Law Commons^™

Equality And Difference - The Restrained State, Martha Albertson Fineman

Faculty Articles

Contemporary American law, culture, and political theory restrain the concept of equality as a tool of social justice. Equality in conjunction with a strong emphasis on personal liberty operates as a mandate for curtailing state action, rather than an aspirational measure of the comparative wellbeing of individuals. As a check on state involvement, our cramped notion of equality limits the state's ability to affirmatively address economic, political, social, and structural inequalities.

As interpreted in modern Supreme Court jurisprudence, the Equal Protection Clause of the U.S. Constitution actually works to restrict the remedial ability of the state. Equality is understood as …

"Closet Case": Boy Scouts Of America V. Dale And The Reinforcement Of Gay, Lesbian, Bisexual, And Transgender Invisibility, Darren L. Hutchinson

Faculty Articles

This Article argues that the Supreme Courts decision in Boy Scouts of America v. Dale misapplies and ignores controlling First Amendment precedent and incorrectly dermes "sexual identity" as a clinical or biological imposition that exists apart from expression or speech. This Article provides a doctrinal alternative to Dale that would protect vital interests in both equality and liberty and that would not condition, as does Dale, sexual "equality" upon the silencing of gay, lesbian, bisexual, and transgender individuals.