Ann Hacklander-Ready rented a four-bedroom house in Madison, Wisconsin, and sublet three of the bedrooms to female housemates. After two housemates moved out, Hacklander-Ready and her remaining housemate, Maureen Rowe, looked for replacements. They initially accepted a rent deposit from a woman named Caryl Sprague, whom they knew to be a lesbian. Upon further reflection, however, Hacklander-Ready and Rowe decided they were not comfortable sharing their living space with a lesbian, and they returned Sprague’s deposit.
Sprague responded by filing a discrimination complaint against both Hacklander-Ready and Rowe with the Madison Civil Rights Commission. Sprague’s claim relied on Madison’s fair housing ordinance, which did not, on its face, indicate whether it applied to roommates. Hacklander-Ready and Rowe argued that it didn’t; an administrative law judge decided that it did. The judge awarded Sprague $2,000 for emotional distress, $1,000 for punitive damages, and $300 for the security deposit she lost trying to secure another apartment, along with costs and attorney’s fees. Rowe settled, but Hacklander-Ready, convinced that her civil liberties were being violated, appealed.
On appeal, the court agreed that the fair housing ordinance applied to Caryl Sprague’s roommate situation. This result was remarkable, because shortly after Sprague filed her discrimination complaint, the Madison City Council had amended the housing ordinance to clarify that ‘‘[n]othing in this ordinance shall affect any person’s decision to share occupancy of a lodging room, apartment or dwelling unit with another person or persons.’’ The city council was speaking directly to the Sprague case and making clear its support of Hacklander-Ready and Rowe’s right to discriminate. The appellate court, however, refused to consider this amendment in resolving the ambiguity in the original law. The court also rejected Hacklander-Ready’s argument that penalizing her for refusing to accept a lesbian housemate violated her constitutional rights to privacy and freedom of intimate association. The court held that these rights apply only in the ‘‘home or family’’ and that Hacklander-Ready gave up these rights when she ‘‘rented housing for profit.’’ The court did not explain how living with housemates to defray rental expenses and make ends meet constitutes renting housing ‘‘for profit.’’1
The Wisconsin and U.S. Supreme Courts declined to hear further appeals.2 Meanwhile, the Madison Civil Rights Commission determined that Hacklander-Ready was liable for the more than $23,000 in lawyers’ fees Sprague had racked up over the course of the litigation, because the local antidiscrimination ordinance forced losing defendants to pay plaintiffs’ expenses.3 Hacklander-Ready paid dearly for trying to defend her rights.
Nor were Hacklander-Ready’s troubles unique. In May 1999, Melissa DeSantis, a young Filipina-American from San Jose, California, placed a sign in her window seeking a roommate to sublet the available bedroom in her two-bedroom apartment.4 Eric Campbell, an African American man, came to look at the room. Campbell, who was living at the Aconda Hotel at the time, complained that the rent was too high, that the bedroom was too small, and that he couldn’t afford to pay the $150 security deposit upfront. He then asked to see the other, larger, room. DeSantis explained that the other room was her room, and was not for rent. For some reason, Campbell was disturbed by DeSantis’s honest answer, and he belligerently insisted on seeing the unavailable room, only relenting when DeSantis informed him that her boyfriend was in that room.
Campbell apparently became convinced that DeSantis had refused to show him the larger room because he was black. He contacted Project Sentinel, a nonprofit group that investigates allegations of housing discrimination. The group sent two ‘‘testers’’ to the apartment, a white man and an African American man, to see if they could uncover any discrimination. DeSantis seemed inclined to rent to the white tester, but when the African American tester later inquired about what had become of his application, DeSantis claimed she did not know. DeSantis also offhandedly told the white tester, in regard to another prospective tenant, ‘‘Actually, I don’t really like black guys. I try to be fair and all, but they scare me.’’
Armed with this information, Campbell turned the matter into a complaint with the California Fair Housing Commission. The Commission found that his testimony, which made various claims of discriminatory treatment, was internally inconsistent and not credible. The Commission further concluded that he had not been qualified to rent the room, because DeSantis had insisted that her roommate pay in advance the first month’s rent and a security deposit, which Campbell could not afford. The Commission therefore found that Campbell was not the victim of illegal discrimination.
