29 Pages Posted: 1 Aug 2009 Last revised: 27 Jun 2015
Date Written: Revised December 23, 2010
This Essay introduces the "Anti-Interference Principle" – a new term on the meaning of equality, or at least one not yet so-named in the equality lexicon – as a necessary foundation for achieving the goal of true equality. Equality has a long-standing place in the discussion of politics and jurisprudence and remains a struggle of definition today. Rather than rehash the mass of scholarship, this Essay seeks to summarize the general equality concept, and propose that the legal discourse on equality center on a requirement that governmental power must protect and respect equal treatment and opportunity, unconstrained, not equal outcomes. It argues that, to do so, equality requires that the government engage in anti-interference with individual choices and activities, so long as these things create no negative externalities to others. It focuses on synthesizing the idea of equality with the limitations on legitimate governmental action as constrained by Mill's "harm principle." Absent avoidance of harm – special designations, privileges, or classifications necessarily interfere with equality in a manner that consequently violates the Anti-Interference Principle. Such actions necessarily interfere with equality. As such, if we are serious about respecting equality, such interference actions should be avoided.
The primary point is that equality matters. The purpose of this Essay is not to survey the vast political, jurisprudential and academic debate on equality but instead to take a broad look at the philosophical concept of equality itself. Part I discusses the general meaning of equality. Part II presents brief summaries of some selected recent developments regarding the concept of equality, namely same sex marriage (including California's Proposition 8) and the U.S. Supreme Court decision in Ricci v. DeStefano. Part III introduces a useful term for the equality discussion – "anti-interference" – and argues that the best way to foster equality is to embrace freedom, choice, and liberty in the absence of a showing that different treatment is justified to avoid harm. Simply stated, equality is best served when the government refrains from interfering with individual choice and individual freedom.
Keywords: equality, discrimination, equal protection, harm principle, Obergefell, Hollingsworth, DOMA, United States v. Windsor, Proposition 8, Perry v. Schwarzenegger, marriage equality, Ricci, DeStefano, (Briscoe v. City of New Haven), affirmative action, same sex marriage, privileges or immunities
JEL Classification: D60, D61, D62, D63, H00, H10, H11
Suggested Citation: Suggested Citation
Kochan, Donald J., On Equality: The Anti-Interference Principle (Revised December 23, 2010). University of Richmond Law Review, Vol. 45, p. 431, 2011; Chapman University Law Research Paper No. 09-25. Available at SSRN: https://ssrn.com/abstract=1430931