Expressive identity: Recuperating dissent for equality

Harvard Civil Rights-Civil Liberties Law Review

Volumn 35, Issue 1, 2000, Pages

  Hunter, Nan D ^a  

^a BROOKLYN LAW SCHOOL   (United States)

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EID: 9144230855     PISSN: 00178039     EISSN: None     Source Type: Journal    
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References (271)

1. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
2. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995); infra Part II.A.
3. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) and cases discussed infra Part IV.A.
4. See Shaw v. Reno, 509 U.S. 630 (1993) and cases discussed infra Part I.C.
5. See PAUL L. MURPHY, WORLD WAR I AND THE ORIGIN OF CIVIL LIBERTIES IN THE UNITED STATES (1979).
6. See, e.g., Abrams v. United States, 250 U.S. 616 (1919).
7. See MARTHA MINOW, NOT ONLY FOR MYSELF: IDENTITY, POLITICS AND THE LAW (1997).
8. See Molly S. Mcusic & Michael Selmi, Postmodern Unions: Identity Politics in the Workplace, 82 IOWA L. REV. 1339 (1997).
9. See Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581 (1990).
10. 42 U.S.C. §1985(3) (1994) provides a right of action for claims alleging acts that deprive an individual of "the equal protection of the laws."
11. Edwards v. South Carolina, 372 U.S. 229, 231 (1963).
12. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
13. See J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2360 (1997).
14. NATHAN GLAZER & DANIEL PATRICK MOYNIHAN, BEYOND THE MELTING POT (1963).
15. Id. at 17.
16. Kenneth L. Karst, Equality and Community: Lessons from the Civil Rights Era, 56 NOTRE DAME L. REV. 183, 183-84 (1980).
17. MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES 67 (1986).
18. Ian F. Haney Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1, 58 (1994). See also IAN F. HANEY LOPEZ, WHITE BY LAW (1996).
19. Ian F. Haney Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1, 58 (1994). See also IAN F. HANEY LOPEZ, WHITE BY LAW (1996).
20. See, e.g., MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW (1990); Balkin, supra note 13; Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian and Bisexual Identity, 36 UCLA L. REV. 915, 924-25 (1989); Tracy E. Higgins, "By Reason of Their Sex": Feminist Theory, Postmodernism, and Justice, 80 CORNELL L. REV. 1536, 1542 (1995); Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 COLUM. L. REV. 1753 (1996).
21. See, e.g., MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW (1990); Balkin, supra note 13; Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian and Bisexual Identity, 36 UCLA L. REV. 915, 924-25 (1989); Tracy E. Higgins, "By Reason of Their Sex": Feminist Theory, Postmodernism, and Justice, 80 CORNELL L. REV. 1536, 1542 (1995); Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 COLUM. L. REV. 1753 (1996).
22. See, e.g., MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW (1990); Balkin, supra note 13; Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian and Bisexual Identity, 36 UCLA L. REV. 915, 924-25 (1989); Tracy E. Higgins, "By Reason of Their Sex": Feminist Theory, Postmodernism, and Justice, 80 CORNELL L. REV. 1536, 1542 (1995); Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 COLUM. L. REV. 1753 (1996).
23. See, e.g., MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW (1990); Balkin, supra note 13; Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian and Bisexual Identity, 36 UCLA L. REV. 915, 924-25 (1989); Tracy E. Higgins, "By Reason of Their Sex": Feminist Theory, Postmodernism, and Justice, 80 CORNELL L. REV. 1536, 1542 (1995); Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 COLUM. L. REV. 1753 (1996).
24. Stanley Aronowitz, Discussion (describing adherents of David Duke), in IDENTITY QUESTION 21, 25 (John Rajchman ed., 1995).
25. DUNCAN KENNEDY, A Cultural Pluralist Case for Affirmative Action in Legal Academia, in SEXY DRESSING ETC. 41 (1993).
26. Id. at 56, quoting in partial disagreement Randall L. Kennedy, Racial Critiques of Legal Academia, 102 HARV. L. REV. 1745, 1784 (1989). Similarly, sexual identity signifies "the shared experience of having a sexual attachment to persons of the same sex and the oppression experienced because of that attachment." Yoshino, supra note 19, at 1755 n.3.
27. See Jane S. Schachter, Skepticism. Culture and the Gay Rights Debate in a Post-Civil-Rights Era, 110 HARV. L. REV. 684, 706 (1997) (book review).
28. The Southern Christian Leadership Conference endorsed Thomas's nomination. See Peter Applebome, Dr. King's Rights Group Backs Court Nominee, N. Y. TIMES, Sept. 27, 1991, at A2. The National Urban League took no position for or against. See James Rowley, DeConcini Says Thomas' Presentation Will Make or Break Confirmation, Associated Press wire, Aug. 1, 1991. The NAACP opposed it. See id. A USA Today poll found that three out of four African Americans supported the nomination. See Joseph Perkins, Thomas and NAACP, SAN DIEGO UNION-TRIB., Aug. 2, 1991, at B6. For an analysis of debates on the authenticity of African American experience as represented, or not, by Justice Thomas, see Cornel West, Black Leadership and the Pitfalls of Racial Reasoning, in RACE-ING JUSTICE, EN-GENDERING POWER 390 (Toni Morrison ed., 1992).
29. The Southern Christian Leadership Conference endorsed Thomas's nomination. See Peter Applebome, Dr. King's Rights Group Backs Court Nominee, N. Y. TIMES, Sept. 27, 1991, at A2. The National Urban League took no position for or against. See James Rowley, DeConcini Says Thomas' Presentation Will Make or Break Confirmation, Associated Press wire, Aug. 1, 1991. The NAACP opposed it. See id. A USA Today poll found that three out of four African Americans supported the nomination. See Joseph Perkins, Thomas and NAACP, SAN DIEGO UNION-TRIB., Aug. 2, 1991, at B6. For an analysis of debates on the authenticity of African American experience as represented, or not, by Justice Thomas, see Cornel West, Black Leadership and the Pitfalls of Racial Reasoning, in RACE-ING JUSTICE, EN-GENDERING POWER 390 (Toni Morrison ed., 1992).
