Anti-discrimination Norms Research Articles

When and How Corporations Became Persons under the Criminal Law, and Why It Matters Now

The Supreme Court concluded in 1909 that a corporation, like an individual, can be held criminally responsible for its misconduct. Yet even now, corporate-criminal liability has yet to overcome the same skeptical argument it faced then — and, for that matter, for centuries prior. The skeptic’s challenge appears as simple as it is persistent: Lacking a mind distinct and independent from its constitutive stakeholders, a corporation cannot produce the sorts of intentional attitudes needed to satisfy the law’s mens rea component. In other words, a corporation is straightforwardly incapable of satisfying one of criminal law’s most basic requirements. Accordingly, to the skeptic the very idea of corporate-criminal liability is, and always has been, pure nonsense. Though it presents as a simple, common-sense challenge to a corporation’s ability to intend — criminally or otherwise — unpacking the skeptic’s critique quickly implicates profound considerations regarding the nature of personhood and proper methods of attribution. Animating the dispute between skeptics and proponents of corporate-criminal liability is a disagreement over how to evaluate personhood, and further how one’s conception of personhood licenses attributions of actions, attitudes, and ultimately responsibility to the entity in question. This brand of disagreement is nothing new: These themes recur throughout Western thought and extend far beyond corporate law, from Plato’s Phaedo to Boethius and Bartolus of Sassoferato, from Thomas Hobbes to John Locke. Given the intellectual lineage behind what is otherwise an ordinary policy disagreement, perhaps it should not be terribly surprising that skepticism about corporate-criminal liability was never put to rest. I don’t expect that we can break this conceptual stalemate all at once, if at all, to solve the challenge facing corporate crime. More to the point, we don’t need to. As it turns out, in taking up this very dispute at the turn of the 20th century, courts and legislature sided with the proponents of corporate crime in a way that the skeptic cannot, or at least should not want to, unwind. The proponents of corporate-criminal liability did not just win the policy fight; they did so in a way that rendered the skeptic’s position incompatible with broader theoretical commitments that are now instrumental to the modern corporation.This Article offers two contributions to the debate over corporate-criminal liability: one conceptual, and one practical. First, the same argument embraced by today’s skeptics was tried but rejected in the late 1800s, when the practice of holding corporations responsible first developed. Courts previously receptive to the skeptic’s reasoning abandoned the view — and more importantly, the relationship between personhood and attribution underwriting it — as increasingly untenable amidst a changing economic environment in which commercial corporations transformed from tiny, narrowly constrained, quasi-state entities to sprawling, sophisticated, dominant participants in the national marketplace. Meanwhile, the gradual embrace of corporate liability, both in tort and crime, is intimately connected to the simultaneous demotion of corporate law as a regulatory tool. The turn towards corporate-criminal liability thus reflects a broader abandonment both of a long-dominant conception of personhood and of an approach to corporate regulation rendered ineffective by the development of what has become the basis for our modern corporate law. In a slogan, corporations today are persons under the criminal law not because they have always been eligible, but rather because they became eligible.Second, a clear theoretical understanding of how and why courts first held corporations criminally responsible has profound consequences for how and why we continue to hold them responsible today. Most directly, recognizing the conditions under which corporations became persons for the purposes of criminal law removes from contemporary debates one complaint with modern practice, and does so without having to resolve some deep metaphysical truth about the ultimate nature of personhood. Today’s skeptic of corporate capacities presupposes an outdated premise about how capacities should be attributed to a person, the abandonment of which is pivotal to creating and maintaining modern corporate law and today’s commercial corporation. Taking seriously the skeptic’s position, on this discovery, threatens to undermine the conceptual foundation integral to a regulatory framework making commercial corporations what they are today. In addition, taking seriously courts’ actual reasoning in holding corporations criminally responsible unearths both a method and rationale for continuing to do so, which is rooted in a constellation of fairness considerations towards individuals that, although mostly lost to history, nevertheless applies more strongly today than ever before. Commitment to this qualified anti-discrimination norm applies at least as powerfully today as it did a century ago: Far from being a once-excusably incoherent, now-superfluous practice, corporate-criminal liability has as much reason to exist today as it did upon inception.

