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INTIMATE
DISCRIMINATION: THE STATE'S ROLE IN THE ACCIDENTS OF SEX AND LOVE
by Elizabeth F. Emens [ Full Text
] |
| 122 Harv. L.
Rev. 1307 (2009) |
| This is a
challenging moment for the law of discrimination. The state’s role in
discrimination has largely shifted from requiring discrimination — through official
policies such as segregation — to prohibiting discrimination — through
federal laws covering areas such as employment, housing, education, and public
accommodations. Yet the problem of discrimination persists, often in forms that are hard
to regulate or even to recognize. |
| At this
challenging moment, the intimate domain presents a vital terrain for study in two main
ways. First, conceptually, studying the intimate domain permits new insights into
discrimination and the law’s identity categories, because people are more willing
to be explicit about identity-based preferences in this domain than in others (such as
employment). Second, practically, examining the intimate domain reveals the ways that
relationships in this sphere affect hierarchies and opportunities in more public domains,
and the role the state plays in those relationships. |
| This Article
therefore examines intimate discrimination, focusing on race, sex, and disability, and
identifies key norms for each category. For race, the norm is homogamy, or pairing with
one’s own type; for sex, by contrast, the norm is heterogamy, pairing outside
one’s type; and for disability, the norm is desexualization, rather than pairing
with one group or another. The Article does not assume that intimate discrimination is
necessarily bad. On the contrary, examining the nuanced landscape of discrimination in
this realm is one of the Article’s main purposes. Ultimately, the Article concludes
that, at the level of individual interaction, intimate differentiation based on these
identity traits can be good, bad, or neutral, depending on context. For this and other
reasons, legal regulation targeting individual differentiation on these bases would be
woefully misguided. |
| Nonetheless,
the state plays important roles in intimate discrimination at a structural level. By
creating the infrastructure of society, the state shapes the accidents of who meets whom
and how. In addition, the state plays a role in the hierarchy of intimate opportunities
by shaping social capital and relative advantages. The state therefore should reform its
laws and policies to attend to its structural role in intimate discrimination. For sex,
the most obvious next step is to cease to restrict marriage according to sex. For
disability, the state should help to encourage opportunities for intimate affiliation by,
among other things, attending to the architecture of intimacy, by which I mean the ways
that structures of accommodation operate to help or hinder not only access, but also
closeness. For race, the state’s goal should not be to encourage race mixing, but
rather to lift burdens on existing relationships, such as residential segregation.
Recognizing how intimate affiliations affect opportunities and status hierarchies, both
in the intimate sphere and beyond, points us toward new ways to intervene in the
persistent problem of discrimination. [ More] |
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