30. The Southern Christian Leadership Conference endorsed Thomas's nomination. See Peter Applebome, Dr. King's Rights Group Backs Court Nominee, N. Y. TIMES, Sept. 27, 1991, at A2. The National Urban League took no position for or against. See James Rowley, DeConcini Says Thomas' Presentation Will Make or Break Confirmation, Associated Press wire, Aug. 1, 1991. The NAACP opposed it. See id. A USA Today poll found that three out of four African Americans supported the nomination. See Joseph Perkins, Thomas and NAACP, SAN DIEGO UNION-TRIB., Aug. 2, 1991, at B6. For an analysis of debates on the authenticity of African American experience as represented, or not, by Justice Thomas, see Cornel West, Black Leadership and the Pitfalls of Racial Reasoning, in RACE-ING JUSTICE, EN-GENDERING POWER 390 (Toni Morrison ed., 1992).
31. The Southern Christian Leadership Conference endorsed Thomas's nomination. See Peter Applebome, Dr. King's Rights Group Backs Court Nominee, N. Y. TIMES, Sept. 27, 1991, at A2. The National Urban League took no position for or against. See James Rowley, DeConcini Says Thomas' Presentation Will Make or Break Confirmation, Associated Press wire, Aug. 1, 1991. The NAACP opposed it. See id. A USA Today poll found that three out of four African Americans supported the nomination. See Joseph Perkins, Thomas and NAACP, SAN DIEGO UNION-TRIB., Aug. 2, 1991, at B6. For an analysis of debates on the authenticity of African American experience as represented, or not, by Justice Thomas, see Cornel West, Black Leadership and the Pitfalls of Racial Reasoning, in RACE-ING JUSTICE, EN-GENDERING POWER 390 (Toni Morrison ed., 1992).
32. Justice Thomas has responded to his critics in a series of speeches condemning those who expect him, as an African American, to hold certain views. Writing early in his tenure on the Court, Justice Thomas defended his right to espouse opinions that differ from those of the majority of African Americans. "[S]traying from the tenets of this [proaffirmative action] orthodoxy meant that you were a traitor to your race . . . . [W]here blacks were once intimidated from crossing racial boundaries, we now fear crossing ideological boundaries." Clarence Thomas, The New Intolerance, WALL STREET J., May 12, 1993, at A15). He has continued to press the point. "I refuse to have my ideas assigned to me as though I was an intellectual slave because I am black," he said in a 1998 speech before the National Bar Association, an organization of black lawyers. Neil A. Lewis, Justice Thomas Suggests Critics' Views Are Racist, N.Y. TIMES, July 30, 1998, at Al. Many NBA members had protested the fact that Justice Thomas had been invited to speak. See id. The NBA speech provoked heated reactions. Although identically titled, editorials in the New York Times and the Washington Post took opposite positions. See Justice Thomas Speaks, WASH. POST, July 31, 1998, at A24 ("On this matter . . . one can only cheer him on. . . . Justice Thomas has no duty to parrot the orthodoxies of affirmative action simply because he is black."); Justice Thomas Speaks, N.Y. TIMES, July 31, 1998, at A22 (opining that Justice Thomas "should not expect to be embraced or supported by the black community because of his race. His instinct to turn antagonism toward his ideas into a racial matter is an odd impulse for a man who wants to be judged on his intellect and ideas alone."). To one columnist, the controversy over Justice Thomas's speech exemplified the expression/equality dichotomy: "When was it, and how, and why, that civil rights and free speech became mutually exclusive?" Jonathan Yardley, For Heaven's Sake, Lawyers, Haven't You Ever Heard of Free Speech?, WASH. POST, Aug. 3, 1998, at D2.
33. Justice Thomas has responded to his critics in a series of speeches condemning those who expect him, as an African American, to hold certain views. Writing early in his tenure on the Court, Justice Thomas defended his right to espouse opinions that differ from those of the majority of African Americans. "[S]traying from the tenets of this [proaffirmative action] orthodoxy meant that you were a traitor to your race . . . . [W]here blacks were once intimidated from crossing racial boundaries, we now fear crossing ideological boundaries." Clarence Thomas, The New Intolerance, WALL STREET J., May 12, 1993, at A15). He has continued to press the point. "I refuse to have my ideas assigned to me as though I was an intellectual slave because I am black," he said in a 1998 speech before the National Bar Association, an organization of black lawyers. Neil A. Lewis, Justice Thomas Suggests Critics' Views Are Racist, N.Y. TIMES, July 30, 1998, at Al. Many NBA members had protested the fact that Justice Thomas had been invited to speak. See id. The NBA speech provoked heated reactions. Although identically titled, editorials in the New York Times and the Washington Post took opposite positions. See Justice Thomas Speaks, WASH. POST, July 31, 1998, at A24 ("On this matter . . . one can only cheer him on. . . . Justice Thomas has no duty to parrot the orthodoxies of affirmative action simply because he is black."); Justice Thomas Speaks, N.Y. TIMES, July 31, 1998, at A22 (opining that Justice Thomas "should not expect to be embraced or supported by the black community because of his race. His instinct to turn antagonism toward his ideas into a racial matter is an odd impulse for a man who wants to be judged on his intellect and ideas alone."). To one columnist, the controversy over Justice Thomas's speech exemplified the expression/equality dichotomy: "When was it, and how, and why, that civil rights and free speech became mutually exclusive?" Jonathan Yardley, For Heaven's Sake, Lawyers, Haven't You Ever Heard of Free Speech?, WASH. POST, Aug. 3, 1998, at D2.
34. Justice Thomas has responded to his critics in a series of speeches condemning those who expect him, as an African American, to hold certain views. Writing early in his tenure on the Court, Justice Thomas defended his right to espouse opinions that differ from those of the majority of African Americans. "[S]traying from the tenets of this [proaffirmative action] orthodoxy meant that you were a traitor to your race . . . . [W]here blacks were once intimidated from crossing racial boundaries, we now fear crossing ideological boundaries." Clarence Thomas, The New Intolerance, WALL STREET J., May 12, 1993, at A15). He has continued to press the point. "I refuse to have my ideas assigned to me as though I was an intellectual slave because I am black," he said in a 1998 speech before the National Bar Association, an organization of black lawyers. Neil A. Lewis, Justice Thomas Suggests Critics' Views Are Racist, N.Y. TIMES, July 30, 1998, at Al. Many NBA members had protested the fact that Justice Thomas had been invited to speak. See id. The NBA speech provoked heated reactions. Although identically titled, editorials in the New York Times and the Washington Post took opposite positions. See Justice Thomas Speaks, WASH. POST, July 31, 1998, at A24 ("On this matter . . . one can only cheer him on. . . . Justice Thomas has no duty to parrot the orthodoxies of affirmative action simply because he is black."); Justice Thomas Speaks, N.Y. TIMES, July 31, 1998, at A22 (opining that Justice Thomas "should not expect to be embraced or supported by the black community because of his race. His instinct to turn antagonism toward his ideas into a racial matter is an odd impulse for a man who wants to be judged on his intellect and ideas alone."). To one columnist, the controversy over Justice Thomas's speech exemplified the expression/equality dichotomy: "When was it, and how, and why, that civil rights and free speech became mutually exclusive?" Jonathan Yardley, For Heaven's Sake, Lawyers, Haven't You Ever Heard of Free Speech?, WASH. POST, Aug. 3, 1998, at D2.