Non-discrimination, in-work benefits, and free movement in the EU

The Cameron government has recently negotiated a deal with the EU which permits the UK (temporarily) to restrict access to in-work benefits for recent EU migrants in the first four years of residence. Withdrawing access to in-work benefits will lead to significant inequalities in pay between British workers and their EU equivalents working at the same job, in the same general situation. The proposal has been widely decried as discriminatory. Is it? I do not, in this article, ask the legal question: Does it violate anti-discrimination norms implicit in the treaties (or wider human rights law)? Rather, I will ask the moral question underlying the legal one: Would, say, Polish citizens denied in-work benefits that British citizens receive be victims of wrongful discrimination? This question deserves consideration not simply because it will help us to evaluate some of the central concerns at stake in the Brexit debates but also because it will allow us to explore the role of norms against discrimination according to nationality within the EU, to address the nature of the European commitment to freedom of movement, and, in the reverse direction, to better understand our own moral commitment to anti-discrimination norms.

Context effects and the temporal stability of stated preferences

In stated preference studies it is assumed that individuals' answers reflect true preferences and are stable over time. We test these two assumptions of validity and reliability using as an example a choice experiment study on ethical consumption that measures preferences for a Peace Product jointly produced by Israeli and Palestinian producers as well as for organic products. In a web survey conducted in Germany, we investigate the validity assumption by manipulating the question context and presenting one group of respondents with questions on anti-Semitic and anti-Arabic attitudes before the choice tasks, and presenting another group with these questions after the choice tasks. In order to test the assumption of temporal stability, the same experimental set-up was repeated in a second survey based on a new sample ten months after the first. However, prior to the second survey an external event, a major violent dispute between Israelis and the Palestinians occurred. Overall, we find evidence for a context effect but not for temporal instability. In both surveys, the placement of the attitudinal questions before the choice tasks has a positive effect on the valuation of products from Israel, Palestinian products and the Peace Product (i.e. a directional context effect). The respondents seem to act according to an anti-discrimination norm. In line with this reasoning, we find an attention shift caused by the attitudinal questions. Organic products are valued much less positively if discriminatory attitudes are surveyed before the choice tasks. Furthermore, despite the violent dispute, stated preferences are very stable over time. This indicates high reliability of stated preference studies and encourages the use of study results by private and public decision makers.

How International Human Rights Transformed the US Constitution

Adoption of the UN Charter and the Universal Declaration of Human Rights created a new international norm prohibiting racial discrimination. That anti-discrimination norm had been a part of the paper Constitution in the United States since adoption of the Fourteenth Amendment. However, it did not become a part of the living Constitution until the Fourteenth Amendment was subjected to the magnetic pull of international human rights law. Adoption of the Charter sparked a chain of events culminating in the Supreme Court decision in Brown v. Board of Education, which heralded the end of apartheid in the United States. Many Americans think that modern anti-discrimination law was a U.S. invention that we exported to the rest of the world. In fact, U.S. anti-discrimination law is properly understood as an outgrowth of the creation of modern international human rights law.

Russian Law on Discrimination in Employment: Can it be Compatible with International Labor Standards?

Law concerning discrimination in employment in Russia was expected to undergo a serious transformation after the fall of the Soviet system, when the Iron Curtain was lifted and the country became more open to Western legal concepts and international law. Nevertheless, most existing anti-discrimination norms in Russian law are based on the traditional concept of “uniformity and differentiation in regulation of labor” that is ill-suited to meet the challenges of amarket economy and the emergence of employment by privately owned enterprises which may have greater motivation to discriminate than state-owned-enterprises. The aim of the author is not to present an encyclopedic overview of all aspects of the topic of discrimination, but rather to concentrate on the most significant areas in which Russian law and practices diverge from international labor standards. To do so, this article analyzes current Russian legislation and landmark cases concerning gender, disability, age and some other areas of discrimination in employment with respect to their effectiveness and conformity to international labor standards on the matter. The issues of a clear definition of discrimination in employment, of protection from indirect discrimination, and of alleviation from the burden of proof are also examined. The author concludes this work by offering the reader several suggestions about how to harmonize Russian domestic law on employment discrimination with international labor standards while giving due respect to national legal and societal traditions and the current economic environment.

