The Anti-Stereotyping Principle

For the Constitution in 2020 conference on The Future of Equality.

Last month, when Attorney General Holder announced that discrimination on the basis of sexual orientation warranted “heightened scrutiny” under the Equal Protection Clause, and that §3 of the Defense of Marriage Act was unconstitutional under this standard, it was not immediately clear what level of scrutiny he was advocating. Maggie Gallagher, a leading opponent of same-sex marriage, accused Holder of “unilaterally declar[ing] that gay is like black, that orientation is now subjected to strict scrutiny.” Numerous commentators argued that, in fact, Holder was advocating an intermediate scrutiny standard. Courts that have applied heightened scrutiny to orientation-based discrimination have gone both ways. More important than the difference between strict and intermediate scrutiny, however, is the question of what mediating principle will guide courts’ application of equal protection to sexual orientation.

Holder’s letter to Congress begins to develop such a principle. He argues that §3 is unconstitutional because it was motivated by “disapproval of gays and lesbians and their intimate and family relationships—precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.” It is this “disapproval” and “stereotype-based thinking” that, in Holder’s view, triggers the need for heightened scrutiny; he emphasizes that gays and lesbians have faced a long history of discrimination based on negative stereotypes, and that these “stereotypes . . . continue to have ramifications today.” Thus, Holder suggests, orientation-based equal protection law should incorporate an anti-stereotyping principle: The state cannot act in ways that reflect or reinforce widely-held stereotypes about the capacities or intimate and family relationships of sexual minorities.

Holder borrowed this anti-stereotyping principle from sex-based equal protection law. In cases such as U.S. v. Virginia (which Holder cites), the Court has held that the state may classify on the basis of sex when doing so serves to disrupt sex-role stereotypes, but not when it reflects or reinforces such stereotypes. “Real differences” between the sexes do not trump or negate this rule. The state may take real differences into account when seeking “to promot[e] equal employment opportunity” or “advance full development of the talent and capacities of our Nation’s people,” but such differences may not be used to justify state action that reflects or reinforces traditional conceptions of men and women’s roles.

Holder’s adaptation of this anti-stereotyping principle illustrates the potential of orientation-based equal protection law. An anti-stereotyping principle would enable courts to invalidate laws restricting marriage to different-sex couples without further stigmatizing relationships outside of marriage. It would protect sexual minorities across a wide range of contexts (including parenting, work, and health) that the marriage-as-a-fundamental-right approach fails to reach. Under an anti-stereotyping approach, “real differences”—such as the fact that same-sex couples cannot conceive children on their own—could not be used to justify state action that reflects or reinforces stereotyped conceptions of gay parents and their children. This way of doing gay rights would help protect the liberty of all gays and lesbians to develop their capacities and form families free from “the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.”

Cary Franklin is Assistant Professor of Law at the University of Texas School of Law. You can reach her by e-mail at cfranklin@law.utexas.edu

Winning Through Losing: Life After Perry

For the Constitution in 2020 conference on The Future of Equality.

Popular accounts and media commentary on the federal suits challenging the Defense of Marriage Act (DOMA) and California’s Proposition 8 focus largely on the inevitable march toward marriage equality.Implicit in such accounts is a claim about the impact of favorable court decisions on the LGBT rights agenda.After a district court victory in the Massachusetts DOMA case and the more recent announcement by Attorney General Holder that DOMA is unconstitutional under an appropriately heightened standard, the toppling of the federal ban seems imminent.After the district court’s decisive blow to Prop 8 in the Perry v. Schwarzenegger litigation and a Ninth Circuit oral argument before a generally receptive panel, commentators have focused on the impact of positive judicial intervention on same-sex couples in California

Judicial defeat, however, is a very real possibility.Indeed, that LGBT rights advocates discouraged the federal Prop 8 challenge suggests that a federal litigation campaign for marriage equality is a high-risk proposition.The built-in assumption is that a Supreme Court loss would be crushing for the movement.But perhaps the aftermath of a litigation loss is not all doom and gloom.Perhaps a loss might instead raise consciousness among lesbians and gay men, produce a sense of outrage, and compel movement members to press more urgently for change from elected officials and the public.Perhaps a loss would frame the issue in a way that aids fundraising efforts, brings more sympathetic elites on board, moves the issue to the top of some legislative agendas, and leads to complacency in the Christian Right countermovement.

