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An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw
An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw
Faculty Scholarship
For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …
Equality Opportunity: Marriage Litigation And Iowa's Equal Protection Law, Suzanne B. Goldberg
Equality Opportunity: Marriage Litigation And Iowa's Equal Protection Law, Suzanne B. Goldberg
Faculty Scholarship
Discrimination claims against longstanding rules invite the public and the courts to rethink the status quo and address overarching legal and social commitments to equality together with questions specific to the case at hand. Lawsuits seeking marriage rights for same-sex couples quintessentially illustrate this multilayered nature of law reform litigation, as the debates they provoke focus not only on the rights of same-sex couples but also on the meaning of marriage and the meaning of equality more generally. While few other than lawyers, judges, and perhaps some reporters actually read the equal protection and due process arguments that the presiding …