Loving's legacy: The other antidiscrimination principles

Harvard Civil Rights-Civil Liberties Law Review

Volumn 34, Issue 1, 1999, Pages 163-199

  Moore, Allison ^a,b,c,d  

^a US Ct of Appeals for the DC Ct ^*  (United States)

^b STANFORD UNIVERSITY   (United States)

^c UNIVERSITY OF CAMBRIDGE   (United Kingdom)

^d YALE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 7044241310     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (157)

1. 388 U.S. 1 (1967) (striking down under the Equal Protection Clause a state law prohibiting interracial marriage).
2. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995) ("Loving v. Virginia, which struck down a race-based state law, cited Korematsu for the proposition that 'the Equal Protection Clause demands that racial classifications ... be subjected to the 'most rigid scrutiny.'"); Shaw v. Reno, 509 U.S. 630, 643 (1993) (citing Loving for the proposition that classifications on the basis of race are odious to equality). Dissenting voices on the Court, however, continue to notice Loving's more revolutionary implications: "Not until Loving v. Virginia . . . could one say with security that the Constitution and this Court would abide no measure 'designed to maintain White Supremacy. '"Adarand, 515 U.S. at 272 (Ginsburg, J., dissenting).
3. Virginia Code § 20-59 provided: Punishment for marriage. - If any white person intermarry with a colored person, or any colored person with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years. Loving, 388 U.S. at 4.
4. Id. at 10. Incidentally, the racially restrictive property covenant challenged in Shelley v. Kraemer, 334 U.S. 1 (1948), arguably raised a similar mirror-image discrimination problem: the covenant prevented both the willing (black) buyer and the willing (white) seller from engaging in the land sale, thus treating "each participant . . . the same." Loving, 388 U.S. at 10. The Court, preoccupied with the state-action question, however, simply ignored this equal treatment argument. Indeed, despite the fact that the covenant on its face was only directed at restricting the seller's freedom, the Court focused solely on the denial of rights to black homebuyers. See Shelley, 334 U.S. at 20-21.
5. See Loving, 388 U.S. at 11-12; see also id. at 13 (Stewart, J., concurring).
6. This is precisely why the specter of the "equal opportunity sexual harasser" - the bisexual who harasses both men and women sexually-haunts the jurisprudence of sexual harassment. See, e.g., Barnes v. Costle, 561 F.2d 983, 990 n.55 (D.C. Cir. 1977) ("These situations . . . are to be distinguished from a bisexual superior who conditions the employment opportunities of a subordinate of either gender upon participation in a sexual affair. In the case of the bisexual superior, the insistence upon sexual favors would not constitute gender discrimination because it would apply to male and female employees alike."). See also, e.g., Easton v. Crossland Mortgage Corp., 905 F. Supp. 1368, 1379 (C.D. Cal. 1995) (finding a cause of action for same-sex sexual harassment and discussing the recent Ninth Circuit decision in Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir. 1991), in which the Ninth Circuit refused to rule out the possibility of a claim against an equal opportunity harasser); Chiapuzio v. BLT Operating Corp., 826 F. Supp. 1334, 1337 (D. Wyo. 1993) (holding that "the equal harassment of both genders does not escape the purview of Title VII" in a case where the harasser "intended to demean, and therefore harm" all of his victims because of their gender); Christine A. Littleton, Feminist Jurisprudence: The Difference Method Makes, 41 STAN. L. REV. 751, 769-70 (1989) (raising as a concern the possibility that equal oportunity harassers may be the "most resistant to liability" because of the lack of clarity in the doctrine).
7. That is, "neutrality" can be used in two senses. The first is that of equal application - the idea that a law "neutral" between groups does not take sides; it treats members of one group no better or worse than members of any other group. This is the sense in which neutrality is a value of procedural fairness and a conception of the antidiscrimination principle. The other sense of neutrality is that of color-blindness - the idea that a neutral law draws no race-conscious distinctions. In this conception, the neutrality principle expresses a substantive or outcomes-based value more than a procedural one (except, of course, to the extent that a decision making process infected with race-consciousness is per se unfair). This distinction is developed further infra Part I.A.
