In a comment on my post on Palmore v. Sidoti, one of my regular readers (Sobek) made what I regard as a valid objection to the outcome of the decision: That it is troubling to knowingly subject a child to prejudice in order for the court to keep its hands clean, rather than to make a custody decision based on the child's best interests. I'm not persuaded that this means the case was wrongly decided, but I do think it means the case was a difficult one.
Indeed, I was so confounded by this point that I wrote my latest FindLaw column as an expansion of my earlier post. But in the column, I distinguish between Palmore---which I now think is a hard case---and the Title VII cases that reject satisfying customer preference as a ground for discrimination. I then conclude that the question whether to vote in anticipation of others' potentially racist or sexist votes is more like Palmore.
Here I'll just make one final observation: It should go without saying that there are perfectly legitimate reasons for voters to decide not to support Senator Obama or Senator Clinton for President that have nothing to do with race or sex. Indeed, I could have turned the question around. Suppose you believe that part of Obama's appeal is that he is an African-American candidate who does not make his racial identity the core of his politics. That is, suppose you think that Obama actually gets a boost from his race. If you are also committed to color-blindness, does this obligate you to vote AGAINST Obama? (Substitute Clinton and sex for Obama and race if you prefer.) If that seems ludicrous (and not just because very few Democratic primary voters are committed to color blindness), does that tell us something about the limits of the colorblindness concept?
Posted by Mike Dorf