Friday, January 11, 2008

Palmore v. Sidoti in the Voting Booth

In 1981, a Florida family court judge was faced with a battle for custody of a four-year-0ld white girl between her parents, both themselves white. The girl's mother initially had custody when the parents' marriage broke up, but the father sued for a change in custody based on the fact that the mother remarried a black man (after a brief period of cohabitation with him). The judge disclaimed any racist motives on his own part, but said that sadly, children of interracial couples face discrimination, and thus the best interests of the child favored giving the father custody. In a unanimous decision in the case, Palmore v. Sidoti, the Supreme Court reversed, holding that the judge's taking account of other people's discriminatory motives amounted to unlawful race discrimination on his part.

The principle of Palmore v. Sidoti is a broad and important one. It explains why, for example, an employer violates Title VII if it denies a job to an applicant based on race (or other forbidden grounds of discrimination) because the employer believes that customers prefer to deal with employees of a particular race. In part the Palmore principle simply eliminates an excuse for discrimination: Someone who is himself a racist (or sexist or whatever) shouldn't be able to hide behind the alleged preferences and prejudices of others. But it's not just about pretexts. The Supreme Court decided the case---rightly I think---even on the assumption that the judge would have made a different decision were it not for the prejudices of society.

And so we come to the election. Suppose you think there is a Bradley effect---in which some number of white voters tell pollsters that they support a black candidate but then vote for the white candidate---or that you think sexism accounts for some of the high negatives of a candidate that you otherwise support. Should you consider yourself bound by the Palmore principle (as a matter of honor though obviously not as a legal matter) to put such issues aside in considering which candidate to vote for in your party's primary? If electability is ordinarily a legitimate criterion in selecting a candidate, does it become illegitimate if you believe that the reason why one candidate is not so electable is racism or sexism?

What if you think the Bradley effect is bunk? Might the "Bradley effect effect" be a reason to deny your vote to the black candidate? Or should you just not worry about such meta-meta considerations on the grounds that they're inherently unpredictable and either way (assuming a two-person race for the Democratic nomination), some people will oppose the nominee on discriminatory grounds?

Special shout to any reader who can give a plausible definition of the "Bradley effect effect effect." (But not to someone who says this post is an example of it: the effect of the Bradley effect effect is that other bloggers write about the Bradley effect effect.)

Posted by Mike "Anything You Can Do I Can Do Meta" Dorf