8. The consistency principle condemns inconsistency in the pursuit of a particular value or goal such that its burdens are imposed only on certain parts of society while other parts : are specifically excluded even though inclusion of those parts would further the goal. This A principle is developed infra Part II.
9. See Loving, 388 U.S. at 8.
10. However, sex-based restrictions in the choice of marriage partner are constrained. Loving has thus been employed by theorists (and courts) arguing to invalidate the proscription on same-sex marriage on equal protection grounds. See, e.g., Baehr v. Lewin, 852 P.2d 44, 67-68 (Haw. 1993); William N. Eskridge, Jr., A History of Same-Sex Marriage, 79 VA. L. REV. 1419, 1504-10 (1993).
11. Loving, 388 U.S. at 8. It is again to this racial double standard on marital choice, in addition to the neutrality violation, that the Court alludes when it claims: "There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." Id. at 12.
12. Id. at 12n.11.
13. It may seem at first glance that this conception of the double standard gets the social meaning of the statute wrong, since it seems to imply that whites are the ones discriminated against by being subjected to a special penalty for intermarriage that is not imposed on nonwhites who marry (each other) interracially. The Virginia law, however, can be recharacterized, not as a penalty for those who intermarry, but as a protection for the (racist) interests of those who do not. The double standard then is one that fails to give the "racial integrity" and "racial pride" interests of nonwhites the same "protection" as that of whites.
14. The impartiality principle disfavors governmental action motivated by the bare desire to disadvantage an identifiable group, or giving effect to that desire within the polity. It reflects an exercise of raw political power as apart from action motivated by public values or deliberative reason. This principle is developed further infra Part III.
15. Loving, 388 U.S. at 8.
16. Id. at 7 (quoting Naim v. Naim, 87 S.E.2d 749, 756 (Va. 1955) (upholding antimiscegenation laws)).
17. See id. at 11 ("The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.").
18. See id. ("There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.").
19. As discussed infra in Parts II and III, we can see the consistency and impartiality principles also guiding other groundbreaking cases like Romer v. Evans, 517 U.S. 620 (1996), United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973), and Hunter v. Erickson, 393 U.S. 385 (1969).
20. 21 Romer, 517 U.S. at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)). See also, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 521 (1989) (Scalia, J., concurring in the judgment) (quoting the same language of Justice Harlan's, beginning with the famous words "Our Constitution is color-blind").
21. Paul Brest, The Supreme Court, 1975 Term - Foreword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1, 1 (1976).
22. Plyler v. Doe, 457 U.S. 202, 220, 221-22 (1982) (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972)).
23. Coalition for Econ. Equity v. Wilson, 110 F.3d 1431, 1439 (9th Cir. 1997) (emphasis added).
24. 518 U.S. 515 (1996).
25. Id. at 550; see also Craig v. Boren, 429 U.S. 190, 204 (1976) ("[P]roving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause.").
26. That is, the state's ban on interracial marriage at issue in that case used race-specific classifications while treating blacks and whites who intermarry equally. See supra notes 3-7 and accompanying text.
27. Cf. supra notes 24-26 and accompanying text.
28. Hirabayashi v. United States, 320 U.S. 81, 100 (1943) (upholding discriminatory curfew placed on American citizens of Japanese ancestry, however, on the ground that this consideration did have relevance "bearing on the loyalty of populations in the danger areas" potentially threatened with Japanese invasion during World War II).
29. Although sometimes the evidence to the contrary may be based on group-wide assumptions. See id. at 101 (alluding to "recognition of facts and circumstances which indicate that a group of one national extraction may menace [the nation's] safety more than others," among these circumstances "the fact . . . that attack on our shores was threatened by Japan rather than another enemy power").
30. See Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
31. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240 (1995) (Thomas, J., concurring); see also id. at 236 (reiterating that "'[b]ecause racial characteristics so seldom provide a relevant basis for disparate treatment, and because classifications based on race are potentially so harmful to the entire body politic, it is especially important that the reasons for any such classification be clearly identified and unquestionably legitimate.'" (emphasis added) (quoting Fullilove v. Klutznick, 448 U.S. 448, 537 (1980) (Stevens, J., dissenting))).
