The Anti-Humiliation Principle and Same-Sex Marriage
Yoshino, Kenji, The Yale Law Journal
ESSAY CONTENTS INTRODUCTION I. THE ANTI-HUMILIATION PRINCIPLE II. THE SUPREME COURT'S EMBRACE OF THE ANTI-HUMILIATION PRINCIPLE III. PROPOSED WAYS OF ESTABLISHING THE ANTI-HUMILIATION PRINCIPLE A. Situation-Sense B. The Brandeis Brief IV. THE CIVIL RIGHTS TRIAL AND THE ANTI-HUMILIATION PRINCIPLE A. Individual Voices B. Expert Framing of Individual Testimony C. Adversarial Testing CONCLUSION
Bruce Ackerman's volume on the civil rights revolution casts the Second Reconstruction as centrally concerned with the "anti-humiliation principle." (1) He critiques that revolution for gradually replacing the anti-humiliation principle with more technocratic doctrinal formulations, such as the test for heightened scrutiny. He also outlines two avenues through which jurists might establish the presence of institutionalized humiliation--their "situation sense" and the Brandeis brief. In doing so, he provides an important alternative framework for looking at constitutional civil rights discourse today. Ackerman briefly observes that recent same-sex marriage jurisprudence represents a domain in which this alternative framework has found new life.
In this essay, I supplement Ackerman's analysis in two ways, rooting his analysis more firmly in the gay-rights jurisprudence and offering a different avenue through which institutionalized humiliation might be established. In Part I of this essay, I outline Ackerman's theory of the "anti-humiliation principle," summarizing his critique of how the civil rights movement drifted from the conceptual moorings erected by Brown v. Board of Education. In Part II, I elaborate on his view that recent gay-rights jurisprudence revives the anti-humiliation principle, and inquire whether this jurisprudence can be extended into other domains. In Part III, I take up Ackerman's proposed means of establishing the existence of institutionalized humiliation. In Part IV, I argue that the civil rights trial provides an additional resource by focusing on the celebrated trial in Perry v. Schwarzenegger. (2)
I. THE ANTI-HUMILIATION PRINCIPLE
Perhaps the most compelling introduction to Ackerman's anti-humiliation principle can be found in his ringing defense of the opinion in Brown v. Board of Education. (3) Brown's holding needs no champion. Yet Ackerman notes "something very curious about Bronw's current status: None of the protagonists [in legal debates] takes Chief Justice Warren's opinion seriously." (4) In the spirit of doing so, Ackerman contends that "a single master-insight will suffice," namely, "the Court's emphasis on the distinctive wrongness of institutionalized humiliation." (5) Ackerman cites a famous passage from Brown to underscore his point: "Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group." (6) He observes that this emphasis on institutionalized humiliation constitutes the "lost logic" of Brown. (7)
This logic was not the special province of the judiciary. One of the book's core insights is that the constitutional canon should expand beyond Supreme Court cases to encompass the political Zeitgeist. Ackerman produces evidence that key political actors--from legislative and popular realms--understood institutionalized humiliation as the distinctive wrong of racism. Ackerman quotes Senator Hubert Humphrey, the sponsor of the Civil Rights Act of 1964: "It is difficult for most of us to comprehend the monstrous humiliations and inconveniences that racial discrimination imposes on our Negro fellow citizens." (8) Similarly, Ackerman points to Rosa Parks's 1955 statement, which accompanied the act that catalyzed the Montgomery bus boycott: "it was the very last time that I would ever ride in humiliation of this kind. …