Wednesday, December 01, 2004

The New Equal Protection -- post by Kenji Yoshino

Discrimination in the United States has been shifting in some quarters from targeting groups toward targeting subsets of the group that fail to assimilate to the dominant group's norms. The movement has been from "no racial minorities allowed" to "no cornrows or non-English languages allowed," from "no women allowed" to "no mothers allowed," from "no gays allowed" to "no flaunting gays allowed," and so on. Should the law prohibit such "second-generation" discrimination, which targets the chosen, cultural, or behavioral dimensions of social status? An affirmative answer might begin by pointing out that discrimination against the subgroup may reflect discriminatory animus toward the group as a whole, that such discrimination may have a disparate impact upon the group even in the absence of animus, and that the attribute defining the subgroup may be deserving of protection in its own right.

The constitutional remedy for such second-generation discrimination is not obvious. The Constitution's equal-protection guarantees cannot currently redress such harms because they have been narrowly construed. It is familiar history that, since 1976, discriminatory impact alone is insufficient to trigger heightened judicial scrutiny. That peremptory strikes directed at Spanish speakers will have a disparate impact on Latinos will not in itself result in the strikes being closely examined by the Court. And while discriminatory impact may be probative of discriminatory purpose, the Court in 1979 defined discriminatory purpose in a highly restrictive manner. To meet that definition, strikes directed at Spanish speakers would have to have occurred "not in spite of, but because of," their effect on Latinos. Finally, in most instances, the Court will not scrutinize second-generation discrimination because it has refused to accord heightened scrutiny to first-generation discrimination, as in the cases of disability or orientation.

The Court's unwillingness to redress second-generation discrimination under the equal-protection guarantees can be traced in large part to the explosive pluralism of American society. In restricting protections for historically subordinated groups, the Supreme Court has repeatedly alluded to the increasing demographic diversity of the American polity. It has expressed concern that if it protects a cultural attribute associated with one group, it will be pressed to protect analogous attributes associated with other groups. That consideration will draw the Court into comparative judgments about the validity of cultures and groups. Understandably, the Court would rather be dead in a ditch than make such judgments.

Yet the Court has not left cultural rights entirely unprotected. Substantive due process and the somewhat arcane rights strand of equal protection have addressed equality concerns under the guise of protecting fundamental rights. In the 1970s, the Court vindicated some of the rights of the indigent not by giving class heightened scrutiny but by declaring some rights -- such as the right to travel or the right to access courts -- fundamental. While the rights themselves were universal, their origins were particular, in more than the trivial sense. They arose from an identity-based social movement the Court was not willing to protect as such.

Recent decisions like Lawrence v. Texas (2003) or Tennessee v. Lane (2004) limn a similar trajectory. While these cases could be most plausibly categorized as equality cases pertaining to sexual minorities or individuals with disabilities, the Court decided to protect these groups through due process rather than equal protection. That doctrinal move reflected a shift away from equality toward liberty as the ground on which historically subordinated groups would be protected.

Reva Siegel and I are writing an essay arguing that to the extent the Court continues to vindicate equality claims, it will increasingly do so through fundamental-rights adjudication. This shift permits the Court to lift up a historically subordinated group without explicitly giving it constitutional solicitude as a group. Fundamental-rights analysis, of course, raises slippery slope concerns of its own. But it has the virtue of emphasizing where citizens tack together rather than where we veer apart. Taken to its outer limit, it also gives the trend toward globalization its due, as Lawrence demonstrated in grading civil rights into human rights. (Human-rights lawyers, take note: substantive due process is now an even more viable vehicle through which to internalize international norms.)

What will our anti-discrimination law look like in sixteen years? Will we have defined second-generation discrimination out of the category of legal harm altogether, leaving "cultural rights" to be redressed by "cultural remedies"? Will we have re-opened any of the equal-protection doors the Court closed in the 1970s, securing a "substantive equal protection"? Or will substantive due process (or some other line of doctrine) have become the "new equal protection"?

What will we (or they) have chosen, and how wise, in 2020 hindsight, will those choices appear to our eyes?

--Kenji Yoshino