32. Shaw v. Reno, 509 U.S. 630, 643 (1993).
33. See, e.g., John C. Liu, Editorial, Affirmative Action's Other Side: Victims, SAN DIEGO UNION-TRIE., Nov. 1, 1996, at B7 ("Unfortunately, the worthy goals of affirmative action have evolved over the past 30 years to the point that the words 'equal opportunity' have been substituted with 'equal outcomes.'"); Michael Nyilis, Editorial, Affirmative Misconceptions, WASH. TIMES, July 17, 1997 at A19 ("What anti-preference supporters propose is replacing . . . equal outcomes with equal opportunity, . . . discrimination based on skin color with equality before the law.").
34. See, e.g., John C. Liu, Editorial, Affirmative Action's Other Side: Victims, SAN DIEGO UNION-TRIE., Nov. 1, 1996, at B7 ("Unfortunately, the worthy goals of affirmative action have evolved over the past 30 years to the point that the words 'equal opportunity' have been substituted with 'equal outcomes.'"); Michael Nyilis, Editorial, Affirmative Misconceptions, WASH. TIMES, July 17, 1997 at A19 ("What anti-preference supporters propose is replacing . . . equal outcomes with equal opportunity, . . . discrimination based on skin color with equality before the law.").
35. See Washington v. Davis, 426 U.S. 229, 239 (1976) (holding that the racially disproportionate impact of a facially neutral test does not render it unconstitutional absent a racially discriminatory purpose).
36. That is, Washington v. Davis holds that while the Constitution forbids tests adopted for the discriminatory purpose of disadvantaging a particular racial group (reflecting unequal treatment in official decision making) as well as tests that are not neutral but distinguish between candidates on the basis of race (reflecting unequal treatment in the substantive law), it nevertheless tolerates tests that have a disproportionate racial impact for other reasons (reflected in unequal outcomes). See id.
37. The antidiscrimination principle, as other commentators have noted, adopts a "perpetrator perspective" in which "fault" is a central element. See Alan Freeman, Antidiscrimination Law: The View from 1989, 64 TUL. L. REV. 1407, 1412-13 (1990).
38. The doctrinal implication that constitutional violation must be predicated on governmental responsibility is underscored by the discussion in Washington v. Davis of the plaintiff-job applicants' failure to pass Test 21, a written verbal skill level test. See 426 U.S. 229, 245-46 (1976). The Court attributes this failure solely to the applicants' own lesser abilities, see id., and is quite obviously appalled at charging the government with discrimination towards them. It is likewise this idea of lack of governmental responsibility (hence lack of governmental discrimination) to which Plessy appealed in claiming that if "the enforced separation of the two races stamps the colored race with a badge of inferiority . . . it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction on it." Plessy v. Ferguson, 163 U.S. 537, 551 (1896).
39. See supra notes 3-18 and accompanying text.
40. Cf Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987-88 (1988) (plurality opinion) (declaring the functional equivalence of intentional discrimination "where facially neutral job requirements necessarily operated to perpetuate the effects of [the private employer's] intentional discrimination that occurred before Title VII was enacted" (citing Griggs v. Duke Power Co., 401 U.S. 424, 426-28, 431-32 (1971))).
41. The following discussion draws heavily on the antidiscrimination analysis of abortion laws in CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 272-85 (1993) and Guido Calabresi, The Supreme Court, 1990 Term - Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores), 105 HARV. L. REV. 80, 91-93 (1991).
42. The following discussion draws heavily on the antidiscrimination analysis of abortion laws in CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 272-85 (1993) and Guido Calabresi, The Supreme Court, 1990 Term - Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores), 105 HARV. L. REV. 80, 91-93 (1991).
43. See infra notes 49-57 and accompanying text (discussing typical neutrality analysis of sex-based distinctions in pension fund plan, and contrasting it with expanded inconsistency analysis).
44. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (striking down city's plan requiring contractors to subcontract at least 30% of their contracts to "Minority Business Enterprises").
45. Even VMI, in which Justice Ginsburg purported to use the less demanding intermediate scrutiny standard, employed conventional means-ends equal protection analysis to strike down long-standing sex segregation at the Virginia Military Institute, finding the exclusion of women from its "adversative training" curriculum to be based on impermissible group assumptions and stereotypes. See United States v. Virginia, 518 U.S. 515 (1996).
