Racial classification in assisted reproduction

Yale Law Journal

Volumn 118, Issue 8, 2009, Pages 1844-1898

  Fox, Dov ^a  

^a UNIVERSITY OF OXFORD   (United Kingdom)

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EID: 70349665341     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (447)

1. See, e.g., THE CONSTITUTION IN PRIVATE RELATIONS: EXPANDING CONSTITUTIONALISM (Andras Sajo & Renata Uitz eds., 2005);
2. HUMAN RIGHTS IN PRIVATE LAW (Daniel Friedman & Daphne Barak-Erez eds., 2001).
3. Several scholars have considered the role of race in intimate contexts. See RANDALL KENNEDY, INTERRACIAL INTIMACIES: SEX, MARRIAGE, IDENTITY, AND ADOPTION 385 (2003)
4. ALEX LUBIN, ROMANCE AND RIGHTS: THE POLITICS OF INTERRACIAL INTIMACY, 1945-1954, at 154 (2005)
5. RACHEL F. MORAN, INTERRACIAL INTIMACY: THE REGULATION OF RACE AND ROMANCE 126 (2001)
6. Larry Alexander, What Makes Wrongful Discrimination Wrong? Biases, Preferences, Stereotypes, and Proxies, 141 U. PA. L. REV. 149,172 (1992)
7. R. Richard Banks, The Color of Desire: Fulfilling Adoptive Parents' Racial Preferences Through Discriminatory State Action, 107 YALE LJ. 875, 883 (1998)
8. Elizabeth Bartholet, Where Do Black Children Belong? The Politics of Race Matching in Adoption, 139 U. PA. L. REV. 1163, 1165 (1991)
9. Elizabeth F. Emens, Intimate Discrimination: The State's Role in the Accidents of Sex and Love, 122 HARV. L. REV. 1307 (2009)
10. Jerry Kang, Cyber-Race, 113 HARV. L. REV 1130, 1157 (2000)
11. Russell K. Robinson, Structural Dimensions of Romantic Preferences, 76 FoRDHAM L. REV. 2787, 2800 (2008).
12. Dorothy Roberts has documented racial disparities in access to and use of reproductive technologies. See DOROTHY ROBERTS, KILLING THE BLACK BODY: RACE, REPRODUCTION, AND THE MEANING OF LIBERTY 252-53 (1997) (observing that even though black women experience higher infertility rates than white women, white women are twice as likely to use reproductive technologies). Touching more closely on the practice of donor classification is Martha Ertman's observation, in a 2003 article discussing commercial markets in adoption and assisted reproduction, that the "focus on white donors and recipients buying and selling sperm is borne out in the inventory and selection process."
13. Martha M. Ertman, What's Wrong with a Parenthood Market? A New and Improved Theory of Commodification, 82 N.C. L. REV. 1, 27 (2003).
14. The exercise of parental choice over offspring characteristics is not limited to sperm donors. Routine ads in campus newspapers offer up to $100,000 for egg donors who are tall, athletic, Asian or Caucasian, and who boast high standardized test scores. See, e.g., Marilee Enge, Couple Offers $100,000 for Egg Donor. Infertile Pair's Solicitation May Be Highest Price Yet, DENVER POST, Feb. 10, 2000, at A2;
15. Divya Subrahmanyam,"Ivy League Egg Donor Wanted," YALE DAILY NEWS, Apr. 23, 2008, at 8. Egg extraction is invasive and unpleasant, however, and the drugs required to produce the additional eggs put donors at risk of ill health or infertility.
16. See Judy Norsigian, Egg Donation Dangers: Additional Demand for Eggs Leads to Additional Risks, GENEWATCH, Sept.-Oct. 2005, at 6, 6-7 (2005). But there is no pain, distress, or danger associated with the donation of sperm. For these reasons, plus the higher rate of infertility among men than women, sperm donation is by far the most commonly used means of artificial reproduction.
17. See Jeffrey P. Kahn, Bidding on the Future? The Limits of Paying for Gametes, 20 J. ANDROLOGY 586,586 (1999).
18. See Dov Fox, Retracing Liberalism and Remaking Nature: Designer Children, Research Embryos, and Featherless Chickens, BIOETHICS (forthcoming), reprinted in STEM CELLS: A LEGAL STUDY 72 (M.N. Bhavani ed., 2009) (discussing embryo selection techniques involving in vitro fertilization and preimplantation genetic diagnosis).
19. Sperm counts among U.S. men have decreased annually from 1938 to 1996 at a rate of 1.5%. THEO COLBORN, DIANNE DUMANOSKI & JOHN PETER MEYERS, OUR STOLEN FUTURE: HOW WE ARE THREATENING OUR FERTILITY, INTELLIGENCE, AND SURVIVAL 9 (1997).
20. See R.G. Bunge & J.K. Sherman, Fertilizing Capacity of Frozen Human Spermatozoa, 172 NATURE 767 (1953).
21. Federal regulation of assisted reproduction technologies is limited to the Fertility Clinic Success Rate and Certification Act of 1992, which requires fertility programs to report to the Centers for Disease Control the "pregnancy success rates achieved ... through ... assisted reproductive technology." 42 U.S.C. §§263a-1 to -7 (2000).
22. Louisiana is the only state that currently regulates the practice of assisted reproduction (though not donor insemination). See LA. REV. STAT. ANN. §§9:129-:130 (2008) (providing that viable embryos created by in vitro fertilization "shall not be intentionally destroyed" and shall be made available to others for "adoptive implantation").
23. See generally CYNTHIA R. DANIELS, EXPOSING MEN: THE SCIENCE AND POLITICS OF MALE REPRODUCTION 98 (2006) ("Sperm banks are not even required to register with the federal government before opening their doors to business, except for complying with basic standards in effect for any medical 'lab.'")
24. CHARLES P. KINDREGAN, JR & MAUREEN McBRIEN, ASSISTED REPRODUCTIVE TECHNOLOGY: A LAWYER'S GUIDE TO EMERGING LAW AND SCIENCE 193 (2006) ("The majority of American legislatures have not attempted to regulate the practice of assisted reproductive technology (ART) services, its marketing or insurance coverage.")
25. Robert Blank, Regulation of Donor Insemination, in DONOR INSEMINATION: INTERNATIONAL SOCIAL SCIENCE PERSPECTIVES 131, 134 (Ken Daniels & Erica Haimes eds., 1998).
26. Joe Saul, the protagonist of John Steinbeck's play Burning Bright, expresses his desire to have genetically related children as exerting an innate and almost irresistible influence: A man can't scrap his bloodline, can't snip the thread of his immortality. There's more than just my memory, more than my training and the remembered stories of glory and the forgotten shame of failure. There is a trust imposed to hand my line over to another, to place it like a thrush's egg in my child's hand. JOHN STEINBECK, BURNING BRIGHT 10(1951).
27. See California Cryobank, Inc., Why Use Us, http://www.cryobank.com/Why- Use-Us (last visited Feb. 20, 2009).
28. See Spermbank.com, Profile of California Cryobank, Inc. Company Information, http://www.1888pressrelease.com/california-cryobank-inc-company- profile-14061.html (last visited Feb. 20,2009).
29. See California Cryobank, Inc., Sperm Banking History: An Excerpt from "Sperm Banking: A Reproductive Resource" by Sonia Fader, http://www.cryobank.com/LearningCenter/Sperm-Banking-101/Sperm-Banking-History (last visited Feb. 20,2009).
30. See id.
31. See California Cryobank, Inc., Locations, http://www.cryobank.com/About- Us/Locations (last visited Apr. 1, 2009).
32. Evan Pondel, A Booming Baby Business, L.A. DAILY NEWS, Apr. 23, 2006, http://www.geneticsandsociety.org/article.php?id=1855
33. see also DÉBORA L. SPAR, THE BABY BUSINESS: HOW MONEY, SCIENCE, AND POLITICS DRIVE THE COMMERCE OF CONCEPTION 39 (2006) ("Donors are wooed through promotional material scattered around college campus or other attractive locales."). More recent ads promise donors compensation of up to $1200 per month.
34. See Facebook.com, California Cryobank Profile, Posting of Nov. 3, 2008 (on file with author) ("BE A HERO Give people the chance to have a family of their own and earn up to $1,200/month.").
35. See California Cryobank, Inc., Donor Recruitment: Where Does CCB Find All of These Great Donors?, http://www.cryobank.com/How-It-Works/Donor-Recruitment (last visited Feb. 20, 2009) ("[California Cryobank] recruits donors via internet advertising, information seminars, and university publications.").
36. Facebook.com, California Cryobank Profile, Posting of Sept. 23, 2008 (on file with author). Cryobank's Facebook profile picture is an animated sperm character with hip sunglasses, a surfer-style haircut, and a streetwise smile. Facebook.com, California Cryobank's Photos Profile Pictures, http://www.facebook.com/pages/Los-Angeles-CA/CaliforniaCryobank/2i452543i45#/ photo.php?pid=928i39&id=2i452543i45 (last visited Feb. 20, 2009).
37. See Laura Crimaldi, Stalled Economy Fertile Ground for Baby Business: Bay State Agencies See Rise in Numbers of Applicants, BOSTONHERALD.COM, Jan. 25, 2009, http://news.bostonherald.com/news/hard-times/view/2009-01-25-Stalled- economy-fertil e-ground-for-baby-business:-Bay-State-agencies-see-rise-in- numbers-of-applicants.
38. California Cryobank, Inc., Selecting a Sperm Bank, http://www.cryobank. com/Why-UseUs/Selecting-a-Sperm-Bank (last visited Mar. 2,2009).
39. California Cryobank, Inc., Donor Qualification: Good Isn't Good Enough, http://www.cryobank.com/How-It-Works/Donor-Qu.alification (last visited Feb. 20, 2009)
40. see also Sheryl James, Chosen Few: Being Accepted as a Sperm Donor Can Be as Difficult as Entering Harvard, ST. PETERSBURG TIMES, Oct. 16, 1989, at 1D (profiling donor acceptance rates at Florida's first commercial sperm bank)
41. Linda Lynwander, New Jersey Q & A: Albert Anouna; Where the Business Is Reproduction, N.Y. TIMES, Sept. 30, 1990, at NJ3 ("We reject 95 percent of the people who volunteer [to donate sperm for reproduction].").
42. See California Cryobank, Inc., Advanced Search, http://www.cryobank.com/ DonorSearch/Advanced-Search (last visited Apr. 1,2009).
43. See id. For a detailed account of California Cryobank's donor classification system, see DAVID PLOTZ, THE GENIUS FACTORY: THE CURIOUS HISTORY OF THE NOBEL PRIZE SPERM BANK 175-178 (2005) ("Sperm banks have to cater to [parental] finickiness, or they fail.... [T]he attentiveness to consumer demand has reached extraordinary levels.").
44. See California Cryobank, Inc., Ordering and Shipment, http://www.cryobank.com/How-ItWorks/Ordering-and-Shipment (last visited Apr. 1,2009).
