1 Loving v. Virginia, 388 U.S. 1 (1967).
2 Lawrence v. Texas, 539 U.S. 558 (2003) (striking down as violative of the Fourteenth Amendment a Texas law criminalizing homosexual sodomy).
3 Jewish Law comes to mind here: “If a man [seeking to avoid his conjugal responsibilities] forces his wife to take a vow to abstain from intercourse, the maximum length of the vow may be two weeks—this according to the School of Shammai. But the School of Hillel says for one week only. Those who are engaged in Torah study, and who are students of the Sages, may leave their wives [i.e., avoid intercourse] for a period of 30 days. Laborers may do so for one week. As for frequency of intercourse: for men of independent means [those that are not working]: every day; for workmen: twice a week; for donkey drivers: once a week; for camel drivers: once a month; for sailors: once every six months. This is the opinion of Rabbi Eliezer.” M. Ketubot 5:6.
Perhaps the most dramatic example of governmental attempts to dictate fine-grained marital duties, both positive and negative, is the Taliban's attempt to enforce its interpretation of Islamic law with respect to marriage, under which women were restricted from being seen by or speaking to men other than their husbands or male relatives. Qu'ran 24:30–24:31. See, e.g., Clark Benner Lombardi, “Islamic Law as a Source of Constitutional Law in Egypt: The Constitutionalization of Sharia in a Modern Arab State,” Columbia Journal of Transnational Law 37 (1998): 81–123; and Bennoune Karima, “Secularism and Human Rights: A Contextual Analysis of Headscarves, Religious Expression, and Women's Equality under International Law,” Columbia Journal of Transnational Law 45 (2007): 367, 389.
4 See, e.g., Eskridge William N. Jr., and Spedale Darren R., Gay Marriage: For Better or Worse? What We've Learned from the Evidence (New York: Oxford University Press, 2006); and Poirer Mark, “Piecemeal and Wholesale Approaches Towards Marriage Equality in New Jersey: Is Lewis v. Harris a Dead End or Just a Detour?” Rutgers Law Review 59 (2007): 291.
5 See generally Eichner Maxine, “Marriage and the Elephant: The Liberal Democratic State's Regulation of Intimate Relationships between Adults,” Harvard Journal of Law and Gender 30 (2007): 25. But see also Brief for American Psychiatric Association as Amicus Curiae supporting Respondent, Boy Scouts of America v. Dale, 530 U.S. 640 (2000), at 13–24, No. 99-699 (March 29, 2000), 2000 WL 339884.
6 Eichner , “Marriage and the Elephant,” 42–57.
7 German Basic Law of 1949, Article 21.
8 Cal. Democ. Party v. Jones, 530 U.S. 567 (2000); Tashjian v. Republican Party, 479 U.S. 208 (1987); Democ. Party of U.S. v. Wisconsin, 450 U.S. 107 (1981).
9 See the cases cited in note 8.
10 Terry v. Adams, 345 U.S. 461 (1953).
11 Smith v. Allwright, 321 U.S. 649 (1944).
12 Nonetheless, it is not exactly transparent, after Employment Div., Dept. of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990), how the Supreme Court would find such laws violative of the Constitution—which is not to say that the Court would not find a way to do so.
13 Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
14 See Rubenfeld Jed, “The New Unwritten Constitution,” Duke Law Journal 51 (2001): 289; and Mazzone Jason, “Freedom's Associations,” Washington Law Review 77 (2002): 639. See also Epstein Richard A., “The Constitutional Perils of Moderation: The Case of the Boy Scouts,” Southern California Law Review 74 (2000): 119. See generally Alexander Larry, Is There a Right of Freedom of Expression? (Cambridge and New York: Cambridge University Press, 2005), 115–18.
15 See Katzenbach v. McClung, 375 U.S. 294 (1964).
16 Compare Roberts v. U.S. Jaycees, 468 U.S. 609 (1984); Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537 (1987); N.Y. State Club Ass'n v. City of New York, 487 U.S. 1 (1988), with Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995); Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
17 See text at notes 10–11 et seq.
18 See PGA Tour v. Casey Martin, 532 U.S. 661 (2001).
20 See news stories in Louisville, KY, The Courier-Journal, August 18, 19, 20, 21, 1971; New York Times, January 21, 1972; New York Times, August 19, 2001. The American League president at the time, Al Harridge, immediately banned midgets from the league, a ban that apparently persists to this day.