Pluralism and its Perils: Navigating the Tension between Gay Rights and Religious Expression

The conflict between gay equality claims and religious liberty claims permeates debates over marriage equality and LGBT civil rights. Using as its centerpiece a decision that forced Georgetown University to provide benefits for a gay student organization, this article examines both the doctrinal underpinnings of how courts resolve the tension between gay rights and religion and the principles of pluralism that are at stake. The Georgetown case is rightly understood as an exemplar of judicial minimalism. This article argues that the values of learning things undecided, while real, may be outweighed by lost opportunities for advancing principles that also foster respect for competing norms and promote affirmative values rather than simple suppression of conflict. In particular, the article argues for adoption of three premises, all of which contribute new insights to this continuing debate: that obedience to antidiscrimination law is not inherently expressive; that disagreement with antidiscrimination law must be fully protected; and that the framing of antidiscrimination norms should be de-moralized. Some scholars believe that pluralism requires treating religious authority as equivalent to law. This article argues that, in situations such as the Georgetown case, when seemingly irreconcilable value systems collide, the proper role of courts in a pluralistic democracy is to provide the secular authority that ultimately resolves such a case, if not the volatile cultural dispute underlying it.

Deliberate Disregard: Judicial Appointments Under the Harper Government

This essay examines the apparent disregard of diversity in appointments by the federal government to the Canadian bench. It begins with an examination of the principal academic arguments supporting the claim that Canadians are entitled to a representative bench. After explaining the current federal appointments process, I examine patterns in three identity characteristics of recent appointees (gender, racialization, and professional experience). These patterns suggest, at the least, a failure to pay attention to, and at the most, a deliberate disregard of diversity which is, in my view, inconsistent with constitutional anti-discrimination norms, as well as with both the written and unwritten constitutional guarantee of an independent and impartial judiciary.

TOWARDS GENDER EQUALITY: UKRAINE IN THE 21ST CENTURY

Purpose. This article attempts to examine the current state of addressing gender inequality in Ukraine. Methodology. The author has used methodology of historical inquiry, hermeneutical methodology and content analysis. Theoretical basis and results. Issues about gender imbalance are acute in Ukraine. Gender inequality in politics is a matter of serious concern. Insignificant part of women in political and decision-making processes is a serious challenge to democracy. Discrimination in the labor market should be noted. Obvious gender inequality in the labor market has led to feminization of poverty. Violence against women has become an acute problem, which can be resolved at the state level only. Although international and national legislation is based on the principle of equality, in practice women are not equal in social life and activities. There is a deep contradiction between the new needs in society and the lack of conditions for their satisfaction. This situation appears to be a challenge to modern Ukrainian society and state of Ukraine, thus, immediate appropriate actions are required. Scientific novelty. It is essential to bring Ukrainian legislation into conformity with the constitutional principles of equality and European standards; develop appropriate and effective anti-discrimination norms and sanctions for violating gender legislation; introduce special measures to ensure gender parity in decision-making, in all public offices; conduct special information campaigns; develop and institutionalize gender studies and gender education at all stages; get more public control over the implementation of international commitments and principles of equal rights and opportunities for women and men. Conclusion . Appropriate mechanisms for overcoming gender stereotypes will contribute to integration of equal rights’ principle and opportunities. Human resources policies require systematic approach to gender analysis and integration in order to address gender issues in program development. In the 21 st century issues of gender equity should be a priority at all levels.

The Four Freedoms and the Future of Religious Liberty

The First Amendment’s rights of speech, press, religion, and assembly were once “interwoven” but distinct. Together, these freedoms advanced a pluralist skepticism of state orthodoxy that protected religious and other forms of liberty. The connections among these rights were evident at the Framing. They were also prominent during the 1930s and 1940s, when legal and political rhetoric recognized the “preferred position” of the “Four Freedoms.” We have lost sight of the Four Freedoms, supplanting their unified distinctiveness with an undifferentiated free speech framework driven by unsatisfying concepts like content neutrality and public forum analysis. It did not have to be this way, and it may not be too late to change course. This Article seeks to renew the pluralist emphasis once represented by the Four Freedoms. The consequences of losing the pluralist vision are nowhere more evident than in the diminishing constitutional protections for religious groups, which are paradigmatic of the expressive, dissenting, and culture-forming groups of civil society. The Four Freedoms remind us that the boundaries of religious liberty have never rested solely in the First Amendment’s free exercise clause — religious liberty is best strengthened by ensuring robust protections of more general forms of liberty. But the normative effort to reclaim pluralism is not without costs, and it confronts powerful objections from anti-discrimination norms pertaining to race, gender, and sexual orientation — objections that cannot go unanswered.