The Commission nevertheless awarded Campbell $240 in costs for the pay he lost for attending the hearing and $500 for emotional distress damages; Campbell had testified that when he learned of DeSantis’s statement to the tester that she was afraid of black men, he had become upset because he felt he had been judged on the basis of his color. In other words, the Commission ultimately forced DeSantis to pay Campbell for losing work time to pursue a failed claim of housing discrimination and for having his feelings hurt by a comment she made to a ‘‘tester’’ employed specifically to discover such emotionally upsetting information. Strange logic, indeed.
This outcome seems even stranger when one considers that California’s fair housing law explicitly exempts persons seeking ‘‘boarders’’ or ‘‘roomers’’ in a single-family house and says nothing about roommates in an apartment, apparently because the drafters did not imagine that the law might ever be applied to such a situation. So that the matter would fall under the law, the Commission treated DeSantis as if she occupied a single-family house, an inaccuracy which nevertheless would normally mean that she was exempt from the fair housing law because she was seeking a ‘‘roomer.’’ However, the Commission refused DeSantis this exemption because it only applies to persons who comply with another provision of the law making it ‘‘unlawful for a person to make any statement with respect to the rental of a housing accommodation that indicates any preference, limitation, or discrimination based on race.’’ The Commission found that DeSantis had violated this provision with her statement that she didn’t like and was scared of black men.
Given constitutional constraints, one hardly expects that a person could be subject to liability for refusing to share an apartment with someone, much less be fined because of an offhand remark made in private conversation. Indeed, the Commission acknowledged in a footnote that ‘‘this case raises significant issues of the constitutional protections of freedom of speech and the right to privacy and association.’’ However, according to the Commission, as an administrative agency, it did not have power to declare a statute unenforceable on the basis of its being unconstitutional. This understanding of the Commission’s responsibilities, though apparently settled law, is at odds with the accepted notion that all government officials are required to ensure that they act within constitutional strictures. If California law requires the Commission to ignore the federal Constitution, that law is itself unconstitutional. Overall, the Commission’s ruling is consistent with the unfortunate tendency of administrative agencies charged with enforcing antidiscrimination laws to expansively interpret the laws and narrowly interpret constitutional rights.
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Although federal, state, and local fair housing laws generally permit discrimination in selecting roommates or housemates, they still prohibit advertisers from mentioning their discriminatory preferences, except for specifying gender.5 The result is that persons who place classified ads for roommates waste their time, as well as the time of many of those who respond to their ads, by inviting and dealing with inquiries from persons who fail to meet the actual ‘‘discriminatory’’ criteria.
The advertising restriction can be particularly onerous in jurisdictions that ban housing discrimination on the basis of criteria beyond the standard categories of race, sex, religion, and age covered by federal law. For example, Washington, D.C., fair housing law prohibits discrimination on the basis of sexual orientation or political affiliation. In 1998, the Fair Housing Council of Greater Washington sued the Washington City Paper for publishing real estate advertisements for roommates and housemates that expressed illegal preferences. Among the examples of illicit advertisements raised in the complaint were the following:
Some of these ads represent attempts by members of minority groups to find housemates who share the same subculture; others express a desire to live with people of like-minded political views or who are at the same stage in life. In most of these cases, an advertisement that didn’t specify the relevant discriminatory preferences would be nearly useless, because the advertisers would be inundated by calls from disfavored heterosexuals, gentiles, 20-year-olds, and so forth. The suit made little sense, but the City Paper appears to have capitulated; recent issues do not contain ads stating discriminatory preferences. This puts a great burden on persons with idiosyncratic roommate preferences: District of Columbia residents seeking to establish a group house for gay Jewish Libertarian women of color must either find new housemates by word of mouth or be willing to sift through the random mix of would-be renters that respond to a more generalized ad. Because of the advertisement restrictions, some persons may never be able to find roommates who match their preferences. Such governmental intrusion on the ability to form a relationship as intimate and private as the relationship between people who share living space is unjustifiable.
