MSNBC and My HuffPo Debut: A Principle of Ugliness No More

By Michael Dorf

[N.B. 1: In advance of the oral argument in Hobby Lobby last week, I was on MSNBC. Video available here.  Note that at the very end of the segment I appear distracted. That's because the MSNBC engineer cut my audio while the host was still speaking, so I thought the line had gone dead.  The hazards of live tv!

NB 2: In addition to my twice-to-thrice weekly posts here on DoL and my bi-weekly columns on Verdict, I now have authoring privileges on the Huffington Post, where I shall, from time to time, write short essays for a somewhat more general audience than my general readership.  My first such essay is now available there.  I am also reproducing it below:]

-----------------------------------------------------

More than half a century ago, a young Yale law professor named Robert Bork wrote in The New Republic that requiring private business owners to open their doors to all members of the public regardless of race or sex would enact into law a "principle of unsurpassed ugliness." Congress disagreed and passed the landmark 1964 Civil Rights Act.

Bork went on to have a distinguished, but controversial, career. His academic work provided the theory for curtailing antitrust enforcement. As President Nixon's Solicitor General, Bork executed the Saturday Night Massacre. He wrote many important decisions as a judge on the U.S. Court of Appeals for the D.C. Circuit. And, most famously, President Reagan's 1987 nomination of Bork to the Supreme Court yielded a national conversation about how to construe the Constitution and federal laws.

Bork was neither a racist nor a sexist, even in 1963. As he explained during his confirmation hearing, his original opposition to public accommodations laws was based on free-market libertarianism. He said that he came to regard even that earlier view as mistaken for failing to acknowledge that the good done by civil rights laws far outweighs the infringement on economic liberty.

Bork died in late 2012, but he remains a hero on the right. Unfortunately, however, many of his fellow conservatives do not appear to have followed Bork's lead when it comes to valuing social goods other than individual liberty.

Increasingly, contemporary conservatives elevate even far-fetched claims of liberty over the greater good. For example, in cases currently before the U.S. Supreme Court, corporate plaintiffs claim a religious right to deny contraception coverage to employees. In a case from New Mexico, a for-profit wedding photographer claims a free speech right to refuse her company's services to a same-sex couple. And last month Arizona made headlines when it nearly enacted a law that would have expanded the rights of business owners to religious exceptions from public accommodations laws.

To be sure, the context has shifted. In the foregoing examples, the claimants seek exceptions based on speech and religion, rather than general libertarian grounds. But that shift appears opportunistic rather than fundamental. After all, the right continues to attack the Affordable Care Act's obligation to purchase health insurance on full-throated libertarian grounds having nothing to do with speech or religion.

In explaining his change of heart on public accommodations, Judge Bork portrayed his earlier libertarianism as a product of a view of the free market in which systematic discrimination could not occur because it would be unprofitable. As he gained more experience with the real world, Bork said, he came to understand that social interactions are more complicated.

Put differently, Bork grew up. He recognized that as important as individual liberty is, it must sometimes yield to the greater good. Thus, while the government cannot punish anyone for expressing racist, sexist or homophobic views, it can condition participation in the market on opening the doors of a business to all people, regardless of race, sex or sexual orientation.

That is a hardly a principle of unsurpassed ugliness. On the contrary, seen from the vantage point of a half century of civil rights law, it looks quite beautiful.