45. Cf. Dov Fox, Book Note, Prenatal Screening Policy in International Perspective: Lessons from Israel, Cyprus, Taiwan, China, and Singapore, 9 YALE J. HEALTH POL'Y L. & ETHICS (forthcoming July 2009) (discussing programs of selective procreation).
46. David Plotz, The "Genius Babies," and How They Grew, SLATE, Feb. 8, 2001, http://www.slate.com/id/100331.
47. David Plotz, The Better Baby Business, SLATE, Mar. 13, 2001, http://www.slate.com/id/102374
48. see also Note, Eugenic Artificial Insemination: A Cure for Mediocrity?, 94 HARV. L. REV. 1850,1850-51 n.5 (1981).
49. The Repository for Germinal Choice closed in 1999, shortly after Graham's death
50. See Logan Jenkins, Exclusive Sperm Bank Calls It Quits, SAN DIEGO UNION-TRIB., May 19,1999, at B1.
51. David Plotz, The Rise of the Smart Sperm Shopper: How the Repository for Germinal Choice Accidentally Revolutionized Sperm Banking, SLATE, Apr. 20, 2001, http://www.slate.com/id/104633
52. see also MICHAEL J. SANDEL, THE CASE AGAINST PERFECTION: ETHICS IN THE AGE OF GENETIC ENGINEERING 73-74 (2007) (comparing California Cryobank with The Repository for Germinal Choice).
53. Stephen Rodrick, Upward Motility: At the Ivy League Sperm Bank, NEW REPUBLIC, May 16, 1994, at 9
54. see also Plotz, supra note 27 ("[Rothman] is simply responding to market demand.").
55. Steven Dilbeck, Sperm Donors Wanted, Only High-Caliber Jocks Need Apply, DAILYNEWS.COM, Aug. 25, 2008, http://www.dailynews.com/news/ci-10302330.
56. Id.
57. Id.
58. ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 315 n.* (1974). For theoretical discussion of a laissez-faire approach to genetic choice,
59. see Dov Fox, The Illiberality of'Liberal Eugenics,' 20 RATIO 1, 3 (2007) (contrasting an individualistic account of reproductive decisionmaking with the collectivist approach popular in early twentieth-century America and England).
60. Sally Jacobs, Wanted: Smart Sperm, BOSTON GLOBE, Sept. 12,1993, at1.
61. See id.
62. Plotz, supra note 27
63. ; cf. Rodrick supra note 28, at 9 ("Nobody wants a donor who has been in prison .... While a college degree doesn't guarantee the child will be a good person, it does suggest a basic level of organization and a degree of integrity." (quoting Charles Sims) (internal quotation marks omitted)).
64. Poltz, supra note 27.
65. See Bartholet, supra note 2, at 1165 (arguing that race is "central to many people's thinking about parenting")
66. Dorothy E. Roberts, The Genetic Tie, 62 U. CHI. L. REV. 209, 223 (1995) ("In America, perhaps the most socially significant product of the genetic link between parents and children continues to be race.")
67. see also F. Allan Hanson, Donor Insemination: Eugenic and Feminist Implications, 15 MED. ANTHROPOLOGY Q 287, 294 (2001) (surveying sixty-three women who had used donor insemination with respect to their selection of sperm donor and finding that ethnicity ranked second most influential - behind intelligence - among seventeen physical, mental, and social traits).
68. See You Too Can Purchase Sperm Online for Your DIUI, EPINIONS.COM, June 6, 2008, http://www.epinions.com/content-432841068164 (noting that the California Cryobank catalog features "[m]ore Caucasian donors than any others").
69. See Sperm Donors from America's Most Selective Universities: Limited Choices for Black Women, 25 J. BLACKS HIGHEREDUC. 38, 38 (1999) [hereinafter Limited Choices] (noting the "deficit in black donors" at some of "the nation's largest sperm banks")
70. Cynthia R. Daniels & Janet Golden, Promotive Compounds: Popular Eugenics, Artificial Insemination and the Rise of the American Sperm Banking Industry, 38 J. Soc. HlST. 5,18 (2004) ("Caucasians and Asians are overrepresented, while African Americans and Latinos and those of 'mixed' race are underrepresented. ").
71. Compare California Cryobank, Donor Catalog - April, May, June - 2009, https://www.cryobank.com/-resources/pdf/catalogs/print-catalog.pdf, with Press Release, U.S. Census Bureau, Hispanic Population Surpasses 45 Million: Now 15 Percent of Total (May 1, 2008), http://www.census.gov/PressRelease/www/releases/ archives/population/011910.html.
72. See Laurie Nsiah-Jefferson & Elaine J. Hall, Reproductive Technology: Perspectives and Implications for Low-Income Women and Women of Color, in HEALING TECHNOLOGY: FEMINIST PERSPECTIVES 93 (Kathryn Strother Ratcliff et al. eds., 1989).
73. See Gay Becker, Anneliese Butler & Robert D. Nachtigall, Resemblance Talk: A Challenge for Parents Whose Children Were Conceived with Donor Gametes in the US, 61 Soc. Sci. & MED. 1300, 1303 (2005) (finding that of 148 heterosexual couples surveyed about their experience selecting a donor for assisted reproduction, "almost all parents felt that resemblance played a role in their donor selection process")
74. cf. Anne Brewaeys et al., Anonymous or Identity-Registered Sperm Donors? A Study of Dutch Recipients' Choices, 20 HUM. REPROD. 820, 823 (2005) (studying public attitudes toward the use of donor insemination in the Netherlands and concluding that "[m]ale infertility and non-genetic parenthood remains more of a taboo whereas childlessness is less accepted").
75. See Ertman, supra note 3, at 29 (speculating whether "sperm banks screen donors for racial characteristics based on perceived or actual higher demand for Caucasian, blonde, and/or blue-eyed donors")
76. cf. DANIELS, supra note 8, at 97 ("Banks' requirement for donors to have college educations function to exclude the great majority of Hispanic and African American males, even if overt racial selection does not.").
77. California Cryobank, supra note 40.
78. See id.
79. See California Cryobank, Inc., Donor Search, http://www.cryobank.com/ Donor-Search (last visited March 5, 2009). There are seven options for ethnic origin: Asian, Middle Eastern or Arab, Black or African American, Caucasian, Hispanic or Latino, American Indian or Alaska Native, and Native Hawaiian or Other Pacific Islander. Id.
80. See Ertman, supra note 3, at 27;
81. Seline Szkupinski Quiroga, Blood Is Thicker than Water: Policing Donor Insemination and the Reproduction of Whiteness, 22 HYPATIA 143, 149 (2007)
82. Rodrick supra note 28, at 9. California Cryobank no longer advertises the racial significance of its color-coding scheme for sperm samples. The company's website provides only that "quality assurance methods" include a "[t]wo-part color coding system that verifies that clients receive the correct specimen,"
83. see California Cryobank, Inc., Frequently Asked Questions, http://www.cryobank.com/Medical-Professionals/Frequently-Asked-Qu.estions (last visited Apr. 1, 2009), and that when ordering a donor sample by phone, clients must provide Cryobank counselors with the "Color Code of the Donor: as listed on the donor catalog (white, yellow, black, or red)."
84. See California Cryobank, Inc., Ordering, http://www.cryobank.com/Medical- Professionals/Ordering (last visited Apr. 1,2009).
85. See, e.g., IAN AYRES, PERVASIVE PREJUDICE?: UNCONVENTIONAL EVIDENCE OF RACE AND GENDER DISCRIMINATION 2 (2001) (employing a range of sophisticated empirical methodologies to demonstrate "the reality of quotidian discrimination in retail markets")
86. ANDREW KOPPELMAN, ANTIDISCRIMINATION LAW AND SOCIAL EQUALITY 140 (1996) ("If we respect preferences only because we respect persons, then we must withhold our respect from [racist] preferences.")
87. John J. Donahue III, Employment Discrimination Law in Perspective: Three Concepts of Equality, 92 MICH. L. REV. 2583, 2594-95 (1994) (noting that "[w]hen employers, fellow workers, or customers shun certain protected workers for certain jobs, they impose social costs" that depress the price of labor for "the dispreferred group")
88. Owen M. Fiss, A Theory of Fair Employment Laws, 38 U. CHI. L. REV. 235, 253 (1971) ("[Eradication of [racism] is more 'important' than preserving opportunities to vent discriminatory associational desires.")
89. David A. Strauss, The Law and Economics of Racial Discrimination in Employment: The Case for Numerical Standards, 79 GEO. L.J. 1619, 1625 (1991) ("[N]o one should be made worse off simply to satisfy someone else's racial animus.").
90. See Katzenbach v. McClung, 379 U.S. 294 (1964).
91. See id. at 296-297
92. See GLENN T. ESKEW, BUT FORBIRMINGHAM: THE LOCAL AND NATIONAL MOVEMENTS IN THE CIVIL RIGHTS STRUGGLE 85-119 (1997).
93. "I would refuse to serve a drunken man or a profane man or a colored man or anyone I felt would damage my business," Mr. McClung said. RICHARD C. CORTNER, CIVIL RIGHTS AND PUBLIC ACCOMMODATIONS: THE HEART OF ATLANTA MOTEL AND MCCLUNG CASES 78 (2001). If Ollie's Barbecue were to serve blacks, he feared "his restaurant would be flooded with black customers ... and his white customers would cease their patronage as a result." Id. at 66.
94. A few scholars argue, however, that associational freedom justifies private racial discrimination in employment and public accommodations. See, e.g., DINESH D'SOUZA, THE END OF RACISM: PRINCIPLES FOR A MULTIRACIAL SOCIETY 544-545 (1995) (arguing that the Civil Rights Act of 1964 should be repealed because it is "defensible and in some cases even admirable" to "prefer [hiring] members of one's own group over strangers")
95. RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS 505 (1992) (challenging Title VII on grounds that "the statute maintains that a qualified norm of forced association is better than a strong norms of freedom of association")
96. CHARLES MURRAY, WHAT IT MEANS TO BE A LIBERTARIAN: A PERSONAL INTERPRETATION 81 (1997) (resisting federal antidiscrimination laws for failing to the acknowledge that "[i]n a free society freedom of association cannot be abridged").
97. See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 136-145 (1980)
98. Richard J. Arneson, What Is Wrongful Discrimination?, 43 SAN DIEGO L. REV. 775,779 (2006)
99. David Crump, Evidence, Race, Intent, and Evil: The Paradox of Purposelessness in the Constitutional Racial Discrimination Cases, 27 HoFSTRA L. REV. 285, 289 (1998)
100. Andrew Koppelman, Romer v. Evans and Invidious Intent, 6 WM. & MARY BILL RTS. J. 89,93 (1997)
101. Daniel R. Ortiz, The Myth of Intent in Equal Protection, 41 STAN. L. REV. 1105,1107 (1989)
102. Louis S. Raveson, Unmasking the Motives of Government Decisionmakers: A Subpoena for Your Thoughts?, 63 N.C. L. REV. 879,963 (1985)
103. Larry G. Simon, Racially Prejudiced Governmental Actions: A Motivation Theory of the Constitutional Ban Against Racial Discrimination, 15 SAN DIEGO L. REV. 1041,1052-1053 (1978).