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Approximately two million American women belong to women-only health clubs.7 Some women, such as those with religious objections to wearing revealing clothes in front of men, and abuse survivors who find it traumatic to display their bodies in front of unfamiliar men, use these clubs by necessity.8 Other women join these clubs to avoid unwanted male attention while they exercise. Still others, including overweight women and women who have had mastectomies, feel much less self-conscious exercising in an all-female environment. The owner of one women’s health club boasts, ‘‘I like to think we’re for real women. We don’t have everyone looking like a Barbie doll. They’re average size and shape. And we don’t let men in. We say, ‘No men, no mirrors, no kids.’’’9 The owner of a club that holds women-only aerobics classes explains, ‘‘It’s a privacy issue. The women are sweating, they don’t have makeup on, and they feel that the guys are staring at their butts.’’10
Some women find men to be a distraction when they go to coed gyms. Cynthia Parziale, director of research and development at the Naturally Women chain of fitness centers, opines, ‘‘If you’re really serious about your workout, it’s distracting to have people of the opposite sex around. Women will spend time getting dressed or fixing their hair or putting on their lipstick before they come to the gym. The coolest thing about a women’s gym is you can be ugly.’’11< Joan Pirone, who patronizes a women-only exercise club in Anchorage, Alaska, told CNN that ‘‘at coed clubs you feel like you’re on TV, like the men are constantly looking at you. Some women enjoy the attention from men, but some of us are intimidated by it. I’m glad I have the choice of going to a women-only gym.’’12
Other users of women’s health clubs find that the women-only facilities are cleaner and smell better than coed gyms. Women’s clubs also often emphasize the workout equipment that is used more frequently by women, and many even have special equipment built for women. The two women-only clubs in Anchorage, for example, have smaller-than-average Nautilus machines designed for women’s bodies, with the weight stacks increasing by 3-pound increments instead of the usual 10. Women-only clubs also emphasize educational programs focusing on women’s health concerns, such as preventing osteoporosis and losing weight gained during pregnancy.13
Despite their popularity and the privacy interests served by allowing women to work out free from male oglers, women-only clubs have sometimes run afoul of state laws banning sex discrimination in public accommodations. In 1988, the noted feminist attorney Gloria Allred filed a sex discrimination lawsuit on behalf of a Los Angeles man who was denied admission to a women’s health club.14 Allred dismissed the concerns of women who join all-women gyms to avoid male ogling. She contended that the idea that all men ogle is a stereotype and that men who misbehave can be excluded from sex-integrated clubs on a case-by-case basis.15 Yet common experience suggests that heterosexual men are inclined to ‘‘check out’’ women, particularly women wearing skimpy shorts or tight leotards. Further, Allred did not explain how a club would enforce or prevent an anti-ogling policy on an individual basis. It would be very different to actually prove the subtle act of a man evaluating a woman’s body (Mr. Jones, please stop undressing Ms. Smith with your eyes), and sensitive women could very well feel ogled whether or not it was actually happening. Despite these arguments, the Los Angeles club ultimately agreed to settle Allred’s lawsuit and began admitting men.16 Successful lawsuits against women-only gyms in Minnesota; Orange County; California; and Wisconsin followed.17
Happily, the tide seems to have turned against applying sex discrimination laws to the membership policies of gyms. In 1997, a Massachusetts trial court ruled that a women-only health club, Healthworks Fitness Center, could not exclude men.18 The decision was met with dismay by the 40,000 female members of that and other such clubs throughout Massachusetts. Despite the National Organization for Women’s objections, legislators responded to a flood of protests from angry female exercise enthusiasts by exempting single-sex health clubs from Massachusetts’s public accommodations law.19 Since then, Alaska, Colorado, Hawaii, Illinois, New Jersey, and Tennessee have also passed laws specifically permitting single-sex health clubs, catering to either sex.20
The federal Equal Employment Opportunity Commission, meanwhile, has sued women’s health clubs for refusing to hire male employees. The most significant case involved the Women’s Work-out World chain of fitness clubs in the Chicago, Illinois, metropolitan area.21 After a showing that the chain hired only women, a federal judge granted summary judgment to the EEOC’s claim of employment discrimination. In response, Women’s Workout World filed a motion for reconsideration supported by a petition signed by more than 10,000 club members.22 In support of its motion, the chain noted that it specialized in individual attention for its members and that its members did not want men touching them during workouts or seeing them disrobed in the locker room.
