San Diego Law Review

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Most of us would consider a state's discrimination against its citizens-say, by refusing to hire them on account of their sex, race, religion, or ethnicity-clearly unjust, something in urgent need of rectification. Yet we often take a less censorious view of discriminatory acts by private individuals who choose not to share their neighborhood with, associate with, trade with, work with, befriend, marry, or be buried in the same graveyards as people of a different sex, race, religion, or ethnicity. On reflection, this asymmetry is puzzling. It cannot be explained by saying that state discrimination has graver consequences involving more people than private discrimination. True, considered on their own, private discriminatory acts often have negligible consequences; but together such acts often form patterns that are no less consequential than, say, the passing of a piece of discriminatory legislation. We need a better understanding of the morality of private discrimination.

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