104. See KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION 13 (1989)
105. CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION 117 (1979)
106. Ruth Colker, Anti-Subordination Above All: Sex, Race, and Equal Protection, 61 N.Y.U. L. REV. 1003,1005-1013 (1986)
107. Paul R. Dimond, The Anti-Caste Principle-Toward a Constitutional Standard for Review of Race Cases, 30 WAYNE L. REV. 1,1 (1983)
108. Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 157 (1976)
109. Kenneth L. Karst, The Supreme Court, 1976 Term-Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 50 (1977)
110. Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 HARV. L. REV. 1470,1477 (2004)
111. Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410,2435 (1994).
112. See Washington v. Davis, 426 U.S. 229 (1976) (holding that equal protection law requires a showing of suspect classification or discriminatory purpose, beyond mere disproportionate outcomes, to invalidate state action)
113. cf. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448 (1985) ("[N]egative attitudes, or fear, unsubstantiated by factors which are properly cognizable ... are not permissible bases for [treating some groups differently than others].")
114. see also Arneson, supra note 54, at 779 ("Discrimination that is intrinsically morally wrong occurs when an agent treats a person identified as being of a certain type differently than she otherwise would have done because of... unjustified hostile attitudes toward people perceived to be of a certain kind or faulty beliefs about the characteristics of people of that type.").
115. See, e.g., Fiss, supra note 55, at 157 (arguing that the Equal Protection Clause should be understood to prohibit the government from acting in a way that "aggravates (or perpetuates?) the subordinate status of a specially disadvantaged group").
116. Robert Post, Tradition, the Self, and Substantive Due Process: A Comment on Michael Sandel, 77 CAL. L. REV. 553,559 (1989).
117. See Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601, 1610 (1986) (distinguishing "the violence of judges" from "the metaphoric characterizations of literary critics and philosophers").
118. That attitudes are often hidden or unconscious makes it difficult to determine the precise reasons for which an agent acts. See Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 322 (1987).
119. An emphasis on discriminatory intentions therefore suggests that decisionmakers should set aside certain facts about individuals - for example, their race, national origin, or sex-on the basis of which groups have been systematically disadvantaged. See Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989) (plurality opinion) ("In passing Title VII, Congress made the simple but momentous announcement that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees.").
120. 471 U.S. 222(1985).
121. Id. at 223, 228-229
122. Id. at 227.
123. 401 U.S. 424 (1970).
124. Id. at 426.
125. Id. at 432.
126. On the discriminatory-effects approach to wrongful discrimination, the permissibility of discriminatory action turns on the worthiness of the goals that the practice aims to achieve and on the gravity of any harms to which it gives rise.
127. Fiss, supra note 48, at 254.
128. Id.
129. Id. at 248 ("Societal responsibility derives not only from widespread individual participation in the practices and institutions that kept blacks in an inferior position (slavery, Jim Crowism) but also from the impact of public laws and government agencies."). The most plausible account of the discriminatory-effects approach assesses an individual's discriminatory actions not solely in terms of the difference that his action makes on its own, but also in terms of the pattern of action to whose overall effects the individual's act contributes. In some cases, an act might require widespread participation for there to be any harm. Consider Derek Parfit's hypothetical "harmless torturers," who each apply a trivial electric shock that is independently imperceptible but dreadful in the aggregate, such that the harmful consequence cannot be traced to any particular torturer's act.
130. See DEREK PARFIT, REASONS AND PERSONS 80-81 (1984). An act of private discrimination may be impermissible, on this account, even if the part a perpetrator plays in bringing about some harm is marginal in isolation, provided that the individual act "is one of a set of acts that will together harm other people."
131. Id. at 86.
132. Fiss, supra note 48, at 241 (" [A]n individual's race is not considered an accurate predictor of his productivity.... To judge an individual on the basis of his race is to judge him on the basis of his membership in a class where that membership is truly predetermined.").
133. See Norman Daniels, Meritocracy, in JUSTICE AND ECONOMIC DISTRIBUTION 164,168 (John Arthur & William H. Shaw eds., 1978).
134. See, e.g., Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 269 (1978) (striking down on equal protection grounds an admissions program that guaranteed minority applicants sixteen out of one hundred seats in the first-year class at the University of California at Davis Medical School).
135. See Kenneth DeVille, Defending Diversity: Affirmative Action and Medical Education, 89 AM. J. PUB. HEALTH 1256, 1260 (1999) ("African Americans and other minority patients have strong grounds for doubting both the goodwill and the color blindness of White medical practitioners.").
136. RONALD DWORKIN,AMATTEROF PRINCIPLE 299 (1985).
137. Such cases are straightforwardly objectionable on the discriminatory expression account described in Section ILB. Cf. Hous. Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644, 658 (6th Cir. 1991) (Keith, J., dissenting) ("[T]he exclusive use of white models [in residential housing advertisements] sends the subtle but distinct message of racial exclusion. 'Blacks need not apply.' 'Blacks are not welcome.'").
138. These examples come from Alan Wertheimer, Jobs, Qualifications, and Preferences, 94 ETHICS 99,100-101 (1983).
139. See Kerr v. Enoch Pratt Free Library, 149 F.2d 212, 214 (4th Cir. 1945) (holding that a Baltimore library violated equal protection law by denying blacks employment under circumstances in which "the trustees [of the library] were not moved by personal hostility or prejudice against the Negro race but by the belief that white library assistants can render more acceptable and more efficient service to the public where the majority of the patrons are white").
140. Wertheimer, supra note 77, at 100.
141. See id. at 107 (arguing that the moral status of rational discrimination based on the racial preferences of others depends on the moral status of the underlying preferences themselves).
142. Even if we were to assume that parental preferences for particular donors reflected racist judgments, the intent-based approach might find it difficult to provide a reason why it would be wrong for a sperm bank to pander to such prejudice. Return to the case of Ollie's Barbeque.
143. See supra notes 49-53 and accompanying text. If we believe that Mr. McClung's motive for denying sit-down service to blacks was not prejudice but profit-seeking, it will not do to absolve him of wrongdoing on the theory that "instances of racial discrimination ... that are not driven by animus" are for that reason "morally innocent." Arneson, supra note 54, at 790. To perpetuate racial bigotry by pandering to it is wrong even if one does so for benign reasons. That discriminatory intention cannot on its own terms furnish grounds to resist white-only restaurant seating suggests that moral analysis of such practices must extend beyond the reasons an agent intends.
144. See Guido Pennings, The Right To Choose Your Donor: A Step Towards Commercialization or a Step Towards Empowering the Patient?, 15 HUM. REPROD. 508, 508 (2000) ("Most women desire a donor who resembles their partner as closely as possible.")
145. Mary Lyndon Shanley, Collaboration and Commodification in Assisted Procreation: Reflections on an Open Market and Anonymous Donation in Human Sperm and Eggs, 36 LAW & SOC'Y REV. 257, 262 (2002) ("[R]eports of the incidence of DI [donor insemination] indicate that race-matching is the norm....").
146. See Quiroga, supra note 47, at 150 (arguing that one goal of race-matching in donor selection decisions is "to mimic the physical attributes of what white Americans perceive as a biological family")
147. cf. Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-CL. L. REV. 1, 6 (1994) (describing "biological race" as the view that "there exist natural, physical divisions among humans that are hereditary, reflected in morphology").
148. See Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 STAN. L. REV. 1,4 (1991) (defining racial culture as "broadly shared beliefs and social practices" racial community as "both the physical and spiritual senses of the term"; and racial consciousness as "traditions of self-awareness and... action based on that self-awareness").
149. See, e.g., MELBOURNE TAPPER, IN THE BLOOD: SICKLE CELL ANEMIA AND THE POLITICS OF RACE 2 (1999)
150. see also I. Glenn Cohen, The Right Not To Be a Genetic Parent?, 81 S. CAL. L. REV. 1115, 1156 (2008) (noting that Jewish or Asian couples may have medical reasons or other uncontroversial grounds for seeking "access to gametic material from their ethnic group, which is in short supply from sperm banks and egg brokers")
151. Dov Fox, Genomic Justice: Genetic Testing and Health Insurance in America, 1 ROOSEVELT REV. 109, 112 (2005) ("[S]tudies show that individuals of African descent are twelve times more likely than the general American population to carry the patterns of gene expression associated with sickle cell anemia.").
152. See Limited Choices, supra note 39, at 38.
153. Single mothers and lesbian couples are less likely to seek a donor of a particular race for purposes of matching the physical resemblance of one or both parents. Compared with heterosexual couples in which a social father is present, these parents will feel less social pressure to present themselves to the outside world or the child him- or herself as having conceived by means of sexual reproduction.
154. See Hanson, supra note 37, at 295 ("The issues that motivate heterosexual couples to consider resemblance to partner are not in play at all with single women and only with those few lesbian couples who see some value in having a child that looks, however fortuitously, somewhat like both of them.").
155. Whatever reasons parents have for wanting a child of a particular race, the seemingly "natural" origins of these race-matching preferences might afford the preferences a veneer of "legitimacy that derive[s] from [their] appearance of inevitability." DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION 248 (1997).
156. Under disparate impact doctrine, if a plaintiff can show that a particular facially neutral employment practice excludes minority or women candidates from consideration at a disproportionately high rate, the burden shifts to the employer to prove that the disputed practice is justified by "business necessity," and that the employer could not have met its business goals through an alternative practice with less adverse consequences for disadvantaged group members. See Dothard v. Rawlinson, 433 U.S. 321,329 (1977).
157. See, e.g., 42 U.S.C. §2000a (2000) (prohibiting racial discrimination in places of public accommodations).
158. See, e.g., id. §2000e-2 (prohibiting employers from engaging in employment discrimination based on race and other characteristics)
159. Anyan v. N.Y. Life Ins. Co., 192 F. Supp. 2d 228, 237 (S.D.N.Y. 2002) (holding that employment discrimination laws do not protect independent contractors).
160. See Joyce Howard Price, Panel Mulls Allowing Gay Men To Give Blood: Banks Cite Better HTV-Detection Tests, WASH. TIMES, Sept. 14, 2000, at A1.
161. See 10 U.S.C. §654 (prohibiting anyone who "demonstrates a propensity or intent to engage in homosexual acts" from serving in the armed forces of the United States, because it "would create an unacceptable risk to the armed forces' high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability").
162. See Banks, supra note 2, at 881 ("Adoptive parents' racial preferences dramatically diminish the pool of potential parents available to black children relative to that available to white children.").
163. I owe this point to Glenn Cohen. For discussion of the "non-identity problem" associated with moral consideration of not-yet-existing persons, see Dov Fox, Luck, Genes, and Justice, 35 J.L. MED. & ETHICS 712,713 (2007).
