving as a John M. Olin Junior Faculty Fellow for the 1998-99 academic year. Perhaps the most profound work arguing for the importance of government en- forcement of a broad antidiscrimination principle is Andrew Koppelman, Antidiscrimina- tion Law and Social Equality (Yale 1996). See, for example, NAACP v Alabama ex rel Patterson, 357 US 449, 453 (1958); NAACP v Button, 371 US 415, 419 (1963). See also Samuel Walker, Hate Speech: The History of an American Controversy 78 (Nebraska 1994). Walker notes that the major civil rights groups traditionally opposed hate speech restrictions, in part out of self-interest. Activists on behalf of racial equality often engaged in provocative and at times offensive tactics that required constitutional protection. ' A few libertarian advocates of property rights and absolute freedom of association raised objections to antidiscrimination laws that impacted the private sector. See, for example, Ayn Rand, The Virtue of Selfishness; A New Concept of Egoism 134 (New Ameri- 133

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