46. See, e.g., Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974) (finding no sex-based discrimination in a medical disability policy exempting pregnancy disability because "pregnancy is an objectively identifiable condition with unique characteristics," and holding that "[t]he program divides potential recipients into two groups - pregnant women and nonpregnant persons").
47. See Note, Legislative Purpose, Rationality, and Equal Protection, 82 YALE L.J. 123, 128-132 (1972).
48. Cf. Rostker v. Goldberg, 453 U.S. 57 (1981) (upholding the exclusion of women from compulsory registration under the Military Selective Service Act).
49. Cf. Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 108-11 (1976) (arguing that equal protection analysis of racial discrimination emphasizes means-ends rationality).
50. 435 U.S. 702 (1978) (striking down as a violation of Title VII's disparate treatment prong a city department's requirement that female employees make larger contributions to the pension fund than male employees).
51. See id. at 704.
52. Indeed, discussion of these issues consumes the bulk of the majority's constitutional analysis, see id. at 707-16, as well as the dissent's, see id. at 726-28 (Burger, C.J., dissenting in part).
53. The interest should be framed in terms of actuarial fairness generally, rather than just actuarial fairness between men and women. Stating the interest in terms of a gendered subject basically defines the interest in terms of the governmental means pursued, and cuts off inquiry into inconsistent treatment of the gendered aspect of the subject compared to other aspects.
54. As the Court notes, there is also a substantial difference between black and white life expectancy. See Manhart at 709 n.15.
55. Indeed, the city's omission of racial criteria is rendered even more suspect by the fact that it is blacks who are actuarially disadvantaged under an equal contribution policy. Thus, where men are actuarially harmed under an equal contribution policy, the city "sees" unfairness and requires women to contribute more, but where blacks are the group harmed, the city takes no action to restore actuarial fairness. This suggests that the city's policy can : be challenged as racially discriminatory too, for not pursuing racial actuarial fairness where the city has indicated that such fairness is an important governmental interest.
56. See Personnel Adm'r v. Feeney, 442 U.S. 256, 278-81 (1979) (rejecting equal protection challenge that a veterans preference statute discriminates impermissibly on the basis of sex merely because the vastly disparate impact on women was foreseeable, because constitutional "'discriminatory purpose' . . . implies more than intent as volition or intent as awareness of consequences").
57. With ordinary social and economic legislation, "reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind." Williamson v. Lee Optical, Inc., 348 U.S. 483, 489 (1955).
58. 58 See, e.g., Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 477 (1982); Hunter v. Erickson, 393 U.S. 385 (1969). This line of cases is discussed infra Part II., sections A.-B.
59. 393 U.S. 385 (1969).
60. See id. at 387.
61. See The Civil Rights Cases, 109 U.S. 3 (1883) (holding that the Fourteenth Amendment is not intended to protect individual rights against private invasion but only against impairment by state action). But cf. Shelley v. Kraemer, 334 U.S. 1 (1948) (finding the requisite state action for violation of the Fourteenth Amendment in the legal enforcement of racially restrictive property covenants).
62. Hunter, 393 U.S. at 390.
63. Id. at 392.
64. Id. at 389.
65. Id.
66. Id. at 390. The Court noted that "[t]he automatic referendum system does not reach housing discrimination on sexual or political grounds, or against those with children or dogs, nor does it affect tenants seeking more heat or better maintenance from landlords, nor those seeking rent control, urban renewal, public housing, or new building codes." Id. at 391.
67. W. at 391.
68. We see this reasoning again in Washington v. Seattle School District No. 1, 458 U.S. 457 (1982), a case involving a law banning busing of school children for desegregation purposes while allowing a wide variety of exceptions for other purposes - which is a post-Washington v. Davis case. Justice Blackmun reasoned that busing for integration is essentially a "racial" issue, because "desegregation of the public schools . . . at bottom inures primarily to the benefit of the minority, and is designed for that purpose." Seattle Sch. Dist. at 472. Thus, the Court held, the law "must fall because it does 'not attemp[t] to allocate governmental power on the basis of any general principle.' Instead, it uses the racial nature of an issue to define the government decision making structure, and thus imposes substantial and unique burdens on racial minorities." Id. at 470 (quoting Hunter, 393 U.S. at 395 (Harlan, J., concurring)).