164. The Supreme Court first recognized the constitutional significance of psychological harm in Strauderv. West Virginia, 100 U.S. 303 (1879), which invalidated a West Virginia statute that prohibited blacks from serving on juries. Justice Strong affirmed that the Fourteenth Amendment protects blacks "from legal discrimination, implying inferiority in civil society," and concluded that the statutory exclusion from jury service was "practically a brand upon them... an assertion of their inferiority."
165. Id. at 308.
166. See LAWRENCE A. BLUM, "I'M NOT A RACIST, BUT- " THE MORAL QUANDARY OF RACE 8-11 (2002) (discussing how racism causes stigma)
167. Paul Brest, The Supreme Court, 1975 TermForeword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1, 8 (1976) ("Decisions based on assumptions of intrinsic worth and selective indifference inflict psychological injury by stigmatizing their victims as inferior.")
168. Richard A. Wasserstrom, Racism, Sexism, and Preferential Treatment: An Approach to the Topics, 24 UCLA L. REV. 581, 593 (1977) (describing stigma as a sense of shame about who one is or a sense of inferiority in the eyes of others).
169. Lawrence, supra note 60, at 351.
170. Brown v. Bd. of Educ., 347 U.S. 483, 494 & n.11 (1954) (citing psychological effects of segregation).
171. City of Memphis v. Greene, 451 U.S. 100 (1981) (finding no equal protection violation in the erection of a traffic barrier that closed off an all-white enclave to traffic consisting largely of black drivers).
172. See Brown, 347 U.S. 483.
173. See Moose Lodge No.107 v. Irvis, 407 U.S. 163 (1972) (holding that the state action doctrine excludes the refusal of food and beverage service to blacks by a private club, even where it was issued a license by a state liquor board).
174. See Palmer v. Thompson, 403 U.S. 217 (1971) (holding that the closure of city-owned pools for anti-integration purposes does not violate equal protection where there is no city involvement in the pools' operation or funding).
175. Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 427 (1960)
176. see also Plessy v. Ferguson, 163 U.S. 537, 560 (1896) (Harlan, J., dissenting) (arguing that Louisiana's racial segregation of passengers in railway cars sent a message "that [black] citizens are so inferior and degraded that they cannot be allowed to sit in public coaches [or restaurants] occupied by white citizens").
177. Cf. Ne. FIa. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993) (describing the wrong of racial classification as a "denial of equal treatment... not the ultimate inability to obtain the benefit").
178. See Dov Fox, The Regulation of Biotechnologies: Four Proposals, HASTINGS CENTER REP., Mar.Apr. 2008, at 57,57 (criticizing efforts to "filter arguments about social prejudice ... through the lens of cost-benefit analysis")
179. Dov Fox, Safety, Efficacy, and Authenticity: The Gap Between Ethics and Law in FDA Decisionmaking, 2005 MICH. ST. L. REV. 1135, 1190-1192 (identifying deficiencies in deliberative frameworks that exclude unconventional but relevant moral considerations, including those involving social prejudice).
180. See Amos Tversky, Elimination by Aspects: A Theory of Choice, 76 PSYCH. REV. 281, 284-285 (1972).
181. See LA. REV. STAT. ANN. §18:1174.1 (Supp. 1960).
182. See Anderson v. Martin, 206 F. Supp. 700,701 (D. La. 1962), rev'd, 375 U.S. 399 (1964).
183. 375 U.S. at 401-403
184. See id. at 404 ("Race is the factor upon which the statute operates ....")
185. see also LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §16-16, at 1481 n.9 (2d ed. 1988) (discussing Anderson).
186. 347 U.S. 483 (1954)
187. see Michael L. Kurtz, The Decline of Racism, 1960-1972, in LOUISIANA: A HISTORY373,373-374 (Bennett H. Wall ed., 5th ed. 2008).
188. Anderson, 375 U.S. at 402.
189. Cf. ANDREW KULL, THE COLOR-BLIND CONSTITUTION 277 n.5 (1992) ("In effect, [the Louisiana law] protected a narrow category of voters-those for whom race is a determining factor, yet who are so ill informed as to be mistaken about the race of a given candidate against casting a vote in error. The net gain or net loss to a given candidate resulting from better information on this point is probably trivial and, in any event, is incapable of proof."). Nor did the Court speculate further as to whether it thought that pandering to racial prejudice at the polls would have the further discriminatory effect of leading citizens to discriminate in other settings. For discussion of the limited empirical research available on whether the desire to discriminate in certain circumstances leads to a taste for discrimination in other circumstances,
190. see NANCY L. ROSENBLUM, MEMBERSHIP AND MORALS: THE PERSONAL USES OF PLURALISM IN AMERICA 173-174 (1998).
191. Anderson, 375 U.S. at 402.
192. Id.
193. Id. at 403 (quoting NAACP v. Alabama, 357 U.S. 449,463 (1958)). "The Constitution cannot control [racial] prejudices but neither can it tolerate them," the Court affirmed in Palmore v. Sidoti, which struck down the use of race as the basis for deciding which biological parent should have custody of a child. 466 U.S. 429, 433 (1984) ("Private [racial] biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.")
194. see also Reitman v. Mulkey, 387 U.S. 369 (1967) (invalidating Proposition 14, a housing amendment to the California Constitution that allowed real estate agents and landlords to reject homebuyers on the basis of race)
195. Charles L. Black, Jr., The Supreme Court, 1966 Term-Foreword: "State Action," Equal Protection, and California's Proposition 14, 81 HARV. L. REV. 69,108 (1967) ("[E]qual protection of the laws is denied by the state whenever the legal regime of the state ... surround [s] the discriminators with the protection and aids of law and with the assistances of communal life.").
196. Brest, supra note 97, at 7
197. see also C. Edwin Baker, Outcome Equality or Equality of Respect: The Substantive Content of Equal Protection, 131 U. PA. L. REV. 933, 959 (1983) ("[T]he state must not pursue purposes, and the political process must not further individuals' preferences, to subordinate or to denigrate the inherent worth of any category of citizens.").
198. See Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982) (striking down state support of an all-female nursing school on the grounds that it expressed the demeaning judgment that women "are presumed to suffer from an inherent handicap" that equips them uniquely for the stereotypically female vocation of nursing)
199. See also Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV. 1659, 1685-1698 (1992) (arguing that criminal acts and punishment should be understood to express status relations).
200. See Paul Woodruff, What's Wrong with Discrimination?, 36 ANALYSIS 158, 160 (1976)
201. Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and NameCalling, 17 HARV. C.R.-CL. L. REV. 133, 146-147 (1982)
202. Rae Langton, Speech Acts and Unspeakable Acts, 22 PHIL. &PUB. AFF. 293,305-308 (1993).
203. Cf. Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121, 2209 n.240 (1990) ("[T] he relevant focus of unconstitutional motivation inquiry ought to be what the social meaning of the action is understood to be, that is, whether the action is understood to express disrespect for constitutionally enshrined higher values.").
204. Discriminatory expression should be distinguished from the subtle discriminatory effects that can accompany it. To the extent that social esteem flows from the terms on which people relate to one another, the instantiation of objectionably divisive or exclusionary values can also have the effect of imperiling the social conditions on the basis of which people's sense of self-worth tends to depend.
205. See THOMAS E. HILL, JR, AUTONOMY AND SELF-RESPECT 23 (1991) (discussing the ways in which self-respect relates to the opinions of others);
206. AVISHAI MARGALIT, THE DECENT SOCIETY 125 (Naomi Goldblum trans., 1996) ("The attitude of others is built into the very concept of the value of humans which the bearer of self-respect is supposed to adopt with regard to herself."). But it is the instantiation of bad values and not the effects that flow from it which constitute the wrong of discriminatory expression.
207. See Dov Fox, Human Growth Hormone and the Measure of Man, NEW ATLANTIS, Fall 2004-Winter 2005, at 75, 80 ("[T]he meaning of an activity emerges as a function of context, not simply intention.")
208. Dov Fox & Christopher L. Griffin, Jr., The Americans with Disabilities Act and Disability-Selective Abortion, 2009 UTAH L. REV. (forthcoming Sept. 2009) (arguing that an act's expressive content turns not on whether people actually perceive it as having a bad meaning, but on whether that meaning is readily perceivable from the way the act fits within the context of community norms and practices).
209. See Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503,1538-1540 (2000) (arguing that constitutional law should account for the expressive component of state action)
210. Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943, 947 (1995) (discussing ways in which public and private norms and practices can "act to construct the... social meanings that surround us")
211. But see Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. PA. L. REV. 1363, 1462-1493 (2000) (arguing that whatever linguistic meaning attaches to a government action does not, in itself, matter morally).
212. See CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY 58,70 (1983) (suggesting that interpreting human attitudes and meanings is less like "putting oneself into someone else's skin" than it is like "grasping a proverb, catching an allusion, seeing a joke").
213. Robert M. Cover, The Supreme Court, 1982 Term-Foreword: Nomos and Narrative, 97 HARV. L. REV. 4,4 (1983).
214. See supra notes 99-104 and accompanying text
215. see also ROBERT C. POST, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT 58 (1995)
216. (citing Joel Feinberg, The Nature and Value of Rights, 4 J. VALUE INQUIRY 243,252 (1970)) ("[D]ignitary harm depends not on the psychological condition of an individual plaintiff but rather on the forms of respect that a plaintiff is entitled to receive from others.")
217. Deborah Hellman, The Expressive Dimension of Equal Protection, 85 MINN. L. REV. 1, 55 (2000) (arguing that state segregation of day care centers "would violate Equal Protection notwithstanding the fact that the babies suffer no psychological harm").
218. Shaw v. Reno, 509 U.S. 630, 657 (1993).
219. Anderson v. Martin, 375 U.S. 399,402 (1964).
220. Cf. Bush v. Vera, 517 U.S. 952, 980 (1996) (holding that "bizarre shape and noncompactness" in voting districts "cause constitutional harm insofar as they convey the message that political identity is, or should be, predominantly racial").
221. Anderson, 375 U.S. at 402.
222. See J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 YALE L.J. 1001,1018-1019 (1976) ("Self-governing people... penetrate to the merits of the [candidates'] arguments.").
223. See ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY 245 (1957) ("[For many voters], rational behavior implies both a refusal to expend resources on political information perse and a definite limitation of the amount of free political information absorbed.").
224. Cook v. Gralike, 531 U.S. 510, 526 (2001) (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 833-834 (1995) (internal quotations marks omitted))
225. cf. id. at 532 (Rehnquist, C.J., concurring) (arguing that a Missouri constitutional provision which mandated that the label "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" be printed on the ballot next to the name of any incumbent congressmen who failed to support a federal constitutional amendment for congressional term limits should be invalidated on First Amendment grounds because by choosing "one and only one issue to comment on [regarding] the position of the candidates ... the State is saying that the issue of term limits is paramount").
226. Anderson, 375 U.S. at 402.
227. See Stanley Fish, When 'Identity Politics' Is Rational, TimesPeople, Feb. 17, 2008, http://fish.blogs.nytimes.com/2008/02/17/when-identity-politics-is- rational ("[E]very African American-conservative or liberal, rich or poor, barely educated or highly educated-meets with obstacles to his or [sic] success and mobility that are all the more frustrating because they are structural (built into the culture's ways of perceiving) rather than official- It makes sense, therefore, that an African American voter could come to the conclusion that an African American candidate would be likely to fight for changes that could remove barriers a white candidate might not even see.").
