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Sunday, March 02, 2014
 
Should sports leagues lead with liberty or equality rationales when taking a position on sexual orientation discrimination?

One of the great things about sports law is that nearly every legal issue will eventually become relevant to the sports industry (and, once an issue does become relevant to sports, the public will care more about it than it probably ever has before).  So even though some of my writing takes me into territory that may not initially seem to apply to sports, it may soon find echoes in discussions among fans and the sports media.

This past week, Arizona's governor had to decide whether or not to veto a bill that would give businesses license to refuse service to customers based on religious justifications.  Most observers believed this was  a thinly veiled effort to legalize discrimination against LGBT customers.  Both the NFL and Major League Baseball, as well a number of individual teams, joined a chorus of voices calling for the governor to veto the bill.  Which she did -- just 90 minutes after MLB weighed in on the issue.

Like MLB, the NFL also issued a statement in opposition to the legislation, and there was speculation that the League might move the Super Bowl out of the state if the bill had been signed.  Spokesman Aiello delivered the message:
"Our policies emphasize tolerance and inclusiveness, and prohibit discrimination based on age, gender, race, religion, sexual orientation, or any other improper standard. We are following the issue in Arizona and will continue to do so should the bill be signed into law, but will decline further comment at this time."
The statements express similar rationales -- "inclusion" (MLB) or "inclusiveness" (NFL), "acceptance" (MLB) or "tolerance".



What's interesting is that the NFL led with tolerance, which is a rationale based on liberty principles, MLB flipped the order to lead with respect and inclusion, which are rationales based on equality principles.

In a 2011 Harvard Law Review article, one professor argued that courts should lead with liberty rationales in decisions promoting civil rights, such as those relating to sexual orientation. Under this theory, the NFL approach would be preferable to MLB's - the latter, by emphasizing the need to include those different than us, could evoke "pluralism anxiety" and thus trigger a more negative reaction against a pro-rights decision (or pronouncement).

I've just posted a new paper (co-authored with FSU Law's Courtney Cahill) that makes the argument that courts shouldn't lead with liberty just to avoid a backlash by the public.  Download it while it's hot!  It may be that the order of rationales doesn't matter -- that's an argument we develop in our article -- but given the care the leagues put into these statements, one suspects the difference in order between the two was the product of deliberation of some form.





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