Intimate Discrimination: The State's Role in the Accidents of Sex and Love

Emens, Elizabeth Francis

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.


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Harvard Law Review

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Academic Units
Harvard Law School
Published Here
May 3, 2016