Wednesday, October 08, 2014

Unequal Protection

Guest Blogger

Russell K. Robinson

This Post is part of the Symposium on Unconstitutional Animus

The Supreme Court’s equal protection jurisprudence places people of color and LGBT people on segregated doctrinal paths heading in divergent directions.  While equality is expanding for LGBT people, it is evaporating for people of color.  Nearly 20 years ago, the Supreme Court decided Romer v. Evans, the first of a string of groundbreaking gay rights cases.  Justice Kennedy, writing for the majority, announced at the outset: “the Constitution ‘neither knows nor tolerates classes among citizens.”  (quoting Harlan, J., dissenting, in Plessy v. Ferguson).  Yet the Court’s equality jurisprudence has long been intensely identity-conscious.  And even champions of equality in famous cases have validated other forms of inequality.  Justice Kennedy’s reliance on Justice Harlan’s dissent thus was prescient.  Justice Harlan voted to dismantle the segregated railway cars at issue in Plessy, but he simultaneously praised the supremacy of the “white race.”  Justice Kennedy has been described as the foremost judicial champion of gay rights, yet he consistently votes to roll back basic protections for people of color and women, as signified recently by Shelby County v. Holder.

In general, the measure of equality that the Court currently affords turns heavily on what “class” the law burdens.   The Court has long used the concept of a suspect class to identify a handful of groups that require special vigilance from the Court, while consigning most other classes to rational basis review.  Although this might seem to be in tension with the notion that the Constitution does not know classes, the suspect class model was based on an evaluation of social and political factors that rendered certain classes particularly vulnerable.  Thus, the “special “ scrutiny was designed to bring such classes up to a baseline of equal treatment , which other groups took for granted.  With Romer, however, the balance shifted.  The Court continues to apply the traditional model to virtually all classifications, including race and sex, but it has invented other ways of undermining this analysis—such as equating classifications that burdens whites with those burdening blacks and Latinos and diluting intermediate scrutiny in gender cases.  The one area in equal protection jurisprudence where the Court discards the traditional model and expands equality is gay rights.  Yet the Court has said absolutely nothing to explain this departure.  The central principle of animus does not justify these doctrinal distinctions because many groups face hostility of varying degrees in society, including people with disabilities, Muslims, and of course women and people of color (not to mention deeply reviled groups such as sex offenders and drug users).  But the Court generally refuses to see such bias and invokes the traditional model to turn away claims brought by these groups.

Too often scholars (including some of my colleagues who are writing in this symposium) seemingly accept the Court’s existing doctrine as fair and struggle to produce rationales and frameworks to fill in the gaps and elisions that riddle the gay rights opinion.   Such scholars apparently assume that the Court—really, Justice Kennedy, the swing vote in equality cases—is guided by neutral principles, and if legal scholars just keep poring over his opinions and trying really hard, we will discover the key that unlocks the animus principle.   This effort usually entails linking the modern gay rights cases to Moreno and Cleburne, which also opined on the illegitimacy of laws based on a “bare desire to harm” in very different contexts.  The problem is that those equally ambiguous opinions are roughly 40 and 30 years old, respectively.  They were decided by very different configurations of Justices during very different eras.  The modern Court has refused to extend those precedents in every context except gay rights.  In contrast to these efforts to explain the current doctrine, which may have the unintended effect of legitimizing it, I want to suggest that the doctrine is unprincipled and idiosyncratic.  It reflects one man’s intuition that people of color and women have obtained enough justice in the courts, and the focus of modern equal protection doctrine should be gay rights cases, which are typically fronted by white, affluent plaintiffs, such as Edith Windsor, and so-called “reverse discrimination” claims brought by whites in cases like Ricci and Parents Involved.  As laudable as I find the long-overdue holdings in favor of gay rights, which hold special meaning to me as a gay man, I cannot ignore the divergence that tramples doctrinal consistency and denies equality to most minority groups.

I will highlight two examples of doctrinal inconsistency.  Interested readers can learn more by consulting my forthcoming article, Unequal Protection.  First, in race and sex cases, the Court has rigidly used the concept of a “classification” as a gate-keeping device, but it has ignored this requirement in sexual orientation cases.  In theory, people of color and women enjoy suspect or quasi-suspect class status and thus can invoke heightened scrutiny.  The Court has avoided applying heightened scrutiny, however, by imposing the additional hurdle of a “classification.”  Thus, in Feeney and Geduldig, the fact that a veterans’ preference law and a benefits program that excluded pregnancy severely impacted women was deemed irrelevant because the Court perceived no gender classification.  In McCleskey, the Court applied similar reasoning to a racial challenge to Georgia’s biased capital sentencing scheme.  By contrast, the Court has never mentioned the requirement of a classification in gay rights cases.  The laws in Windsor and Lawrence did not mention sexual orientation on their face, just as the law in Feeney did not mention sex, and the law in McCleskey did not mention race.  Second, LGBT people can invoke animus, a standard that emerged from cases brought by people of color, poor people, and people with disabilities, but that the Court no longer recognizes in such cases.  In place of the contextual, intuitive and rather subjective animus test, the Court requires people of color and women to demonstrate malice—“smoking-gun” evidence that the legislature wanted to harm the group.  No Supreme Court litigant has been able to meet this standard.  LGBT plaintiffs have twice prevailed under the animus standard.

Unequal Protection calls on constitutional law scholars and teachers to think critically about the Court’s equal protection distinctions and consider whether the doctrine itself may perpetuate inequality.

Russell K. Robinson is a Professor at Berkeley Law.  He can be reached at: robinson at

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