69. 426 U.S. 229 (1976).
70. Seattle Sch. Dist., 458 U.S. at 485.
71. Id. at 474.
72. For a compelling, but ultimately too open-ended, argument about using causation as a limiting principle for disparate impact cases, see Theodore Eisenberg, Disproportionate Impact and Illicit Motive: Theories of Constitutional Adjudication, 52 N.Y.U. L. REV. 36 (1977).
73. Seattle Sch. Dist., 458 U.S. at 484 (citation omitted) (quoting Hunter, 393 U.S. at 394 (Harlan, J., concurring)).
74. 497 U.S. 547 (1990) (O'Connor, J., dissenting).
75. W. at 615 (O'Connor, J., dissenting); see also J.E.B. v. Alabama, 511 U.S. 127, 140 (1994) (arguing that "[t]he community is harmed by the State's participation in the perpetuation of invidious group stereotypes" and holding that intentional discrimination on the basis of gender by state actors in the use of preemptory jury challenges violates the Equal Protection Clause).
76. 458 U.S. 457 (1982).
77. Id. at 471.
78. Id. at 491 (Powell, J., dissenting).
79. 80 See id. at 462.
80. W. at 471.
81. See id. at 474-75.
82. See supra note 55 and accompanying text.
83. See Seattle Sch. Dist., 458 U.S. at 474.
84. See, e.g., United States Dep't of Agric. v. Moreno, 413 U.S. 528 (1973).
85. Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (holding that the reality and effect of private racial biases are impermissible considerations under the Equal Protection Clause for divesting a mother of custody of her infant child because of her remarriage to a person of a different race).
86. SUNSTEIN, supra note 41, at 26.
87. Id. at 25. Professor Sunstein argues that many clauses of the Constitution "appear to be united by a concern with a single underlying evil: the distribution of resources or opportunities to one group rather than to another solely on the ground that those favored here have exercised the raw political power to obtain what they want. I will call this underlying evil - a violation of the impartiality requirement - a naked preference." Id.
88. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 452 (1985) (Stevens, J., concurring); see also id. at 450 (using the term "irrational prejudice").
89. 413 U.S. 528 (striking down a statutory provision directed at excluding "hippies" from participating in the food stamp program).
90. Id. at 534.
91. Id. at 534-35 (citations omitted).
92. See id. at 533-34.
93. See id. at 537.
94. The plaintiffs included, for instance, a 56-year-old diabetic who was living with a woman and her children, sharing with them common living expenses and receiving care from the woman for her diabetes, and a mother of a hearing-impaired girl who was sharing an apartment with another woman in order to have the means for her daughter to go to a school for the deaf. See id. at 531-32.
95. Romer v. Evans, 517 U.S. 620, 631 (1996) (holding unconstitutional a state constitutional amendment repealing and prohibiting local antidiscrimination ordinances protecting homosexuals).
96. See id. ("The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.").
97. The Romer dissent points to exactly this feature of the anti-animus norm when criticizing it. See id. at 644 (Scalia, J., dissenting) ("Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible - murder, for example, or polygamy, or cruelty to animals - and could exhibit even 'animus' toward such conduct."). See infra notes 105-107 and accompanying text.
98. The impartiality principle's prohibition against animus in decision making is, in another respect, a counterpoint to the value of individual moral entitlement associated with the conventional neutrality principle. The individual moral entitlement value condemns the use of stereotyped notions of individual merit based on group status, insisting on decision making that instead respects individual ability and dignity. Similarly, the impartiality principle attacks a like failure to attend to individuals in their own right; to give them and their interests fair and equal consideration compared with members of other groups. Both norms police procedural failures to give individuals their due respect.
99. Plyler v. Doe, 457 U.S. 202, 218 n. 14 (1982). In the following sentence, the Court also connects the anti-animus norm to the moral entitlement value of treating people with due respect: "Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law." Id.
100. 101 Romer, 517 U.S. at 632.
101. The consistency principle in these cases is developed supra Part II.
102. Note, Legislative Purpose, Rationality, and Equal Protection, supra note 46, at 131.
103. Romer, 517 U.S. at 633; see also Plyler, 457 U.S. at 227 ("Of course, a concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources. The state must do more than justify its classification with a concise expression of an intention to discriminate." (citations omitted)).
