Civil Rights and Discrimination Commons^™

Obergefell V. Hodges: How The Supreme Court Should Have Ruled, Adam Lamparello

Adam Lamparello

In Obergefell, et al. v. Hodges, Justice Kennedy’s majority opinion legalizing same-sex marriage was based on “the mystical aphorisms of a fortune cookie,” and “indefensible as a matter of constitutional law.” Kennedy’s opinion was comprised largely of philosophical ramblings about liberty that have neither a constitutional foundation nor any conceptual limitation. The fictional opinion below arrives at the same conclusion, but the reasoning is based on equal protection rather than due process principles. The majority opinion holds that same-sex marriage bans violate the Equal Protection Clause because they: (1) discriminate on the basis of gender; (2) promote gender-based stereotypes; and …

Standing; Assertion Of Jus Tertii; Sex Discrimination; Equal Protection; Twenty-First Amendment; Craig V. Boren, Anthony Sadowski

Akron Law Review

"A PPELLANTS brought an action in the United States District Court for the Western District of Oklahoma seeking declaratory and injunctive relief. The complaint charged that the operation of two Oklahoma statutes, which prohibited the sale of 3.2% beer to males under the age of 21 while allowing females over the age of 18 to purchase the commodity, violated the fourteenth amendment to the Federal Constitution. The three-judge court held that the gender-based classification did not violate the equal protection clause. In Craig v. Boren, on direct appeal, the United States Supreme Court reversed, finding that the gender-based classification could …

Container Legislation, Equal Protection, Commerce Clause, Minnesota V. Clover Leaf Creamery Company, Craig B. Paynter

Akron Law Review

The problems of litter, solid waste, and natural resource depletion are often inexorably linked to the liquid manufacturing and packaging industry. Legislative efforts to ameliorate these problems may therefore involve various controls of containers. When states enact container legislation, however, terms must be carefully chosen to avoid conflict with both state and federal constitutions.

Justice Kennedy's Decision In Obergefell: A Sad Day For The Judiciary, Adam Lamparello

Adam Lamparello

Same-sex couples have a constitutional right to marriage under the Equal Protection Clause, not under Justice Kennedy’s self-serving and ever-changing definition of liberty. The long-term impact of Kennedy’s decision will be to the Court’s institutional legitimacy. Chief Justice Roberts emphasized that the legitimacy of this Court ultimately rests “upon the respect accorded to its judgments,” which is based on the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law.” Justice Kennedy’s decision eschewed these values, giving the Court the power to discover “new dimensions of freedom,” and to ensure that all citizens, through …

Rebuilding The Slaughter-House: The Cases' Support For Civil Rights, David S. Bogen

Akron Law Review

This Article sets forth the Slaughter-House Cases’ support for civil rights. Justice Miller used federalism in order to protect Reconstruction legislatures where significant numbers of African-Americans participated fully for the first time. His recital of the history and purpose of the Civil War Amendments centered on the Amendments’ design to protect African-Americans, and suggested sweeping federal power to accomplish that end. Gutting the Privileges and Immunities Clause compelled the Court to read the Equal Protection Clause broadly, and was indirectly responsible for the reapportionment decisions of the Warren Court. The Slaughter-House Court’s structural analysis and its view of federal protective …

Are Filipina/Os Asians Or Latina/Os?: Reclaiming The Anti-Subordination Objective Of Equal Protection After Grutter And Gratz, Victor C. Romero

Victor C. Romero

In this piece, I explore two avenues of political action - self-identification for affirmative action purposes and longer-term solutions to educational inequity - in an attempt to develop a coherent and effective post-Grutter and Gratz strategy for promoting equal educational opportunities consistent with the demands of equal protection. I use the experiences of Filipina/o-Americans as a vehicle for exploring these issues. I hope to show that diversity as the underlying goal of affirmative action fails to capture the core of modern equal protection jurisprudence implicit in Brown v. Board of Education and Loving v. Virginia: that treating all races equally …

An Other Christian Perspective On Lawrence V. Texas, Victor C. Romero

Victor C. Romero

The so-called Religious Right's reaction to Lawrence v. Texas has been both powerful and negative, characterizing the case as an assault on the traditional conception of marriage and family life. This essay is an attempt to present a different Christian view. Modeled on the life and teachings of Jesus, this perspective celebrates the Lawrence case as consistent with God's call to social justice for the oppressed. It also outlines a Christian sexual ethic that lifts up genuine, monogamous, committed love between two individuals, whether of the same or opposite sex.

