Groups, Equal Protection and Law

Social Science Research Network, 2009

This Article considers the Supreme Court's current approach to judicial review of federal legislation enforcing the Equal Protection Clause. It starts from the assumption that the Court will not abandon the judicial supremacy principle it expressed in City of Boerne v. Flores; thus, any approach to congressional enforcement power must accommodate that supremacy. The Article begins by critiquing the Court's current understanding of Boerne, and explaining how new and pending enforcement legislation pose major challenges under that doctrine. It then sketches a theory of the enforcement power which requires Congress to abide by judicial statements of constitutional meaning, but where judicial opinions are read more carefully to distinguish between true statements of constitutional law and subconstitutional decision rules. Congressional enforcement power must not conflict with the former. In addition, to the extent those statements are vague or general, they nevertheless channel congressional enforcement discretion by pointing to follow-on inquiries that Congress must satisfactorily answer in order for the Court to uphold its legislation. The Article then applies this new approach to three new pieces of equality legislation that are either currently in force or under consideration: the Employment Non-Discrimination Act, employment protection for transgendered people, and the Genetic Information Nondiscrimination Act. This application illustrates the theory in action. It also allows us to draw more general conclusions about the theory's workability and appropriateness as a tool for reviewing future enforcement legislation, both under the Equal Protection Clause and other components of the Fourteenth Amendment.

1982

Writing for the Court, Justice Stewart stated that a valid cause of action was stated in paragraph 2 because the indictment alleged that one of the means by which the objects of the conspiracy were achieved was "[b]y caus-2. 383 U.S. 745 (1966). 3. 18 U.S.C. § 241 (1976) states: Consp'racy against nghts of atizens. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured-They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life. 4. 383 U.S. at 753. 5. Id at 757. [Vol. 59:3 mon law. ... II He did, however, state that there are a few rights protected against individual interference that have been read into the Constitution, such as rights against interferences with voting in federal elections, with federal law enforcement, and with communication with the federal government. An interesting feature of the Guest decision is that six members of the Court specifically stated that Congress has power under section 5 to reach 6. Id. at 756. 7. Id. at 761. 8. id at 762. 9. Id at 774. 10. Id at 762. 11. Id at 771. 1982) race or color."-d at 1271. 24. See generally Hohfeld, Some Fundamental Legal Conceptios as Appled to Judicial Reasoning,

West Virginia Law Review, 1991

It is by now an open secret that current interpretations of the meaning of the equal protection clause of the Fourteenth Amendment, and of its relevance and mandate for contemporary problems of racial, gender, and economic justice, are deeply and, in a sense, hopelessly conflicted. The conflict, simply stated, is this: to the current Supreme Court, and to a sizeable and influential number of constitutional theorists, the equal protection of the laws guaranteed by the Constitution is essentially a guarantee that the categories delineated by legal rules will be rational and will be rationally related to legitimate state ends. To this group of jurists, the relevance of the equal protection clause to issues of racial justice rests on the important complementary minor premise to this guarantee of rationality: the claim, both descriptive and normative, that legislative distinctions based upon race can simply never be rational because there are no differences between the races that can in ...

Cornell Law Review, 2014

It would be ironic indeed if a law triggered by a Nation's concern over centuries of racial injustice and intended to improve the lot of those who had "been excluded from the American dream for so long, "... constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.' INTRODUCMON A century ago, Justice Harlan 2 insisted-in vain at the time-that the Constitution "neither knows nor tolerates classes among citizens." 3 This short but powerful phrase offers a perfect illustration of the changing context of equality-based constitutional claims. Responding to the political and social setting in which the state treated African Americans as naturally unequal and appropriately subjugated, Justice Harlan's rebuke of the majority in Plessy v. Ferguson was surely a warning about a missed opportunity for expanding freedom. 4 Eliminating this official subjugation by the imposition of a standard of official color-blindness would have been a move toward liberation in 1896; it certainly proved to be one-half a century later. 5 Nevertheless, read in the context of our own time, the phrase highlights the very complexity of equality jurisprudence. Today, one might respond to Justice

2019

In three essays I consider how American constitutional law might be refashioned according to status egalitarian principles. In "In Defense of Immutability," I take up the immutability criterion in 14 th Amendment jurisprudence. In short, under the immutability criterion, social groups defined by the possession of an immutable trait receive heightened legal protection. Yet the Court has never clearly or persuasively defined "immutable," and most legal scholars now reject the immutability criterion as descriptively inadequate and morally implausible. In this chapter I offer a defense of the immutability criterion. In my view, the immutability criterion accurately captures an essential feature of unjust status hierarchies, namely, that dominant groups in a status hierarchy will tend to identify subordinate groups on the basis of stigmatized traits that possess a fixed social meaning. Equal Protection therefore requires the Court to look not to immutable physical or psychological traits but to the existence of immutable, stigmatized social identities. I conclude this Chapter by showing how my account of "social immutability" extends legal protection to traits such as language, hair, and gender presentation. In "The Badges of Slavery Revisited," I consider Congress's authority under Section 2 of the 13 th Amendment to abolish racial status hierarchy. Since at least the late 19 th century Section 2 has been understood as granting Congress the authority to abolish the "badges and incidents" of slavery. Surprisingly, however, there has been little historical inquiry into the meaning of the badges metaphor. Recently, legal historians have argued that Congressional authority to remove the badges of slavery should extend only to practices that mirror chattel slavery. In fact, as I vi argue in this Chapter, the badges metaphor was widely used in the antebellum period to condemn political subordination of many sorts, including misogynistic gender norms, exploitative labor relations, and segregation. Contemporary legal scholars who invoke the badges metaphor to condemn a wide variety of injustices, and not just those due to the legacy of chattel slavery, are thus correct in thinking that Section 2 remains an untapped font of legislative authority. Finally, in "The Case for Unconditional Birthright Citizenship," I examine the moral justification for unconditional birthright citizenship. Contemporary egalitarians increasingly dismiss the practice as arbitrary and unjust; yet, in this essay I demonstrate that in multi-ethnic liberal democracies characterized by relatively high levels of immigration, unconditional birthright citizenship is necessary for creating a non-racialized, egalitarian national identity. Birthright citizenship expresses a fundamental legal commitment to incorporating, on equal terms, potentially vast demographic change into the body politic. Overall, I conclude that birthright citizenship has proven to be a deeply effective means by which to eliminate inherited status hierarchies and so deserves the support of contemporary egalitarians.

