This analysis in the New York Times looks at the red-hot social issues to be decided this week by the Supreme Court: marriage equality for gays, race-based preferential treatment in college admissions and the Voting Rights Act. Writes Adam Liptak:
The extraordinary run of blockbuster rulings due in the space of a single week will also reshape the meaning of legal equality and help define for decades to come one of the Constitution’s grandest commands: “the equal protection of the laws.”
If those words require only equal treatment from the government, the rulings are likely to be a mixed bag that will delight and disappoint liberals and conservatives in equal measure. Under that approach, same-sex couples who want to marry would be better off at the end of the term, while blacks and Hispanics could find it harder to get into college and to vote.
That’s because:
Formal equality would require that gay couples be treated just like straight couples when it comes to marriage, white students just like black students when it comes to admissions decisions and Southern states just like Northern ones when it comes to federal oversight of voting. The effect would be to help gay couples, and hurt blacks and Latinos.
In a roundabout way, the analysis comes down to an argument that constitutional equality under the 14th Amendment doesn’t mean “formal” equality. Because of past historical discrimination, blacks (in particular) must receive preferential treatment in college admissions, for example, in order to be treated equally. As Kenji Yoshino, a law professor at New York University, put it, one view of equal protection “is skeptical of government classifications based on race and similar characteristics,” while the other “tries to make sure that historically disfavored groups are not subordinated.”
The problem is once you move beyond “equal means equal” regarding how the government treats you, other unintended distortions then occur (the oft referenced but still relevant cases of children of well-off African-American professionals vs. lower-income white kids with higher SAT scores). In employment affirmative action pertaining to race and gender (which are not before the court this term), the need to avoid “disparate impact” in hiring and promotion have led to de facto discrimination against better qualified pale males.
At some point, government preferences for some become unfair discrimination against others, often in service to political motives, when “formal equality” is legally interpreted as not being equal.
As Chief Justice Roberts said in 2007, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
More. On Monday, the Supreme Court ruled that, in admissions, public colleges and universities could use race as a criteria if narrowly tailored to ensure diversity in the student body, remanding the case back to a lower court to apply a “strict scrutiny” standard in judging whether the university’s use of race met this criteria. Allowing even a narrow use of race-based preferences won’t please those students with better earned qualifications who aren’t admitted so as to foster racial diversity, but it does continue to get away from the idea that rewards and punishments should be meted out to this generation to make amends for sins committed by past generations.
20 Comments for “Formal Equality vs. Equality-Plus”
posted by Tom Scharbach on
I read the NYT article a few days ago with interest.
I don’t think the article got it right; I think that the author was so interested in a theoretical distinction between “formal” and “actual” equality that he lumped together cases that aren’t comparable.
The “blockbuster cases” discussed in the article are: (1) Fisher v. University of Texas, which tests the limits of racial affirmative action by state colleges and universities (remanded today, but not decided), (2) Shelby County vs. Holder, which tests the limits of a federal law mandating federal DOJ scrutiny of voter limitations in states with history of racial voter discrimination, (3) US v. Windsor, which tests the question of whether the federal government can pick and choose amongst which state-sanctioned marriages it can recognize, and (4) Hollingsworth v. Perry, which tests the constitutionality of a state constitutional amendment banning marriage equality.
Neither Windsor nor Perry require an “actual equality” analysis; the cases can easily be decided on the basis of “formal equality”. The Court need not reach the issue of a past history of discrimination to uncover the equality, or uncover a factual inequality distinct from formal equality, or look beyond the face of the law (Section 3 of DOMA) in Windsor or the amendment (Prop 8) in Perry to find the inequality. In those two cases, the questions presented are stark enough that, in my view anyway, the Court need not move beyond the “rational basis” test to find the government action unconstitutional. The facts of the two cases go to the question of whether or not the governments involved had a rational basis for discrimination, but not beyond.
Shelby and Fisher are different. Both involve race and racial discrimination, past and/or present, and the effects of that discrimination in the present. Both are, at heart, about a factual inequality that is distinct from formal equality, and the questions presented by the cases revolve around the question of whether formal equality is sufficient to achieve actual equality. Note that in both cases, and in similar cases, the Courts are dealing with the aftermath of formal inequality — segregation laws and laws restricting voting rights in the affected states — rather than formal inequality created by the laws. African-Americans achieved formal equality several decades ago; the question presented now is whether, given the effects of those laws, African-Americans have attained actual equality or anything close to it.
