Sex Discrimination Law vs. Civil Liberties

George Mason Law & Economics Working Paper No. 00-20

University of Chicago Legal Forum, Vol. 133, 1999

150 Pages Posted: 7 Jan 2000 Last revised: 2 Apr 2015

See all articles by David E Bernstein

David E Bernstein

George Mason University - Antonin Scalia Law School

Multiple version iconThere are 2 versions of this paper

Date Written: May 1, 2000


Sexual harassment law has become a serious threat to freedom of speech in the context of "hostile environment" claims. Freedom of association is under attack by state and local laws that ban discrimination on the basis of sex in public accommodations, with the phrase "public accommodations" defined to include private clubs and organizations. Religious employers, such as church schools, have seen their free exercise rights challenged by a series of lawsuits alleging sex discrimination for actions taken in accordance with the employers' religious beliefs.

Courts generally have been unsympathetic to constitutional defenses to anti-discrimination lawsuits. The Supreme Court has led the way by consistently ruling that the government has a compelling interest in eliminating discrimination that trumps civil liberties. The compelling interest test is applied without regard to the specific facts of the case at bar. The author concludes that the Court's application of the compelling interest test permits courts to render decisions based on vague ideological commitments that have no basis in the Constitution. There are also many non-constitutional reasons that civil liberties should be protected from encroachment by anti-discrimination laws. Among other things, concern for civil liberties reflects appropriate skepticism of concentrating power in the hands of the government; offers protection of individual and group autonomy, including the autonomy of those protected by anti-discrimination laws; shields unpopular minority groups from discriminatory enforcement of anti-discrimination laws; limits church-state conflict; and protects against overly-zealous enforcement of anti-discrimination laws in contexts where such enforcement creates a clear net social loss.

Suggested Citation

Bernstein, David Eliot, Sex Discrimination Law vs. Civil Liberties (May 1, 2000). George Mason Law & Economics Working Paper No. 00-20, University of Chicago Legal Forum, Vol. 133, 1999, Available at SSRN: or

David Eliot Bernstein (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

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