35. Justice Thomas has responded to his critics in a series of speeches condemning those who expect him, as an African American, to hold certain views. Writing early in his tenure on the Court, Justice Thomas defended his right to espouse opinions that differ from those of the majority of African Americans. "[S]traying from the tenets of this [proaffirmative action] orthodoxy meant that you were a traitor to your race . . . . [W]here blacks were once intimidated from crossing racial boundaries, we now fear crossing ideological boundaries." Clarence Thomas, The New Intolerance, WALL STREET J., May 12, 1993, at A15). He has continued to press the point. "I refuse to have my ideas assigned to me as though I was an intellectual slave because I am black," he said in a 1998 speech before the National Bar Association, an organization of black lawyers. Neil A. Lewis, Justice Thomas Suggests Critics' Views Are Racist, N.Y. TIMES, July 30, 1998, at Al. Many NBA members had protested the fact that Justice Thomas had been invited to speak. See id. The NBA speech provoked heated reactions. Although identically titled, editorials in the New York Times and the Washington Post took opposite positions. See Justice Thomas Speaks, WASH. POST, July 31, 1998, at A24 ("On this matter . . . one can only cheer him on. . . . Justice Thomas has no duty to parrot the orthodoxies of affirmative action simply because he is black."); Justice Thomas Speaks, N.Y. TIMES, July 31, 1998, at A22 (opining that Justice Thomas "should not expect to be embraced or supported by the black community because of his race. His instinct to turn antagonism toward his ideas into a racial matter is an odd impulse for a man who wants to be judged on his intellect and ideas alone."). To one columnist, the controversy over Justice Thomas's speech exemplified the expression/equality dichotomy: "When was it, and how, and why, that civil rights and free speech became mutually exclusive?" Jonathan Yardley, For Heaven's Sake, Lawyers, Haven't You Ever Heard of Free Speech?, WASH. POST, Aug. 3, 1998, at D2.
36. Justice Thomas has responded to his critics in a series of speeches condemning those who expect him, as an African American, to hold certain views. Writing early in his tenure on the Court, Justice Thomas defended his right to espouse opinions that differ from those of the majority of African Americans. "[S]traying from the tenets of this [proaffirmative action] orthodoxy meant that you were a traitor to your race . . . . [W]here blacks were once intimidated from crossing racial boundaries, we now fear crossing ideological boundaries." Clarence Thomas, The New Intolerance, WALL STREET J., May 12, 1993, at A15). He has continued to press the point. "I refuse to have my ideas assigned to me as though I was an intellectual slave because I am black," he said in a 1998 speech before the National Bar Association, an organization of black lawyers. Neil A. Lewis, Justice Thomas Suggests Critics' Views Are Racist, N.Y. TIMES, July 30, 1998, at Al. Many NBA members had protested the fact that Justice Thomas had been invited to speak. See id. The NBA speech provoked heated reactions. Although identically titled, editorials in the New York Times and the Washington Post took opposite positions. See Justice Thomas Speaks, WASH. POST, July 31, 1998, at A24 ("On this matter . . . one can only cheer him on. . . . Justice Thomas has no duty to parrot the orthodoxies of affirmative action simply because he is black."); Justice Thomas Speaks, N.Y. TIMES, July 31, 1998, at A22 (opining that Justice Thomas "should not expect to be embraced or supported by the black community because of his race. His instinct to turn antagonism toward his ideas into a racial matter is an odd impulse for a man who wants to be judged on his intellect and ideas alone."). To one columnist, the controversy over Justice Thomas's speech exemplified the expression/equality dichotomy: "When was it, and how, and why, that civil rights and free speech became mutually exclusive?" Jonathan Yardley, For Heaven's Sake, Lawyers, Haven't You Ever Heard of Free Speech?, WASH. POST, Aug. 3, 1998, at D2.
37. Jodi Dean, The Reflective Solidarity of a Democratic Feminism, in FEMINISM AND THE NEW DEMOCRACY: RECITING THE POLITICAL 246 (Jodi Dean ed., 1997).
38. Kathryn Abrams, Sex Wars Redux: Agency and Coercion in Feminist Legal Theory, 95 COLUM. L. REV. 304 (1995).
39. Alex M. Johnson, Jr., The New Voice of Color, 100 YALE L.J. 2007, 2010 (1991).
40. Id. at 2010, 2029.
41. JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY 141 (1990).
42. See Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1 (1995).
43. See id.; Higgins, supra note 19. See also Note, Patriarchy Is Such a Drag: The Strategic Possibilities of a Postmodern Account of Gender, 108 HARV. L. REV. 1973 (1995).
44. See id.; Higgins, supra note 19. See also Note, Patriarchy Is Such a Drag: The Strategic Possibilities of a Postmodern Account of Gender, 108 HARV. L. REV. 1973 (1995).
45. BUTLER, supra note 30, at 107.
46. See JUDITH BUTLER, EXCITABLE SPEECH: A POLITICS OF THE PERFORMATIVE 2, 25 (1997).
47. Id. at 43.
48. Id. at 103-26.
49. 10 U.S.C. § 654(b) (1994).
50. For an analysis of the legal and lawyering process by which this occurred, see JANET E. HALLEY, DON'T: A READER'S GUIDE TO THE MILITARY'S ANTI-GAY POLICY (1999).
51. See, e.g., Gay Law Students Ass'n v. Pacific Tel. and Tel. Co., 595 P.2d 592 (Cal. 1979).
52. BUTLER, supra note 34, at 122.
53. Id. at 19.
54. See ANNE PHILLIPS, THE POLITICS OF PRESENCE (1995).
55. See Charles Taylor, The Politics of Recognition, in MULTICULTURALISM AND "THE POLITICS OF RECOGNITION" 25 (Amy Gutmann ed., 1992).
