Equality Under the Law

I don’t like much of what the Wisconsin Institute for Law and Liberty does, but they’re dead right to challenge discrimination.

Yesterday I wrote about a liberal law firm, the ACLU, that I once revered, but that has now been mostly captured by the illiberal hard-left. Today, I’m going to turn to a conservative law firm, WILL, that I usually strongly disagree with, but that I believe is doing some very good work fighting against discrimination.

The Wisconsin Institute for Law and Liberty was founded a decade ago with a grant from the conservative Bradley Foundation. Over the years it has pursued a variety of cases, but many of them have amounted to simply fronting for the state Republican Party. For example. the group pushed to get 200,000 voters expunged from the rolls before last November’s election in the hopes that that would work in the Republicans’ favor. And, in just within the last few weeks, it lost a case (thankfully) before the state Supreme Court that would have given the court original jurisdiction over the inevitable gerrymandering case that will be filed when the Legislature and Governor come to loggerheads over redistricting. The state court would be much friendlier to Republican gerrymandering then a Federal court might be.

Jake’s Bar owner Antonio Vitolo just wants to be treated equally.

But in the last few months WILL has launched a new Equality Under the Law Project, aimed at getting us back to the idea, once championed by liberals, of simply treating everyone equally. It has recently become fashionable on the hard-left to openly support discrimination against white men with the idea that it is making up for past discrimination against everybody else.

There are all kinds of problems with that. The first and most important one is that it replaces a universal good that everyone should be able to support (equality and fairness) with a punitive zero sum game where one group is targeted to be the losers. It’s set up to be divisive from the start.

Second, when does the intentional discrimination end and who gets to decide when the scales have finally been balanced so that we can return to equality? Would we really expect that groups that have benefited from discrimination on their behalf will voluntary end that discrimination once it has achieved its intent?

Third, when we treat people not as individuals but as members of identity groups we create some potentially ludicrous scenarios. Is a high school educated white janitor really “privileged” and a member of “the patriarchy” while the Black female Harvard lawyer whose office he cleans is “oppressed”? Seriously?

In an interview with the Wisconsin State Journal, WILL President and General Counsel Rick Esenberg talked about intentional discrimination based on race. “It’s intrinsically wrong because it treats people not as individuals, but as archetypes, as sort of standins for members of a group who somehow are entitled or guilty based upon their membership in a group,” Esenberg said. “I also think as a practical matter it simply doesn’t work. It always ends in a war of all against all, and racializes society more than it had been in the past.”

Under its Equality Under the Law Project, WILL has filed two law suits that are especially important. Both are related to provisions of the Biden COVID relief package. In the first, Jake’s Bar v. Guzman, WILL is challenging a part of the Restaurant Relief Fund that gives preference to businesses owned by women and people of color. The law said that the Small Business Administration can only process applications from women and people of color for the first 21 days of the program, essentially discriminating against businesses owned by white men.

According to WILL’s website, Antonio Vitolo, owner of Jake’s Bar and Grill and plaintiff in the case, said, “I do not want special treatment. I just want to be treated equally under the law. I am opposed to race and sex discrimination, and I would hope my government lived up to the same principle.”

On May 27th a Federal court enjoined the SBA from administering the program in this manner. “This case is about whether the government can allocate limited coronavirus relief funds based on the race and sex of the applicants. We hold that it cannot,” wrote the majority.

In Faust v. Vilsack, WILL is challenging another part of the COVID relief bill that would forgive up to 120% of Federal direct and backed farm loans, but only for farmers of color. The rationale is that the Department of Agriculture has discriminated against these farmers in the past by denying them loans. But what’s especially odd about this provision is that it would help farmers who did get loans. In other words, it seems to target relief to the very farmers who weren’t discriminated against in the first place.

Here, again, in early June WILL won a motion for a temporary restraining order from a Federal Court based on the probability that they would win the case at trial.

In a 2007 decision, Chief Justice John Roberts wrote, “The way to stop discrimination based on race is to stop discriminating based on race.”

Fourteen years later that kind of common sense is more needed than ever. On many issues I’m diametrically opposed to what WILL is up to, but on their Equality Under the Law Project they’re doing what liberals should be doing and used to do: they’re standing up for fairness.

2 thoughts on “Equality Under the Law

  1. I know you like to use this example of the janitor and professor. I wish the arguments weren’t about ‘white privilege’. I think a better word to use is ‘advantage’ rather than ‘privilege’. Convincing people they have privilege is harder than convincing them they have advantage. So, comparing apples to apples, a high school educated white janitor enjoys a clear advantage over high school educated black janitor, whether it’s walking in a neighbor, visiting a convenience store, applying for a loan or getting stopped by law enforcement. Anti-discrimination laws are a challenge to enforce. Hoping everyone obeys the law isn’t working. There needs to be something more. If not efforts like the Biden Administration has tried, what will help address the overt and covert racism that minority people face daily? You and Eisenberg don’t like this path. He won’t propose alternatives. Will you?

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