Show Summary Details

Page of

PRINTED FROM OXFORD HANDBOOKS ONLINE ( © Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice).

Subscriber: null; date: 17 September 2019


Abstract and Keywords

This chapter examines constitutional equality through frameworks that have been developed to address equal protection, paying particular attention to how the Supreme Court both generated and dismantled jurisprudential paths. It first looks at equality in early American history and the emergence of class legislation as a framework, followed by a discussion on the postbellum upheaval and settlement of equality. It then considers women’s equality and the transformation of the American state in the early twentieth century, along with retrenchment and transformation around race in the late twentieth and early twenty-first centuries. It also traces the flowering of equal protection regarding gender and the rise of equality jurisprudence with respect to sexual orientation before concluding with an assessment of how the Supreme Court has built and dismantled frameworks of classification, the ideological debates surrounding the frameworks, and the jurisprudence of fundamental rights within the context of equal access.

Keywords: constitutional equality, equal protection, Supreme Court, class legislation, women’s equality, race, gender, jurisprudence, sexual orientation, fundamental rights

Constitutional equality has been a crucial engine in constitutional development. Interpretations of equality helped to shape the regulatory environment of the antebellum era and set the boundaries for regulation during the Industrial Revolution. The courts’ readings of equality legitimized the development of a post-slavery caste-based state with different regional manifestations. Courts’ rulings also maintained gendered hierarchies and reshaped them to accommodate women’s changing roles, even as women’s rights advocates fought for and won specific legal protections and rights through litigation and political processes.

Yet equality also proved to be a powerful tool for disfavored groups to achieve fuller membership in the American polity. The Court’s early recognition in Yick Wo v. Hopkins (1886) that the equal protection clause applied to all races, and its gradual transformation of equality into a principle that could dismantle state-sponsored and enforced white supremacy, changed the nation. The reconfiguration of equality to incorporate discrimination against women came later, but likewise helped to change the state, not only in terms of constitutional structure, but also in terms of what women believed themselves to be entitled to demand from state institutions. And although equality has not facilitated the complete transformation of the heterosexual state, many gays, lesbians, and bisexuals, and increasingly, transgendered people, live more secure lives as a result of the gains achieved through litigation and broader acceptance of equality as fairness for these groups.

Tracing constitutional equality through frameworks developed to address equal protection illustrates how the Court both generated and killed off jurisprudential paths, in both instances driving substantial real-world consequences. This chapter will focus on how the Court has built and dismantled frameworks of classification. The frameworks the Court has generated—class legislation, tiers of review, and now an emerging framework more akin to a sliding scale—have been important in structuring who can claim equality and how successful these claims have been, but even more important have been the ideological debates underneath the frameworks. Outlining this developmental process is the object of this chapter, which forecloses the analysis of the jurisprudence of fundamental rights, which depended upon the Court’s identifying core rights to which it ensured equal access.

(p. 456) I. Equality in Early American History and The Emergence of Class Legislation as a Framework

Individual equality is not mentioned in the document submitted to the states for ratification in 1787. Despite this omission, equality was a critical element in the ideology of the late colonial and revolutionary eras, arising from many prominent revolutionaries’ rhetorical embrace of a Lockean conception of natural rights. By some accounts, the colonists’ realization that the British did not see their burgeoning and prosperous colonial white middle class as political equals fed the rage that drove them toward revolution.1 This anger came to fruition in the Declaration of Independence’s famous first “self evident” truth: that “all men are created equal, “and equality featured prominently in several of the new state constitutions.

While republicanism shaped the Revolution and its aftermath, equality remained a background commitment for the revolutionary generation and their successors. Christopher Tomlins argues that the robust democratic spirit behind the Revolution initially prevailed and grounded a conception of a government that actively owed equality to its citizens.2 Democratically established and protected equality rights, properly understood, could then ground the growth of an individualistic citizenry capable of pursuing freedom and happiness.

The Jacksonian period saw the rhetorical embrace of equality in the form of extending and expanding political rights for white men, and eliminating class-based limits on suffrage, but over the course of the early nineteenth century, black and female property owners saw their voting rights stripped and would only regain them after long decades of struggle.3 Equality clearly did not mean equal political or civil rights for all citizens at this point, and advocacy for equality for blacks and women was more of a marginal political than legal phenomenon.

Nineteenth-century courts increasingly concerned themselves with identifying and weighing the validity of class legislation, which, as Howard Gillman explains, was “laws that (from their point of view) promoted only the narrow interests of particular groups or classes rather than the general welfare.”4 Judges strove to differentiate effectively between the illegitimate privileging of a particular class and the legitimate exercise of a public purpose, conducting their investigations within a sensibility of equality that William Nelson has described as “a staple of American political rhetoric.”5 Rather than a concern for group-based differential treatment, this understanding of equality grew both out of the revolutionaries’ invocation of natural rights and the founders’ warnings about the dangers of factions and their capacity to poison the republic through the private capture of politics.6

Andrew Jackson’s struggle to dismantle the Bank of the United States illustrated this concept well. When supporters of the Second Bank of the United States, which had been (p. 457) chartered in 1816, brought legislation before Congress for its reauthorization, Jackson mustered his political forces to oppose the reauthorization. He condemned it as an illegitimate institution that served only to privilege and enrich a few at the expense of the majority, threatening the Union itself. In vetoing the reauthorization bill, he explained that the Bank undermined the principle of equal protection. The Bank Bill, in favoring the rich, had “arrayed section against section, interest against interest, and man against man, in a fearful commotion which threatens to shake the foundations of our Union. It is time to pause in our career to review our principles, and if possible revive that devoted patriotism and spirit of compromise which distinguished the sages of the Revolution and the fathers of our Union.”7 Its “artificial distinctions” constituted a “wide and unnecessary departure” from the core principle of class egalitarianism.

II. The Post-Bellum Upheaval and Settlement of Equality

Abolition guaranteed by the Thirteenth Amendment left open the question of equality and its meaning in a nation without slaves as the Civil War ended. The assassination of Lincoln left the nation with a president who unabashedly opposed black equality and promoted national healing and reconciliation. Encouraged, several reconstituted Southern state legislatures passed black codes that re-established slavery in all but name, triggering the rage of Charles Sumner, Thaddeus Stevens, and their coterie of congressional Republicans.8 Along with the politically astute John Bingham, they pushed through legislation securing black rights and then crafted the amendment that they believed would settle any questions about the constitutionality of these and any future acts.9 The potential scope of the Fourteenth Amendment beyond securing rights for African Americans entered the House debate briefly, with the Democrats noting with distaste that the citizenship language would incorporate not only freedmen and women, but also Chinese, Indians, and even Gypsies, but the Republicans had no political difficulty in brushing aside these concerns.10

As Mark Tushnet has argued, “The Reconstruction-era debates are thus inconclusive on the question of what sort of racial equality the Fourteenth Amendment embodied. At most it expressed the nation’s ‘strong … faith in vaguely defined equal rights.’ ”11 Lawmakers identified and distinguished among categories of rights, seeing civil and political rights as fit subjects for legislation but expressing skepticism about social rights. Civil rights meant for these men the rights secured through common law by the state in defense of citizens’ lives, property, and capacity to enforce contracts. Political rights were more contested, especially those that implied fuller participation by freedmen in democratic governance through voting and jury service.12 Nonetheless, the language ultimately adopted, though subject to contestation over meaning, set out a new vision of the Constitution, one that enhanced the federal government’s power to promote and secure equality.

(p. 458) The Slaughter-House Cases, decided in 1873, suggested that the Court would build a fairly narrow jurisprudence of equal protection from existing principles. Justice Samuel F. Miller’s majority opinion gutted the privileges and immunities clause, “reduced federal rights enforcement to largely an equal protection formula,” and also significantly curtailed the rights that would constitute protected civil rights.13 Pamela Brandwein nonetheless sees Justice Miller’s position as ambiguous; while he wanted blacks to look first to the states for protection for their rights, he supported the idea that the federal government should stand as the final enforcer of black equality in the face of state failure.