56. See id. at 64-65.
57. See Jurgen Habermas, Address: Multiculturalism and the Liberal State, 47 STAN. L. REV. 849 (1995).
58. PHILLIPS, supra note 42, at 80.
59. 42 U.S.C. §§ 1971-1974e (1994).
60. See Pamela S. Karlan, All Over the Map: The Supreme Court's Voting Rights Trilogy, 1993 SUP. CT. REV. 245 (1993). Kenneth Karst argues that the Voting Rights Act is another example of the centrality of equality in the protection of a fundamentally expressive act, voting. Kenneth L. Karst, Equality as a Central Principle in the First Amendment, 43 U. CHI. L. REV. 20, 52-65 (1975).
61. See Pamela S. Karlan, All Over the Map: The Supreme Court's Voting Rights Trilogy, 1993 SUP. CT. REV. 245 (1993). Kenneth Karst argues that the Voting Rights Act is another example of the centrality of equality in the protection of a fundamentally expressive act, voting. Kenneth L. Karst, Equality as a Central Principle in the First Amendment, 43 U. CHI. L. REV. 20, 52-65 (1975).
62. See Thornburg v. Gingles, 478 U.S. 30 (1986).
63. Id. at 50-51.
64. See QUIET REVOLUTION IN THE SOUTH: THE IMPACT OF THE VOTING RIGHTS ACT, 1965-1990 (Chandler Davidson & Bernard Grofman eds., 1994).
65. 509 U.S. 630 (1993).
66. Id. at 647.
67. 517 U.S. 952 (1996).
68. Id. at 980.
69. 517 U.S. 899 (1996).
70. Id. at 905 (citing Miller v. Johnson, 515 U.S. 900, 911, 915-16 (quotation marks omitted)).
71. Shaw II, 517 U.S. at 917.
72. 509 U.S. at 681 n.2 (Souter, J., dissenting).
73. 517 U.S. at 1055 (Souter, J., dissenting).
74. Id. at 985.
75. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring).
76. 512 U.S. 874 (1994). Justice Thomas's critique of current Voting Rights Act law in Holder conveys a remarkable sense of urgency: "In my view, our current practice should not continue. Not for another Term, not until the next case, not for another day." Id. at 944 (Thomas, J., concurring in the judgment).
77. Id. at 908 (Thomas, J., concurring in the judgment).
78. Id. at 903 (Thomas, J., concurring in the judgment).
79. 515 U.S. 900 (1995).
80. Id. at 944-45 (Ginsburg, J., dissenting).
81. Richard H. Pildes & Richard G. Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483 (1993).
82. Samuel Issacharoff & Thomas C. Goldstein, Identifying the Harm in Racial Gerrymandering Claims, 1 MICH. J. RACE & L. 47 (1996).
83. See Pildes & Niemi, supra note 68, at 506-09.
84. 515 U.S. 900 (1995).
85. 517 U.S. at 984; 517 U.S. at 1053-54 (Souter, J., dissenting).
86. Pamela S. Karlan, Just Politics? Five Not So Easy Pieces of the 1995 Term, 34 Hous. L. REV. 289, 313 (1997).
87. LANI GUINIER, THE TYRANNY OF THE MAJORITY: FUNDAMENTAL FAIRNESS IN REPRESENTATIVE DEMOCRACY 43-58 (1995).
88. See id. at 119-56.
89. Id. at 58.
90. See id. at 92-114.
91. See Lani Guinier, (E) Racing Democracy: The Voting Rights Cases, 108 HARV. L. REV. 109 (1994).
92. Id. at 134 (emphasis added).
93. Id. at 113.
94. 341 U.S. 483 (1954).
95. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959).
96. Id. at 34.
97. See, e.g., Charles Black, The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421 (1960); Louis Pollak, Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler, 108 U. PA. L. REV. 1 (1959).
98. See, e.g., Charles Black, The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421 (1960); Louis Pollak, Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler, 108 U. PA. L. REV. 1 (1959).
99. 515 U.S. 557 (1995).
100. Mass. Gen. Laws. § 272, ch. 98 (1992).
101. Hurley, 515 U.S. at 559.
102. Such a decision would be consistent with the plurality opinion in the case challenging the denial of recognition to a gay student group at Georgetown University, see infra Part III.C, distinguished by the fact that at Georgetown the tangible benefits at issue created a zone where the law could be enforced without infringing expression rights, whereas no such zone existed in the parade situation.
103. See 515 U.S. at 573.
104. Id. at 579.
105. See New York State Club Ass'n v. City of New York, 487 U.S. 1 (1988); Roberts v. United States Jaycees, 468 U.S. 609 (1984).
106. Hurley, 515 U.S. at 580-81.
107. Id. at 581. Throughout the litigation in Hurley, courts sought to pin down whether GLIB was excluded because of who it was or what it said. The task proved impossible. The trial judge found that "[t]he defendant's final position was that GLIB would be excluded because of its values and its messages, i.e., its members' sexual orientation." Irish-American Gay, Lesbian and Bisexual Group of Boston v. City of Boston, 636 N.E.2d 1293, 1295 n.8 (Mass. 1994). During oral argument before the Supreme Court, counsel for the parade organizers framed the issue as follows: "The trial judge equated the sexual orientation with messages and values. In my book, if you combine a message and a value you've got a viewpoint, not a sexual orientation." 1995 WL 301703, at *16 (U.S. Oral Arg., Apr. 25, 1995). When asked whether GLIB's signs were "self-identifications" or a "message," he answered: "It's a message, it's an identification, it's a proclamation. . . ." Id. at *47.
108. See Hurley, 515 U.S. at 570.
109. See Rowland v. Mad River Local Sch. Dist., 470 U.S. 1009, 1017 (1985) (Brennan, J., dissenting from denial of cert.); Lynn v. Regents of the Univ. of Cal., 656 F.2d 1337, 1343 (9th Cir. 1981), cert, denied, 459 U.S. 823 (1982) (holding that discrimination against a women's studies professor was tantamount to discrimination against women because "a diminished opinion of those who concentrate on those issues is evidence of a discriminatory attitude toward women"); discussion of Dale v. Boy Scouts of Am., 735 A.2d 1196 (N.J. 1999), infra at Part II.C; Gay Rights Coalition of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1 (D.C. 1987) (en banc), infra at Part III.C; cases on the diversity rationale in affirmative action, infra at Part IV.A.