104. See 517 U.S. at 644 (Scalia, J., dissenting).
105. See id. (citing Bowers v. Hardwick, 478 U.S. 186 (1986)).
106. Id. at 641.
107. Amendment 2 is "a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something that the Equal Protection Clause does not permit." Id. at 635 (emphasis added). 101 Id. at 632.
108. Id. at 635.
109. Cf. Akhil Reed Amar, Attainder and Amendment 2: Romer's Rightness, 95 MICH. L. REV. 203 (1996) (reasoning that the Attainder Clause prohibits state and federal legisla-tion from naming or singling out a class of persons for distinctive treatment).
110. See supra notes 90-95 and accompanying text.
111. See United States Dep't of Agric. v. Moreno, 413 U.S. 528, 537-38, 546 (1973).
112. Id. at 537-38 (citation omitted).
113. Id. at 538.
114. Id. at 546 (Rehnquist, J., dissenting).
115. See also Philips v. Perry, 106 F.3d 1420, 1429 (9th Cir. 1997) (upholding the Navy's "don't ask/don't tell" policy regarding homosexuality as rationally furthering the government's legitimate interest in "unit cohesion"). Judge Fletcher, in dissent, engaged in similar critical examination of the ambiguity hiding in the concept of "unit cohesion." After considering various alternative ways in which disclosure of homosexuality could be related to "cohesion," Judge Fletcher ultimately concluded that the term merely masked "the negative reactions of service members opposed to homosexuality." Id. at 1435 (Fletcher, J., dissenting). She reasoned: This is evident from the structure of the new prohibitions. If a service member keeps his homosexual orientation secret, then he is allowed to remain in the military. However, if a service member acknowledges that he is gay, then he is a threat to "unit cohesion" and must be discharged. The only material difference in these two situations is that information regarding the service member's homosexuality has been communicated to other service members, who might react negatively to the information and threaten unit cohesion. Id. (footnote omitted). Accommodation of this animus, however, could not, after Romer, be considered a legitimate governmental interest: "Disapproval of homosexuality on the part of heterosexual service members is an impermissible reason for discriminating against gay service members, [citing Romer] Otherwise, discrimination against an unpopular class could always be justified by reference to the moral disapproval of the majority." Id. at 1436.
116. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985).
117. W. at 447.
118. Id. at 448 (emphasis added).
119. Id. at 458 (Marshall, J., concurring).
120. See id. at 448-50.
121. "[U]nder the traditional and most minimal version of the rational-basis test, 'reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind."' Id. at 458 (Marshall, J., concurring) (quoting Williamson v. Lee Optical, Inc., 348 U.S. 483, 489 (1955)).
122. Cleburne, 473 U.S. at 452 (Stevens, J., concurring).
123. By "structural justice" I mean a principle that evaluates the justice of laws and social institutions according to the pattern of outcomes they produce for salient social groups, taking as the yardstick a norm of rough equality across groups in terms of things such as opportunities and resources, social rewards, power, and status. What matters is how the effects of the laws are felt by members of different groups; it is insufficient from the perspective of structural justice merely to say that the laws operated fairly on individuals in a procedural sense.
124. See Cal. Const, art. 1 § 31; Coalition for Econ. Equity v. Wilson, 110 F.3d 1431, 1434 (9th Cir.), op. amended and superseded on denial of reh'g, 122 F.3d 692 (9th Cir. 1997).
125. See id. at 1439.
126. Id. at 1435 (discussing the district court's view of Proposition 209).
127. See Loving v. Virginia, 388 U.S. 1, 8 (1967) ("[A]ssum[ing] the validity of [the State's] equal application theory . . . the question becomes whether there was any rational basis for a State to treat interracial marriages differently from other marriages.").
128. See infra Sections III.A-B.
129. See Coalition for Econ. Equity v. Wilson, 946 F. Supp. 1480, 1498, 1505 (N.D. Cal. 1996), rev'd, 110 F.3d 1431, 1434 (9th Cir.), op. amended and superseded on denial of reh'g, 122 F.3d 692 (9th Cir. 1997).