228. But see Martha Minow, Not Only for Myself: Identity, Politics, and Law, 75 OR. L. REV. 647, 656 (1996) (arguing that the existence of multiple and shifting identities cuts against the coherence of any attempt to identify political representatives who can genuinely be described as sharing an individual's overlapping group memberships).
229. Fish, supra note 136.
230. See Anderson, 375 U.S. at 402. Justice Clark argued that the wrong of racial tags on Louisiana ballots "has nothing whatever to do with the right of a citizen to cast his vote for whomever he chooses and for whatever reason he pleases or to receive all information concerning a candidate- necessary to a proper exercise of his franchise."
231. Id.
232. See Richard H. Pildes, Ethnie Identity and Democratic Institutions: A Dynamic Perspective, in CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES: INTEGRATION OR ACCOMMODATION? 173, 182 (Sujit Choudhry ed., 2008) (arguing that "the structure of democratic elections profoundly altered the extent to which racial identities were made salient and were mobilized" in late nineteenth-century American South);
233. Robinson, supra note 2, at 2792 ("Subtle structural differences in design might very well influence the likelihood that the user [of a dating website] expresses and acts on a racial preference.").
234. See generally Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 CAL. L. REV. 1, 31 (2000) (defending a "sociological account" of antidiscrimination law whose purpose is to "transform [] preexisting social practices, such as race or gender, by reconstructing the social identities of persons").
235. Compare Justice Stewart's dissenting opinion in Fullilove v. Klutznick, 448 U.S. 448 (1980), in which the majority validated a federal program requiring that 10% of funding for public works be reserved for minority owned businesses. Justice Stewart objected that in "[m]aking race a relevant criterion - the Government implicitly teaches the public that the apportionment of rewards and penalties can legitimately be made according to race-rather than according to merit or ability-and that people can, and perhaps should, view themselves and others in terms of their racial characteristics."
236. Id. at 532;
237. cf. Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 602 (1990) (O'Connor, J., dissenting) ("Social scientists may debate how peoples' thoughts and behavior reflect their background, but the Constitution provides that the Government may not allocate benefits and burdens among individuals based on the assumption that race or ethnicity determines how they act or think.").
238. Oppressed during slavery and Jim Crow, African Americans are still denied the privileges society prizes and the professions the market rewards.
239. See, e.g., JOHN YINGER, CLOSED DOORS, OPPORTUNITIES LOST: THE CONTINUING COSTS OF HOUSING DISCRIMINATION 31-49 (1995) (documenting discriminatory behavior against blacks by real estate agents and mortgage lending officers);
240. Michael Fix, George C. Galster & Raymond J. Struyk, An Overview of Auditing for Discrimination, in CLEAR AND CONVINCING EVIDENCE: MEASUREMENT OF DISCRIMINATION IN AMERICA 1, 18-25 (Michael Fix & Raymond J. Struyk eds., 1993) (finding prejudicial judgments among and denial of opportunities by employers with respect to minorities).
241. Miller v. Johnson, 515 U.S. 900, 916 (1995).
242. See, e.g., EDWARD G. CARMINES & JAMES A. STIMSON, ISSUE EVOLUTION: RACE AND THE TRANSFORMATION OF AMERICAN POLITICS (1989) ;
243. HUGH DAVIS GRAHAM, THE CIVIL RIGHTS ERA: ORIGINS AND DEVELOPMENT OF NATIONAL POLICY, 1960-1972 (1990) ;
244. RACE, POLITICS, AND GOVERNANCE IN THE UNITED STATES (Huey L. Perry ed., 1996).
245. Anderson v. Martin, 375 U.S. 399,402 (1964).
246. See Shaw v. Reno, 509 U.S. 630, 647 (1993) ("[Racial gerrymandering] reinforces the perception that members of the same racial group - regardless of their age, education, economic status, or the community in which they live-think alike, share the same political interests, and will prefer the same candidates at the polls.") ;
247. Bush v. Vera, 517 U.S. 952, 1055 (1996) (Souter, J., dissenting) (describing the legal injury alleged in Shaw as "reinforcement of the notion that members of a racial group will prefer the same candidates at the polls");
248. Richard H. Pildes & Richard G. Niemi, Expressive Harms, "Bizarre Districts, " and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483, 526-527 (1993) (characterizing as "expressive" the Supreme Court's justification in Shaw for striking down majority-minority election districts in which "race concerns appear to submerge all other legitimate redistricting values").
249. Cf. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 630-31 (1991) ("If our society is to continue to progress as a multiracial democracy, it must recognize that the automatic invocation of race stereotypes retards that progress and causes continued hurt and injury.");
250. Holland v. Illinois, 493 U.S. 474, 484 n.2 (1990) ("[A] prosecutor's assumption that a black juror may be presumed to be partial simply because he is black - violates the Equal Protection Clause." (internal quotation marks omitted)).
251. See Pildes & Niemi, supra note 145, at 486 ("The VRA not only permits, but requires policymakers, in certain specific circumstances, to be race conscious when they draw electoral district lines.").
252. See, e.g., 42 U.S.C. §1973(b) (2000) (noting that "[t]he extent to which members of a protected class have been elected to office - is one circumstance which may be considered" in evaluating a minority vote-dilution claim).
253. See supra note 125 and accompanying text.
254. City of Richmond v. J.A. Croson Co., 488 U.S. 469,493 (1989) (plurality opinion) (internal quotation marks omitted).
255. See U.S. CONST, amend. XV.
256. See McDaniel v. Barresi, 402 U.S. 39, 41-42 (1971) (upholding the constitutionality of a race-conscious assignment of students to public schools).
257. See United States v. Paradise, 480 U.S. 149, 185-186 (1987) (upholding the constitutionality of a race-conscious employment rule for promoting state troopers).
258. See Bush v. Vera, 517 U.S. 952, 993 (1996) (O'Connor, J., concurring) (arguing that states may take race into account when creating voting districts "so long as they do not subordinate traditional districting criteria to the use of race for its own sake or as a proxy").
259. See, e.g., Patricia Gurin, Biren A. Nagda & Gretchen E. Lopez, The Benefits of Diversity in Education for Democratic Citizenship, 60 J. Soc. ISSUES 17, 28-31 (2004) (analyzing social science studies and concluding that racial and ethnic diversity in academic settings has positive effects on "democratic sentiments and citizen participation" among students).
260. See, e.g., Elizabeth S. Anderson, Integration, Affirmative Action, and Strict Scrutiny, 77 N.Y.U. L. REV. 1195, 1223 (2002) (defending race-based affirmative action programs on the grounds that "whites who grew up in predominantly white neighborhoods, but attended colleges with relatively high proportions of minority students, are much more likely to have friends, neighbors, and co-workers of diverse racial backgrounds than their white neighbors who attended colleges with low racial diversity").
261. See Caulfield v. Bd. of Educ., 583 F.2d 605 (2d Cir. 1978) (denying a preliminary injunction to prevent the federal collection of racial data to enforce Title VI) ;
262. Morales v. Daley, 116 F. Supp. 2d 801, 814-15 (S.D. Tex. 2000), aff d sub nom. Morales v. Evans, 275 F.3d 45 (5th Cir. 2001) (upholding the Census Bureau's requirement that individuals "self-classify racially or ethnically, knowing to what use such classifications have been put in the past");
263. see also Hamm v. Va. State Bd. of Elections, 230 F. Supp. 156, 158 (E.D. Va. 1964) ("If the purpose [for keeping racial data] is legitimate, the reason justifiable, then no infringement results."), aff d sub nom. Tancil v. Woolls, 379 U.S. 19 (1964). The Tancil Court upheld, without opinion, a Virginia law requiring that public records including voter registration, property ownership, and poll tax and residence-certificate lists be filed and maintained according to the race of the citizens whose interests were at issue.
264. Cf. Richard H. Pildes, Diffusion of Political Power and the Voting Rights Act, 24 HARV. J.L. & PUB. POL'Y 119, 124 (2000) ("Districted elections empower local minorities who would otherwise be swallowed up in a system not self-consciously designed to ensure some representation of their interests."). The possibility that remedial purposes could, under sufficiently compelling circumstances, justify identifying the race of individual candidates suggests that Judge Wisdom's Anderson opinion went too far in asserting that the government could never legitimately invoke race on electoral ballots.
265. See Anderson v. Martin, 206 F. Supp. 700, 705 (1962) (Wisdom, J., dissenting) ("If there is one area above all others where the Constitution is color-blind, it is the area of state action with respect to the ballot and the voting booth."), rev'd, 375 U.S. 399 (1964). Judge Wisdom articulated a more nuanced position of permissible color-consciousness five years later in desegregating school faculties "lock, stock, and barrel."
266. See United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 876 (5th Cir. 1966) ("The Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. The criterion is the relevancy of color to a legitimate governmental purpose."), aff d per curiam, 380 F.2d 385 (5th Cir.) (en banc).
267. See Lee v. Washington, 390 U.S. 333 (1968) (affirming an order of racial desegregation in Alabama prisons).
268. See Brown v. City of Oneonta, 221 F.3d 329, 333-334 (2d Cir. 2000) ("[W]here law enforcement officials possessed a description of a criminal suspect, even though that description consisted primarily of the suspect's race and gender, absent other evidence of discriminatory racial animus, they could act on the basis of that description without violating the Equal Protection Clause.").
269. But see Hall v. Pa. State Police, 570 F.2d 86 (3d Cir. 1978) (invalidating a police photography program targeted at black bank customers).
270. See supra note 47 and accompanying text.
271. Consider a 2000 New York case in which two couples, one black and one white, visited a Manhattan fertility clinic on the same day to provide gametes for in vitro fertilization.
272. See Perry-Rogers v. Fasano, 715 N.Y.S.2d 19 (App. Div. 2000). The clinic accidentally mixed the resulting embryos, and the white mother was impregnated with embryos from both couples, resulting in twin boys, one of whom had Caucasian features, the other of whom had African-American features.
273. See id. at 21-22. Widespread media coverage emphasized less the embryo-switching itself, or the asserted injuries of unwittingly carrying another couple's embryo or giving birth to another's biological child, than that a white embryo was swapped for a black one, and the injury of getting a black child instead of a white one. See, e.g., Michael Grunwald, In Vitro, in Error-and Now in Court; White Mother Given Black Couple's Embryos Will Give One 'Twin' Back, WASH. POST, Mar. 31, 1999, at Ai;
274. Kathleen Parker, Baby Case Ends with Multiracial Scrambled Eggs, CHI. TRIB., June 21, 2000, at 17.
275. See Dov Fox, Paying for Particulars in People-To-Be: Commercialization, Commodification and Commensurability in Human Reproduction, 34 J. MED. ETHICS 162, 165-166 (2008) (considering the implications of a racially bifurcated market for donor gametes according to relative price or according to the purpose of reproduction as opposed to research).