110. I used the term "identity speech" to describe this convergence in Nan D. Hunter, Identity, Speech, and Equality, 79 VA. L. REV. 1695 (1993). Two major articles have analyzed its ramifications in Hurley: William N. Eskridge, Jr., A Jurisprudence of "Coming Out": Religion, Homosexuality, and Collisions of Liberty and Equality in American Public Law, 106 YALE L.J. 2411 (1997) and Darren Lenard Hutchinson, Accommodating Outness: Hurley, Free Speech and Gay and Lesbian Equality, 1 U. PA. J. CONST. L. 85 (1998). More generally, in an essay on the politics of presence, Kathryn Abrams posited three types of visibility based on identity: literal, political and programmatic. Her third category "arises from group members' efforts to connect their group-based identities with a particular political interest or program." Kathryn Abrams, The Supreme Court, Visibility, and the "Politics of Presence," 50 VAND. L. REV. 411, 413-14 (1997).
111. I used the term "identity speech" to describe this convergence in Nan D. Hunter, Identity, Speech, and Equality, 79 VA. L. REV. 1695 (1993). Two major articles have analyzed its ramifications in Hurley: William N. Eskridge, Jr., A Jurisprudence of "Coming Out": Religion, Homosexuality, and Collisions of Liberty and Equality in American Public Law, 106 YALE L.J. 2411 (1997) and Darren Lenard Hutchinson, Accommodating Outness: Hurley, Free Speech and Gay and Lesbian Equality, 1 U. PA. J. CONST. L. 85 (1998). More generally, in an essay on the politics of presence, Kathryn Abrams posited three types of visibility based on identity: literal, political and programmatic. Her third category "arises from group members' efforts to connect their group-based identities with a particular political interest or program." Kathryn Abrams, The Supreme Court, Visibility, and the "Politics of Presence," 50 VAND. L. REV. 411, 413-14 (1997).
112. I used the term "identity speech" to describe this convergence in Nan D. Hunter, Identity, Speech, and Equality, 79 VA. L. REV. 1695 (1993). Two major articles have analyzed its ramifications in Hurley: William N. Eskridge, Jr., A Jurisprudence of "Coming Out": Religion, Homosexuality, and Collisions of Liberty and Equality in American Public Law, 106 YALE L.J. 2411 (1997) and Darren Lenard Hutchinson, Accommodating Outness: Hurley, Free Speech and Gay and Lesbian Equality, 1 U. PA. J. CONST. L. 85 (1998). More generally, in an essay on the politics of presence, Kathryn Abrams posited three types of visibility based on identity: literal, political and programmatic. Her third category "arises from group members' efforts to connect their group-based identities with a particular political interest or program." Kathryn Abrams, The Supreme Court, Visibility, and the "Politics of Presence," 50 VAND. L. REV. 411, 413-14 (1997).
113. I used the term "identity speech" to describe this convergence in Nan D. Hunter, Identity, Speech, and Equality, 79 VA. L. REV. 1695 (1993). Two major articles have analyzed its ramifications in Hurley: William N. Eskridge, Jr., A Jurisprudence of "Coming Out": Religion, Homosexuality, and Collisions of Liberty and Equality in American Public Law, 106 YALE L.J. 2411 (1997) and Darren Lenard Hutchinson, Accommodating Outness: Hurley, Free Speech and Gay and Lesbian Equality, 1 U. PA. J. CONST. L. 85 (1998). More generally, in an essay on the politics of presence, Kathryn Abrams posited three types of visibility based on identity: literal, political and programmatic. Her third category "arises from group members' efforts to connect their group-based identities with a particular political interest or program." Kathryn Abrams, The Supreme Court, Visibility, and the "Politics of Presence," 50 VAND. L. REV. 411, 413-14 (1997).
114. 468 U.S. 609 (1984).
115. See id. at 628.
116. See Taylor v. Louisiana, 419 U.S. 522 (1975) (prohibiting exclusion of women from state court juries); Ballard v. United States, 329 U.S. 187 (1946) (prohibiting exclusion of women from federal court juries where local law allowed them to serve); Strauder v. West Virginia, 100 U.S. 303 (1880) (holding racial exclusion from juries to be violative of the Fourteenth Amendment).
117. See J.E.B. v. Alabama, 511 U.S. 127 (1994) (barring sex-based peremptory challenges by the state); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) (extending Batson rule to civil cases); Batson v. Kentucky, 476 U.S. 79 (1986) (barring race-based peremptory challenges in criminal cases).
118. See J.E.B., 511 U.S. at 138-40 (sex); Powers v. Ohio, 499 U.S. 400, 410 (1991) (race); Batson, 476 U.S. at 86-87 (race).
119. See Carter v. Jury Comm'n of Greene County, 396 U.S. 320 (1970) (holding that an all-white jury does not satisfy constitutional requirement of a jury of his peers for an African American defendant); Strauder, 100 U.S. at 308 (same); Ballard, 329 U.S. at 193-94 ("The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both . . . .").
120. J.E.B., 511 U.S. at 149 (O'Connor, J., concurring). Justice Scalia was more caustic. "The opinion stresses the lack of statistical evidence to support the widely held belief that, at least in certain types of cases, a juror's sex has some statistically significant predictive value as to how the juror will behave . . . . Personally, I am less inclined to demand statistics, and more inclined to credit the perceptions of experienced litigators who have had money on the line." Id. at 157-58 (Scalia, J., dissenting).
121. See infra at Part IV.A.
122. See supra note 98 and accompanying text.
123. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569 (1995). See Eskridge, supra note 96, at 2458-60; Hutchinson supra note 96.
124. See Kent Greenawalt, Freedom of Association and Religious Association, in FREEDOM OF ASSOCIATION 117-18 (Amy Gutmann ed., 1998).
125. See Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987).
126. See Roberts v. United States Jaycees, 468 U.S. 609, 634-35 (1984) (O'Connor, J., concurring); Prune Yard Shopping Ctr. v. Robins, 447 U.S. 74, 87 (1980).
127. See 42 U.S.C. § 2000e (b) (1994) (employment); 42 U.S.C. § 3603 (b) (1994) (housing).
128. Roberts, 468 U.S. at 628.
129. See id. at 620; New York State Club Ass'n v. City of New York, 487 U.S. 1, 12 (1988); Board of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 546-47 (1987).
130. See New York County Bd. of Ancient Order of Hibernians v. Dinkins, 814 F. Supp. 358, 361-62, 367 (S.D.N.Y. 1993).
131. See Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 348-49 (1987) (O'Connor, J., concurring).
132. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 575-78 (1995).