130. See id. at 1504 ("[I]f an 'initiative removes the authority to address a racial problem - and only a racial problem - from the existing decision making body, in such a way as to burden minority interests,' it must be examined for equal protection purposes as if it were a racial classification." (quoting Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 458(1982))).
131. See Loving, 388 U.S. at 11-12 & n.11.
132. Coalition for Econ. Equity, 110 F.3d at 1434 (quoting the proponents' argument in the ballot pamphlet).
133. See id. at 1445 n.17.
134. This is presumably the implication that the district court meant to be drawn. See Coalition for Econ. Equity, 946 F. Supp. at 1505.
135. 141 F.3d 344 (D.C. Cir.), reh'g en banc denied, 154 F.3d 487 (D.C. Cir. 1998).
136. 125 F.3d 702 (9th Cir. 1997), reh'g en banc denied, 138 F.3d 1270 (9th Cir. 1998).
137. The regulations also prohibited discrimination based on "color, religion, national origin, or sex," 141 F.3d at 346 (citing 47 C.F.R. § 73.2080(a) (1997)), although these other provisions were not specifically at issue in this part of the case. See id. at 351 n.9.
138. The court described the requirements as: (1) disseminating the equal opportunity program to job applicants and employees; (2) using minority and women-specific recruiting sources; (3) evaluating the station's employment profile and job turnover against the availability of minorities and women in its recruitment area; (4) offering promotions to minorities and women in a nondiscriminatory fashion; and (5) analyzing its efforts to recruit, hire, and promote minorities and women. Id. at 346 (citing 47 C.F.R. § 73.2080(c) (1997)).
139. See Monterey Mechanical, 125 F.3d at 709 (citing CAL. PUB. CONT. CODE § 10115.2(a), (b) (West 1998)). If the contractors had actually hired the targeted numbers of minority business subcontractors and suppliers, then they would not have had to document their outreach efforts. See id. at 704.
140. See Lutheran Church, 141 F.3d at 352-53; Monterey Mechanical, 125 F.3d at 709. If the general contractor was owned by a woman, minority or disabled veteran, the share of the work that it kept for itself was counted against the target. See id. at 704. The court, however, applied the neutral classifications principle so stringently that it would apparently have stricken the statute even if it weighed equally heavily on white male and on minority general contractors. See id. at 712.
141. 515 U.S. 200 (1995) (holding that all racial classifications - benign or not - by governmental actors must be analyzed under strict scrutiny).
142. Lutheran Church, 141 F.3d at 351 (emphasis added). Note that in light of the court's later arguments that the FCC's review policy inevitably leads to racial preferences in hiring, this claim is really disingenuous. Judge Silberman writes: [W]e do not think it matters whether a government hiring program imposes hard quotas, soft quotas, or goals. Any one of these techniques induces an employer to hire with an eye toward meeting the numerical target. As such, they can and surely will result in individuals being granted a preference because of their race. Id. at 354. But even a policy requiring only nondiscrimination will likely be policed by special attention to stations that have suspiciously disproportionate minority employment. For that matter, merely admitting evidence of racial disproportion in court to help establish a case of racial discrimination would be unconstitutional under Judge Silberman's reasoning, on the ground that it leads in practice to employment quotas.
143. Monterey Mechanical, 125 F.3d at 711.
144. See Monterey Mechanical Co. v. Wilson, 138 F.3d 1270, 1275 (9th Cir. 1998) (Reinhardt, J., dissenting from denial of rehearing en banc) ("It goes without saying that the statute in no way limits the giving of notice to others. The provision in question is designed to assure only that, when notices are given, minorities and women will not be excluded.").
145. Of course, recruitment budgets are not unlimited, so at the margin some tradeoff occurs. But the basic point is that information is a nondepletable good that can be shared across many users, which distinguishes it from the allocation of jobs.
146. This is true except to the extent that the FCC relies on the recruitment requirement in order to further the alternative goal of diversity in broadcasting, thereby attributing special racial viewpoints to different employees. To the extent that these regulations are meant to further merely nondiscrimination and workplace diversity goals, however, they involve no impermissible group-based attribution.
