Dignity, Inequality, and Stereotypes

By Boso, Luke A. | Washington Law Review, September 1, 2017 | Go to article overview

Dignity, Inequality, and Stereotypes


Boso, Luke A., Washington Law Review


INTRODUCTION

In the summer of 2015, the Supreme Court in Obergefell v. Hodges1 struck down all remaining same-sex marriage bans in the United States.2 Justice Kennedy wrote the majority opinion, reasoning that same-sex marriage bans deny "equal dignity" to same-sex couples3 and, by extension, to gays and lesbians as a group.4 The Court ultimately held that same-sex marriage bans violate individuals' fundamental right to marry as protected under the term "liberty" in the Due Process Clause,5 as well as the Equal Protection Clause,6 but it acknowledged throughout the opinion that the Fourteenth Amendment's textually separate liberty and equality provisions are often conceptually codependent.7 Obergefell's focus on dignitary harm and its role at the center of a friendly relationship between liberty and equality thus offers important guiding principles for understanding the Court's broader Equal Protection jurisprudence.

One longstanding tenet of Equal Protection law is that the government cannot rely on or perpetuate stereotypes when distinguishing between and among certain groups.8 In the landmark Reed v. Reed9 decision of 1971, the Supreme Court gave life to the anti-stereotyping principle when it struck down as unconstitutional an Idaho statute that explicitly preferred men over women as estate administrators.10 In Reed, the ACLU argued in a brief co-authored by now-Justice Ginsburg that "legislative judgments have frequently been based on inaccurate stereotypes of the capacities and sensibilities of women,"11 and a diverse array of laws perpetuate the overarching sex-role stereotype that a woman's place is "subordinate to man."12 The Court validated these arguments throughout the following years and decades, holding repeatedly that sex classifications that "ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women"13 violate the Equal Protection Clause.

The anti-stereotyping principle extends beyond sex and applies in other contexts in which the government classifies on the basis of a suspect status or protected trait. In holding that sexual orientation is a suspect classification warranting heightened judicial scrutiny, the Ninth Circuit in SmithKline Beecham Corp. v. Abbott Laboratories14 recently applied the anti-stereotyping principle to a defendant's peremptive strike against a potential juror based in part on his status as gay. The Ninth Circuit explained that preemptive strikes based on "preconceived notions of the identities, preferences, and biases of gays and lesbians reinforce and perpetuate"15 stereotypes, and to revoke a civic responsibility based on these stereotypes "demean[s] the dignity of the individual."16

What do the anti-stereotyping and equal dignity principles have in common? This Article proposes that equal dignity is one theory of Equal Protection that can explain when governmental stereotyping is unconstitutional.17 The Court's anti-stereotyping jurisprudence attempts to tackle the dual constitutional harms of group subordination and individual liberty denial, and Justice Kennedy made both harms central to equal dignity's meaning in Obergefell. First, Kennedy reasoned that, when buttressed by the "long history of disapproval" surrounding same-sex relationships, bans on same-sex marriage impose a "disability on gays and lesbians" that "serves to disrespect and subordinate them."18 Second, Kennedy explained that equal dignity also requires space for individuals, "within a lawful realm, to define and express their identity."19 In other antidiscrimination law contexts, cases that rely on the anti-stereotyping principle to strike down classifications based on sex, race, and sexual orientation likewise reflect anti-group subordination and pro-individual liberty themes. Obergefell simply unifies these themes by tying both to a dignitary conception of equality.

Protecting stigmatized groups from subordination while simultaneously providing ample room for individual group members to "define and express their identity"20 can sometimes create tension. …

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