133. See Rotary Int'l, 481 U.S. at 548.
134. See Curran v. Mount Diablo Council of the Boy Scouts of Am., 952 P.2d 218 (Cal. 1998); Seabourn v. Coronado Area Council, Boy Scouts of Am., 891 P.2d 385 (Kan. 1995); Schwenk v. Boy Scouts of Am., 551 P.2d 465 (Or. 1976). See also Quinnipiac Council, Boy Scouts of Am. v. Commission on Human Rights and Opportunities, 528 A.2d 352 (Conn. 1987) (refusal to hire woman as scoutmaster was a discriminatory accommodation practice).
135. 734 A.2d 1195 (N.J. 1999), cert, granted, 68 U.S.L.W. 3292 (U.S. Jan. 14, 2000) (No. 99-699).
136. See id. at 1223.
137. Id. at 1225.
138. Id. at 1223.
139. See id. at 1224-25.
140. See id. at 1226-28.
141. Id. at 1229.
142. Id. at 1237 (Handler, J., concurring).
143. Id. at 1242 (Handler, J., concurring).
144. See supra note 98 and accompanying text.
145. This was precisely the mistake made by Justice Kennard, concurring in Curran v. Mount Diablo Council of the Boy Scouts of Am., 952 P.2d 218 (Cal. 1998). The California Supreme Court ruled that the Boy Scouts did not fall within the statutory definition of "business establishment," the term used by the state civil rights statute. Thus, the court did not reach the question of whether the Scouts had a First Amendment defense to the law's application. Writing in concurrence, however, Justice Kennard argued that the Scouts could not constitutionally be compelled to allow an openly gay man to serve as a scoutmaster even if the definition of public accommodation had been satisfied. She framed the problem as, "Could the NAACP be compelled to accept as a member a Ku Klux Klansman? Could B'nai B'rith be required to admit an anti-Semite?" Id. at 257 (Kennard, J., concurring). In this analogy, gay is made equivalent to Klansman and anti-Semite, both of which are viewpoint-defined, not identity categories.
146. Gay Students Org. of the Univ. of N.H. v. Bonner, 509 F.2d 652, 658 (1st Cir. 1974).
147. See Gay Rights Coalition of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1 (D.C. 1987) (en banc).
148. 509 F.2d at 658.
149. Id. at 659-61.
150. 544 F.2d 162 (4th Cir. 1976).
151. Id. at 163.
152. Id. at 164.
153. 558 F.2d 848 (8th Cir. 1977), cert, denied sub nom. Ratchford v. Gay Lib, 434 U.S. 1080 (1978).
154. Gay Lib v. Univ. of Mo., 416 F. Supp. 1350, 1353 (W.D. Mo. 1976).
155. Gay Lib, 558 F.2d at 856 (citations omitted).
156. Ratchford, 434 U.S. at 1084.
157. 393 U.S. 503 (1969).
158. Bonner, 509 F.2d at 662.
159. Gay Alliance of Students v. Matthews, 544 F.2d 162, 164 (4th Cir. 1976).
160. Gay Lib, 558 F.2d at 852.
161. Gay Lib, 416 F. Supp. at 1370.
162. Gay Lib, 558 F.2d at 856.
163. Ratchford v. Gay Lib, 434 U.S. 1080, 1084 (1978) (Rehnquist, J., dissenting from denial of cert.).
164. 544 F.2d at 168 (Markey, J., concurring).
165. 558 F.2d at 859 (Regan, J., dissenting).
166. See Hunter, supra note 96.
167. An Alabama statute stricken as "blatant viewpoint discrimination," Gay Lesbian Bisexual Alliance v. Pryor, 110 F.3d 1543, 1549 (11th Cir. 1997), forbade the use of public funds for any group that "fosters or promotes a lifestyle or actions prohibited by the sodomy and sexual misconduct laws." Id. at 1545. It was not saved by its exemption for expression "limited solely to the political advocacy of a change in [those] laws." Id.
168. See supra notes 81-84 and accompanying text.
169. See Gay Rights Coalition of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1 (D.C. 1987) (en banc).
170. D.C. Code § 1-2520 (1987).
171. Id. at 15.
172. Id. at 52 (Ferren, J., concurring in part and dissenting in part).
173. Id. at 53 (Ferren, J., concurring in part and dissenting in part).
174. Id. at 45 (Newman, J., concurring).
175. Id. at 70-71 (Belson, J., concurring in part and dissenting in part).
176. See supra Part III.A-B.
177. "Georgetown's free speech defense is not dependent on its status as a Catholic institution." Georgetown, 536 A.2d at 69 (Belson, J., concurring in part and dissenting in part).
178. Id. at 29-30. The University President testified that group activity "merely promoting the legal rights of gay people" would not pose a conflict with Catholic teachings, but the University asserted that the groups' message went beyond legal rights to legitimacy. Id. at 18.
179. Id. at 57 (Ferren, J., concurring in part and dissenting in part).
180. Id. (Ferren, J., concurring in part and dissenting in part). Judges Ferren and Terry also imply, although they do not explicate, the argument that homosexuality is, in some epistemological sense, an idea. "[A]n asserted right to discriminate against someone's advocacy of homosexuality is clearly a claimed right to discriminate against the person on the basis of one's sexual 'preference' and thus 'sexual orientation.'" Id. at 56 (Ferren, J., concurring in part and dissenting in part). At one level, this statement is merely a sleight-of-hand statutory interpretation, playing off a semantic progression from "advocacy" to "preference" to "orientation." That may well be all the meaning that was intended. It also reads, however, as an assertion that being gay is a form of argument.
181. See generally HALLEY, supra note 38.
182. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
183. See Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990).
184. See id.
185. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
186. Post-Adarand, scholars have rehearsed what the arguments will be for and against the proposition that the diversity rationale can satisfy a strict scrutiny test when that question reaches the Supreme Court, as it inevitably will. For the argument that it can satisfy strict scrutiny, see Akhil Reed Amar & Neal Kuman Katyal, Bakke's Fate, 43 UCLA L. REV. 1745 (1996) (subject to limitations); Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test, 33 HARV. C.R.-C.L. L. REV. 381 (1998); and Tanya Y. Murphy, An Argument for Diversity Based Affirmative Action in Higher Education, 95 ANN. SURV. AM. L. 515 (1995). For the argument that it should fail, see Jim Chen, Diversity and Damnation, 43 UCLA L. REV. 1839 (1996); Kirk A. Kennedy, Race-Exclusive Scholarships: Constitutional Vel Non, 30 WAKE FOREST L. REV. 759 (1995); and Eugene Volokh, Diversity, Race as Proxy and Religion as Proxy, 43 UCLA L. REV. 2059 (1996).
