There are at least two competing ways of understanding when laws or other actions by governments wrongfully discriminate. On one view, the wrong implicates the value of equality. A law discriminates in an impermissible way when it fails to treat people as equals. On the other view, the wrong implicates the value of liberty. A law discriminates in an impermissible way when it deprives some, but not all, of a liberty to which all are entitled. Interestingly, both approaches undergird important United States constitutional law decisions. While the first, which I term discrimination as a violation of equality, may seem the more obvious or intuitive way to understand discrimination, the second, which I term discrimination as a violation of liberty, is an important competing view that explains a sizeable vein of United States Fourteenth Amendment doctrine. A court addressing a claim of impermissible discrimination thus has a choice; it can consider the case using a theory of discrimination that rests on equality or a theory that rests on liberty. If a court is presented with a case of possibly impermissible discrimination, should it frame the issue in terms of equality and ask whether the law or policy fails to treat those affected as equals? Or should it address the issue in terms of liberty and ask whether the law or policy deprives some people (but not others) of a liberty to which they are entitled? In what follows, I argue that that as a constitutional conception of wrongful discrimination, we should prefer discrimination as a violation of equality. The basic claim is this: an equality-based conception of wrongful discrimination allows a court to decide cases on the basis of thinner principles than does a liberty-based conception of wrongful discrimination and for that reason is more consistent with liberal constitutionalism, which counsels that the principles that frame our society ought to be ones that people with diverse views should accept. In deciding whether a particular law or policy discriminates in a constitutionally impermissible way, a court using an equality-based account of wrongful discrimination would ask whether the law or policy treats those whom it affects as equals, whether the law treats them with “equal concern and respect”. While people will surely disagree about how to answer this question and thus about the application of the principle in the particular context, the principle on which the decision will rest is one that we can reasonably expect people to accept.
Less preferable is a liberty-based account of wrongful discrimination, which requires courts to ask whether the law or policy intrudes on a liberty to which all are entitled. In order to answer that question, a court must determine the liberties to which people are entitled. As a theory of discrimination, the liberty-based account thus must explain, for example, why denying entry to a state law school on the basis of race denies a liberty to which a person is entitled. To do so, the liberty-based account might describe the liberty as the right to decide whether to go to law school, without considering one’s race, or something along these lines. This approach requires a court to say whether race is, or is not, relevant to education, properly conceived, and therefore requires the court to constitutionalize a particular conception of education. In other words, the liberty-based account of wrongful discrimination inescapably entails defining particular institutions, like education or marriage, and treating the conceptions of these institutions as part of the basic law or constitution of the society, or so I will argue.
Deborah Hellman, Equality and Unconstitutional Discrimination, in Philosophical Foundations of Discrimination Law, Oxford University Press, 51–70 (2013).