In my view, the article is conflating the two sets of cases, which are essentially unlike in terms of “what constitutes equality”. It also seems to assume, by arguing that looking toward “actual equality” in the race cases and “formal equality” in the sexual orientation cases will create cognitive dissonance for the Justices, that only one test of equality is and should be applicable. I don’t buy that. I seems to me that the Court can adopt different standards of equality in the cases without creating a theoretical conflict.
As I think about this, it seems to me that DOMA and Prop 8 are akin to the segregation laws that used to exist in this country. Both DOMA and Prop 8 create inequality as a matter of law.
If that is right, then, at present, “equal means equal” for gays and lesbians means to confront and remove formal inequality, but “equal means equal” for African-Americans means to confront and remove actual equality which is the continuing aftermath of past formal inequality.
Distinct situations; distinct tests of “equal means equal”.
posted by Mike in Houston on
One of the major differences between the LGBT civil rights movement and other predecessors is that for the LGBT community, our basic “ask” is that impediments be removed — whether to civil marriage equality, employment, public accomodation, etc.. We have never asked for redress of historical transgressions (reparations, affirmative action, etc.).
That’s not to say that we don’t expect some degree of enforcement to ensure that “equal means equal”, but that, in general, we expect to rise & fall on our own merits when the current legal impediments to our civil equality are removed.
posted by Tom Scharbach on
Dead right, Mike.
Another difference is that marriage equality, which is our basic “ask” is not zero-sum; it isn’t as if there is a limit on the number of marriage licenses a state can issue, so marriage equality doesn’t deprive any straight couples of the opportunity to marry. In that respect, marriage equality is fundamentally different than affirmative action.
posted by Houndentenor on
Exactly. It’s not as if there are a limited number of marriage licenses that can be issued each year and a lesbian couple being married will prevent a heterosexual couple from being able to tie the knot. That’s why it’s so ridiculous to see AFA, Manhattan Declaration and other groups act as if their civil rights will be violated if gay couples can marry.
posted by HeyWTF on
Incorrect and dangerous misunderstanding. What did Ms. Winsor sue the federal government for? Darn right, $365,000 in real estate taxes she wouldn’t have had to pay if she were a man.
There are many opponents of same-sex marriage that argue the same point – after all, the proponents often cite the 1,000+ federal laws (benefits and responsibilities) that come with the recognition of marriage. The flip side of is that opponents argue that they are losing out, or same-sex marriage is an unnecessary, wasteful privilege.
Of course this argument is bogus, and the same one that has been put forward by those who thought blacks were invading whites’ territory or those who thought women were stealing away jobs traditionally reserved for men. You can find lots of examples from the history and I suppose I don’t need to provide them.
There are always those who want to sustain the status-quo for fear of loss in the zero-sum games. Whether they are right or wrong in that regard, I can’t say in confidence either way. (but history tells us they are more often than not wrong) Regardless, equal protection isn’t about zero-sum game – and that I can say with confidence.
posted by Tom Scharbach on
On Monday, the Supreme Court ruled that, in admissions, public colleges and universities could use race as a criteria if narrowly tailored to help ensure diversity in the student body.
Technically, the Court remanded the case to the appellate court for reconsideration.
The Court’s decision did not change the Court’s general approach, and continues to allow schools to treat educational diversity as a government interest sufficient to overcome the general ban on racial classifications. What the Court changed, if anything, is that the Court imposed a requirement that schools “verify that it is necessary for a university to use race to achieve the educational benefits of diversity”, and that courts make a “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”
Most legal analysis to date suggests that the articulated standard is tightened. Time will tell. The case will be back to the Court in a couple years, most likely.
That won’t please those students with better earned qualifications who aren’t admitted, but it does continue to get away from the idea that rewards and punishments should be meted out to this generation to make amends for sins committed by past generations.
Reparations was not an issue in the case. A quest for diversity — diversity which, presumably, benefits all students who are admitted — is neither a “reward” nor a “punishment”. The question presented to the Court was whether and under what conditions race could be used as a classification to achieve diversity.
posted by Jorge on
Justice Kennedy wrote the majority opinion of this case. He wrote a dissent in Grutter, stating that the important dual decisions upholding affirmative action are marred by the Court’s failure to call out both race-based admissions policies as unconstitutional quotas.