 

From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases

For the Constitution in 2020 conference on The Future of Equality.

For decades, the Supreme Court has sharply divided in equal protection race discrimination cases. As commonly described, the Justices disagree about whether the Equal Protection Clause is properly interpreted through a colorblind anticlassification principle concerned with individualism or through an antisubordination principle concerned with inequalities in group status. This Article uncovers a third perspective on equal protection in the opinions of swing Justices who have voted to uphold and to restrict race conscious remedies because of concern about social divisiveness which, they believe, both extreme racial stratification and unconstrained racial remedies can engender. The Article terms this third perspective on equal protection concerned with threats to social cohesion the antibalkanization perspective.

Employing this triadic model of equal protection, the Article demonstrates how Justice Kennedy reasons from antibalkanization values in the recent cases of Parents Involved in Community Schools v. Seattle School District No. 1 and Ricci v. DeStefano. There Justice Kennedy affirms race-conscious facially neutral laws that promote equal opportunity (such as disparate impact claims in employment discrimination laws) so long as the enforcement of such laws does not make race salient in ways that affront dignity and threaten divisiveness.

This Article’s triadic model identifies alternative directions equal protection doctrine might develop, and enables critique. A final section raises questions concerning the principle’s logic and application. Have those who interpret equal protection with attention to balkanization enforced the principle in an effective and evenhanded way? In this spirit, the Article concludes by suggesting that the antibalkanization principle could be applied to cases of concern to minority communities that do not involve challenges to civil rights laws (for example, government use of race in suspect apprehension).

Reva Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale University. You can reach her by e-mail at reva.siegel at yale.edu

The New Equal Protection

For the Constitution in 2020 conference on The Future of Equality.

Over the past decades, the Court has systematically denied constitutional protection to new groups, curtailed it for already covered groups, and limited Congress’s capacity to protect groups through civil rights legislation. The Court has repeatedly justified these limitations by adverting to pluralism anxiety. These cases signal the end of equality doctrine as we have known it.

The end of traditional equality jurisprudence, however, should not be conflated with the end of protection for subordinated groups. The Court’s commitment to civil rights has not been pressed out, but rather over to collateral doctrines. Most notably, the Court has moved away from group-based equality claims under the guarantees of the Fifth and Fourteenth Amendments to individual liberty claims under the due process guarantees of the Fifth and Fourteenth Amendments. This move reflects what academic commentary has long apprehended — that constitutional equality and liberty claims are often intertwined. I refer to such hybrid equality/liberty claims as “dignity” claims. Based on whether the liberty or the equality dimension of the hybrid claim is ascendant, I call it the “liberty-based” or “equality-based” dignity claim.

The introduction of a third overarching term like “dignity” that acknowledges the links between liberty and equality is overdue. Too much emphasis has been placed on the formal distinction between the equality claims made under the equal protection guarantees and the liberty claims made under the due process or other guarantees. In practice, the Court does not abide by this distinction. The Court has long used the Due Process Clauses to further equality concerns, such as those relating to indigent individuals, national origin minorities, racial minorities, religious minorities, sexual minorities, and women. Conversely, the Court has used the equal protection guarantees to protect certain liberties, such as the right to travel, the right to vote, and the right to access the courts. We need to look past doctrinal categories to see that the rights secured within those categories are often hybrid rights. This Article focuses particularly on the liberty-based dignity claim, because I believe it offers a way for the Court to “do” equality in an era of increasing pluralism anxiety.

Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law, New York University School of Law. You can reach him by e-mail at kenji.yoshino at nyu.edu

Religious Neutrality in American Law

For the Constitution in 2020 conference on The Future of Equality.

Often charged with hostility toward religion, First Amendment doctrine in fact treats religion as a good thing. It insists, however, that its goodness be understood at a high enough level of abstraction that the state takes no position on any live religious dispute. American religious neutrality has over time become more vague as America has become more religiously diverse, so that today (with the exception of a few grandfathered practices) the state cannot even affirm the existence of God. This kind of neutrality is not the kind of neutrality toward all conceptions of the good that many liberal political theorists have advocated, but it is the best response to the enormous variety of religious views in modern America. It is faithful to the framers’ belief that religion can be degraded and corrupted by state support.