The judge concluded that Women’s Workout World had articulated a legitimate privacy interest with regard to nudity and withdrew the summary judgment, but he allowed the case to continue. After seven years of crippling litigation expenses, Women’s Workout World settled. The company agreed to hire men for certain restructured positions that would (hopefully) maintain members’ privacy, and to pay $30,000 to men who had been turned down for jobs. Other all-women clubs have also fought and sometimes lost sex discrimination lawsuits filed by men who were refused employment.23
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As workplace use of and reliance on e-mail grows, employers are spending more and more energy monitoring and regulating their employees’ e-mails and other computer communications to avoid potential liability under hostile environment law.24 Even if antidiscrimination law were not a factor, employers would engage in a certain level of monitoring and regulation to ensure that their workers were not frittering away the workday instant-messaging their friends and Web surfing. But many employers are going well beyond what is needed to maximize productivity, and are using sophisticated surveillance tools to monitor employee e-mail to head off potential discrimination complaints.25 One-quarter of all large corporations, for example, perform keyword or phrase searches to censor employee e-mails, usually looking for sexual, scatological, or racist language.26
Employers are using these techniques in response to a wave of hostile environment lawsuits brought by women and others who either received sexually suggestive e-mails, or who were simply offended to discover that their coworkers had swapped such e-mails among themselves.27 Almost every hostile environment case contains allegations of offensive workplace e-mails.28 While it is true that few hostile environment cases succeed solely on the basis of allegations that a corporate defendant tolerated offensive e-mails, such e-mails do hostile environment defendants no favors, so it is most sensible to prohibit them completely. As a leading First Amendment scholar points out, as long as e-mails can be used as part of a hostile environment claim, ‘‘the cautious employer must restrict each individual instance of such speech....The employer must say, ‘Do not circulate any material, even isolated items, that anyone might find racially, religiously, or sexually offensive, since put together such material may lead to liability.’’’29
When employees are caught using offensive language by software filters or other monitoring devices, they often find that the breach of their privacy is not the worst of their worries. They may also be out of a job. The New York Times , for example, fired 20 staffers for sending inappropriate and offensive e-mail. The company ‘‘cited a need to protect itself against liability for sexual harassment claims.’’30 Jobs are at risk even when no third parties are involved, as two executives at Smith Barney discovered when the company dismissed them for accessing pornography at work and transmitting it between themselves. Although this might seem like excessive punishment, if a company looks the other way, or even lets its workers off with a stern warning, future plaintiffs in sexual harassment suits could use that tolerance as evidence that the company had a lax sexual harassment prevention policy.31 The looming threat of a hostile environment suit makes terminating an employee who e-mailed the wrong thing the most prudent course.
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Discrimination lawsuits typically proceed with little regard for the privacy interests of the defendant, or even those of third parties not directly involved in the claim. This is an inevitable result of some types of discrimination claims. For example, if a female employee sues a company alleging that she received lower pay than similarly qualified male coworkers, in depositions and at trial the defendant will be forced to directly compare the plaintiff’s performance and pay to that of any men with analogous responsibilities. The defendant may also find it useful to compare the performance and pay of other women employees with that of the plaintiff, or with that of other male employees, or with that of each other. To successfully navigate this process, the defendant will need to reveal details about deficiencies in various employees’ work, give explanations of whether those deficiencies were related to personal crises, and provide other confidential information likely to embarrass the workers.