The Waite Court reinforced the constitutional status of civil equality for blacks in Strauder v. West Virginia (1879), ruling that states could not bar blacks from jury service. Within the opinion, the Court articulated two visions of equality. One was based in an acknowledgment of the damage done to blacks through slavery, and recognized the need for governmental intervention to protect and uplift them to equality. The Court noted that the passage of the Reconstruction Amendments had generated “jealousy and positive dislike” in the states that now had to acknowledge those who had been regarded as “inferior and subject” as citizens. This political reality imposed legal duty: “The colored race, as a race, was abject and ignorant, … Their training had left them mere children, and, as such, they needed the protection which a wise government extends to those who are unable to protect themselves.”14 At the same time, the Court hinted that it would not embrace broad or transformational conceptions of civil and political equality, and interpreted the Fourteenth Amendment as a simple command “declaring that the law in the States shall be the same for the black as for the white.”15

In 1883 the Court abandoned this ambiguous approach when it upheld Alabama’s criminal ban on interracial adultery. The justices held that because both blacks and whites were prohibited from engaging in interracial sexual intimacy under threat of a seven-year term in the state penitentiary, the law did not deny equal protection to the black man accused of violating it.16

Scholars have disagreed about the extent to which the Waite Court was committed to retrenchment of black rights,17 but no such complexities troubled the Fuller Court. By 1896, the Court had retrenched completely; in Plessy v. Ferguson the justices interpreted the scope of regulable civil and political rights narrowly, non-regulable social rights expansively, and equality as only the thinnest and most formalistic of guarantees when applied to the rights of blacks, laying the groundwork for an entire political regime to be built around the principle of separate but equal. This interpretation established the political and constitutional settlement that the South would acknowledge federal supremacy but would be given fairly free rein to regulate what policymakers were beginning to call “race relations.”18

As the Court was narrowing its interpretation of the racial wrongs that the equal protection clause would reach, it simultaneously built on earlier formulations to determine when the exercise of police power was legitimate. As Gillman notes of this period, “arbitrary was quite often the word of choice used to characterize factional politics; reasonableness was the concept that embodied the system’s tolerance of class-neutral policies that advanced (p. 459) a public purpose.”19 This framework would prevail into the 1930s, as active use and contestation of equal protection clause jurisprudence shifted primarily to the field of labor regulation.

III. Women’s Equality and Transformation of the American State in the Early Twentieth Century

The previously developed category of class legislation shaped other struggles of the early twentieth century. Reformers called attention to the plight of working people and the dangers of capitalist accumulation and concentration. In the course of their advocacy, they worked to redefine problems ranging from garbage collection and disposal to animal management and protection, to standards for housing to the control and rehabilitation of wayward youth, as public problems in which the state and its citizenry on the whole had an interest.20 The “class legislation” framework had much to do with these political, rhetorical, and legislative efforts, as courts on both the federal and state levels consistently ruled that only measures that articulated sufficient interest in the public health, safety, and welfare of the general population would pass constitutional muster.21

In the wake of the Civil War, prominent leaders Susan B. Anthony and Elizabeth Cady Stanton pressed advocates for blacks to consider extending the vote to women. When this move failed legislatively during early Reconstruction congressional debates, some women’s advocates argued that the Fourteenth Amendment, in its creation of a concept of national citizenship, implied woman suffrage and fuller equality for women as an outgrowth of the vote.22 This path collapsed in 1875 with the Supreme Court’s ruling in Minor v. Happersett, which held that suffrage was not a protected privilege or immunity and that even though women were citizens the “same as men,” this citizenship could well encompass a different set of substantive rights and privileges without triggering constitutional concerns.23

Advocates for women then engaged in a decades-long battle to secure suffrage, a battle that would only be won through constitutional amendment in 1919. The ballot achieved in 1919 did not translate into equal rights for women, and some radical supporters of suffrage sought a rapid transition to a full-blown fight for equality in the wake of victory. The National Woman’s Party, which was by this time filing briefs in state and federal courts opposing gendered-protective labor legislation, secured the introduction of the first equal rights amendment in Congress in 1923. The NWP’s proposal was controversial, however, as it threatened protective labor legislation focused on women’s work, and many labor advocacy and women’s groups opposed it.24

(p. 460) In the twentieth century, judges increasingly considered the groups being singled out for protection when protective statutes were challenged as infringements upon their right to contract and as illegitimate class legislation. Progressive advocates suffered defeat most notably in Lochner v. New York in 1905, which held that a law preventing bakers from working more than sixty hours in a week constituted class legislation and therefore violated their due process rights. The Court saw the legislation as an illegitimate intervention into private contractual relations. However, the same Court in 1908 upheld a measure barring women from working more than ten hours per day in laundries, finding that women’s role as the bearers and rearers of the next generation of citizens entitled them to be protected as a class because it was in the public’s general interest in health and welfare to do so.25 It also carved out some space for regulation of workers perceived to be employed in particularly dangerous types of labor, but resisted attempts to define inequality of bargaining power or coercive labor practices as fit subjects for regulatory intervention, because they did not sufficiently relate to public concerns.

Champions for women’s rights helped to collapse the constitutional framework resting on liberty of contract and class legislation during the Great Depression. Many activists in favor of tighter governmental control over the terms and conditions of labor continued to see the regulation of women’s labor as the chink in the armor of freedom of contract, but in presenting their arguments in state and federal courts, they relied both on claims that women were less capable of extracting a fair bargain from their employers and on broader arguments that the labor bargaining environment was unduly coercive for all employees. Both of these strategies relied on defining poor bargaining conditions as damaging to the public welfare, but the second sought to expand the scope of legitimate public concern. Finally, in the landmark case of West Coast Hotel v. Parrish in 1937, the Court narrowly repudiated its support for freedom of contract and fear of class legislation as valid grounds for invalidating a minimum wage for women.26

Opponents of the Washington minimum wage had argued that it constituted illegitimate class legislation because the wage-setting system only applied to women. The Court’s response spoke in two registers. First, the justices accepted the minimum wage’s advocates’ claim that a minimum wage served a public purpose and moreover found that the legislature could determine when sufficient public interest existed. As long as the lawmakers claimed that the legislation addressed public concerns, the Court would allow them to determine how best to serve these concerns, even if the law they passed did not affect all equally.

Second the Court rejected the idea that regulating women’s labor without addressing men constituted “arbitrary discrimination.” The Court allowed the legislature to determine both that the dangers of unequal bargaining power were a fit subject for regulation and that women as an identity-based class could be “single[d] out” without raising constitutional concerns about women’s treatment as a class. The older frameworks were deeply (p. 461) gendered, but the newer ones incorporated principles that would readily extend to other workers.27

While many reformers continued to focus on labor legislation, a new generation of activists focused on racial equality. Rejecting both accommodation and separatism, the National Association for the Advancement of Colored People (NAACP), organized in 1909, sought to work within the political system to achieve substantive improvements in the lives of blacks by identifying and addressing the most serious concerns.

The NAACP turned to litigation as both an alternative and a supplement. It achieved modest success with an early victory in the U.S. Supreme Court under the Fifteenth Amendment in Guinn and Beal v. United States (1915), which invalidated Oklahoma’s grandfather clause.28 These cases bolstered the White Court’s cautious turn toward acknowledging that some of the most egregious aspects of the Jim Crow state violated the Constitution.29 Buchanan v. Warley, which in 1917 invalidated a Louisville ordinance mandating residential segregation, was another success. Buchanan v. Warley invoked freedom of contract but also suggested equality as a constitutional principle, and marked the initiation of a civil rights framework that for the first time since Plessy extended hope that, by stopping the spread of state-imposed apartheid, the Court might someday be willing to challenge state-supported racial inequality.30

This new concern with race produced new doctrine. The justices shifted rather than abandoned the focus on constitutional equality. In United States v. Carolene Products (1938), Justice Harlan F. Stone, after declaring that all commercial regulations would be evaluated under a toothless rational basis standard, appended Footnote 4, which introduced the idea of heightened scrutiny for certain types of regulations. Two elements in the footnote dealt with equality. The first involved statutes directed at religious, national, or racial minorities, and the second observed that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”31

Between the late 1930s and 1970, equality came to be associated in legal terms with equal protection analysis conducted through tiers of scrutiny. Courts wrestled with the meaning of strict scrutiny, but the more significant debates were over which ideology of equality the Constitution demanded and over how to probe the state interests at stake in regulation. By the end of this period, with regard to race, colorblindness was supplanting antisubordination as the crux of equal protection analysis. However, courts continued to struggle with how to understand legislative intentions. And movements pressed for the expansion of equality principles to incorporate other groups, with some success.