Congruence Principle Applied: Rethinking Equal Protection Review Of Federal Alienage Classifications After Adanrand Constructors, Inc. V. Peña, Victor C. Romero

Victor C. Romero

This article suggests that the Supreme Court's 1995 decision in Adarand Constructors, Inc. v. Peña constitutes a starting point for a renewed dialogue on the intersection of race, noncitizens' rights, and immigration law. Part I of this Article examines the historical foundations of the plenary power doctrine up to the current dichotomy between judicial review of state and federal alienage classifications under equal protection. Part II reviews the Adarand decision, arguing that Justice O'Connor's congruence principle provides the bulwark for a revision of judicial review of federal legislation, especially in light of the historical and continuing perception of Asian- and …

The (Non-)Right To Sex, Mary Ziegler

Scholarly Publications

What is the relationship between the battle for marriage equality and the expansion of sexual liberty? Some see access to marriage as a quintessentially progressive project—the recognition of the equality and dignity of gay and lesbian couples. For others, promoting marriage or marital-like relationships reinforces bias against individuals making alternative intimate decisions. With powerful policy arguments on either side, there appears to be no clear way to advance the discussion.

By telling the lost story of efforts to expand sexual liberty in the 1960s and 1970s, this Article offers a new way into the debate. The marriage equality struggle figures …

Scholars Of The Constitutional Rights Of Children (Amici Curiae), Tanya M. Washington

Tanya Monique Washington

My co-authors and I filed an amicus brief with the U.S. Supreme Court in Obergefell v. Hodges last month. Our first co-authored amicus brief was filed with the Supreme Court in U.S. Windsor in 2013, and it was cited by the Respondents in their brief to the Court. The Defense of Marriage Act's harmful impact on children in same-sex families was the focus of that brief, and the Court acknowledged those harms as relevant to its analysis of DOMA's constitutionality. Our brief was published in the Iowa Journal of Gender, Race and Justice.

In our amicus brief in Obergefell v. …

Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence

Michael Anthony Lawrence

This Article looks back to the United States Supreme Court’s jurisprudence during the years 1953-1969 when Earl Warren served as Chief Justice, a period marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association and religion, voting rights, and more. The Article further discusses the constitutional bases for the Warren Court’s decisions, principally the Fourteenth Amendment equal protection and due process clauses.

The Article explains that the Warren Court’s equity-based jurisprudence closely resembles, at its root, the “justice-as-fairness” approach promoted in John Rawls’s monumental 1971 work, A Theory of …

A Battle Of The Amendments: Why Ending Discrimination In The Courtroom May Inhibit A Criminal Defendant’S Right To An Impartial Jury, Gina M. Chiappetta

Fordham Law Review

Since the U.S. Supreme Court began limiting the exercise of peremptory challenges to safeguard potential jurors from discrimination, it has faced a nearly impossible task. The Court has attempted to safeguard a juror’s equal protection rights without eradicating the peremptory challenge’s ability to preserve a criminal defendant’s right to an impartial jury. Under the current legal framework, it is not certain whether either constitutional right is adequately protected. This Note examines the history of the Supreme Court’s limitation on peremptory challenges. It then discusses the current federal circuit split over whether peremptory challenges should be further limited. Finally, this Note …

Same-Sex Marriage, Second-Class Citizenship, And Law's Social Meanings, Michael C. Dorf

Michael C. Dorf

Government acts, statements, and symbols that carry the social meaning of second-class citizenship may, as a consequence of that fact, violate the Establishment Clause or the constitutional requirement of equal protection. Yet social meaning is often contested. Do laws permitting same-sex couples to form civil unions but not to enter into marriage convey the social meaning that gays and lesbians are second-class citizens? Do official displays of the Confederate battle flag unconstitutionally convey support for slavery and white supremacy? When public schools teach evolution but not creationism, do they show disrespect for creationists? Different audiences reach different conclusions about the …

A Partial Defense Of An Anti-Discrimination Principle, Michael C. Dorf

Michael C. Dorf

Over a quarter century ago, Professor Fiss proposed that the constitutional principle of equal protection should be interpreted to prohibit laws or official practices that aggravate or perpetuate the subordination of specially disadvantaged groups. Fiss thought that the anti-subordination principle could more readily justify results he believed normatively attractive than could the rival, anti-discrimination principle. In particular, anti-subordination would enable the courts to invalidate facially neutral laws that have the effect of disadvantaging a subordinate group and also enable them to uphold facially race-based laws aimed at ameliorating the condition of a subordinate group. Since Fiss’s landmark article appeared, Supreme …