In one case, a female attorney sued her firm for sex discrimination after being passed over for partnership. By the time the plaintiff lost her case, everyone in the local legal community knew private details about other lawyers in the firm, including which associate ‘‘offended the father-in-law of which senior partner,’’ which associate frequently ‘‘disappeared without notice,’’ ‘‘whose writing skills were seen as not being up to par,’’ and who was perceived as ‘‘more sizzle than steak.’’ Everyone also knew who had said which of these things about whom.32
Although such revelations seem an unfortunate but necessary byproduct of some discrimination claims, some of the harm to privacy inflicted by discrimination cases seems gratuitous. For example, recent changes to the rules of evidence allow sexual harassment complaints to turn into massive assaults on privacy. Former president Bill Clinton is the most famous victim of this dynamic. Paula Jones filed a lawsuit against Clinton, claiming that when he was governor of Arkansas he exposed himself to her, made other sexual advances, and implicitly threatened her with retaliation in her job with the state if she refused him. Jones’s lawyers, some of whom were at least as interested in embarrassing Clinton as in winning the case, desperately sought an excuse to question Clinton and others about Clinton’s rumored affairs with several other women. According to a published report, Jones’ husband, Steve, announced that Paula’s legal team was going to use subpoena power to reconstruct the secret life of Bill Clinton. Every state trooper used by the governor to solicit women was going to be deposed under oath. ‘‘We’re going to get names; we’re going to get dates; we’re going to do the job that the press wouldn’t do,’’ Steve Jones said, ‘‘We’re going to go after Clinton’s medical records, the raw documents, not just opinions from doctors, . . . we’re going to find out everything.’’33
Eventually, Jones’s attorneys stumbled upon Federal Rule of Evidence 415, ironically signed into law by Bill Clinton only a few years earlier. Rule 415 allows plaintiffs in civil cases involving ‘‘sexual assault’’ to present evidence that the defendant engaged in similar acts of sexual assault, in order to show that the defendant had a propensity for abusing women. Sexual assault, as defined by Federal Rule of Evidence 413, includes ‘‘contact, without consent, between any part of the defendant’s body or an object and the genitals or anus of another person.’’ To take advantage of Rule 415, Jones’s attorneys promptly amended their complaint to include a new allegation that Clinton had ‘‘put his hand on Plaintiff’s leg and started sliding it toward the hem of Plaintiff’s culottes, apparently attempting to reach Plaintiff’s pelvic area.’’34
Even with this allegation added to the complaint, it seemed like a stretch for Jones’s attorneys to inquire about Clinton’s past consensual affairs, because such affairs do not meet the rules’ criteria for being considered prior sexual assaults. But Jones’s lawyers successfully argued that ‘‘[t]here is no practical means for this Court, in advance, to limit discovery to non-consensual sexual behavior because only after discovery can the existence of consent be determined.’’35 Given the incredibly broad scope courts normally give to discovery requests, the judge had little choice but to accede to the lawyers’ request. As a result, Jones’s attorneys were able to subpoena the testimony of Monica Lewinsky, and to demand that she turn over her calendars, address books, journals, diaries, notes, letters, and other private information. Lewinsky’s attorney filed a motion to quash the subpoena, arguing that complying with it would grossly invade his client’s privacy. Before the court could rule on the motion, Kenneth Starr’s independent counsel investigation interceded.36
Eventually, of course, Clinton’s affairs with Lewinsky and other women became public knowledge, Clinton lied about his affairs under oath and to the American people directly, and the world was eventually treated to off-color tales of stained dresses and unusual uses for cigars. Clinton eventually settled the case, which had little if any legal merit, for $850,000—a testament to the blackmail potential of allowing lawyers to delve into the sex lives of their adversaries. One need not be a fan of Bill Clinton’s to recognize that permitting sexual harassment complaints to become fishing expeditions for embarrassing information about the intimate lives of defendants is an open invitation to litigants to attempt to satisfy personal grudges, to blackmail defendants, and to otherwise abuse the legal process. All this comes at the expense of the privacy interests that civilized people hold dear. Conservatives did the cause of liberty no favors by helping to open this particular Pandora’s box.
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Despite countervailing privacy, academic freedom, and religious freedom considerations, antidiscrimination concerns have made it nearly impossible for colleges and universities to avoid scrutiny and regulation by the federal government, regardless of whether the schools have ever been accused of discrimination. Federal law bans discrimination based on race, sex, and other criteria by schools that receive federal funds, and these laws are accompanied by regulations requiring universities to proactively keep detailed records regarding the race and sex of their applicants, students, and staff.
Several small colleges, including Grove City College, a Christian liberal arts school in Pennsylvania, have tried to preserve their independence from government regulation by refusing all federal funding. Grove City even declined to participate in federal student aid programs that required the college’s direct involvement. But these efforts to retain independence were not enough to stave off federal bureaucrats. In 1977, the Office for Civil Rights of the Department of Health, Education, and Welfare demanded that Grove City sign an ‘‘assurance of compliance’’ with federal regulations promulgated under Title IX of the Education Amendments Act of 1972, which bans collegiate sex discrimination. HEW claimed that while Grove City declined direct federal funding, it received indirect funding by accepting tuition payments subsidized by a federal program, even though students applied for this program without any input from or participation by the school. Therefore, according to HEW, Grove City was bound by Title IX.
