Intersectionality Squared: Intrastate Minimum Wage Preemption & Schuette's Second-Class Citizens

By Johnson, Alexsis M. | Columbia Journal of Gender and Law, November 2018 | Go to article overview

Intersectionality Squared: Intrastate Minimum Wage Preemption & Schuette's Second-Class Citizens


Johnson, Alexsis M., Columbia Journal of Gender and Law


INTRODUCTION

Between 2012 and 2017, more than twenty municipalities passed ordinances providing for extended labor protections for their residents like paid sick leave and higher minimum wages. (1) Often these municipalities and their governing bodies have been more liberal and racially diverse than their respective legislatures. (2) In some of the states where municipalities have succeeded in passing this legislation, the state legislature has very quickly preempted those measures with a state law dictating that no city can set a minimum wage higher than the federal standard of $7.25 an hour. (3) These state laws banning cities from raising the working wage constitute intrastate minimum wage preemption. The lawmakers preempting these local reform efforts proffer to justifications for the bills rooted in economics and federalism. (4) However, these preemptive measures raise consequential questions related to the due process of lawmaking and equal protection jurisprudence more generally. (5)

This Note applies an intersectional analysis to the ongoing conservative strategy of intrastate minimum wage preemption (6) to reveal one example of how such preemptive measures limit progressive change, and especially burden Black women and women of color. Ultimately, this Note identifies two significant phenomena--or "intersections"-- that, together, amount to what this Note will call Intersectionality Squared. The first intersection arises directly out of conventional intersectional theory: the intersection of multi-faceted identities of the women of color themselves and the social factors causing disproportionately high employment of women of color in minimum-wage jobs. (7) The second phenomenon contributing to Intersectionality Squared is an intersection in the less theoretical sense of the word: a temporal intersection of the current political strategy of minimum wage preemption and the Supreme Court's recent decision narrowing the political process rationale in equal protection law as an avenue to curb intersectional discrimination. (8)

This Note examines both of these consequential intersections and reveals how they converge into Intersectionality Squared. The ultimate objective herein is the illumination of how the intrastate minimum wage preemption strategy goes beyond an issue of identity politics and, instead, results in a pattern of legal erasure which further renders legally uncognizable the ways in which Black women and women of color experience discrimination. (9) This Note does not intend to argue that all instances of intrastate preemption raise constitutional concerns, nor does this Note intend to imply that all instances of intrastate minimum wage preemption necessarily pose a threat of a political process constitutional violation. Rather, this Note argues that where localities enact ordinances or regulations that work to the benefit of women of color and the state legislature responds with a political restructuring that invalidates or preempts those local ordinances, courts should consider the disparate impact on women of color as circumstantial evidence which weighs against the constitutional validity of a political restructuring. (10)

Part I of this Note discusses recent examples of intrastate minimum wage preemption and the case Schuette v. Coalition to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equality by Any Means Necessary (BAMN), which concerns the future of the political process doctrine challenging such measures. (11) Part II applies an intersectional analysis to an open appeal challenging intrastate minimum wage preemption in Birmingham, Alabama to demonstrate how a single-axis equal protection analysis of intrastate minimum wage preemption obscures the way in which such preemption more severely burdens women of color. Part III identifies the potential doctrinal openings that remain to assert intersectional political process doctrine claims and makes recommendations for how the Court might more adequately acknowledge intersectional harms moving forward. …

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