The Trajectories of European and American Antidiscrimination Law

The essays in this symposium present an apparently sharp contrast in the respective state of antidiscrimination law in Europe and the United States at present. In Europe, antidiscrimination norms are proliferating, within both the European Union and the Council of Europe systems, and elaborate networks and programs of implementation are being established and funded. The grounds of discrimination are widening, the norms are being strengthened and the new laws are being actively litigated. In the United States, by comparison, decades of social and political backlash have significantly weakened the corpus of antidiscrimination law that emerged from the civil rights movement, and the courts have become an arena for ideological battle. Yet, even if certain juridico-cultural differences in conceptions of equality and discrimination between the two jurisdictions are evident, none of the likely explanations for such a stark contrast between the state of antidiscrimination law and policy in each seems fully convincing. On a closer analysis, it seems that the future of antidiscrimination law and policy in Europe faces equally daunting challenges, even if the body of law in question is decades younger and less tested than its U.S. counterpart. One of the themes emerging from this collection of essays, however, is that there are similarities in the way problems of entrenched inequality are being addressed and in some of the solutions being tested both in the United States and in Europe. In particular, there has been a shift away from traditional judicial remedies and towards renewed administrative as well as other more innovative approaches in both jurisdictions. In the United States, this seems to be prompted in part by disillusionment with the current legal stalemate, while in Europe some of the novel approaches—including the spread of equality bodies, parity democracy, and proactive public duties—are being promoted by international and European institutions.

The Uncertain Foundations of Contemporary Anti-Discrimination Law

European anti-discrimination law has evolved very quickly in a relatively short period of time. However, this paper argues that it is far from clear that there is anything approaching a pan-European consensus as to how anti-discrimination norms should be interpreted and applied. Sharp divisions exist across a range of issues, as dramatically illustrated by recent controversies involving secularist principles, the treatment of Roma and the adjustment of retirement ages. This imposes a heavy onus on courts to steer the development of anti-discrimination law, and in particular the European Court of Justice (ECJ). However, in the absence of any real agreement on what precisely is required to give effect to the non-discrimination principle, both national and European courts may struggle to come to grips with complex questions of when and how to give effective priority to certain non-discrimination grounds over others, or when to vary the application of anti-discrimination norms across the different non-discrimination grounds.

The Uncertain Foundations of Contemporary Anti-Discrimination Law

European anti-discrimination law has evolved very quickly in a relatively short period of time. However, this paper argues that it is far from clear that there is anything approaching a pan-European consensus as to how anti-discrimination norms should be interpreted and applied. Sharp divisions exist across a range of issues, as dramatically illustrated by recent controversies involving secularist principles, the treatment of Roma and the adjustment of retirement ages. This imposes a heavy onus on courts to steer the development of anti-discrimination law, and in particular the European Court of Justice (ECJ). However, in the absence of any real agreement on what precisely is required to give effect to the non-discrimination principle, both national and European courts may struggle to come to grips with complex questions of when and how to give effective priority to certain non-discrimination grounds over others, or when to vary the application of anti-discrimination norms across the different non-discrimination grounds.

DEMOCRATIC OBJECTIONS TO STRUCTURAL JUDICIAL REVIEW AND THE JUDICIAL ROLE IN CONSTITUTIONAL LAW

This article revisits my argument that structural judicial review – judicial review of those provisions of a constitution that establish the basic structure of government and divide power between the constituent parts of a federation – is vulnerable to the objection from democracy and defends that claim against arguments made by Jeffrey Goldsworthy and others. First, I deny that the democratic objection to judicial review can, by virtue of its commitment to respect for rights, be wielded only against rights review: on the contrary, I argue, it applies where judges have the power to interpret and enforce constitutional provisions or principles that are uncertain in their scope and which therefore require judges to make evaluative judgments in the face of reasonable disagreement. Structural judicial review routinely involves judges’ making, or reaffirming, choices of just this kind. Second, I deny that federal judicial review is immune from the objection either because it constitutes only a weak form of judicial review or because judicial review is a necessary attendant of federalism: on the contrary, federal judicial review requires judges to choose between contested conceptions of federalism in a manner not susceptible to legislative revision. In addition, I argue, there are institutional structures that would allow for the resolution of federal disputes without begging the question at the heart of federalism. Finally, I deny that judicial review of legislative procedures, of requirements establishing an independent judiciary, or of federal anti-discrimination norms (categories identified by Goldsworthy) create practically significant exceptions to my claim.