This was a 7-1 ruling that took the present affirmative action Supreme Court cases as given. It tightens nothing but enforcement. After Grutter and Gratz the analysis was that college admissions departments that currently have race-based admissions policies would have to expand and spend more money scrutinizing every applicant individually in order to satisfy the Supreme Court decisions. Well, now this case is saying that’s what the courts below need to be firm about doing. No one could read Grutter and Gratz and believe the ground under race-based admissions policies was secure. Now it’s actually more secure. There will not be a successful constitutional challenge anytime soon. Maybe after another 15 years.
posted by Tom Scharbach on
There will not be a successful constitutional challenge anytime soon.
This case tested the question of whether and under what conditions a state college or university can take race into consideration to achieve diversity in the student body.
The Court will consider a different challenge in the next term — the question of whether a state government can forbid a state college or university from taking race into consideration to achieve diversity in the student body.
posted by Houndentenor on
Once again we sidestep the group most harmed by racial consideration in college admissions: Asian-Americans. There is little evidence that white students are being harmed by diversity considerations, but at least in California when they stopped being able to use race as a factor, the number of Asian-American students finally greatly increased. They were the ones most harmed by those policies and I find it odd that this is almost never mentioned.
I do think it behooves the top college to try for a more diverse student body. If they only used test scores and grades, they could easily admit a student body from the top prep schools whose parents have spent a small fortune on test-prep coaches and private tutors over far more interesting and talented students from other backgrounds, not just of different races (whatever that means in 2013 when there are more and more people of mixed ethnicity all the time) different socio-economic groups and geographical regions.
posted by Houndentenor on
I’ve learned to avoid the words equal and equality when talking to conservatives. When I do they jump to the absurd extreme of everyone wearing Chairman Mao suits and receiving the same paycheck no matter what job they do. It’s absurd but I’ve had this fight about “not being able to guarantee equal outcomes” too many times. Equal rights means that you can’t treat a group of people like crap and get away with it. That’s all that means. And it happens to lots of groups and it’s naive to act like in 2013 that it doesn’t because we don’t. You have to have selective blindness not to see it around you. At the same time, the policies in 2013 should address the issues of 2013, not the issues of 1964.
As for the Voting Rights Act, I live in the south (sucks to be me!) and there is a great deal of effort to suppress minority turnout here and it’s often been successful. I didn’t hear of any white people having to stand in line for hour on end to be able to vote last fall. But it happened in many minority precincts. It shows the anger at the attempts to deny them the vote that they stood in line that long. (I couldn’t have done it myself. I went to vote at 3 and had to leave for rehearsal no later than 5:30. I’d just not have gotten to vote if the lines had been that long and slow.) It’s simply a lie to deny that these things go on and that laws are necessary to prevent a group from making it harder for certain people to vote in order to alter the outcome of the election. Voter turnout in this country is shamefully low. It’s embarrassing to be perfectly honest. We should be trying to encourage more citizens to vote, not less.
posted by Lori Heine on
It’s as bad as it ever was. The mainstream political Right has not changed. The reasons they use kinder and gentler rhetoric, or simply refrain from talking about certain things, is simply to deceive people.
Of course they’re still suppressing African-American votes. They’re still looking the other way, and making excuses, when people advocate killing gays. I dared mention that the Tea Party called a pastor to speak for them, even though he’d advocated the death penalty for all gays, and Good Lordy, the evasions and personal attacks this brought on!
The pus is really rising to a boil at Gay Patriot. The few remaining sane commenters there are either losing their minds or leaving. In the latest flame war, I’ve just been sneeringly informed that my church, the Episcopal Church, is “The Church of What’s Happening Now.”
Vile and disgusting. I’m just about through with all that. I know…what took me so long…
posted by Jorge on
Equal rights means that you can’t treat a group of people like crap and get away with it. That’s all that means.
*Sigh.* How ya doing, Chairman Mao?
Equal rights means you can’t treat a group of people like crap and another group of people great without a good reason and get away with it. The reason cannot be something insignificant. I favor due process more, which I see as more concerned with looking objectively at the treatment you are dishing out to any one person, and why.
As for the Voting Rights Act, I live in the south (sucks to be me!) and there is a great deal of effort to suppress minority turnout here and it’s often been successful.
