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Why does the government allow these private organizations to discriminate? Are professional sports associations sacred cows? Are they the untouchables? Why is the government making exceptions for them? If these private teams and organizations have the right to discriminate against women and to associate with men only, should not other corporations and groups be allowed the same liberty—to associate with whom they please?

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In a word, absolutely! The NFL, MLB, and NBA must have the right to discriminate against women because they are private entities. People tune in to professional football, baseball, and basketball to watch men who are at the top of their games compete against one another. As a result of this choice, the NFL, MLB, and NBA discriminate against women, and that is their First Amendment–protected right. Private businesses have that freedom, and the government must not interfere. However, the state must be consistent and allow Mrs. Murphy the same right.

The Government Does Not Have the Right to Discriminate: Jim Crow, Anyone?

Unlike free individuals and private businesses, the government does not have the right to associate (and alternatively, to discriminate) because it is constrained by the United States Constitution. Specifically, it is limited by the Equal Protection Clause of the Fourteenth Amendment. Instead, the government has been entrusted with the role of ensuring that all individuals are equally treated by the government under the Rule of Law.

In his dissent in Plessy v. Ferguson (1896), Justice John Marshall Harlan boldly wrote, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”11 Simply stated, the government cannot pick and choose with whom it associates; and it cannot pick and choose with whom others associate either. These are not the concerns of the government. Rather, the government exists to protect our rights; the right to associate and the right to discriminate.

Regrettably, in Plessy, the majority held constitutional a Louisiana law mandating “separate but equal” train cars for blacks and whites, thereby violating the freedom of association of passengers and the railroad owners. In order to comply with state law, white business owners had no choice but to fund and maintain four train cars—black non-smoking, white non-smoking, black smoking, and white smoking. Private enterprise did not wish to make that decision and incur that expense (rather, it wanted its cars integrated), but the government mandated segregation of the cars, thereby violating all parties’ freedom to associate. Unfortunately, the state has failed to protect this freedom time and time again throughout history.

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Jim Crow laws—legally mandated discrimination—were the sad and unforgivable result of the Civil War and Reconstruction. These rules and customs and regulations legally enshrined blacks as second-class citizens for years. In my book Dred Scott’s Revenge: A Legal History of Race and Freedom in America, I document some of the disgusting and demoralizing government-mandated rules that will forever taint our nation’s history and that to this day impair the quiescence of American blacks.

In Alabama, for example, it was a crime for blacks and whites to play cards at the same table or walk down the same sidewalks. In privately owned factories, blacks and whites were required to look out different windows. As witnesses in court, blacks and whites had to swear on different Bibles. Black barbers could not give white people haircuts. Blacks and whites had to check out books in separate library branches. This system of legalized segregation was fully in place by 1910 in every state in the South. In the passage of these dreadful Jim Crow laws, the government singlehandedly stripped blacks and whites of the freedom to associate with whom they pleased.

Take note once more: Jim Crow laws were written, implemented, and enforced by the government. They were not the result of free individual action. Private streetcar companies in