In this essay I address the notion of caste in two separate contexts: in the traditional disputes over race and sex, and in the more modem disputes over sexual orientation. In both cases the idea of caste and its kindred notions of subordination and hierarchy are used to justify massive forms of government intervention. In all cases I think that these arguments are incorrect. In their place, I argue that the idea of caste should be confined to categories of formal, or legal, distinctions between persons before the law. This more limited notion of caste supplies no justification for the enforcement of any civil rights law that purports to limit the freedom of association among individuals, whether their connections be intimate and personal, economic and professional, or religious and social. But by the same token, this limited conception mirrors the older conception of civil rights law - a conception that restored to individuals the capacity to contract and to form associations of their own choosing. Judged by that standard, many laws on the books today are illegitimate, limiting associational choice between individuals, as laws once did under Jim Crow in the South, or as the pre-twentieth century legal disabilities of women did. In particular, the current prohibitions against same-sex marriages are themselves a mistake - regardless of what one thinks of the wisdom or morality of these marriages - and should be rejected as inimical to the basic principle of freedom of association on which a liberal society should rest. Rightly understood, the idea of caste works best when confined to its original understanding. The effort to expand that conception obscures the critical distinction between removing and imposing state barriers to voluntary associations. The older, liberal conception of civil rights law thus makes far more sense than its modem competition.
Richard A. Epstein,
Caste and the Civil Rights Laws: From Jim Crow to Same-Sex Marriages,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol92/iss8/5