Being similar versus being equal: Intergroup similarity moderates the influence of in‐group norms on discrimination and prejudice

In two studies, we examined the influence of in-group norms of anti- and pro-discrimination on prejudice and discrimination as a function of intergroup similarity (Studies 1 and 2) and in-group identification (Study 2). In a condition where there was no information about intergroup similarity (Study 1) or intergroup similarity was low (Study 2), prejudice and discrimination were lower when norms prescribe anti-discrimination compared to pro-discrimination. In contrast, when intergroup similarity was high, prejudice and discrimination were higher when the in-group norm represents anti-discrimination compared to pro-discrimination. This pattern was most apparent among highly identified in-group members (Study 2). The paradoxical effect of the anti-discrimination norm in the high similarity condition is interpreted as a response to the threat this situation introduces to in-group distinctiveness.

Conformity and Identity Threat

Two studies investigated the impact of national (Swiss) identification, perceived threat to ingroup identity, and pro- vs. antidiscrimination ingroup norms on discrimination against foreigners. As expected, ingroup identification was positively related to discrimination when perceived threat was high, but not when it was low: those with high ingroup identification conformed to the prodiscrimination norm, but counterconformed to the antidiscrimination norm. These findings suggest that group members do not conform blindly to group norms, but that they selectively follow the norms that are in line with their personal motivations (i.e., the extent of ingroup identification) and intergroup context (i.e., perceived intergroup threat). When norms clash with group members’ perceptions and personal motivations, they can even give rise to counterconformity dynamics.

Faith in the Future: Sexuality, Religion and the Public Sphere

The clash between religious freedom and equality for lesbians and gay men has become a controversial legal issue in the United Kingdom. Increasingly, claims are made that compliance with anti-discrimination norms impacts upon conscientious, faith-based objectors to same-sex sexual acts. This article explores this issue and draws insights from North American case law, where this question has been considered in the context of competing constitutional rights. It raises far-reaching issues concerning the distinction between belief and practice, as well as the role of identity in the public sphere. The author advocates that courts and tribunals should adopt a fact-specific approach which is sensitive to the rights in a particular context, and which focuses upon the values of accommodation, tolerance and mutual respect. © The Author 2009. Published by Oxford University Press.

The Scope and Content of Article 15 of the Universal Declaration of Human Rights

Article 15 of the Universal Declaration of Human Rights (UDHR) provides that “[e]veryone has the right to a nationality” and that “[n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” Enshrining citizenship and the right to be free from arbitrary deprivation of citizenship as human rights in and of themselves, article 15 of the UDHR establishes the bedrock legal relationship between individuals and states. While all states are bound to respect the human rights of all individuals without distinction, an individual's legal bond to a particular state through citizenship remains in practice an essential prerequisite to the enjoyment and protection of the full range of human rights. This article examines the scope and content of article 15 of the UDHR. The proliferation of human rights norms in international and regional instruments has developed substantive limitations on state sovereignty over citizenship regulation that gives meaning to that provision. In particular, the universal anti-discrimination norm and the principle that statelessness should be avoided have emerged to constrain state discretion on citizenship. But some important gaps in the international legal framework on nationality persist. For example, few normative principles prescribe conditions for granting citizenship and there is a lack of consensus on what constitutes statelessness arising from ineffective citizenship. While human rights developments over the past 60 years have made great strides in giving content and meaning to article 15 of the UDHR, further normative and practical developments are necessary to realize the effective promise of that provision.

