Sonu Bedi is a proponent of liberal neutrality. He presumes what other philosophers have argued, that the state should never act on the basis of a controversial conception of the good, and aims to work out the implications of this premise. His new book is careful and intelligent, but it inadvertently reveals liberal neutrality’s limitations.

His first book, Rejecting Rights (2009), argued that if liberal neutrality is accepted, many controversial rights become unnecessary. Liberal neutrality will prevent the state from denying the liberties that rights aim to secure. Beyond Race, Sex, and Sexual Orientation now claims that American equal protection jurisprudence can likewise be superseded.

According to Bedi, instead of focusing on the identity group that a law discriminates against, courts should look at a law’s justification: “The state may not (1) act on justifications that invoke certain conceptions of the good life, (2) that are based on mere animus or hostility, or (3) that are proffered in bad faith” (p. 25). This limitation invalidates racist laws, racial profiling by police, laws that impose traditional gender roles, the denial of funding for abortions, bans on same-sex marriage, bans on adult incest, and ultimately any state recognition of marriage, which itself depends on a conception of the good life. It will, however, permit affirmative action.

Bedi’s main target is the Supreme Court’s doctrine of “strict scrutiny”: Laws that classify on the basis of race are unconstitutional unless they are narrowly tailored to a compelling state interest. Other classifications are similarly “suspect” if they can be shown to involve a similarly oppressive history. This doctrine, the author argues, demands that claimants “see themselves as first and foremost victims of oppression” (p. 46). Here his argument has real sting. Trading on the supposed immutability of sexual orientation is a particularly nasty way that equal protection law imposes identity. It “compels gays to see themselves as unfortunate victims of desires, desires that nature has foisted on them” (p. 56).

There is also, Bedi thinks, something inherently partisan and undemocratic about a suspect class claim. Judicial intervention on behalf of minorities “makes the constitutional objection not about the interests of all citizens but the interests of a particular class” (p. 62).

Bedi is right that the doctrine has come uncoupled from its original goal of ameliorating the subordination of African Americans. By focusing obsessively on whether the law classifies by race, modern equal protection law is indifferent to a huge range of state actions that preserve racial inequality, while functioning primarily to protect white people by invalidating affirmative action programs. But this is hardly original. A large literature argues that the law should focus instead on whether a challenged law contributes to the dominance of an oppressed group. The author rejects that approach too, because it imposes a possibly unwelcome identity on members of that group.

Instead, Bedi thinks that courts should directly examine the legislature’s actual, sincere motives. If those motives reflect animus or the desire to impose a conception of the good, the law should be invalidated.

The search for legislative purpose, an old problem in the law, is treated superficially here. Often, a multimember body has no single motive. If one looks for the objective meaning of a statute, one often can find an innocent purpose. Bedi skirts this difficulty by focusing on unusually easy cases, such as where a statute includes an implausible recitation of purpose (pp. 98-99, 223–24). His attributions of invidious motive are often unpersuasive. When he discusses racial profiling, he adopts Bernard Harcourt’s argument that such profiling cannot reduce crime, and then claims that crime reduction cannot be profiling’s legitimate purpose. If you can impute bad motives when the legislature rejects your policy arguments, you can invalidate any law.

Bedi’s revision of equal protection law is less radical than he thinks. The Court has said that “the purpose of strict scrutiny is to ‘smoke out’ illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen ‘fit’ this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype” (City of Richmond v. Croson, 488 U.S. 469, 493 [1989]. See also Johnson v. California, 543 U.S. 499, 506 [2005] [quoting Croson, 488 U.S. at 493]; Grutter v. Bollinger, 539 U.S. 306, 326 [2003] [same]; Adarand v. Pena, 515 U.S. 200, 225 [1995] [same]).

So the doctrine is already concerned with purpose. Here, the Court ignores identity, scrutinizing the discriminator rather than his victim. (Bedi is right that other parts of the doctrine do deploy identity talk.) He thinks strict scrutiny presumes that racism could be legitimate (pp. 123, 136). That objection works only if it is always easy to tell when a law is racist, so that scrutiny is superfluous.

Secular justifications for laws against abortion and same-sex marriage are rejected because the legislature actually aimed to promote a conception of the good. Since liberal neutrality is a recent invention, first formulated in the 1970s, and has never been adopted by any legislature, this is another formula for invalidating any law you like. When the author wants to find a constitutional violation, even sincere innocent explanations will not do. Palmore v. Sidoti (1984) overturned a custody award to a father in which the divorced white mother had married a black man. The trial court had found that the child would be stigmatized by being the child of an interracial couple, and the Supreme Court did not reject this finding of fact. It nonetheless overturned the award. Bedi agrees. How can he? He claims that the state here illegitimately “seeks to surrender to racism” (p. 93). It sought no such thing. This formulation is more accurate: “[T]he state was seeking to ensure the best interest of the child, interests that, in this case, entailed reinforcing racial animus” (p. 94). That presumes, what Bedi never claims, that the state has some obligation not to reinforce racial animus, even inadvertently. We are no longer talking about purpose.

Most fundamentally, Bedi never explains how he gets liberal neutrality out of the text of the Fourteenth Amendment, which merely declares that states may not “deny to any person . . . the equal protection of the laws.” Because the Court sometimes says neutral-sounding things, the author sometimes claims that liberal neutrality is already the law (pp. 5, 74, 249); elsewhere he admits that we are not there yet (pp. 9, 114). He is correct that before the Court asks whether federal laws violate rights, it always asks whether there is an enumerated power to enact them in the first place (pp. 15–16, 112). But states are not governments of limited, enumerated powers.

The fundamental objection to liberal neutrality has always been that it would prevent the state from pursuing real goods, and would thus cause citizens to lead worse lives. Only a few neutralitarians are willing to pursue their logic to Gerald Gaus’s conclusion that neutrality precludes most contemporary legislation (“Liberal Neutrality: A Compelling and Radical Principle,” in Perfectionism and Neutrality: Essays in Liberal Theory, ed. Steven Wall and George Klosko, 2003, p. 160). Bedi is less radical; he summarily claims (p. 10) that restriction of drug abuse or environmental degradation are not based on contestable conceptions of the good.

Although the book is unpersuasive, it is valuable. Because liberal neutrality is so influential, its implications must be considered. By exploring this tunnel, Bedi has shown that it is a dead end. He has improved our map of the territory.