187. Post-Adarand, scholars have rehearsed what the arguments will be for and against the proposition that the diversity rationale can satisfy a strict scrutiny test when that question reaches the Supreme Court, as it inevitably will. For the argument that it can satisfy strict scrutiny, see Akhil Reed Amar & Neal Kuman Katyal, Bakke's Fate, 43 UCLA L. REV. 1745 (1996) (subject to limitations); Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test, 33 HARV. C.R.-C.L. L. REV. 381 (1998); and Tanya Y. Murphy, An Argument for Diversity Based Affirmative Action in Higher Education, 95 ANN. SURV. AM. L. 515 (1995). For the argument that it should fail, see Jim Chen, Diversity and Damnation, 43 UCLA L. REV. 1839 (1996); Kirk A. Kennedy, Race-Exclusive Scholarships: Constitutional Vel Non, 30 WAKE FOREST L. REV. 759 (1995); and Eugene Volokh, Diversity, Race as Proxy and Religion as Proxy, 43 UCLA L. REV. 2059 (1996).
188. Post-Adarand, scholars have rehearsed what the arguments will be for and against the proposition that the diversity rationale can satisfy a strict scrutiny test when that question reaches the Supreme Court, as it inevitably will. For the argument that it can satisfy strict scrutiny, see Akhil Reed Amar & Neal Kuman Katyal, Bakke's Fate, 43 UCLA L. REV. 1745 (1996) (subject to limitations); Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test, 33 HARV. C.R.-C.L. L. REV. 381 (1998); and Tanya Y. Murphy, An Argument for Diversity Based Affirmative Action in Higher Education, 95 ANN. SURV. AM. L. 515 (1995). For the argument that it should fail, see Jim Chen, Diversity and Damnation, 43 UCLA L. REV. 1839 (1996); Kirk A. Kennedy, Race-Exclusive Scholarships: Constitutional Vel Non, 30 WAKE FOREST L. REV. 759 (1995); and Eugene Volokh, Diversity, Race as Proxy and Religion as Proxy, 43 UCLA L. REV. 2059 (1996).
189. Post-Adarand, scholars have rehearsed what the arguments will be for and against the proposition that the diversity rationale can satisfy a strict scrutiny test when that question reaches the Supreme Court, as it inevitably will. For the argument that it can satisfy strict scrutiny, see Akhil Reed Amar & Neal Kuman Katyal, Bakke's Fate, 43 UCLA L. REV. 1745 (1996) (subject to limitations); Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test, 33 HARV. C.R.-C.L. L. REV. 381 (1998); and Tanya Y. Murphy, An Argument for Diversity Based Affirmative Action in Higher Education, 95 ANN. SURV. AM. L. 515 (1995). For the argument that it should fail, see Jim Chen, Diversity and Damnation, 43 UCLA L. REV. 1839 (1996); Kirk A. Kennedy, Race-Exclusive Scholarships: Constitutional Vel Non, 30 WAKE FOREST L. REV. 759 (1995); and Eugene Volokh, Diversity, Race as Proxy and Religion as Proxy, 43 UCLA L. REV. 2059 (1996).
190. Post-Adarand, scholars have rehearsed what the arguments will be for and against the proposition that the diversity rationale can satisfy a strict scrutiny test when that question reaches the Supreme Court, as it inevitably will. For the argument that it can satisfy strict scrutiny, see Akhil Reed Amar & Neal Kuman Katyal, Bakke's Fate, 43 UCLA L. REV. 1745 (1996) (subject to limitations); Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test, 33 HARV. C.R.-C.L. L. REV. 381 (1998); and Tanya Y. Murphy, An Argument for Diversity Based Affirmative Action in Higher Education, 95 ANN. SURV. AM. L. 515 (1995). For the argument that it should fail, see Jim Chen, Diversity and Damnation, 43 UCLA L. REV. 1839 (1996); Kirk A. Kennedy, Race-Exclusive Scholarships: Constitutional Vel Non, 30 WAKE FOREST L. REV. 759 (1995); and Eugene Volokh, Diversity, Race as Proxy and Religion as Proxy, 43 UCLA L. REV. 2059 (1996).
191. Post-Adarand, scholars have rehearsed what the arguments will be for and against the proposition that the diversity rationale can satisfy a strict scrutiny test when that question reaches the Supreme Court, as it inevitably will. For the argument that it can satisfy strict scrutiny, see Akhil Reed Amar & Neal Kuman Katyal, Bakke's Fate, 43 UCLA L. REV. 1745 (1996) (subject to limitations); Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test, 33 HARV. C.R.-C.L. L. REV. 381 (1998); and Tanya Y. Murphy, An Argument for Diversity Based Affirmative Action in Higher Education, 95 ANN. SURV. AM. L. 515 (1995). For the argument that it should fail, see Jim Chen, Diversity and Damnation, 43 UCLA L. REV. 1839 (1996); Kirk A. Kennedy, Race-Exclusive Scholarships: Constitutional Vel Non, 30 WAKE FOREST L. REV. 759 (1995); and Eugene Volokh, Diversity, Race as Proxy and Religion as Proxy, 43 UCLA L. REV. 2059 (1996).
192. See Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998), reh'g denied, 154 F.3d 487 (D.C. Cir. 1998) (diversity rationale does not meet strict scrutiny test); Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert, denied, 518 U.S. 1033 (1996) (same). Cf. Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998) (racial balancing not shown necessary for expression of diverse viewpoints).
193. 438 U.S. 265 (1978).
194. Id. at 313.
195. Id.
196. Id. at 312.
197. Justice Powell relied on two cases. Sweezy v. New Hampshire, 354 U.S. 234 (1957), concerned a contempt citation for refusal to answer questions about political activities. In Keyishian v. Board of Regents, 385 U.S. 589 (1957), the Court ruled that states could not prohibit employment as a public school teacher based on membership in a "subversive" organization.
198. Bakke, 438 U.S. at 312 (quoting Keyishian, 385 U.S. at 603).
199. Bakke, 438 U.S. at 324-27 (Brennan, J., concurring in judgment and dissenting in part).
200. 497 U.S. 547 (1990).