The concept of strict scrutiny did not have an auspicious beginning. Fred Korematsu, an American citizen of Japanese ancestry, had violated an exclusion order issued as part of the internment of Japanese and Japanese Americans in the United States after the nation’s entrance into World War II. Justice Hugo Black, who authored the Court’s opinion upholding Korematsu’s conviction, explained that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.” He clarified, though, that such restrictions were not inherently unconstitutional; rather “courts must subject them (p. 462) to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”32 The Court, over the passionate objections of Justices Robert H. Jackson, Frank Murphy, and Owen J. Roberts, found that the dubious information provided by the military about the risk of Japanese sabotage reached the threshold of pressing public necessity and upheld the policy of internment.

The Court soon indicated that it meant to initiate real transformation. In 1948, the Court ruled in Oyama v. California that the California Alien Land Law, which barred some aliens from owning land, could not be used to invalidate a land transfer from a Japanese father to his Japanese-American son. The justices agreed that California’s denial of Fred Oyama’s right to own property because of his father’s national origin violated Oyama’s equal protection rights.33 Chief Justice Fred M. Vinson noted that Fred Oyama, because of his ancestry, faced a different and worse legal environment than other citizens. The key to finding inequality was in the unjustified differential treatment that the application of the law produced. Justice Black concurred that Oyama was entitled to hold title in the land, but argued more directly that the law itself was unconstitutional because of both its effect and purpose: “That the effect and purpose of the law is to discriminate against Japanese because they are Japanese is too plain to call for more than a statement of that well-known fact.”34

The Court’s equal protection doctrine largely evolved through the struggle to dismantle racial segregation in the 1950s and 1960s. The centerpiece of this campaign was Brown v. Board of Education in 1954, which declared unconstitutional the principle of separate but equal. Bolling v. Sharp accompanied Brown, striking down segregation in the federally managed school system in Washington, DC, and clarifying that the Fourteenth Amendment principle of equality would apply to the federal government as it did to the states, forbidding policies of racial separation. After Brown the justices underlined the national commitment to school desegregation by supporting the Eisenhower administration’s intervention in Little Rock in 1958 and in 1960, and rendered unconstitutional the use of racial gerrymandering to disempower black voters.35 Through the 1960s, the Court continued to monitor voting practices by outlawing poll taxes and allowing Congress to bar the use of literacy tests,36 prevented state actors from maintaining racially segregated public spaces,37 and invalidated laws banning interracial marriage.38

The debate among judges and academics over how to legitimize Brown sharpened the lines around the different conceptions of equality that originated during the Waite Court’s struggle with the Reconstruction Amendments. Antisubordination understandings of equality (which sought to uproot historically embedded practices of identifying and repressing a group through the law) were pitted against anti-classification understandings that merely noted and disapproved of identity-based classificatory legal schemes.39 Antisubordination arguments directly confronted segregation’s primary historical purpose of implementing white supremacy through and within the state, but this approach (p. 463) quickly proved controversial. Anti-classification arguments gained popularity among judges because, while they provided leverage against segregationist policies, they did not require deeper confrontations of supremacist ideology and its historical legacy, and were seemingly easier to administer. Siegel notes that anti-classification rhetoric, which helped to provide a justification for Brown in the 1950s, also limited equality’s potential scope as a transformational principle; she finds that by the 1960s and 1970s, the anti-classification interpretation had become dominant.40

By 1967, when the Court decided Loving v. Virginia, the anti-classification framework was transforming into the idea that the law should be blind to difference. This development arose from the conscious creation of a more conservative vision of equality by legal and political actors who recognized that the challenges to segregation would not be gainsaid but sought to limit their impact.41 The Court’s opinion in Loving marked a balance point, with the Court articulating both antisubordination concerns arising from the historical basis for Virginia’s ban on miscegenation and the racial animus behind the regulation, but also relying on a vision of equality based in anti-classification to invalidate the law. As Chief Justice Earl Warren explained, “We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”42 The Court followed this analysis with a more definitive embrace of colorblindness in Milliken v. Bradley in 1974, articulating a vision that has been embraced by conservatives in the contemporary era as disallowing any state action that takes race (or any other protected class status) into account in making legislative or policy-oriented distinctions.43

The discussion of how to conceptualize equality encompassed other identity-based groups in this period. While the Court had settled definitively that the equal protection clause protected races other than African Americans in Yick Wo v. Hopkins in 1886,44 in Hernandez v. Texas, the Court explicitly extended the equal protection analysis developed largely to address blacks’ struggles over exclusion from juries to encompass Mexican Americans as well.

The Supreme Court’s ruling adopted an anti-subordination framework. Chief Justice Warren noted that individuals of Mexican descent had largely been excluded from business and community groups, that their children had been forced into segregated schools, that some operators of public accommodations refused to serve Mexicans, and, most damningly, “On the courthouse grounds at the time of the hearing, there were two men’s toilets, one unmarked, and the other marked ‘Colored Men’ and ‘Hombres Aqui’ (‘Men Here’).”45 Unequal treatment based in historically rooted practices of group-based subordination was constitutionally unacceptable for Mexican Americans, just as it was for blacks.

(p. 464) However, women did not benefit from this more sophisticated form of social analysis. The Court refused to reconsider women’s status in Goesaert v. Cleary (1948), upholding a Michigan statute that prevented women from being employed as alcohol servers.46

The Court did not move from this stance in 1961, when it declined to invalidate a statute that exempted women from jury service unless they specifically volunteered.47 The justification for this ruling followed that of Goesaert: although women had been emancipated and had entered the public sphere, “woman is still regarded as the center of home and family life.”48

IV. Retrenchment and Transformation Around Race in the Late Twentieth and Early Twenty-First Centuries

When Earl Warren left the Supreme Court, strict scrutiny’s application largely guaranteed the invalidation of legislation based in race. Some scholars and activists believed that recognition of poverty as a suspect classification was imminent, but women remained largely outside the scope of constitutional equality, and constitutional protection for lesbians and gay men was almost unimaginable. The current picture is dramatically different. In 2014, the groups benefiting most from constitutional litigation are lesbians and gay men seeking access to marriage and acceptance as members of the military. The Court has also firmly rejected differentiation based on “traditional” conceptions of women’s particular vulnerabilities and service to the state as mothers. Yet racially based affirmative action policies require carefully constructed justifications to survive review, and policies that affect the poor disparately receive no serious scrutiny. These shifts reflect changes in equal protection analysis resulting from changes in Court leadership.

The striking shift in race-based analysis echoed white mainstream fears about crime and opposition to achieving broad school desegregation through busing, two major themes in Richard Nixon’s campaign for the White House in 1968. Colorblind ideology, which shaped Supreme Court jurisprudence at the margins in the 1960s, provided the foundation for this jurisprudential turn when employed by racial conservatives who recognized that legal segregation could not survive but wanted to limit the scope of reform.49

Although the first desegregation case that the Supreme Court decided under new chief justice Warren Burger’s leadership, Swann v. Charlotte-Mecklenburg Board of Education (1971), upheld a busing order that mandated active integration, the Court soon limited the scope of this remedy in 1974 in Milliken v. Bradley, rejecting a court-crafted desegregation plan that covered the entire metropolitan area of the city, which included school districts in three counties. For the majority, the district lines separating the heavily black Detroit (p. 465) schools from their white suburban counterparts reflected historical practices that the federal government was bound to respect in educational policy.

The Court committed even more firmly to the need to show intentional discrimination two years later in Washington v. Davis, identifying the fundamental principle of equal protection as “that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.”50 Laws that merely produced a disparate impact were not, by this standard, subject to invalidation, even if they reinforced structural discrimination.