Schuette, Facial Neutrality And The Constitution, Mark Strasser

Mark Strasser

Equal protection jurisprudence continues to evolve. The Court’s recent decision in Schuette v. Coalition to Defend Affirmative Action expressly disavows that it is modifying the existing equal protection jurisprudence, while nonetheless employing an approach that had previously been rejected in a few different respects. As to whether the Court has radically altered the existing equal protection jurisprudence in any of these respects sub silentio or, instead, has simply suspended the accepted constitutional rules in this particular case, this remains to be seen.

This article discusses the developing equal protection jurisprudence with respect to racial classifications, and then focuses on Schuette …

Unmistakably Clear: Human Rights, The Right To Representation, And Remedial Voting Rights Of People Of Color, Matthew H. Charity

Faculty Scholarship

The Author critiques the Supreme Court’s analysis in its Shelby County v. Holder decision, which found the preclearance requirement of the Voting Rights Act unconstitutional by applying a disparate treatment analysis to how States were treated under the Act. Such a reading of the Act makes a number of tacit and explicit assumptions with regard to the choice by the Federal Government and by the States of whose rights governmental actors must protect. The Court reached its conclusion by decontextualizing the Civil Rights movement and the Voting Rights Act from decolonization and post-World War II expressions of human rights, a …

A Deer In Headlights: The Supreme Court, Lgbt Rights, And Equal Protection, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this essay, I argue that the problems with how courts apply Equal Protection principles to classifications not already recognized as suspect reach beyond the most immediate example of sexual orientation. Three structural weaknesses drive the juridical reluctance to bring coherence to this body of law: two doctrinal and one theoretical. The first doctrinal problem is that the socio-political assumptions that the 1938 Supreme Court relied on in United States v. Carolene Products, Inc. to justify strict scrutiny for “discrete and insular minorities” have lost their validity. In part because of Roe v. Wade-induced PTSD, the courts have …

Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren Lenard Hutchinson

UF Law Faculty Publications

The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors generally remain colorblind. The colorblindness doctrine has led to the judicial invalidation of policies designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect “group rights.”

Constitutional law theorists have criticized these aspects of equal protection doctrine. Recently, however, some theorists …

The Ironies Of Affirmative Action, Kermit Roosevelt Iii

All Faculty Scholarship

The Supreme Court’s most recent confrontation with race-based affirmative action, Fisher v. University of Texas, did not live up to people’s expectations—or their fears. The Court did not explicitly change the current approach in any substantial way. It did, however, signal that it wants race-based affirmative action to be subject to real strict scrutiny, not the watered-down version featured in Grutter v. Bollinger. That is a significant signal, because under real strict scrutiny, almost all race-based affirmative action programs are likely unconstitutional. This is especially true given the conceptual framework the Court has created for such programs—the way …

Substantive Due Process For Noncitizens: Lessons From Obergefell, Anthony O'Rourke

Journal Articles

The state of Texas denies birth certificates to children born in the United States — and thus citizens under the Fourteenth Amendment — if their parents are undocumented immigrants with identification provided by their home countries’ consulates. What does this have to do with same-sex marriage? In a previous article, I demonstrated that the Court’s due process analysis in United States v. Windsor is particularly relevant to the state’s regulation of undocumented immigrants. This short essay builds upon my earlier analysis by examining Obergefell v. Hodge’s applications outside the context of same-sex marriage. Obergefell’s due process holding, I …

Marital Supremacy And The Constitution Of The Nonmarital Family, Serena Mayeri

All Faculty Scholarship

Despite a transformative half century of social change, marital status still matters. The marriage equality movement has drawn attention to the many benefits conferred in law by marriage at a time when the “marriage gap” between affluent and poor Americans widens and rates of nonmarital childbearing soar. This Essay explores the contested history of marital supremacy—the legal privileging of marriage—through the lens of the “illegitimacy” cases of the 1960s and 1970s. Often remembered as a triumph for nonmarital families, these decisions defined the constitutional harm of illegitimacy classifications as the unjust punishment of innocent children for the “sins” of their …