276. Anderson v. Martin, 375 U.S. 399, 402 (1964).
277. Some argue that private discrimination, which involves fewer decision-makers and often takes place behind closed doors, is more difficult to detect than similar discriminatory acts by the state.
278. See Matt Zwolinski, Why Not Regulate Private Discrimination?, 43 SAN DIEGO L. REV. 1043, 1045 (2006) (" [E]pistemic hurdles to discovering [private] discrimination make it a poor target for legal regulation [because these are] choices about which the individual alone may have information, and which she is not typically called upon to justify to others in any sort of written or documented form."). Others have argued that regulating the exercise of personal beliefs would prove ineffective or even counterproductive.
279. See JOHN LOCKE, A LETTER CONCERNING TOLERATION 27 (James H. Tally ed., Hackett Publishing Co. 1983) (1689) (arguing that people "cannot be compell'd to the belief of any thing by outward force").
280. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 190-91 (1970) (Brennan, J., concurring in part and dissenting in part) ("[D]enials of equal treatment, and particularly denials on account of race or color, are singularly grave when government has or shares responsibility for them.").
281. See Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974) (holding that even harmful and invidious discrimination, when performed by private citizens, is considered the sort of "private conduct, 'however discriminatory or wrongful,' against which the Fourteenth Amendment offers no shield" (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948))).
282. See, e.g., 42 U.S.C. §2000a (2000) (prohibiting segregation in public accommodations).
283. But see Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) (prohibiting the exclusion of women from membership in the Jaycees organization).
284. Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982);
285. see also DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195 (1989) (holding that while the Fourteenth Amendment "forbids the State itself to deprive individuals of life, liberty, or property without 'due process of law' its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means").
286. See Austin Sarat & Thomas R. Kearns, A Journey Through Forgetting: Toward a Jurisprudence of Violence, in THE FATE OF LAW 211 (Austin Sarat & Thomas R. Kearns eds., 1991) (discussing "the ways that law manages to work its lethal will, to impose pain and death while remaining aloof and unstained by the deeds themselves").
287. In terms of constitutional antidiscrimination doctrine, the distinction between public and private action is determinative. See United States v. Morrison, 529 U.S. 598, 621 (2000) ("'The principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States.'" (quoting Shelley, 334 U.S. at 13));
288. The Civil Rights Cases, 109 U.S. 3, 11 (1883) ("[I]ndividual invasion of individual rights is not the subject-matter of [equal protection law]."). The crucial normative question, however, is not whether the state can be said to have caused a harmful practice, but rather whether the harm a practice causes is serious, and whether the state has responsibility to do something to remedy that harm.
289. See City of Canton v. Harris, 489 U.S. 378, 388 (1989) (holding that a city's "failure to train" its officials, if the result of "deliberate indifference," can qualify as a statutory civil rights violation);
290. see also Don Herzog, The Kerr Principle, State Action, and Legal Rights, 105 MICH. L. REV 1, 33 (2006) ("[S] tate action is about responsibility, not causation.").
291. See Martha Minow, The Supreme Court, 1986 Term -Foreword: Justice Engendered, 101 HARV. L. REV. 10, 68 (1987) ("Power is at its peak when it is least visible, when it shapes preferences, arranges agendas, and excludes serious challenges from discussion or even imagination.") ;
292. see also BRUCE ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE 19 (1980) (arguing that liberal societies should "deny any fundamental power structure the priceless advantage of invisibility").
293. See supra notes 14-17 and accompanying text (noting marketing practices by California Cryobank);
294. see also George Katona, Rational Behavior and Economic Behavior, in 2 MARKETING: CRITICAL PERSPECTIVES ON BUSINESS AND MANAGEMENT 332, 335-336 (Michael J. Baker ed., 2001) (discussing the influence of market power and commercial marketing on human understanding and behavior).
295. See Rae Langton, Subordination, Silence, and Pornography's Authority, in CENSORSHIP AND SILENCING: PRACTICES OF CULTURAL REGULATION 261, 264 (Robert C. Post ed., 1998) (comparing the influence that the Catholic church exercises over its supporters and others to the influence that pornographers exercise over pornography's consumers and others).
296. See Abby Ellin, The Recession. Isn't It Romantic?, N.Y. TIMES, Feb. 12, 2009, at E9 (discussing the recent rise in online dating among underemployed singles who find themselves with more time but less money to meet people, and citing an online dating consultant for the projection that "about 30 million people will log on this year to one of the estimated 1,500 online dating services nationwide").
297. Personal advertisements published in the classified sections of newspapers and magazines often express racial preferences for partners to share in dating or marriage. See Theresa Montini & Beverly Ovrebro, Personal Relationship Ads: An Informed Balancing Act, 33 SOC. PERSP. 327, 331 (1990) ("Wealthy, entrepreneurial, fun loving, energetic, playful, said to be handsome, single WM, thirtyish. Seeks cute, young, petite, single WF for travel-mate and all around companion.");
298. cf. Raymond Fisman et al., Racial Preferences in Dating, 75 REV. ECON. STUD. 117, 131 (2008) (observing "strong racial preferences" in speed dating decisions, "even in a population of relatively progressive individuals").
299. For an economic analysis of race-based mate selection, see Gary S. Becker, A Theory of Marriage: Part I, 81 J. POL. ECON. 813 (1973).
300. EPSTEIN, supra note 53, at 68 ("In certain cases it may be that the preferences for voluntary segregation are based on ill will or other uglier sentiments - Nonetheless, the advantages of voluntary sorting cannot be ignored").
301. See Kang, supra note 2, at 1142 ("[I]n the marketplace for romance, disclosing race is the current fashion, and neither public morality nor law protests." (citations omitted));
302. Alan Wertheimer, Reflections on Discrimination, 43 SAN DIEGO L. REV. 945, 955 (2006) ("[M]ating choices are the result of direct differentiations by particular persons, but they do not seem to qualify as wrongful discrimination because they occur in an area of life that we believe should be immune from governmental intervention.").
303. KENNEDY, supra note 2, at 31.
304. Our intuitions about race-matching in the romantic sphere might not be so easily explained by the effects-based approach to wrongful discrimination. Suppose that same-race personal ads had the effect of exacerbating segregation in neighborhoods and employment. Such ads may well promote social segregation. See THOMAS C. SCHELLING, MICROMOTIVES AND MACROBEHAVIOR 135-66 (1978) (using economic models to explain how same-race family dynamics can explain how American neighborhoods have become racially stratified) ;
305. cf. I. Bennett Capers, Policing, Race, and Place, 44 HARV. C.R.-C.L. L. REV. 43, 53-55 (2009) (arguing that residential segregation harms individuals by reducing their social capital).
306. Nor is it implausible to think that same-race ads may reduce the chances that intimate relationships develop between blacks and whites, see Note, Racial Steering in the Romantic Marketplace, 107 HARV. L. REV. 877, 884 (1994),
307. or reinforce the exclusion of blacks from the informal networks of association among families, friends, and neighbors that tend to open up access to educational opportunity and career advancement, see GLENN C. LOURY, THE ANATOMY OF RACIAL INEQUALITY 95-99 (2002) (discussing tendencies among whites to limit close personal contact with blacks to formal, nonintimate relationships).
308. If we were to assume that the social costs of permitting the expression of racial preferences in personal ads are greater than the costs of staving off those preferences, we might nevertheless think that it is permissible for businesses to facilitate race-conscious assortative mating. See JAN NARVESON, RESPECTING PERSONS IN THEORY AND PRACTICE 208 (2002) ("If I marry Amanda because [of her race]- I do not thereby wrong the- candidates who are thus rejected."). The discriminatory effects approach has trouble explaining our belief that racial classification in the romantic sphere is acceptable even if it has harmful social effects.
309. Cf. RANDALL KENNEDY, RACE, CRIME, AND THE LAW 161 (1997) (discussing racial profiling by law enforcement).
310. Cf. PAUL R. ABRAMSON, ROMANCE IN THE IVORY TOWER: THE RIGHTS AND LIBERTY OF CONSCIENCE 14 (2007) (arguing that "[h]aving sole personal discretion over the choice of whom to romance" is, even in the context of student-faculty relations, a "fundamental right of conscience").
311. For trenchant reflections on the public endorsement of racially prescribed self-understandings and social behavior, see RICHARD THOMPSON FORD, RACIAL CULTURE: A CRITIQUE 23-28 (2005).
312. Ford argues that the plaintiff's claim in Rogers v. American Airlines, 527 F. Supp. 229 (1981), that blacks or black women have a cultural essence as blacks or as black women, does not serve as "a vehicle of racial empowerment."
313. Id. at 25.
314. Reva B. Siegel, The Racial Rhetorics of Colorblind Constitutionalism: The Case of Hopwood v. Texas, in RACE AND REPRESENTATION: AFFIRMATIVE ACTION 29, 57 (Robert Post & Michael Rogin eds., 1998).
315. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 852 (1992) (holding that the state may not place undue burdens on a woman's decision to terminate a pregnancy).
316. See, e.g., NAACP v. Alabama, 357 U.S. 449, 466 (1958) (striking down a statute requiring disclosure of group membership lists).
317. See MATT CAVANAGH, AGAINST EQUALITY OF OPPORTUNITY 153 (2002) ;
318. Nancy L. Rosenblum, Compelled Association: Public Standing, Self-Respect, and the Dynamic of Exclusion, in FREEDOM OF ASSOCIATION 75, 83 (Amy Gutmann ed., 1998);
319. Peter Singer, Is Racial Discrimination Arbitrary?, 8 PHILOSOPHIA 185, 192 (1978).
320. See Cover, supra note 126, at 32 ("Freedom of association implies a degree of normgenerating autonomy on the part of the association.").
321. See WILL KYMLICKA, LIBERALISM, COMMUNITY AND CULTURE 12 (1989) ("[N]o life goes better by being led from the outside according to values the person doesn't endorse.").
322. Prince v. Massachusetts, 321 U.S. 158, 166 (1944);
323. see Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) ("[F]reedom of personal choice in matters of-family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.");
324. Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (invalidating a zoning ordinance that limited residential occupancy to a statutorily defined family). The protected family realm has been judged sufficiently expansive to include a "right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opinion) (citing Stanley v. Illinois, 405 U.S. 645, 651 (1972));
325. see also Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-535 (1925) (invaliding a law forcing children to attend public schools on grounds that it "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control");
326. Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (invoking due process rights "to marry, establish a home and bring up children" as a basis for striking down a state law that barred the teaching of languages other than English in public schools).
327. See Rogers M. Smith, The Constitution and Autonomy, 60 TEX. L. REV. 175, 175 (1982) ("The rise of autonomy as a fundamental value can be discerned - in cases involving contraception, abortion, and other family and life-style issues -" (citations omitted)) ;
328. Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 789-90 (1989) (arguing against antiabortion laws on grounds that "the compulsion to carry a fetus to term, to deliver the baby, and to care for the child in the first years of its life - exert power productively over a woman's body and, through the uses to which her body is put, forcefully reshape and redirect her life" (citations omitted)).