The debate over the role of intentions shifted to the issue of affirmative action, which replaced school desegregation as the major contested policy space in the last years of the twentieth and first years of the twenty-first centuries. Affirmative action relating to race was introduced in 1961 when President John F. Kennedy’s Executive Order 10925 mandated that federal contractors “take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin,”51 but the concept expanded to its more familiar form under Lyndon Johnson and then Nixon later in the 1960s and early 1970s, provoking intense political and legal opposition.

The first major Supreme Court decision concerning affirmative action, Regents of the University of California v. Bakke in 1978, produced a divided ruling that prohibited the use of quotas but allowed race to be considered as a factor in admissions decisions. In his opinion announcing the ruling in Bakke, Justice Lewis Powell declared that strict scrutiny was the appropriate standard of review, and endorsed colorblindness as the appropriate ideological framework.52 Yet he also acknowledged that increasing racial diversity in a profession could constitute a sufficiently compelling state interest to permit an affirmative action program that used diversity as one factor in the admission process.53

After Bakke, debates over affirmative action continued to simmer, and in 1989, the Court tackled the issue in City of Richmond v. Croson, which invalidated the city’s program mandating contractors to subcontract a certain percentage of their work to minority business enterprises, because it did not rest on a compelling government interest—no specific prior history of discrimination in contracting by the city had been shown—and because the program was not narrowly tailored to accomplish remediation.54

The Court’s narrowing of affirmative action coincided with a movement that framed it as not only unwise, but illegitimate on the grounds that it violated colorblindness and provided unfair advantages to the identified classes.55 Initiatives and legislation limited or eliminated affirmative action in California, Washington, and Florida over the next few years, setting the Court up for a dramatic confrontation in 2003 in two cases involving admissions processes at the University of Michigan. The Court rejected formulaic point systems as a means of implementing racial preferences, but agreed that “student (p. 466) body diversity is a compelling state interest that can justify the use of race in university admissions.”56 Suggesting that intentions might sometimes matter, Justice Sandra Day O’Connor’s opinion for the Court explained pointedly that “strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context.”57 Yet Justice O’Connor explicitly endorsed colorblind ideology, cautioning that “all governmental use of race must have a logical end point,” and suggesting that periodic review would identify a point at which diversifying a student body no longer constituted a compelling state interest.58 The Court reinforced both its insistence that strict scrutiny be applied in considering affirmative action policies and its substantive judgment that diversity could constitute a compelling interest in Fisher v. University of Texas in 2013. Although the Court remained committed to colorblindness as the dominant doctrinal category, concerns about subordination could not be entirely stripped out of constitutional law. In its most recent engagement with these questions, Schuette v. Coalition to Defend Affirmative Action, the Court upheld a Michigan constitutional amendment that forbade the use of affirmative action in admissions, but the six justices supporting this outcome could not agree on why.

V. The Flowering of Equal Protection Regarding Gender

Women have fared better than people of color, at least before the Supreme Court. The Court took the first step toward constitutionalizing gender equality in 1971, ruling unanimously in Reed v. Reed that an Idaho statute automatically preferring men over women in the appointment of estate administrators violated the equal protection clause.59 Two years later in Frontiero v. Richardson, the Court invalidated the Air Force’s policy of automatically providing dependent benefits to wives of service members but requiring husbands to establish their status as dependents. Justice William Brennan pressed his brethren to expand strict scrutiny to encmpass gender classifications, but fell one vote short of his goal, in part because three Justices (Powell, Burger, and Blackmun) refused to join his opinion in anticipation that the ratification of the Equal Rights Amendment would achieve the same outcome through a more legitimate means.60

The Equal Rights Amendment, which had been repeatedly introduced in Congress by the National Woman’s Party since the 1920s, finally gained real traction in the early 1970s in light of cultural change and NOW’s campaign to advance constitutional transformation. The House and Senate approved it and, with Nixon’s endorsement, it accumulated thirty state ratifications between 1972 and 1973. The hesitant Court did not foresee, however, that (p. 467) NOW would not be able to replicate its effective political strategies on holdout states when challenged by STOP ERA’s successful transformation of the debate from one over legal equality to one over sex roles.61 Further, the passage of state ERAs and the Court’s move toward stricter scrutiny contributed to a collapse of the initial broad but fairly weak public support for the amendment as the public witnessed the intense debate between committed activists on both sides and contemplated the concrete changes in women’s civic roles and obligations that activists argued the amendment would demand or support.62

The next major jurisprudential development occurred in 1976 with Craig v. Boren. Brennan, writing this time for a majority, proposed an intermediate scrutiny standard for evaluating gender distinctions, requiring the state to demonstrate that such distinctions were substantial means to achieving important government ends. This framework—a consideration of whether a statute or policy invoked stereotypical or weakly supported claims about gender difference and its effects—quickly came to dominate equal protection analysis in these cases. Leading cases often involved discrimination claims brought by men. In 1982, the Court decided Mississippi University for Women v. Hogan, with Justice O’Connor, the first female justice, writing for the majority and striking down the exclusion of men from MUW’s School of Nursing. In O’Connor’s analysis, the refusal to admit men to the program “tends to perpetuate the stereotyped view of nursing as an exclusively woman’s job.”63

In the 1990s, the Court returned to the subject of single-sex education and this time ruled in favor of a female plaintiff seeking admission to the all-male Virginia Military Institute. Writing for the Court, Justice Ruth Bader Ginsburg rejected Virginia’s attempt to legitimate recognition of women’s difference through reference to a rigorous physical training, a lack of privacy, and the adversative training model, which she believed rested on inappropriately generalized assumptions about women’s capabilities. She reviewed the long history of discrimination in education that women had faced nationally and in Virginia, and categorized VMI’s exclusionary policy as a continuation of illegitimate and outmoded stereotypical thinking. The maintenance of this thinking, in her analysis, justified a shift in how equal protection analysis should proceed: she advocated for “skeptical scrutiny” as an appropriate response to these “volumes of history.” In her view, “Parties who seek to defend gender based government action must demonstrate an ‘exceedingly persuasive justification’ for that action.”64 Even as women advanced concretely through equal protection litigation, the equal protection clause did not encompass some aspects of what many feminists have identified as core equality rights. The survey of the Court’s negotiation of equal protection and gender highlights (1) the embrace of equality as requiring the same kind of treatment under the law for both men and women when unequal treatment rested upon perceived traditional gender roles and stereotypes, and (2) a willingness to accept differential treatment when its purpose addresses what policymakers and the Court define as fundamental biological differences between men and women. These paths do not grapple at all with Gretchen Ritter’s observation that women have a differential relationship to privacy, which has been the other major constitutional tool used to (p. 468) advance their civic membership.65 While privacy did leverage some advances for women, most notably the right to choose abortion, it did not and could not transform women’s status. It was inherently entangled with constitutional jurisprudence, but more importantly incorporated cultural constructions situating women’s roles in reproduction and the home as private but infused with public concern due to the state’s interest in children as future citizens.