SSRN Electronic Journal, 2000

CONCLUSION: THE CHALLENGE OF POINTILLIST CONSTITUTIONALISM ..... 412 * Professor of Law, Brooklyn Law School. Thanks to Joel Gora and Eric Berger for helpful comments on an earlier version of this Article, and to Emmanuel Fashakin and Michael Teitel for fine research assistance. The Author also wishes to acknowledge the financial support provided by the Brooklyn Law School Dean's Summer Research Stipend Program. BOSTON UNIVERSITY LA W REVIEW Clause. That jurisprudence, requiring that there be "congruence and proportionality" between enforcement legislation and the constitutional violation the law targets, has relied heavily on the suspect class status of the benefitted group. Until very recently, the results of the congruence and proportionality inquiry were predictable; legislation that enforced the equal protection rights of suspect or quasi-suspect classes would enjoy deferential judicial review, while legislation enforcing the rights of nonsuspect classes would receive a skeptical judicial reception. While recent cases potentially call this template into question, it remains for now a basic feature of the Court's Enforcement Clause doctrine. Windsor, by abjuring suspect class and even 'fit" analysis, undermines the Court's approach to the enforcement power. This Article examines the challenge Windsor poses to the Court's Enforcement Clause doctrine. It argues that Windsor requires the Court to reconsider its approach to the congruence and proportionality standard. In particular, it argues that Windsor's more particularized equal protection methodology requires the Court to consider how Congress may legitimately translate such judicial pointillism into enforcement legislation's inevitably broader brushstrokes. It is urgent that the Court consider a new approach to the enforcement power. Congress either has enacted or is poised to enact several significant pieces of enforcement legislation benefitting groups whose suspect class status has not been determined and likely never will. Unless the Court is prepared to exclude Congress from participating in the equality projects the Court itself has embarked on, the Court needs to consider how to harmonize its newfound interest in constitutional pointillism with enforcement legislation's broader brushstrokes. This Article suggests such an approach, one that recognizes Congress's institutional competence and legitimacy to make broad judgments about the same sort of animus the Court found through its more precisely targeted inquiry in Windsor. This approach would not immunize enforcement legislation from judicial review. As explained in this Article, however, this approach does call for a change in the way the Court performs congruence and proportionality review. This Article closes by applying this new approach to a pending piece of enforcement legislation, the Employment Non-Discrimination Act, which would offer federal employment discrimination protections to gay and lesbian workers.

Social Science Research Network, 2009

This Article examines the Supreme Court's recent "class-of-one" equal protection case, Engquist v. Oregon Department of Agriculture, where the Court held that the class-of-one equal protection theory did not apply in the government workplace. The Article concludes that Engquist reflects an implicit balancing of employees' equal protection rights against the government's legitimate interests in a flexible workplace and avoidance of litigation, with the Court imposing a categorical rule favoring the government's side of the balance. This Article critiques this categorical balancing. It argues that such a categorical rule is generally inappropriate where interests of constitutional stature exist on both sides of the balance. However, it is the Engquist Court's method that carries with it the most troubling implications for equal protection and constitutional rights generally. Engquist disregards the sub-constitutional decision rules that lower courts developed to apply the constitutional principle the Court announced when it officially endorsed the class of one theory in 2000. Those rules were designed to honor both sides of the balance described above, and drew on trial courts' ability to impose appropriate pleading requirements, sift carefully through facts, and thus cull meritless claims at early stages of litigation while allowing potentially meritorious claims to progress. The Court's disregard of the doctrinal rules developed by the lower courts hearkens back to its analogous disregard of congressional factfinding supporting legislation enforcing the Fourteenth Amendment. While the Court's relationship to the lower courts is quite different from its relationship to Congress, the lower courts nevertheless have unique talents useful to

Social Science Research Network, 2004

Cleburne Living Center, of why it would not grant suspect cass status to the mentally retarded Cleburne s explanation allows a comparison of Congress s and the Court' abilities to determine whether a classification runs a highnIsk of being constitutionally unreasonable. The Article then confronts a final theoretical problem: If most rational basis cases don't reflect true declarations of equal protection law, and if rational basis cases comprise the vast majoriy of equal protection claims, then where is the law in the Equal Protection Clause? The Artcle suggests that lurking in the rational basis cases is a fundamental principle of equal protection law-e nule against animus. The last major part of the Article considers if, and how, this antianunus rule could cabin would otherwise seem to be a very broad Section 5power The Article concludes by speculating about what this analysis means for Section 5 enactments addressing genderandrace. Inparticula, the Court~sgenderjurzsprudence implies a significant role for congressional input via the Section 5 power The Article also speculates whether this analysis illuminates the scope of Congress s power to address substantive rights under the Due Process Clause or other clauses of the Fourteenth Amendment.