Well then, obviously this evidence will be considered by the Supreme Court and they will uphold that provision of the Voting Rights Act. This is intended to be sarcasm; I simply do not believe it is plausible that the bad guys are in the exact same gerrymandered shape in 2013 as they were in 1964.
posted by Houndentenor on
It’s certainly not as bad today as it was in 1964, but only because laws are in place to allow people to sue in federal court when their rights are being restrained.
I don’t know what good reason there is to deny citizens the right to vote. I don’t know what good reason there is to deny a qualified person a job for some quality that is not germane to the job. I hear a lot from conservatives that employers ought to be able to hire whoever they want for any reason. That might sound good in theory but the result would be the disenfranchisement of minority people in much of the country and there would be no local pressure because most of their neighbors would applaud them for doing so. What’s really at the heart of this is that white men are used to being able to cut to the front of the line and now that they can’t they think all the people in front of them cheated to get there. To hear them talk they are now an oppressed minority. It would be funny if they weren’t serious.
posted by Jorge on
It’s certainly not as bad today as it was in 1964, but only because laws are in place to allow people to sue in federal court when their rights are being restrained.
That is not the law that is at issue. At issue is a law that prohibits states from changing their election laws without federal approval. This law applied to the exact same states and counties in 2013 as it applied to in 1964. This is ludicrous.
Even had you been more apt in your point, Justice Ginsburg wrote something to the effect in her dissent, that the majority would overturn the Voting Rights Act because of its success. Well, YES! Otherwise there remains no reason for it. Toaster is fixed. Toaster repairman is now fired! I was too sick to read another word of her opinion.
posted by Houndentenor on
Her reasoning is sound. I take high blood pressure medicine. Now that my blood pressure is no longer high, do I stop taking the medicine? Would that make sense.
Also, places that had no problems for long enough weren’t subject to the law any more. You seem to have skipped that part.
The majority ruled in favor of voter suppression. It’s what they want and it’s what is going to happen. Congratulations.
posted by Jorge on
Her reasoning is sound. I take high blood pressure medicine. Now that my blood pressure is no longer high, do I stop taking the medicine? Would that make sense.
I have no idea. Are you eating more healthy now? At a more healthy weight? Are your arteries unclogged? Are you getting less stress in your life? Yes? Then you should stop taking it.
Fire the toaster repairman, take off the raincoat, and stop punishing people for sins that were committed before they were even born.
posted by jared on
I didn’t hear of any white people having to stand in line for hour on end to be able to vote last fall. But it happened in many minority precincts.
For the record, it happened here in largely white majority Arlington, VA — in line for well over an hour, beginning at 9:15 am (when I thought the pre-work crowd would be gone). Friends just a few miles away in Alexandria told me that had virtually no wait at all. It’s dependent on a lot of variables that lead to poor government planning (imagine!).
posted by Houndentenor on
I waited about 45 minutes here in Texas. Not that big a deal. Some people had to wait hours to vote (as in more than four), not just one. Here’s one news story. There were plenty more in multiple states:
http://www.foxnews.com/politics/2012/11/06/virginia-reports-long-lines-after-polls-close-1313247840/
posted by TomJeffersonIII on
A) Some people believe that racism has mostly gone away (like a dinosaur) and that if/when it existed it was not really ‘institutional racism’ but just bad actions among individuals. If you believe this then you probably don’t like affirmative action.
Personally, I believe that racism still exists — especially institutionalized racism. I find it odd that folks that oppose affirmative action in college admissions almost never get upset about colleges giving special treatment to say, children of alumni or children of major donors.
B) Yes, important legal and cultural progress has been made with regards to racial discrimination. The problem is that quite a bit more still has to be done. I do believe that in about 20 – 40 years from now (hopefully) the need for affirmative action will shift from race (and gender) to more about economic class.
C) I doubt that the liberals/moderates on the Supreme Court want to open up another Roe v. Wade polarizing. So, they will probably issue a ruling that they think will make some progressive, but also not be quite so polarizing long-term. Then, when public opinion catches up, the court will look back and go ‘Oh, gay citizens should have equal rights’.
D) I think it is just plain said that someone would phrase the question of legal equality in terms of political rights as ‘northern states versus southern states’. That has got to be one of the cruelest modern legal arguments associated with political rights that I have read in my (rather short) life.
**** Voting rights (like other political rights) should be focused on the individual citizens…not the different levels of government and not things that are not human. ***
posted by Formal Equality vs. Equality-Plus — IGF Culture Watch | Fashion on
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