201. Id. at 568.
202. Justice O'Connor has hinted that "promoting racial diversity among the faculty" would qualify in her view as at least an important governmental interest. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 288 n.* (1986). Justice Stevens would go further and accept a role model rationale for favoring African American teachers in deciding layoffs. Id. at 313-16.
203. See Metro Broadcasting, 497 U.S. 547; see also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969).
204. Neal E. Devins, Metro Broadcasting, Inc. v. FCC: Requiem for a Heavyweight, 69 TEX. L. REV. 125, 147-48 (1990).
205. See Chen, supra note 169, at 1839.
206. Id. at 1898.
207. Id. at 1899.
208. Chen describes the stereotype as "diversity's heart of darkness," id. at 1883, and complains that "[t]he much vaunted voice of color is a monotone," id. at 1901.
209. Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 618 (1990) (O'Connor, J., dissenting).
210. Id. at 621.
211. See id.
212. See id. at 622-23.
213. See Johnson, supra note 28, at 2010.
214. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). This is not to exclude other rationales for affirmative action in those circumstances.
215. The Civil Rights Act of 1871, Pub. L. No. 106-73, 16 Stat. 433 (1871).
216. 42 U.S.C. § 1985(3) (1994).
217. See Collins v. Hardyman, 341 U.S. 651 (1951) (construing the Ku Klux Klan Act as only reaching conspiracies under color of state law).
218. 403 U.S. 88 (1971).
219. See id. at 88-89.
220. Id. at 102 (emphasis in original).
221. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
222. See id. That footnote also includes animus against viewpoint-centered groups among its examples of process failures that justify judicial intervention.
223. Griffin v. Breckenridge, 403 U.S. 85, 88 (1971).
224. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 316 (1993) (Stevens, J., dissenting).
225. The omissions may have been more than an unconscious assumption that racial identity would "naturally" be the sole explanation. The Griffin court was careful not to overrule the result in Collins. "Whether or not Collins v. Hardyman was correctly decided on its own facts is a question with which we need not here be concerned." Griffin, 403 U.S. at 95. Had the Court acknowledged the significance of the viewpoint component of the targeting of plaintiffs for attack, it would have been forced to reconsider the facts of Collins, which concerned disruption of a political party's event.
226. Griffin, 403 U.S. at 102.
227. Id. at n.9.
228. Bray, 506 U.S. at 322 (Stevens, J., dissenting); id. at 350 (O'Connor, J., dissenting).
229. Id. at 269.
230. 463 U.S. 825 (1983).
231. Id. at 850 (Blackmun, J., dissenting).
232. Id. at 835.
233. See id. at 826.
234. For African Americans, section 2 of the Thirteenth Amendment also creates a right of action against private actors. See Griffin v. Breckenridge, 403 U.S. 85, 105 (1971).
235. See Scott v. Moore, 640 F.2d 708 (5th Cir. 1981), aff'd en banc, 680 F.2d 979 (5th Cir. 1982).
236. 506 U.S. 263 (1993).
237. United Brotherhood of Carpenters and Joiners v. Scott, 463 U.S. 825, 853 (1983) (Blackmun, J., dissenting).
238. ID.
239. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 349-50 (O'Connor, J., dissenting).
240. Respondent's Brief at *27, Bray v. Alexandria Women's Health Clinic, 1991 WL 534030 (U.S. 1991) (No. 90-985).
241. See Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J., concurring) ("Fear of serious injury alone cannot justify suppression of free speech and assembly. Men feared witches and burnt women.").
242. This is evident from an in pari materia reading of the remainder of § 1985(3), known as the "hindrance clause," which prohibits acts by two or more persons "for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws." 42 U.S.C. § 1985(3) (1994).
243. Id.
244. See Edwards v. Aguillard, 482 U.S. 578 (1987); Wallace v. Jaffree, 472 U.S. 38 (1985); Levitt v. Committee for Pub. Educ. & Religious Liberty, 413 U.S. 472 (1973); Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963).
245. See Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373 (1985); Stone v. Graham, 449 U.S. 39 (1980).
246. This is the so-called Lemon test. See Lemon v. Kurtzman, 403 U.S. 602 (1971).
247. See Bowen v. Kendrick, 487 U.S. 589, 627 n.1 (1988) (Blackmun, J., dissenting).
248. 465 U.S. 668 (1984).
249. See id. at 671.
250. Id. at 678.
251. Id. at 686.
252. See discussion supra note 221 and accompanying text.
253. See id. at 678-79. The Justice Department had urged in an amicus brief that the Lemon test be abandoned. Brief for the United States as Amicus Curiae Supporting Reversal, Lynch v. Donnelly, No. 82-1256 (U.S. June 30, 1983) (LEXIS, US Supreme Court Briefs).
254. See 465 U.S. at 680.
255. Id. at 683.
256. Id. at 691-92.
257. Id. at 688.
258. Id. at 694. O'Connor concurred in Lynch because she found that no such message was communicated by the inclusion of the creche in the display.
259. 492 U.S. 573 (1989) [hereinafter Allegheny County].
260. Id. at 589-90.
261. Id. at 590.
262. Id. at 592-93 (discussing the endorsement of prayer activities in public schools in Wallace v. Jaffree, 472 U.S. 38 (1985); a tax exemption for religious periodicals in Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989); and the funding of a creationism curriculum in Edwards v. Aguillard, 482 U.S. 578 (1987)).
263. Allegheny County, 492 U.S. at 593 (citing O'Connor's concurring opinion in Jaffree and Blackmun's concurring opinion in Texas Monthly, as well as the Court's opinion in Edwards).
264. Id. at 593-94 (quoting Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O'Connor, J., concurring)).
265. Kennedy concurred in the judgment that the menorah display was constitutional, but dissented from the ruling that the creche display was not.
266. Allegheny County, 492 U.S. at 678.
267. 515 U-S. 819 (1995).
268. See Allegheny County, 492 U.S. at 595 (noting that O'Connor's concurrence in Lynch "provides a sound analytical framework for evaluating governmental use of religious symbols"); id. at 597 ("[T]he government's use of religious symbolism is unconstitutional if it has the effect of endorsing religious beliefs, and the effect of the government's use of religious symbolism depends upon its context").
269. Rosenberger, 515 U.S. at 868 (Souter, J., dissenting).
270. Id. at 831.
271. Id. at 847 (O'Connor, J., concurring).