The Supreme Court has interpreted the establishment clause to mean that “[n]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.” But the Court has also acknowledged that “the Free Exercise Clause, . . . by its terms, gives special protection to the exercise of religion.” Accommodation of religion as such, beginning with the exemption of Quakers and Mennonites from the military draft, is unquestionably permissible.

It is not logically possible for the government both to be neutral between religion and nonreligion and to give religion special protection. Some justices and many commentators have therefore regarded the First Amendment as at war with itself, and propose to cast aside large bodies of settled establishment clause law.

The critics are right that neutrality is incoherent when it is understood at the highest possible level of abstraction. Yet almost no one regrets the state’s refusal to take a position on the metaphysical status of the Eucharist. Neutrality’s continuing appeal demands explanation.

The answer, which I will elaborate in my forthcoming book, Religious Neutrality in American Law: An Analysis and Defense (Harvard 2012), is that neutrality is available in many forms. One of the many ways that government can go wrong is to take a position on some question that, all things considered, it ought to abstain from deciding. The American law of disestablishment has from the beginning sought, for excellent reasons, to keep the state from adjudicating religious questions that are the objects of controversy in American society. That aspiration is both coherent and valuable.

Understanding the specific level of religious neutrality presupposed in American law dispels many apparent anomalies. For example, because religion is understood as a good at a high level of abstraction, it makes sense for the Court to continue to deploy one of the classic justifications for the religion clauses: the idea (which presupposes the value of religion) that religion can be corrupted by state involvement with it. I explain and defend the idea that a law must have a secular legislative purpose. I show why it makes sense to permit old, but not new, ceremonial acknowledgements of religion. I also explain why it is not unfair to give religion the special treatment that it now receives.

Andrew Koppelman is John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University. You can reach him by e-mail at akoppelman at law.northwestern.edu

Discrimination, Immigration Law and the Constitution in 2020

For the Constitution in 2020 conference on The Future of Equality.

In 2020, legislatures and courts addressing immigration will likely continue to struggle with two longstanding, fundamental questions: First, when is discrimination on the basis of race, ethnicity or origin acceptable, and second, when is affirmative action or some other accounting for previously disadvantaged groups warranted. Affirmative action is not normally thought of as part of the immigration debate, but Rogers Smith among others compellingly argues that one of the reasons undocumented Mexican immigrants should be treated with some consideration is the history of U.S. mistreatment of Mexicans and Mexican Americans, and interference in Mexico. Mexicans are hardly alone in this respect; 2012 will mark the 130^th anniversary of the Chinese Exclusion Act of 1882. Ultimately expanded to all Asians, special restriction on Asian immigration was eliminated only in 1965.

Given that race is supposedly a suspect classification, it may seem odd that the scope of affirmative discrimination on the basis of race remains a pressing issue. But with modern immigration and national security politics, claims about the explicit and legitimate use of race in government action have reemerged with force. For an example of such explicit use of race that is allowed by law used in practice, consider whether police may rely on apparent Mexican ancestry in stopping suspected undocumented migrants. (For some reason, the question of using apparent Canadian ancestry as a basis for arrest never comes up.)

 

The United States’ Rights Tradition and State Constitutions

For the Constitution in 2020 conference on The Future of Equality.

America’s constitutional law, its rights tradition in particular, is often said to reflect Americans’ fear of an over-active and overbearing state. Thus, America’s Constitutional rights are widely thought to restrain the state in order to protect citizens from the state’s power and potential for tyranny. Constitutions of other nations all over the world also contain these limits on government, but they include a different kind of right as well. These rights (sometimes called positive rights) obligate government to intervene in social and economic life, promoting equality rather than simply procedural fairness. They offer protection not from government itself, but from market capitalism and its consequences. The Belgian Constitution, for instance, declares that everyone has a right to a free education, and the South African Constitution includes the right to medical care. The text of the U.S. Constitution contains no such explicit guarantees, and the Supreme Court has consistently declined to interpret the Constitution to include them. Many have concluded that America simply lacks this other kind of constitutional right, and that Americans have been willing to commit to welfarist policies only at the level of statutory law.