VI. The Rise of Equality Jurisprudence with Respect to Sexual Orientation

In contrast to race and gender, the current trajectory for lesbian and gay rights appears to be unambiguously in the direction of equality, though an equality that has increasingly focused on a few key issues. In the early 1970s litigation began to appear as a more promising avenue for change with the development of a meaningful opportunity structure for litigation.66 Even so, the movement met setbacks. Even after groups consolidated around challenges to sodomy laws and battles against discrimination and denial of services targeting AIDS sufferers and gays presumed to be carriers of the deadly virus in the 1980s, the Supreme Court’s ruling in Bowers v. Hardwick allowing Georgia’s ban on sodomy to remain in place proved highly disheartening.67

Activists promoting lesbian, gay, and increasingly bisexual concerns did not rely on the courts alone, and by the late 1980s and early 1990s, efforts to achieve local protection against discrimination were meeting with success. But urban enclaves liberal enough to adopt such ordinances were often in more conservative states, producing political tension. One result of such tension was Colorado’s 1992 Amendment 2. The state constitutional amendment forbade the state and any of its political subdivisions from providing any kind of protection against discrimination on the basis of sexual orientation or same-sex sexual intimacy, and barred the state from recognizing gays, lesbians, or bisexuals as a protected class. A majority of the Supreme Court held Amendment 2 unconstitutional. Justice Kennedy’s opinion began, “One century ago, the first Justice Harlan admonished this Court that the Constitution ‘neither knows nor tolerates classes among citizens’… . Unheeded then, those words now are understood to state a commitment to the law’s neutrality where the rights of persons are at stake.”68 The state defended the amendment by claiming that it simply prevented the extension of special rights to gays, lesbians, and bisexuals, but the majority rejected this reasoning, finding instead that the amendment singled them out and placed them in a disfavored class that was structurally disadvantaged in the political process. As Kennedy explained, “the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.”69 Romer signaled the Court’s willingness to address sexual orientation through a framework of equality. And, within equal protection, the ruling indicated that legal change could be achieved without convincing (p. 469) the Court to identify sexual orientation as a protected class because the justices were willing to identify targeted and intentional legislation as a form of illegitimate class legislation based in animus. This opened the door for expanded litigation efforts in federal court, encouraging suits that addressed lesbian, gay, and bisexual rights through an equality frame.

LGBT activists were already debating over whether to pursue litigation to achieve same-sex marriage when Romer was decided. While Evan Wolfson and the organization for which he worked, Lambda Legal Defense and Education, began to seek out test cases, other organizations largely backed away from same-sex marriage, arguing that the time was not yet ripe.70 They feared triggering a broadly mobilized conservative social backlash, and had internalized the lesson of Bowers that precipitous efforts to gain rights could lead to damaging jurispathic behavior on the part of the courts, particularly a Supreme Court that, even after Romer, seemed at best to be a fickle friend.

The immediate aftermath of Baehr, the 1993 Hawai’i case in which the state high court struck down gendered marriage, supported this understanding, as “political backlash crushed the nascent same-sex marriage moment [in Hawai’i]” through the amendment of Hawai’i’s constitution to ban same-sex marriage. Another outcome was the 1996 enactment of the federal Defense of Marriage Act and more than three dozen similar measures on the state level.71 Vermont’s judicial mandate in 1999 that the state had to provide equal benefits for same-sex couples and the legislature’s adoption of civil unions in response contributed to backlash and a Republican takeover of the Vermont House in the election of 2000.72 However, when the battle shifted to Massachusetts, it was fought vigorously on both sides by well- organized advocates, with the same-sex marriage side having recruited interested legal elites in the state. Victory in Massachusetts on state constitutional grounds energized advocates, and gave rise to a concentrated movement for marriage focusing initially on state constitutional law.

This movement gained a boost from the Supreme Court as well, which overturned Bowers v. Hardwick in 2003. Justice Kennedy penned an opinion for the majority that extended liberty rights to encompass same-sex sexual intimacy.73 After Massachusetts adopted same-sex marriage and the Supreme Court overturned Bowers, the struggle intensified, with advocates on both sides mobilizing in elections and in the courts. While at first the tide seemed to flow against same-sex marriage, with the passage of bans through initiatives and referenda in several states in the 2004 elections, momentum shifted in the late part of the decade, beginning with the California Supreme Court’s embrace of same-sex marriage in 2008. While a controversial constitutional amendment overturned same-sex marriage in California, other state courts began to follow the California court’s lead even as state legislatures and voters in Vermont, New York, and Washington approved same-sex marriage by the end of 2012. Six additional states (p. 470) legitimized same-sex marriage legislatively in 2013, and New Jersey’s and New Mexico’s courts invalidated bans.74

The U.S. Supreme Court reinforced this trend in 2013, ruling in United States v. Windsor that the Fifth Amendment’s equal protection principle prohibited the federal government from denying any federally controlled benefit of marriage to a couple that had married legally. The ruling invalidated part of the 1996 federal Defense of Marriage Act, with Justice Kennedy writing a majority opinion that emphasized the differences that DOMA produced between same-sex and opposite-sex couples who were otherwise the same by placing “same-sex couples in an unstable position of being in a second-tier marriage.”75 The ruling in Windsor has activated the lower federal courts in favor of same-sex marriage; federal district courts in several states invalidated bans on same-sex marriage on equality grounds, citing Windsor in support of their actions (see as but one example Kitchen v. Herbert in Utah). While the process through which same-sex marriage will achieve national validation remains in question, the shift toward this path is dramatic, and just as gays and lesbians have achieved the right to serve in the American military, they seem assured of securing legal marriage rights in the near future. These rights—both to serve in the military and to marry—rest firmly in the embrace of a principle of equal treatment that does not take sexual orientation into account.

VII. Poverty Jurisprudence and Jurisgenerative and Jurispathic Paths

The conversation about poverty and rights did not initially lodge in equal protection. In the mid-twentieth century, responding to increasing pressure from planned litigation, the justices began to recognize a variety of ways in which individuals’ poverty trammeled their access to key rights of citizenship. In 1941, the Court relied on the commerce clause to invalidate a California law that barred the transportation of nonresident indigent people into the state, acidly comparing the statute to Elizabethan poor laws.76 The Court invoked differential treatment for white-collar crime in striking down an Oklahoma law mandating sterilization for individuals convicted three times of crimes of “moral turpitude.”77 In 1963, the Court ruled that criminal defendants charged with felonies had to have attorneys provided for them at public cost if they could not afford representation.78 And both through constitutional amendment (1964) and judicial decision,79 the practice of levying poll taxes as a condition for voting was eliminated. In these instances, the justices invoked equality in frowning on the burdening of fundamental rights rather than finding directly that the poor were being subjected to unequal and therefore unconstitutional treatment on the basis of status or identity. However, even though these issues touched on (p. 471) other constitutional provisions, the justices signaled that policies that disproportionately affected the fundamental rights of the poor, even if they did not rest in intentional identification or stigmatization of poor people, were questionable.

The move to re-conceptualize poverty and rights got a boost in 1964 with the publication of Charles Reich’s essay “The New Property.” In it, Reich sought to persuade the legal community and policymakers to think of government benefits as property, and therefore as subject to the same stringent constitutional protection applied to other concrete forms of property, which could not be taken without adequate process. He also noted that “more and more of our wealth takes the form of rights or status rather than of tangible goods … To many … , a job with a particular employer is the principal form of wealth.”80 Reich argued for more robust procedural protection to trammel the increased power of government associated with these new forms of property.

Anti-poverty activists drew from this framework and from the emerging jurisprudence to press poverty issues before the Court, even as they gained political salience in the Johnson administration. Johnson, in keeping with his Great Society vision, declared war on poverty in his 1964 state of the union address, pressing Congress to take concrete measures to alleviate poverty, and in particular to intervene supportively in the lives of poor children.81 Congress responded by passing the Economic Opportunity Act in 1964, which introduced eleven new major federal programs that sought to target poverty at its sources.82 The federal courts actively collaborated with the other two branches by reinforcing Great Society programs and expanding interpretations of fundamental rights. This movement inspired further theorizing and analysis among anti-poverty activists, culminating in Frank Michelman’s argument for a right to welfare in his 1969 Foreword to the Harvard Law Review.