329. See Skinner v. Oklahoma, 316 U.S. 535 (1942).
330. See Loving v. Virginia, 388 U.S. 1 (1967).
331. See Griswold v. Connecticut, 381 U.S. 479, 495 (1965).
332. See Roe v. Wade, 410 U.S. 113 (1973).
333. See Witbeck-Wildhagen v. Wildhagen, 667 N.E.2d 122, 125-26 (Ill. App. Ct. 1996) ("Just as a woman has a constitutionally protected right not to bear a child, a man has a right not to be deemed the parent of a child that he played no part in conceiving." (citation omitted));
334. Kass v. Kass, 696 N.E.2d 174, 179 (N.Y. 1998) ("[The] disposition of- [embryos created by in vitro fertilization] does not implicate a woman's right of privacy or bodily integrity in the area of reproductive choice -");
335. Davis v. Davis, 842 S.W.2d 588, 602 (Tenn. 1992) (finding "the state's interest in potential human life is insufficient to justify an infringement on the gamete-provider's procreational autonomy" because "no other person or entity has an interest sufficient to permit interference with the gamete-providers' decision to continue or terminate the IVF process").
336. John Harris, Rights and Reproductive Choice, in THE FUTURE OF HUMAN REPRODUCTION: ETHICS, CHOICE, AND REGULATION 5, 34 (John Harris & Søren Holm eds., 1998);
337. see also RONALD DWORKIN, LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM 148 (1994) (defending the "right [of women] to control their own role in procreation unless the state has a compelling reason for denying them that control");
338. JOHN A. ROBERTSON, CHILDREN OF CHOICE: FREEDOM AND THE NEW REPRODUCTIVE TECHNOLOGIES 16 (1994) (defending a constitutional right of "procreative liberty" that protects "the freedom to decide whether or not to have offspring and to control the use of one's reproductive capacity") ;
339. John A. Robertson, Liberty, Identity, and Human Cloning, 76 TEX. L. REV. 1371, 1441 (1998) (same).
340. But cf. Daniel Markovits, Contract and Collaboration, 113 YALE L.J. 1417, 1462-1463 (2004) (arguing that contracts establish a moral relation of recognition and respect among those who participate in them).
341. See California Cryobank, Inc., Anonymous Donor Contact Policy, http://www.cryobank.com/Services/Post-Conception-Services/Openness-Policy (last visited Feb. 20, 2009) ("A parent may not, either for themselves or on behalf of their underage child, receive any additional information on their donor beyond the available profile.").
342. See Radhika Rao, Reconceiving Privacy: Relationships and Reproductive Technology, 45 UCLA L. REV. 1077, 1118 (1998) (developing a conception of relational privacy that excludes an asserted "right to select donor sperm, eggs, or embryos for genetic reasons").
343. Frances Kamm argues that norms of parental love for an unborn child are unintelligible. She compares the idea that parents could be governed by affective attachments for a child before that child comes into being with the implausible notion that partners should be governed by norms of romantic love for their companion before the first encounter between them. " [B]efore a particular person whom we love exists (just as before we find someone to love)," she argues, "it is permissible to think more broadly in terms of the characteristics we would like to have in a person and that we think it is best for a person to have -" Frances M. Kamm, Is There a Problem with Enhancement?, 5 AM. J. BIOETHICS 5, 9 (2005). The analogy Kamm draws between love for a partner and love for a child fails to appreciate the uniquely primordial character of parent-child bonds, which can take hold even before parents learn about whether the child's attributes are ones that the parents wished for or would come to value. The type of parental attachment we find appealing cannot justifiably be forsaken for the reason that parents do not like a child's particular personality or IQ or looks. The kind of love we think parents should have for their children is less aptly described by a finicky attitude that Kamm calls "love [for] the particular" than by a welcoming disposition for whatever kind of person comes to occupy the child's special role within the parent-child relationship.
344. See Dov Fox, Parental Attention Deficit Disorder, 25 J. APPLIED PHIL. 246, 257-58 (2008).
345. Cf. Roberts v. U.S. Jaycees, 468 U.S. 609, 620 (1984) ("[T]he Constitution undoubtedly imposes constraints on the State's power to control the selection of one's spouse that would not apply to regulations affecting the choice of one's fellow employees.").
346. Zwolinski, supra note 165, at 1051-1052
347. See supra note 120 and accompanying text.
348. See Aaron Smith-McLallen et al., Black and White: The Role of Color Bias in Implicit Race Bias, 24 Soc. COGNITION 46 (2006) (discussing the findings of studies using as stimuli racially stereotypic names and photographs cropped to show facial features and skin color).
349. Cf. RICHARD J. HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE 269-315 (1994) (drawing on a dubious empirical analysis to argue that blacks tend to be less intelligent genetically than whites, and that this heritably inferior cognitive ability in minority groups contributes to social problems including crime, poverty, and unemployment).
350. ANDREW HACKER, TWO NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL 36 (2d ed. 1995).
351. See id. at 42;
352. see also Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1761 (1992) ("Among whites, the idea persists that their whiteness is meaningful."). Few whites may be willing to trade places with even a more wealthy and successful black person.
353. See Owen Fiss, Another Equality, ISSUES IN LEGAL SCHOLARSHIP, 2004, art. 20, at 22, http://www.bepress.com/ils/iss2/art20 ("Even rich blacks are blacks. They enjoy the privileges that wealth can buy, but they are encumbered by doubts and expectations not experienced by whites who may enjoy the same economic or social status.").
354. See Bartholet, supra note 2, at 1165.
355. See supra note 42 and accompanying text.
356. See Roberts, supra note 37, at 244 (" [R]eproductive technologies are so popular in American culture not simply because of the value placed on the genetic tie, but because of the value placed on the white genetic tie.");
357. id. at 246 ("In the American market, a Black child is indisputably an inferior product.");
358. cf. Dorothy E. Roberts, Crime, Race, and Reproduction, 67 TUL. L. REV. 1945, 1966 (1992-1993) (discussing "the coercive use of the contraceptive Norplant to punish female offenders and the prosecution of women who use drugs during pregnancy");
359. Dorothy E. Roberts, Race and the New Reproduction, in CRITICAL RACE THEORY: THE CUTTING EDGE 543, 546 (Richard Delgado & Jean Stefancic eds., 2d ed. 1999) (discussing the frequency of sterilization among poor and uneducated black women). The perceived preference for white donors and not black donors may help to explain why Patricia Williams' vision of "guerilla insemination" is so provocative. Williams imagines a future in which vials of black sperm are smuggled into sperm banks: "What happens if it is no longer white male seed that has the prerogative of dropping noiselessly and invisibly into black wombs, swelling ranks and complexifying identity? Instead it will be disembodied black seed that will swell white bellies-"
360. PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS 188 (1991).
361. The Supreme Court has been sensitive to the dimension of salience in its equal protection analysis of race-conscious redistricting, affirmative action, and school desegregation.
362. On redistricting, see Shaw v. Reno, 509 U.S. 630, 644, 647 (1993) (citation omitted), which found constitutional harm in "[r]edistricting legislation - so bizarre on its face that it is unexplainable on grounds other than race" and which argued that "reapportionment is one area in which appearances do matter";
363. on affirmative action, see City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion), which held that "[classification based on race - [u]nless they are strictly reserved for remedial settings - may in factlead to a politics of racial hostility";
364. and on school desegregation, see Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No.1,127 S. Ct. 2738, 2797 (2007) (Kennedy, J., concurring), which noted that "[c]rude measures of this sort threaten to reduce children to racial chits valued and traded according to one school's supply and another's demand."
365. Several commentators have discussed the significance of racial salience in the Court's equal protection jurisprudence. See, e.g., Elizabeth S. Anderson, Integration, Affirmative Action, and Strict Scrutiny, 77 N.Y.U. L. REV. 1195, 1236 (2002) ("The Court prefers that, when states consider race, their actions are ambiguous enough to be explained in other ways.");
366. Samuel Issacharoff, Can Affirmative Action Be Defended?, 59 OHIO ST. L.J. 669, 693 (1998) (" [W] here the racial considerations are too central, too visible - they are almost certain to fail.");
367. Robert C. Post, The Supreme Court, 2002 Term-Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 75 (2003) (interpreting Grutter and Gratz to mean that "[r] acial inequalities can be addressed, but only in ways that efface the social salience of racial differences").
368. See Devon W. Carbado & Cheryl I. Harris, The New Racial Preferences, 96 CAL. L. REV. 1139, 1209 (2008) ("[C]olorblindness occurs whenever there is no conscious or unconscious awareness of race.");
369. cf. Kang, supra note 2, at 1155 ("By making it easier for us to wear a racial veil, cyberspace promotes racial anonymity.").
370. Craigslist.org also provides that users should flag for removal any advertisement that expresses a racial preference. See Craigslist, Fair Housing is Everyone's Right!, http://www.craigslist.org/about/FHA.html (last visited Mar. 5, 2008) ("If you encounter a housing posting on craigslist that you believe violates the Fair Housing laws, please flag the posting as 'prohibited.'").
371. Cf. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 314 (1978) (holding that universities may use race-conscious measures only if race is one of many factors considered relevant to achieving a diverse student body).
372. Grutter v. Bollinger, 539 U.S. 306, 337 (2003) (distinguishing affirmative action programs that evaluate "each applicant- as an individual" from programs that make "an applicant's race or ethnicity the defining feature of his or her application").
373. Cf. Robinson, supra note 2, at 2792.
374. See supra notes 43-48 and accompanying text.
375. See California Cryobank, supra note 40.
376. See California Cryobank, Inc., supra note 46.
377. Id.
378. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 318 (1978) (distinguishing Davis's quota system, which took race as grounds for applying distinct admissions criteria, from Harvard's preference system, which considered race as one favorable factor among others).
379. See Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489, 1536-37 (2005) (noting the relevance of social cognition research about implicit bias for a range of legal and moral questions) ;
380. Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161, 1239 (1995) (applying insights from cognitive psychology to argue that "a broad class of discriminatory employment decisions results not from discriminatory motivation, but from a variety of unconscious and unintentional categorization-related judgment errors");
381. Lawrence, supra note 60, at 322 (arguing that "a large part of the behavior that produces racial discrimination is influenced by unconscious racial motivation").
382. See Gotanda, supra note 84, at 16 ("This technique of 'noticing but not considering race' implicitly involves recognition of [an individual's] racial category and a transformation or sublimation of that recognition so that the racial label is not 'considered' in [an actor's] decisionmaking process.");
383. id. at 19 ("To argue that one did not really consider the race of an African-American is to concede that there was an identification of Blackness. Suppressing the recognition of a racial classification in order to act as if a person were not of some cognizable racial class is inherently racially premised.").
384. See Carbado & Harris, supra note 214, at 1210 (considering but not endorsing the claim that "efforts to discount or ignore race after it has already been noticed are unlikely to be successful because of how race operates unconsciously");
385. Krieger, supra note 224, at 1240 ("A legal duty which admonishes people simply not to consider race, national origin or gender harkens to Dostoevsky's problem of the polar bear: 'Try - not to think of a polar bear, and you will see that the cursed thing will come to mind every minute.'").