The problem with this conventional account of American constitutional rights is that it takes the history of the federal Constitution and the federal Supreme Court to be the only one worth considering. The great majority of commentators on American rights have leapt effortlessly, and indeed unconsciously, from the assertion that the federal Constitution lacks (judicially recognized) positive rights to the conclusion that the United States lacks positive rights, at least at the constitutional level. It is this error that I endeavor to correct through my study of state constitutional movements.

 

Can courts advance equality?

For the Constitution in 2020 conference on The Future of Equality.

Can courts advance substantive equality? Michael Paris thinks so. His recent book, Framing Equal Opportunity: Law and the Politics of School Finance Reform, challenges the increasingly prevalent view of judicial impotence as exemplified by Gerald Rosenberg’s The Hollow Hope. Paris’s book describes how courts in two states—New Jersey and Kentucky—achieved significant reform of their states’ unjust school finance systems. He concludes that in both states the courts deserve credit for forcing social change, even if that change was slow in coming. In New Jersey and Kentucky, significant monies were shifted to poor school districts in response to judicial decisions.

This focus on state courts is an important corrective to the current progressive skepticism of the U.S. Supreme Court. Consider Michael Klarman’s view that the Court rarely challenges an existing national political consensus or Mark Tushnet’s advice to “take the Constitution away from the courts.” Progressive scholars have examined the Supreme Court and found it lacking, either because it does little more than rein-in political outliers or, more damningly, because its mostly conservative inclinations are only rarely punctuated by fits of progressivism.

State courts (and constitutions) are strangely absent from this narrative and from our taught constitutionalism. This is so despite Justice Brennan’s urging almost thirty-five years ago that progressives look to state constitutions for the vindication of individual rights. Our constitutional theories are weirdly parochial, obsessed as we are by the national Constitution of 1789 and by our current arguments over how to read it. But there are fifty other constitutions in this country. Those constitutions contain more substantive rights and protections than does the national one, and they have been revised more readily, more often, and more recently. Paris describes only two of the twenty-six successful state school finance reform decisions, many of which have been based on state constitutional rights to education.

How judicially-recognized constitutional rights get “translated” into progressive politics is the topic of Paris’s book. He argues that state supreme courts are central actors in the legal mobilization necessary for an equality-forcing politics. Emily Zackin, whose recent dissertation is about the long tradition of positive rights in state constitutions, also argues that constitutional politics in the states is importantly different from constitutional politics at the national level. She argues, like Paris, that state constitutional politics is an extension of normal politics; the fetishization of “higher law” that sometimes manifests itself as constitutional reverence simply does not exist at the state level. State citizens are perfectly willing to amend, override, and otherwise fight about the content of their constitutions. The result has been a robust local constitutionalism that is more attentive to substance and less preoccupied with methodology than is our anemic national discourse.

Richard C. Schragger is Professor of Law at the University of Virginia School of Law. You can reach him by e-mail at schragger at virginia.edu

The Death (and Life?) of School Desegregation

For the Constitution in 2020 conference on The Future of Equality.

Everyone knows that school desegregation is dead. The massive economic and demographic changes of the past sixty years, combined with many public policies, created racial ghettos. Segregated housing patterns and segregating public schooling marched hand-in-hand.

For a brief time, federal courts were responsive to demands for desegregation. But then in Milliken the Supreme Court drew the line at the crabgrass frontier. Court-supervised desegregation continued for a decade or so, but it was largely confined to city limits. Over the course of the 1990’s, the Supreme Court prodded lower courts to withdraw from the field, and withdraw they did. Parents Involved was simply the coup de grace. Racial classification, not racial subordination, was really the evil to be eradicated all along. Attentive scholars now talk of “integration fatigue” among minority groups, and even erstwhile supporters of desegregation say that this particular game is over.

The Constitution in 2020: The Future of Equality

On April 1st and 2d, The University of Texas School of Law and the American Constitution Society will be hosting a conference on The Future of Equality. This conference is one of a series of academic events connected to the Constitution in 2020 project.

Over the next two weeks speakers at the conference will be posting short essays about their work on Balkinization.