Beyond Race: Sex and
History, Stephen said, is a nightmare from which I am trying to awake.
James Joyce, Ulysses1
Students of the history of the Fourteenth Amendment disagree among themselves about precisely what racially discriminatory state laws (and other racially discriminatory state action) section one of the Fourteenth Amendment was understood and meant to forbid. (I explored that disagreement in chapter 3.) They agree, however, that section one was understood and meant to forbid some racially discriminatory state laws; they agree, in particular, that section one was meant to forbid at least the kinds of racially discriminatory state laws and practices -- the Black Codes -- outlawed by the Civil Rights Act of 1866. Racial discrimination was a core concern of section one of the Fourteenth Amendment.
In the 1970s, the Supreme Court moved beyond racially discriminatory laws (and kindred laws discriminating on the basis of ethnicity or nationality) and began to outlaw some laws, policies, and other government action that discriminated on the basis of sex. 2 In what sense, if any, is it a usurpation of our politics for the Court, in the name of the Fourteenth Amendment, 3 to do what it now does: disfavor, by subjecting to a strict standard of review, all (government-sponsored) discrimination based on sex and outlaw most instances of such discrimination? 4
In 1996, in a case that outraged many social conservatives, the Court struck down a newly adopted Colorado constitutional amendment that, in the Court's view, discriminated against homosexuals in violation of the Fourteenth Amendment. In what sense, if any, was it a usurpation of our politics for the Court to do so? In what sense would it be a usurpation for the Court to disfavor discrimination against homosexuals the way it now disfavors discrimination against women, namely, by subjecting it to a strict standard of review -- a standard that is often lethal?