386. See supra notes 186, 188, 192 and accompanying text.
387. Gratz v. Bollinger, 539 U.S. 244, 271 (2003) (citing Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 315 (1978)).
388. Bakke, 438 U.S. at 317 (approving an affirmative action program in which race is "deemed a 'plus' in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates").
389. See Amos Tversky, Shmuel Sattath & Paul Slovic, Contingent Weighting in Judgment and Choice, 95 PSYCHOL. REV. 371, 372 (1988) (observing that "people tend to choose according to the more important dimensions" since "the more prominent attribute will weigh more heavily" in the decision-making calculus). The behavioral effects of informational salience have been noted by at least one court, in the context of torts.
390. See Allen v. Chance Mfg. Co., 873 F.2d 465, 470 (1st Cir. 1989) ("People's assessments of the causes of events are inevitably influenced by the array of possible causes that are made salient to them.").
391. Cf. Russell K. Robinson, Casting and Caste-ing: Reconciling Artistic Freedom and Antidiscrimination Norms, 95 CAL. L. REV. 1, 51 (2007) ("Courts can - accommodate both speech and equality in the casting context by creating minor procedural hurdles that create space for decision makers to consider the race and/or sex designation carefully and reflect on alternative casting options prior to making their ultimate decision.").
392. See Ward v. Ward, 216 P.2d 755, 756 (Wash. 1950) (awarding custody to a black paternal grandmother rather than to a white mother on grounds that the children, described by the court as "colored," would have "a much better opportunity to take their rightful place in society if they are brought up among their own people") ;
393. Barriers to Adoption: Hearing Before the S. Comm. on Labor and Human Resources, 99th Cong. 218 (1985) (statement of William T. Merritt, President, National Association of Black Social Workers) ("We view the placement of Black children in white homes as a hostile act against our community. It is a blatant form of race and cultural genocide.");
394. RITA JAMES SIMON & HOWARD ALTSTEIN, TRANSRACIAL ADOPTION 50 (1977) ("Black children should be placed only with Black families whether in foster care or for adoption.").
395. In re R.M.G., 454 A.2d 776, 802 (D.C. 1982) (Newman, C.J., dissenting) (citations omitted).
396. See James S. Bowen, Cultural Convergences and Divergences: The Nexus Between Putative AfroAmerican Family Values and the Best Interests of the Child, 26 J. FAM. L. 487, 510 (1988) ("To suggest that the skills of survival, coping and defense can be taught by those who have never themselves learned them is at best mystifying.").
397. See id. at 505 n.88 (noting the National Association of Black Social Workers's claim that the cultural competency argument applies no less to biracial children with black lineage).
398. See, e.g., Signithia Fordham, Racelessness as a Factor in Black Students' School Success: Pragmatic Strategy or Pyrrhic Victory?, 58 HARV. EDUC. REV. 54, 80 (1988) (discussing empirical research concluding that transracial adoption yields academic advantages for black children) ;
399. Ruth G. McRoy & Edith M. Freeman, Racial-Identity Issues Among Mixed Race Children, 8 Soc. WORK EDUC. 164, 166 (1986) (noting studies that find that certain interpersonal benefits can accrue to children of transracial adoption);
400. cf. Kim Forde-Mazrui, Black Identity and Child Placement: The Best Interests of Black and Biracial Children, 92 MICH. L. REV. 925, 954 (1994) ("[A] white parent's denial of Black inferiority may be more believable because it is less self-serving."). Recognizing that children of color consistently languish in foster homes or child care institutions at vastly disproportionate rates, Congress in 1996 amended the Multiethnic Placement Act to prohibit adoption agencies from making placement decisions on the basis of race.
401. See Removal of Barriers to Interethnic Adoption Amendments, 42 U.S.C. §1996b(1) (2000).
402. See KENNEDY supra note 2, at 417 ("Government ought to welcome the prospect of multiracial adoptive families just as enthusiastically as it does that of monoracial adoptive families.").
403. Cf Robinson, supra note 2, at 2799 (arguing that "structural interventions [to prevent race-based filters]- may erode racial stereotypes and thus reshape preferences").
404. See id. (observing that if a law banning the expression of racial preferences "applied to all races in the context of dating web sites, it would constrain the racial preferences of blacks and other minorities, which might be less likely to rest on stereotypes").
405. NAACP v. Alabama, 357 U.S. 449, 466 (1958).
406. See SHERYLL CASHIN, THE FAILURES OF INTEGRATION: HOW RACE AND CLASS ARE UNDERMINING THE AMERICAN DREAM 89 (2004);
407. cf. Dov Fox, Book Note, Self-Made Men and Man-Made Selves: The Genetic Arms Race and the Myth of the Meritocracy, 70 REV. POL. 665, 665 (2008) (arguing that "[p]redicting changes in social attitudes and practices requires informed guesswork that is sensitive to the moral culture in which we live," and that reliance on such empirical speculation does not in itself invalidate proposals about the kinds of changes that are worthy of concern).
408. See Press Release, eHarmony, eHarmony, Inc. Settles with New Jersey Attorney General, Agrees To Launch Same-Sex Matching Service in 2009 (Nov. 19, 2008), http://www.eharmony.com/press/release/15.
409. See id.;
410. see also Compatible Partners: The Site for Long-term Committed Same-Sex Relationships, http://www.compatiblepartners.net (last visited Feb. 20, 2009) ("Compatible Partners, a new matching site for same sex relationships powered by eHarmony, is presently under construction.").
411. California Cryobank, Inc., New Web User: Registration, https://www.cryobank.com/MyAccount/index.cfm?login&rurl=%2FMy- Account%2Findex.cfm%3F (last visited Feb. 20, 2009).
412. See supra notes 44-47 and accompanying text.
413. 42 U.S.C. §3604(c) (2000).
414. See Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1157 (9th Cir. 2008) (en banc).
415. Section 230 provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. §230(c)(1).
416. 3 (C.D. Cal. Sept. 30, 2004).
417. Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 489 F.3d 921 (9th Cir. 2007).
418. Roommates.com, 521 F.3d 1157.
419. Id. at 1162.
420. See id. at 1173-1175
421. Id. at 1162 (citation omitted).
422. Id. at 1164-1172
423. See id. at 1166 ("By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information.");
424. cf. Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) (holding that an online social networking service that requires users to answer a questionnaire regarding preferences related to gender, sexual orientation and living with children, and that channels information available on the site according to those expressed preferences, is "responsible," at least "in part," for developing the information provided by its users within the meaning of §230).
425. But see Chicago Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 668 (7th Cir. 2008) (holding that Craigslist is immune, under §230(c)(1) of the CDA, from liability under the FHA for discriminatory housing advertisements submitted by website users in the absence of mandates or encouragement by website operators).
426. While racial discrimination by small employers and landlords is permitted under federal law, see 42 U.S.C. §2000e(b) (2000); id. §3603(b)(1)-(2), discriminatory advertising by private employers and landlords of any size is prohibited, see id. §§3603(b)(1), 3604(c).
427. See supra note 13 and accompanying text.
428. 42 U.S.C. §1981(a)-(c) (protecting "enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship - against impairment by nongovernmental discrimination and impairment under color of State law");
429. cf. Runyon v. McCrary, 427 U.S. 160, 187-88 (1976) (Powell, J., concurring) (arguing that §1981 does not apply to contractual relationships of a characteristically intimate nature, such as contracts between a family and a tutor, babysitter, or housekeeper).
430. Unruh Civil Rights Act, CAL. CIV. CODE §51(b) (West 2007).
431. See Blum v. Yaretsky, 457 U.S. 991 (1982) (holding that the state action doctrine operates to exclude a decision by nursing homes to discharge or transfer Medicaid patients to lower levels of care);
432. Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (holding that the state action doctrine excludes otherwise discriminatory firing practices by a nonprofit institution that receives public funds).
433. See supra note 227 and accompanying text.
434. Provided that donor insemination services could be classified as "commercial," congressional regulation could likely be exercised under the Commerce Clause. See United States v. Lopez, 514 U.S. 549 (1995) (holding that Congress's lawmaking authority under the Commerce Clause does not extend so far from commerce as to authorize the regulation of handguns in schools);
435. see also Katzenbach v. McClung, 379 U.S. 294, 304 (1964) (holding that Congress acted within its constitutional power under the Commerce Clause in barring racial discrimination in restaurants as a burden to interstate commerce) ;
436. Heart of Atlanta Motel v. United States, 379 U.S. 241, 258 (1964) (holding that the Civil Rights Act of 1964 was constitutional because "Congress had a rational basis for finding that racial discrimination - affected commerce");
437. cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 410 (1968) (holding that Congress can regulate the sale of private property under its Thirteenth Amendment enforcement powers in order to prevent racial discrimination in neighborhood composition).
438. See Murdock v. Pennsylvania, 319 U.S. 105, 134 (1943) (Frankfurter, J., dissenting) ("A tax can be a means for raising revenue, or a device for regulating conduct, or both.");
439. David J. DePippo, I'll Take My Sin Taxes Unwrapped and Maximized, with a Side of Inelasticity, Please, 36 U. RICH. L. REV. 543, 545-49 (2002) (discussing the history of sin taxes).
440. See ROBERTS, supra note 3, at 252-253
441. Cf. FLA. STAT. §873.05 (2000) ("No person shall knowingly advertise or offer to purchase or sell, or purchase, sell, or otherwise transfer, any human embryo for valuable consideration.").
442. See Dov Fox, Silver Spoons and Golden Genes: Genetic Engineering and the Egalitarian Ethos, 33 AM. J.L. & MED. 568, 621-622 (2007) (considering limits on commercial advertising for sperm or eggs solicited from donors who possess particular characteristics).
443. The constitutionality of the proposed marketing regulation would turn on whether the statute was "content-based," see Texas v. Johnson, 491 U.S. 397, 414-15 (1989) (holding that flag burning is protected speech under the First Amendment), and on whether the ban was tailored to touch only illegitimate speech.
444. See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 256 (2002) (invalidating two provisions of the Child Pornography Prevention Act of 1996 for abridging "the freedom to engage in a substantial amount of lawful speech"). The First Amendment does not afford sperm banks the right to advertise unlawful activity.
445. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 563 (1980);
446. Ragin v. N.Y. Times, Co., 923 F.2d 995, 1003 (2d Cir. 1991) (determining the validity of a ban on a discriminatory housing advertisement by reference to the underlying statutory ban in the FHA).
447. See Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of StatusEnforcing State Action, 49 STAN. L. REV. 1111, 1142 (1997) (criticizing contemporary equal protection doctrine on the ground that reserving heightened scrutiny for racial classifications "obscures the multiple and mutable forms of racial status regulation that have subordinated African-Americans since the Founding- including the facially neutral forms of state action that, since Reconstruction, have regulated racial status in matters of employment, political participation, and criminal justice").