147. See supra text accompanying notes 29-34.
148. Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 351-52 (D.C. Cir. 1998). The court's analysis of this issue is cut short, however, by its ultimate rejection of the government's asserted interest in preventing employment discrimination, apparently because it was offered by the Department of Justice rather than the FCC. See id. at 354. Instead, it considers the main purpose of the regulations to be the promotion of "diversity in programming," see id. at 350, which makes the policy seem not only to rest on potentially inappropriate racial generalizations, but indeed to verge on irrationality.
149. Note that the discrimination problem with the intent behind Proposition 209 was not that it sought to achieve (formal) racial equality - which in itself is a legitimate governmental goal - but that the means used and the inconsistencies involved cast doubt on the bona fides of this intention and suggested something more animus-related.
150. See, e.g., Brest, supra note 23; see generally John Rawls, Justice as Fairness: Political Not Metaphysical, 14 PHIL. & PUB. AFF. 223 (1985) (arguing that the liberal conception of distributive justice is grounded in procedural fairness to individuals in the political system). But see Fiss, supra note 48, at 173-77 (arguing that structural justice and outcomes-equality also have important roots in the popular conception of equality).
151. See, e.g., Brest, supra note 23; see generally John Rawls, Justice as Fairness: Political Not Metaphysical, 14 PHIL. & PUB. AFF. 223 (1985) (arguing that the liberal conception of distributive justice is grounded in procedural fairness to individuals in the political system). But see Fiss, supra note 48, at 173-77 (arguing that structural justice and outcomes-equality also have important roots in the popular conception of equality).
152. See, e.g., Brest, supra note 23; see generally John Rawls, Justice as Fairness: Political Not Metaphysical, 14 PHIL. & PUB. AFF. 223 (1985) (arguing that the liberal conception of distributive justice is grounded in procedural fairness to individuals in the political system). But see Fiss, supra note 48, at 173-77 (arguing that structural justice and outcomes-equality also have important roots in the popular conception of equality).
153. This is especially important in light of psychological research into the prevalence of the "just world hypothesis" and the "fundamental attribution error," by which people generally exhibit a bias toward overattributing good and bad outcomes to individuals' specific traits, supporting the conclusion that these outcomes are "deserved." These cognitive errors entrench an unjust status quo by masking the extent to which its beneficiaries and losers are undeserving of their lots. See Melvin J. Lerner, The Desire for Justice and Reactions to Victims, in ALTRUISM AND HELPING BEHAVIOR 205 (Jacqueline R. Macaulay & Leonard Berkowitz eds., 1970); Kelly G. Shaver, Defensive Attribution: Effects of Severity and Relevance on the Responsibility Assigned for an Accident, 14 J. PERSONALITY & Soc. PSYCHOL. 101 (1970).
154. This is especially important in light of psychological research into the prevalence of the "just world hypothesis" and the "fundamental attribution error," by which people generally exhibit a bias toward overattributing good and bad outcomes to individuals' specific traits, supporting the conclusion that these outcomes are "deserved." These cognitive errors entrench an unjust status quo by masking the extent to which its beneficiaries and losers are undeserving of their lots. See Melvin J. Lerner, The Desire for Justice and Reactions to Victims, in ALTRUISM AND HELPING BEHAVIOR 205 (Jacqueline R. Macaulay & Leonard Berkowitz eds., 1970); Kelly G. Shaver, Defensive Attribution: Effects of Severity and Relevance on the Responsibility Assigned for an Accident, 14 J. PERSONALITY & Soc. PSYCHOL. 101 (1970).
155. Fiss, supra note 48, at 175.
156. Id.
157. In Korematsu v. United States, 323 U.S. 214 (1944), for example, this approach to evaluating the government's means and ends for discrimination was suggested by Justice Murphy. His dissenting opinion noted that "[s]imilar disloyal activities have been engaged in by many persons of German, Italian, and even more pioneer stock in our country" - while only those of Japanese descent were relocated. Id. at 240 (Murphy, J., dissenting). This comparison places both the absolute necessity and paramount importance of the relocation policy in doubt: If the government's interest in preventing disloyal activities were sufficiently important, then the burden of forced relocation would have been imposed on a broader segment of the American public, instead of just on an (unpopular) minority group. Further, the fact that the government chose to deal with the threat posed by disloyal members from other ethnic groups in alternative ways implied that forced relocation was not, in fact, the only feasible option.