Much of the Supreme Court’s poverty docket came from the efforts of another Great Society innovation, the Legal Services Program. Created by Congress in 1965, the LSP was designed to provide legal assistance to poor people involved in civil litigation, mirroring in a modest way the constitutional commitment to prevent any suspect from standing alone unwillingly without advocacy in a significant criminal proceeding.83 In the late 1960s, the Court moved toward a more robust set of rights-based protections for poor people in several cases supported by the LSP. In 1968, the Court invalidated on statutory grounds an Alabama statute that denied AFDC benefits to the children of mothers who cohabited with men.84 The following year, the Court struck down state laws that required individuals to establish residency in their respective states for up to a year before becoming eligible for welfare benefits.85 The Court relied on the fundamental right to travel freely, ruling in favor of a cluster of appellees who had been denied welfare and disability benefits due to these rules. Reich’s theory gained its greatest jurisprudential endorsement in 1970 in Goldberg v. Kelly. The case addressed New York City’s practice of terminating welfare payments immediately to recipients upon determining their ineligibility. While welfare benefits had an important role in the preservation of the social order, preventing “the societal malaise that may flow from a widespread sense of unjustified frustration and insecurity,” the Court emphasized the significance of benefits as a means of (p. 472) placing members of the polity on more equal standing and thereby facilitating a better democracy. As the justices explained, “Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community.”86 Yet Dandridge v. Williams (1970) held that the State of Maryland could place a maximum cap on welfare benefits regardless of the size of the family receiving them without running afoul of the equal protection clause, finding that “In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.”87

The Court finally confronted the question of poverty as a suspect classification directly in San Antonio v. Rodriguez (1973). Evidence showed vast differentials in the funding streams for two school districts in San Antonio because of a property-tax-based system for funding education. While the poorer, more heavily Latino district’s residents were paying a substantially higher proportion of their incomes in taxes to support education, the wealthier largely white district had so much higher property values that the per capita student funding for the wealthier district greatly outstripped that of the poorer district ($594 per capita versus $356, even though the residents of the poor district were carrying the highest equalized property tax rate in the San Antonio metropolitan area). The differential led to demonstrably different educational quality and educational outcomes.

A majority of the Court rejected the constitutional challenge to this system of financing, finding that poverty did not constitute a suspect class (“The class of disadvantaged ‘poor’ cannot be identified or defined in customary equal protection terms”), and that the deprivation in question was relative rather than absolute.88 After analyzing the case and its relationship to the earlier cases involving access to the judicial system, Justice Powell concluded that “the system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”89 While education was admittedly important, the children of Texas were receiving an education. Dissents by Justices Brennan and White emphasized the fundamental nature of education, not deeply challenging the majority’s analysis of poverty. Only Justice Thurgood Marshall presented a full argument on the question of indigency. While he noted poverty’s differences from race, he distinguished between individual poverty and discrimination that affected the poor as a group.90 Despite Marshall’s plea, the ultimate effect of Rodriguez was to trammel sharply the potential radical reach of Goldberg by limiting it to a negatively framed procedural right.91

For now, the withered branches of the jurisprudence of the late 1960s and early 1970s seem beyond the reach of potential jurisgenerative flowering. Without a fundamental jurisprudential reconfiguration that places poverty as an unfairly stigmatized status and identity in the center of the analysis, equality cannot be transformed into a constitutional tool that can leverage change, even to a modest degree. In current popular discourse, (p. 473) a constitutionally protected status attributed to taxpayers appears more viable than one based on poverty.

VIII. Conclusion

Equality as sameness has proven to be a powerful tool, but it is most successful when the substantive equality being sought is access to a fundamentally conservative right or institution. Chinese laundry operators persuaded the Court of the 1880s to support their right to operate their businesses. The NAACP started its campaign for equality through desegregation with access to law school. Women gained their first victory under the equal protection clause over the right to serve as estate administrators. And most recently, the most compelling equality movement of the twenty-first century is unquestionably gay men’s and lesbians’ fight for the right to marry (though they have also seen notable success in securing their right to serve in the American armed forces). This helps to explain the difficulty of the early radical lesbian and gay movement in framing their claims into a successful equality framework, as well as the nearly insurmountable challenges to using equality as a means of addressing justice claims for the poor.

As countless critical race and feminist thinkers have noted, the ease of making successful equality arguments silently depends upon the claimant’s ability to show that she or he is like the dominant class except for some minor and irrelevant difference (see, e.g., Crenshaw at note below).92 This generates real difficulty for arguments for equality based on intersectional forms of oppression, as the intersectional elements generate their own mechanisms of discrimination, and the distance from the dominant norm becomes harder to bridge.93 These observations could lead to the dismal conclusion that equality has come close to achieving all that it can in constitutional terms.

Worse yet, one could conclude by looking at the political terrain produced by constitutional equality that a hard-won fight for access to fundamentally conservative institutions is more likely to transform the winners than the institutions themselves. Consider women’s fight for suffrage and the current struggle for same-sex marriage. While early advocates for women’s votes genuinely believed that the ballot would transform women’s political standing and the polity as well, building space for the development of a caring state that would incorporate issues traditionally of concern to women, in fact the passage of the Nineteenth Amendment was largely secured on the basis of promises that it would not be fundamentally transformative. Indeed it was not.94 Further, while access to marriage will provide more support and protection for queer families that choose to take advantage of it, the institution itself seems unlikely to change significantly as a result of lesbians’ and gay men’s inclusion in it. And once access to marriage is extended to all couples, in what contexts will it be expected, and what will be denied to those who do not choose to take advantage of this equality? As Priscilla Yamin has shown, while protean, marriage has always been a tool for the state to distribute and deny benefits, and to privilege certain kinds of family.95

(p. 474) What, then, to do? One possibility, perverse though it may seem, is to start with poverty, the subject of seemingly final closure by the Supreme Court in the 1970s. The cautious path of showing that the poor are like everyone else except in their poverty has been extirpated. There would be little to lose in trying to launch a serious antisubordination framework, showing how large-scale, historically rooted economic inequality has operated across multiple institutional dimensions to disadvantage the poor in ways that cut to the core of democracy. Such an analysis would necessarily draw from the institutional history of how we have reached this place, implicating race and the structural economic advantages first afforded directly to whites by the state and then permitted to be retained by whites through shifting conceptions of property rights over time.

A complementary alternative is to seek a foundation for a new jurisprudence of rights for the poor in the state constitutions. This option is already viable with respect to education, as advocates for equality in several states turned to state constitutions in the wake of the Rodriguez setback on the federal level. Many states have also welcomed the invitation to establish stronger standards for criminal procedure and due process protections as the turn to conservatism in the federal courts has undermined the constitutional foundations established by the Warren Court.96 A turn to these frameworks is more than a retreat to a second-best alternative in light of federal failures: it could be a space in which to build new principles.

Such an agenda is unlikely to succeed in rooting out economic inequality or providing full equal access to civic membership for the poor in the short run, but it could create a moment of jurisgenesis. And jurisgenesis contains possibilities that could shake us out of our complacent acceptance of what is, and provide the ground for struggle against the continued regeneration of hierarchies that define who belongs in the American polity.



Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995).

Adkins v. Children's Hospital, 261 U.S. 525 (1923).

Boddie v. Connecticut, 401 U.S. 371 (1971).

Bowers v. Hardwick, 478 U.S. 186 (1986).

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); Brown v. Board of Education of Topeka, 349 U.S. 294 (1955).

Buchanan v. Warley, 245 U.S. 60 (1917).

City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).

Cooper v. Aaron, 358 U.S. 1 (1958).

Craig v. Boren, 429 U.S. 190 (1976).

Dandridge v. Williams, 397 U.S. 471 (1970).

Edwards v. California, 314 U.S. 160 (1941).

Evans v. Newton, 382 U.S. 296 (1966).

Frontiero v. Richardson, 411 U.S. 677 (1973).

(p. 475) Geduldig v. Aiello, 417 U.S. 484 (1974).

Gideon v. Wainwright, 372 U.S. 335 (1963).

Goesaert v. Cleary, 335 U.S. 464 (1948).

Goldberg v. Kelly, 397 U.S. 254 (1970).

Gomillion v. Lightfoot, 364 U.S. 339 (1960).

Gratz v. Bollinger, 539 U.S. 244 (2003)

Grutter v. Bollinger, 539 U.S. 306 (2003).

Guinn & Beal v. United States, 238 U.S. 347 (1915).

Harper v. Virginia Board of Elections, 383 U.S. 663 (1966).

Hernandez v. State, 251 S.W.2d 531 (Tex. 1952).

Hernandez v. Texas, 347 U.S. 475 (1954).

Hoyt v. Florida, 368 U.S. 57 (1961).

Katzenbach v. Morgan, 384 U.S. 641 (1966).

King v. Smith, 392 U.S. 309 (1968).

Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013), affirmed, 755 F.3d 1193 (10th Cir. 2014); stay granted, 134 S. Ct. 893 (2014); petition for certiorari denied, No. 14-124, 2014 WL 3841263 (Oct. 6, 2014).