Grove City’s then-president, Charles MacKenzie, refused to sign the assurance of compliance, but he did affirm that the school had ‘‘no argument with the spirit or intent of Title IX’s support of nondiscrimination.’’37 The college had accepted women since its founding in 1876 and had never been accused of sex discrimination, but Mac-Kenzie believed that if Grove City agreed to comply with Title IX, the result would be increased costs to the college, greater expenses for its students, threats to the Christian nature of the college, mandated affirmative action preferences based on race and sex, and a general loss of independence. HEW at least partially validated MacKenzie’s suspicions when the department later informed Grove City that colleges subject to Title IX must maintain ‘‘detailed records of all student and employee applications, enrollments, academic records, personnel files, suspensions, hirings, firings, promotions, denial of promotions, etc.—all broken down by race, age, sex, and ethnic origin—and submit them upon demand to federal authorities.’’38
The college eventually filed a federal lawsuit against HEW, claiming that it was not a federally funded institution subject to Title IX and that, in any event, it had a First Amendment academic freedom right to refuse to comply with the government’s intrusive information demands in the absence of any allegation that the college had discriminated. The college won a victory from a liberal federal trial judge, who admonished the government that it should be spending its resources combating discrimination instead of harassing innocent Grove City College.39 However, the Supreme Court disagreed and held that Title IX applied to Grove City because its students received financial aid from the federal government.40 The Court added that even if the college had a First Amendment right to refuse information demands by the government, the right had no bearing on the case because compliance with Title IX regulations was not mandatory: Grove City could avoid Title IX’s dictates by refusing federal funds. Of course, the school already had refused federal funds, but to completely free itself of Title IX’s reach it would have to stop accepting federally subsidized tuition payments. Only then could it duck the government’s demand for information.
The Court tried to limit the damage its holding inflicted on the institutional independence of colleges by ruling that only Grove City’s financial aid office was subject to Title IX, because only that part of the university was a recipient of federal aid. The rest of the institution, however, could maintain its autonomy from the federal government. Congress would have none of this. Under the ‘‘Civil Rights Restoration Act,’’41 Congress ensured that if a university receives any federal funds at all, including tuition payments from students who receive federal aid, as in Grove City’s case, all educational programs at that university are subject to Title IX.
Grove City and other institutions of higher learning could either allow the government to regulate all of their programs or turn down all government aid to themselves and their students. Only a few extraordinary institutions could choose the latter option and still survive in the competitive educational marketplace. Grove City turned out to be one of these few institutions, but only because the federal government neglected to enforce Title IX’s requirements against it for a decade after passage of the Civil Rights Restoration Act (it took until 1997 for the federal government to promulgate regulations under the Act).42 By that time, the college had raised enough private money to replace federal aid to its students.43 Almost every other college and university, however, has agreed to comply with federal Title IX regulations in exchange for federal money— not necessarily because they don’t mind Title IX’s intrusive meddling, but because they simply cannot survive without the federal funds. And once a school falls under Title IX, the regulations virtually take over. They dictate everything from what sports colleges must offer,44 to whether a university must favor feminist scholars in tenure disputes,45 to whether campus speech codes (see Chapter 5) are necessary. The degree to which American universities have lost their autonomy is staggering.
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In the 1960s heyday of the civil rights movement, earnest advocates of antidiscrimination laws would never have imagined that such laws would ultimately forbid advertising for a Republican roommate, prohibit women-only gyms, encourage employers to closely monitor and regulate their employees’ interpersonal communications, allow plaintiffs in discrimination lawsuits to go rummaging through defendant’s sex lives, and require nearly every university in the United States to ‘‘keep detailed records of all student and employee applications, enrollments, academic records, personnel files, suspensions, hirings, firings, promotions, denial of promotions, etc.—all broken down by race, age, sex, and ethnic origin.’’ Yet, antidiscrimination laws have now expanded to the point at which all of these rules exist in some or all jurisdictions in the United States. That this expansion has occurred to general acclaim by— indeed, often at the behest of—antidiscrimination activists highlights the extent to which their movement has changed and demonstrates how little regard they now have for civil liberties.