22 See Griggs v. Duke Power Co., 401 U.S. 424 (1971).
23 See generally Yuracko Kimberly A., “Trait Discrimination as Sex Discrimination: An Argument Against Neutrality” Texas Law Review 83 (2004): 167. See also Grey Thomas C., “Cover Blindness,” in Post R. C., ed., Prejudicial Appearances (Durham, NC: Duke University Press, 2001), 85–97.
24 After all, employers have convictions—political, religious, and moral—that may conflict with the convictions of their employees. Or they may be providing services to a target group that has convictions at odds with those of the employees. As a consequence, employees may find the work environment quite ideologically uncomfortable. See, e.g., Greenawalt Kent, “Title VII and Religious Liberty,” Loyola University Chicago Law Journal 33 (2001): 1. Similarly, one set of employees may express views in the workplace that offend another set of employees. See, e.g., Volokh Eugene, “Freedom of Speech, Religious Harassment Law, and Religious Accommodation Law,” Loyola University Chicago Law Journal 33 (2001): 57.
26 Sherman Antitrust Act, 15 U.S.C.A. secs. 1–7 (West, Westlaw through 2007 Sess.).
27 See, e.g., Public Company Accounting Reform and Corporate Responsibility, 15 U.S.C.A. sec. 7211 (West, Westlaw through 2007 P.L. 110-47).
28 See, e.g., Labor-Management Relations Act, 1947, 29 U.S.C.A. chap. 7.
29 This makes it puzzling why even some of the most ardent supporters of freedom of association make an exception when it comes to commerce. See, e.g., Hager Mark, “Freedom of Solidarity: Why the Boy Scout Case Was Rightly (But Wrongly) Decided,” Connecticut Law Review 35 (2002): 129.
30 See Alexander, Is There a Right of Freedom of Expression? 165–66.
31 See Alexander Larry, “Illiberalism All the Way Down: Illiberal Groups and Two Conceptions of Liberalism,” Journal of Contemporary Legal Issues 12 (2002): 625.
32 Brief for Petitioners, Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
33 See Alexander, Is There a Right of Freedom of Expression? 169.
34 Groups as such are not the objects of concern for liberal redistributionists, and especially not ascriptive groups. If the worst off individual is better off under policy A than under policy B, then the liberal redistributionist would instruct us to choose policy A, even if, say, African-Americans or women as a group fared less well under A than under B. And although it is true that John Rawls, an archetypical liberal redistributionist, referred to a representative of the least well off group as the bellwether for just policies, he was referring to income groups (e.g., the poor), not to ascriptive groups. See generally Rawls John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971). And Rawls's theory is otherwise quite individualistic in its concerns, emphasizing the separateness of persons. Ibid., 22–46.
Moreover, races and ethnic groups are quite artificial constructs. Biologically, human beings are one interbreeding species, with no bright-line biological divisions. Sociologically, races and ethnic groups can be (and are) defined in different ways for different purposes and by different people. See Larry Alexander and Maimon Schwarzschild, “Grutter or Otherwise: Racial Preferences and Higher Education,” Constitutional Commentary 21 (2004): 3; and Alexander Larry, “Equal Protection and the Irrelevance of ‘Groups,’” Issues in Legal Scholarship (2002), http://www.bepress.com/ils/iss2/art1.
35 See Yuracko Kimberly A., “Private Nurses and Playboy Bunnies: Explaining Permissible Sex Discrimination,” California Law Review 92 (2004): 147, 201–12.
36 Symposium, “The Rights and Wrongs of Discrimination,” San Diego Law Review 43 (2006): 733; Alexander Larry, “What Makes Wrongful Discrimination Wrong?” University of Pennsylvania Law Review 141 (1992): 149.
37 Feinberg Joel, The Moral Limits of the Criminal Law, vol. 4: Harmless Wrongdoing (New York: Oxford University Press, 1988).
38 See generally Raz Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986); and Moore Michael S., Placing Blame (Oxford: Clarendon Press, 1997), 70, 662–63, 756.
39 See Moore, Placing Blame, 763–77.
40 See Raz, The Morality of Freedom, 380–81, 410–12.
42 See Alexander Larry, “The Legal Enforcement of Morality,” in Frey R. G. and Wellman Christopher Heath, eds., A Companion to Applied Ethics (Oxford: Blackwell Publishing, 2003), 128–141.