Korematsu v. United States, 323 U.S. 214 (1944).

Lochner v. New York, 198 U.S. 45 (1905).

Loving v. Virginia, 388 U.S. 1 (1967).

Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981).

Milliken v. Bradley, 418 U.S. 717 (1974).

Minor v. Happersett, 88 U.S. 162 (1875).

Mississippi University for Women v. Hogan, 458 U.S. 718 (1982).

Oyama v. State of California, 332 U.S. 633 (1948).

Pace v. Alabama, 106 U.S. 583 (1883).

Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).

Perez v. Sharp, 32 Cal. 2d 711, 198 P. 2d 17 (Cal. 1948).

Plessy v. Ferguson, 163 U.S. 537 (1896).

Reed v. Reed, 404 U.S. 71 (1971).

Regents of the University of California v. Bakke, 438 U.S. 265 (1978)

Romer v. Evans, 517 U.S. 620 (1996).

San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).

Schuette v. Coalition to Defend Affirmative Action, 572 U.S. ___ (2014).

Shapiro v. Thompson, 394 U.S. 618 (1969).

Shelley v. Kraemer, 334 U.S. 1 (1948).

Skinner v. Oklahoma, 316 U.S. 535 (1942).

Strauder v. West Virginia, 100 U.S. 303 (1879).

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).

Terry v. Adams, 345 U.S. 461 (1953).

The Civil Rights Cases, 109 U.S. 3 (1883).

The Slaughter-House Cases, 83 U.S. 36 (1873).

United States v. Carolene Products Co., 304 U.S. 144 (1938).

United States v. Virginia, 518 U.S. 515 (1996).

United States v. Windsor, 570 U.S. ___ (2013).

Washington v. Davis, 426 U.S. 229 (1976).

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

Yick Wo v. Hopkins, 118 U.S. 356 (1886).

Other Primary Sources

Economic Opportunity Act of 1964, United States Public Law 88–452 (August 20).

Jackson, A., “Bank Veto Message” (1832).Find this resource:

    Johnson, A., “State of the Union Address” (1964).Find this resource:

      Kennedy, J. Executive Order 10925 (1961).Find this resource:

        Secondary Sources

        Ackerman, B, We the People, Volume 3: The Civil Rights Revolution (2014).Find this resource:

          Andersen, E, Out of the Closets and Into the Courts: Legal Opportunity Structure and Gay Rights Litigation (2006).Find this resource:

            Bernstein, D, ‘Philip Sober Controlling Philip Drunk: Buchanan v. Warley in Historical Perspective’ (1998) 51 Vanderbilt Law Review 798–873.Find this resource:

              Berry M, Why ERA Failed: Politics, Women’s Rights, and the Amending Process of the Constitution (1988).Find this resource:

                Bonilla-Silva, E, Racism without Racists: Color-Blind Racism and the Persistence of Racial Inequality in America (4 edn, 2013).Find this resource:

                  Brandwein, P, Rethinking the Judicial Settlement of Reconstruction (2011).Find this resource:

                    Breen, T, ‘Ideology and Nationalism on the Eve of the American Revolution: Revisions Once More in Need of Revising’ (1997) 84 Journal of American History 13–39.Find this resource:

                      Carle, S, ‘From Buchanan to Button: Legal Ethics and the NAACP’ (2001) 8 University of Chicago Law School Roundtable 281–307.Find this resource:

                        ———. ‘Elites, Ethics, and the Public Good: Race, Class, and Ethics in the Early NAACP, 1910-1920’ (2002) 20 Law and History Review 97–146.Find this resource:

                          Cover, R ‘The Supreme Court, 1982 Term—Foreword: Nomos and Narrative’ (1983) 97 Harvard Law Review 4–68.Find this resource:

                            ———. ‘Violence and the Word’ (1986) 96 Yale Law Journal 1601–1629.Find this resource:

                              Crenshaw, K, ‘A Black Feminist Critique of Antidiscrimination Law’ in Adams, D (ed), Philosophical Problems in the Law (4 edn, 2005) 339–343.Find this resource:

                                Cushman, B, ‘Carolene Products and Constitutional Structure’ (2012) 2012 Supreme Court Review 321–377.Find this resource:

                                  Epps, G, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post–Civil War America (2006).Find this resource:

                                    Ewald, A, The Way We Vote: The Local Dimension of American Suffrage (2009).Find this resource:

                                      Gilbert, A, Black Patriots and Loyalists: Fighting for Emancipation in the War of Independence (2012).Find this resource:

                                        Gillman, H, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (1993).Find this resource:

                                          Graber, M, ‘The Clintonification of American Law: Abortion, Welfare, and Liberal Constitutional Theory’ (1997) 58 Ohio State Law Journal 731–818.Find this resource:

                                            Greer, J. ‘The Better Homes Movement and the Origins of Mortgage Redlining in the United States’ in Nackenoff, C and Novkov, J (eds), Statebuilding from the Margins: Between Reconstruction and the New Deal (2014) 203–236.Find this resource:

                                              Gunther, G, ‘The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection’ (1972) 86 Harvard Law Review 1, 8.Find this resource:

                                                Hancock, A. The Politics of Disgust and the Public Identity of the “Welfare Queen,” (2004).Find this resource:

                                                  (p. 477) Kahn R. ‘Social Constructions, Supreme Court Reversals, and American Political Development: Lochner, Plessy, Bowers, but not Roe’ in Kahn, R and Kersch, K (eds), The Supreme Court and American Political Development (2006) 67–116.Find this resource:

                                                    Kende, M, ‘Foreword: Constitutionalism and the Poor’ (2012) 60 Drake Law Review 967–980.Find this resource:

                                                      Lambda Legal Defense and Education, ‘Status of Same-Sex Relationships Nationwide’ (2014), available at

                                                      Lawrence, S, The Poor in Court: The Legal Services Program and Supreme Court Decision Making (1990).Find this resource:

                                                        Magliocca, G, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (2013).Find this resource:

                                                          Mansbridge, J. Why We Lost the ERA (1986).Find this resource:

                                                            Mathews, D. and DeHart, J., Sex, Gender and the Politics of Sex (1990).Find this resource:

                                                              McMahon, L, Mere Equals: The Paradox of Educated Women in the Early American Republic (2012).Find this resource:

                                                                Melnick, R.S., Between the Lines: Interpreting Welfare Rights (1994).Find this resource:

                                                                  Nackenoff, C and Novkov, J, ‘Statebuilding in the Progressive Era: A Continuing Dilemma in American Political Development’ in Nackenoff, C and Novkov, J, Statebuilding from the Margins: Between Reconstruction and the New Deal (2014) 1–31.Find this resource:

                                                                    Nelson, W, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (1998).Find this resource:

                                                                      Nice, J, ‘Whither the Canaries: On the Exclusion of Poor People from Equal Constitutional Protection’ (2012) 60 Drake Law Review 1023–1067.Find this resource:

                                                                        Novkov, J, Constituting Workers, Protecting Women: Gender, Law, and Labor in the Progressive Era and New Deal Years (2001).Find this resource:

                                                                          ———. ‘The Conservative Attack on Affirmative Action: Toward a Legal Genealogy of Color Blindness’ in Ericson, D (ed), The Politics of Inclusion and Exclusion: Identity Politics in Twenty-First Century America (2008) 177–206.Find this resource:

                                                                            Pascoe, P, What Comes Naturally: Miscegenation Law and the Making of Race in America (2009).Find this resource:

                                                                              Pearson, S and Smith, K, ‘Developing the Animal Welfare State’ in Nackenoff, C and Novkov, J (eds), Statebuilding from the Margins: Between Reconstruction and the New Deal (2014) 118–139.Find this resource:

                                                                                Pinello, D, America’s Struggle for Same-Sex Marriage (2006).Find this resource:

                                                                                  Post, R, ‘Defending the Lifeworld: Substantive Due Process in the Taft Court Era’ (1988) 78 Boston University Law Review 1489.Find this resource:

                                                                                    Reich, C, ‘The New Property’ (1964) 73 Yale Law Journal 733–787.Find this resource:

                                                                                      Ritter, G, The Constitution as Social Design: Gender and Civic Membership in the American Constitutional Order (2006).Find this resource:

                                                                                        Schmidt, B, ‘Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 1: The Heyday of Jim Crow’ (1982) 82 Columbia Law Review 444–524.Find this resource:

                                                                                          Siegel, R, ‘Discrimination in the Eyes of the Law: How “Color Blindness” Discourse Disrupts and Rationalizes Social Stratification’ (2002) 88 California Law Review 77–117.Find this resource:

                                                                                            ———. ‘Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown’ (2004) 117 Harvard Law Review 1470–1547.Find this resource:

                                                                                              Soss, J, ‘Lessons of Welfare: Policy Design, Political Learning, and Political Action’ (1999) 93 American Political Science Review 363–380.Find this resource:

                                                                                                (p. 478) Sullivan, K and Strach, P, ‘Statebuilding through Corruption: Graft and Trash in Pittsburgh and New Orleans’ in Nackenoff, C and Novkov, J (eds), Statebuilding from the Margins: Between Reconstruction and the New Deal (2014). 95–117.Find this resource:

                                                                                                  Szymanski, A, ‘Wildlife Protection and the Development of Centralized Governance in the Progressive Era’ in Nackenoff, C and Novkov, J (eds), Statebuilding from the Margins: Between Reconstruction and the New Deal (2014) 140–170.Find this resource:

                                                                                                    Tomlins, C, Law, Labor, and Ideology in the Early American Republic (1993).Find this resource:

                                                                                                      Totenberg, N, Ginsburg, R, Martin, E and Maltz, E, ‘Reed v. Reed at 40: Equal Protection and Women’s Rights’ (2011) 20(2) Journal of Gender, Social Policy and the Law 315–344.Find this resource:

                                                                                                        Tushnet, M, ‘The Politics of Equality in Constitutional Law: The Equal Protection Clause, Dr. Du Bois, and Charles Hamilton Houston’ (1987) 74 Journal of American History 884–903.Find this resource:

                                                                                                          Villazor, R, ‘Rediscovering Oyama v. California: At the Intersection of Property, Race, and Citizenship’ (2010) 87 Washington University Law Review 979–1041.Find this resource:

                                                                                                            Wallenstein, P, Tell The Court I Love My Wife: Race, Marriage and Law—An American History (2004).Find this resource:

                                                                                                              White, L, ‘Subordination, Rhetorical Survival Skills and Sunday Shoes: Notes on the Hearing of Mrs. G’ (1990) 38 Buffalo Law Review 1–58.Find this resource:

                                                                                                                Yamin, P, American Marriage: A Political Institution (2012).Find this resource:

                                                                                                                  Zackin, E, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (2013).Find this resource:


                                                                                                                    (2) Tomlins (1993) 81–85.

                                                                                                                    (8) Epps (2006) 83–84, 91–93.

                                                                                                                    (9) ibid 97–98; Magliocca (2013).

                                                                                                                    (10) Epps (2006) 234–236.

                                                                                                                    (12) ibid 885–887.

                                                                                                                    (14) Strauder v. West Virginia (1879).

                                                                                                                    (15) ibid 307.

                                                                                                                    (16) Pace v. Alabama (1883).

                                                                                                                    (19) ibid 73.

                                                                                                                    (22) Ritter (1996).

                                                                                                                    (23) Minor v. Happersett (1875).

                                                                                                                    (25) See Novkov (2001). The supporters of the New York law protecting bakers at issue in Lochner did argue that baking was both a particularly unhealthful occupation and that safe preparation of food by healthy workers constituted a general public health interest, but the Supreme Court brushed aside these concerns.

                                                                                                                    (26) ibid.

                                                                                                                    (27) ibid.

                                                                                                                    (28) Carle (2002) 116–117.

                                                                                                                    (30) ibid.

                                                                                                                    (31) United States v. Carolene Products (1938) fn 4.

                                                                                                                    (32) Korematsu v. United States (1944) 216.

                                                                                                                    (34) Oyama v. California (1948) 260.

                                                                                                                    (35) Terry v. Adams (1953); Cooper v. Aaron (1958); Gomillion v. Lightfoot (1960).

                                                                                                                    (36) Harper v. Virginia Board of Elections (1966); Katzenbach v. Morgan (1966).

                                                                                                                    (37) Evans v. Newton (1966).

                                                                                                                    (38) Loving v. Virginia (1967).

                                                                                                                    (40) Siegel (2004) 1476–1477.

                                                                                                                    (42) Loving v. Virginia (1967) 11–12.

                                                                                                                    (44) In this case, the Court struck down a facially neutral San Francisco ordinance barring the establishment of laundry businesses in wooden buildings without a permit, which the city Board of Supervisors routinely denied to Chinese and Chinese-American applicants. Yick Wo v. Hopkins (1886).

                                                                                                                    (45) Hernandez v. Texas (1954) 476.

                                                                                                                    (46) The case upheld a substantial body of state and federal holdings allowing such legislation, and the Court was unpersuaded both that the distinction between women and men was constitutionally impermissible and that the statute’s exemption for the daughters or wives of bar owners was problematic.

                                                                                                                    (47) Hoyt v. Florida (1961).

                                                                                                                    (48) ibid 62.

                                                                                                                    (50) Washington v. Davis (1976) 240.

                                                                                                                    (52) Regents v. Bakke (1978) 295. For this proposition, Powell cited Alexander Bickel’s 1975 book, The Morality of Consent. As Reva Siegel notes, Bickel was the most prominent early architect of what she calls “cool” justifications for racial desegregation, or justifications that did not identify and condemn the racial motivations behind invalidated policies. Siegel (2004).

                                                                                                                    (53) Regents v. Bakke (1978) 313–315.

                                                                                                                    (54) City of Richmond v. J.A. Croson Co. (1989).

                                                                                                                    (56) Grutter v. Bollinger (2003) xx.

                                                                                                                    (57) ibid.

                                                                                                                    (58) ibid.

                                                                                                                    (59) Reed v. Reed (1971). The ACLU had spotted the case as a potential vehicle for attacking automatic preference statutes when the Idaho Supreme Court upheld the statute. Ruth Bader Ginsburg authored the briefs for the United States Supreme Court. See Totenberg et al. (2011).

                                                                                                                    (60) Frontiero v. Richardson (1973) 685–686.

                                                                                                                    (63) Mississippi University for Women v. Hogan (1982) 729–730.

                                                                                                                    (64) United States v. Virginia (1996) 531.

                                                                                                                    (66) Andersen (2004).

                                                                                                                    (67) ibid.

                                                                                                                    (68) Romer v. Evans (1996).

                                                                                                                    (69) ibid 623.

                                                                                                                    (70) This parallelled the NAACP’s refusal in the 1950s to represent mixed-race couples seeking marriage licenses in states that barred people of color from marrying whites (see Wallenstein (2004)).

                                                                                                                    (72) ibid.

                                                                                                                    (73) Kahn (2006). Kahn attributes this to the shift in social constructions around LGBT rights, and Kennedy himself spoke in terms of erosion of prejudice in his opinion, citing Casey and Romer as evidence (Lawrence v. Texas (2003)).

                                                                                                                    (75) United States v. Windsor (2013) xx.

                                                                                                                    (76) Edwards v. California (1941) 174.

                                                                                                                    (77) Skinner v. Oklahoma (1942).

                                                                                                                    (78) Gideon v. Wainwright (1963).

                                                                                                                    (79) Harper v. Virginia Board of Elections (1966).

                                                                                                                    (82) Economic Opportunity Act (1964).

                                                                                                                    (84) King v. Smith (1968).

                                                                                                                    (85) Shapiro v. Thompson (1969).

                                                                                                                    (86) Goldberg v. Kelly (1970) 265.

                                                                                                                    (87) Dandridge v. Williams (1970) 485.

                                                                                                                    (88) San Antonio v. Rodriguez (1973) 19.

                                                                                                                    (89) ibid 28.

                                                                                                                    (90) ibid 121–122.

                                                                                                                    (93) See, e.g., Hancock (2004).