Casting and Caste-ing: Reconciling Artistic Freedom and Antidiscrimination Norms

This article examines the legality of race and sex classifications in casting announcements for actors, which are common in the film industry and have profound social consequences, yet have been entirely overlooked by legal scholars. Such announcements or breakdowns are used to channel people of color and women to low-paying, marginal roles. Title VII provides no categorical exception for this highly unusual practice - it makes no exception for race and contains only a narrow bona fide occupational qualification (BFOQ) defense with respect to sex. Divergent strands within Title VII and First Amendment law point in contradictory directions on the legality of discriminatory breakdowns. With respect to Title VII, the EEOC Guidelines opine that sex discrimination in casting may constitute a BFOQ for authenticity purposes, but this conclusion is at war with core Title VII principles. With respect to the First Amendment, the Supreme Court has held that generally applicable laws, such as Title VII, may be applied to expressive organizations without triggering heightened free speech scrutiny. Recent cases, however, created exceptions to antidiscrimination laws for the Boy Scouts and a parade group notwithstanding the aforementioned contrary precedent. I conclude that the First Amendment requires treating casting decisions with a degree of deference that Title VII would not ordinarily afford employers. But our constitutional commitment to free speech does not exact a wholesale abandonment of antidiscrimination law in this context. It can accommodate the goal of reducing the uncritical use of race/sex classifications and reserving such classifications to a subset of casting decisions in which they would demonstrably advance the narrative. Alternatively, a court might ban race/sex classifications in all breakdowns and yet recognize that the ultimate casting decision is protected by the First Amendment. This examination of casting discrimination also provides a reminder that society's tastes for certain gender conventions, such as makeup on women and the routine requirement that female actors appear in nude scenes, temper Title VII's capacious language and confine its impact. In short, there is a gap between Title VII's broad promise of equal employment opportunity and the reality of continuing differential treatment that has become naturalized and goes largely unchallenged.

'We Insist! Freedom Now'" Does Contract Doctrine Have Anything Constitutional to Say

On a daily basis countless people are refused contracts due to discrimination on account of their "Otherness" - their race, their disability, their gender, etc. Many of them are not welcomed by hotels, denied service in restaurants, rejected by banks when asking for a mortgage loan, and so on. The variety of transactions that are denied and the breadth of human interaction that they affect are simply overwhelming and result in a fundamental exclusion from the marketplace. For years contract law has ignored this problem, while exclusive responsibility for contractual discrimination has been reserved for constitutional law and the antidiscrimination statutes that were enacted to fulfill egalitarian ideals. This Article attempts to break the contractual silence and to bridge the huge gap between discrimination and contracts by pressing up against traditional legal boundaries. Drawing on a broad understanding of the Thirteenth Amendment - as a promise of an egalitarian and mobile economy which heavily relies on contracts - the Article calls for addressing the problem of precontractual discrimination with contractual tools. Such a possibility has until now remained by and large unexplored, but as this Article seeks to show, it is an achievable and powerful step that can be well-integrated into up-to-date contract theory. The Article first exposes the detachment between contract doctrine and the scattered antidiscrimination norms and analyzes the harmful consequences of this detachment. It then creates an original meeting point between the two bodies of law, one of which is intentionally located within contract doctrine. This point is found by dismantling the dominant concept of "freedom OF contact", and especially by defining and establishing the freedom to make a contract. The novel insistence on the "freedom TO contract" - which gives the Article its name - is to be enforced, as proposed, through the duty to negotiate in good faith. Breaking contractual negotiations for discriminatory reasons, it is argued, should be seen as illegitimate business behavior, as an overt expression of bad faith that carries liability. One basis for imposing such precontractual liability can be found by applying to the issue of discrimination the "no-retraction" principle that was recently developed within the economic school of thought. Such reasoning is part of a more general effort to go beyond the opposition between equality and freedom by answering affirmatively the question raised by the Article's title: contract law has something constitutional to say and it is the commitment and enforcement of the essential freedom to contract.

Unnatural Groups: A Reacton to Owen Fiss's "Groups and the Equal Protection Clause"

This article suggests that Owen Fiss's idea of an equal protection principle undergirded by a prohibition of actions that disadvantage certain "natural groups" contributed to a much more expansive idea of group difference in contemporary identity conscious legal scholarship. The expanded natural groups idea seeks to protect groups against disadvantageous actions by protecting cultural practices or traits thought to "belong" to the groups. This approach to civil rights (equal protection doctrine and statutory anti-discrimination law) is troubling because it requires a legally articulated account of group difference. Such an account of group difference may be factually inaccurate or incomplete, may reinforce dangerous stereotypes and at the same time may become a self fulfilling prophesy as members of the group in question come to internalize the account of group difference that receives the judicial imprimatur. We should reject this approach to civil rights in favor of an expanded conception of an anti-discrimination norm and perhaps group indifferent rights to specific practices or characteristics.