Anticipating the Supreme Court Marriage Arguments – End of an Era

Posted on April 27th, 2015 by Katherine Franke

by Suzanne Goldberg

Hurtling down to DC in the Acela’s quiet car for the Supreme Court oral argument in the marriage cases tomorrow, I am overcome with the sense that this is an end-of-an-era trip of sorts.

By this, I am not suggesting that all of the serious legal issues and real-world harms experienced by lesbians, gay men, bisexuals, and transgender people will be resolved by the Court’s ruling.  Those continue in force, as we know from media coverage of hate crimes, school bullying, and workplace discrimination, among other issues.

Instead, what I mean is that exclusions of same-sex couples from marriage are the last vestige of old-school antigay laws.  These laws emerged in a different time, when disapproval of gay people was seen by many as part of the natural order rather than in tension with American commitments to equality.

Through a decades-long process of social and legal change, we are no longer in that place.  Instead, laws that impose extra burdens on gay people are now increasingly understood as aberrant and impermissible.

As a very recent example, consider the widespread outrage against Indiana’s recent law designed to allow discrimination against married same-sex couples.  Even a handful of years ago, that would have been difficult to imagine. Yet earlier this month, major corporations, the National College Athletic Association (NCAA), and civil rights and faith leaders around the state of Indiana and nationally came together to object – very publicly – to what they characterized as a “license to discriminate.”

So, when I think back to my trip to DC in 1995 for the oral arguments about a Colorado measure that forbid governments from protecting gay people against discrimination, or my trip in 2003 for the Texas “homosexual conduct” law arguments, or even two years ago for the arguments regarding the federal Defense of Marriage Act, it does feel like a very different time.

In each of those cases, the Supreme Court struck down a law that imposed a special burden on gay people and no others.  And each time, the Court rejected not only the governments’ proffered reasons for the discrimination but also the underlying idea that states could legally burden gay people based on popular dislike or disapproval.

The state laws that will be argued about on Tuesday morning – refusals to allow same-sex couples to marry and to recognize those couples’ valid marriages – are of a piece with those older laws by their singling out gay people, categorically, for legal harm.

For this reason, and because these laws are such outliers in a country where the majority of states – and people – oppose this type of blatant antigay discrimination, we are, as we should be, reaching the end of a time when governments can treat their gay constituents as strangers to the law.

This is the point the Supreme Court made when it struck down Colorado’s antigay law in 1996.  It is a point whose time has come for the remaining vestigial marriage bans nearly twenty years later.

It will be interesting to hear how the oral arguments engage this history.   And when the Court issues what is likely to be a favorable decision sometime before the end of June, it will be even more interesting,- and gratifying – to be part of a nation where these damaging laws will no longer be with us.

Suzanne Goldberg filed an amicus brief in the marriage cases, together with Henry Monaghan, on behalf of the Columbia Law School Sexuality and Gender Law Clinic.

3 Takeaways For Covering Sexual Assaults On Campus

Posted on April 6th, 2015 by Cindy Gao
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Originally published in the Columbia Journalism Review on April 6th, 2015.

By Suzanne Goldberg

In this time of media self-reflection about coverage of sexual assaults, it is worth remembering the consensus amidst the controversy over the Rolling Stone campus rape piece. Three points, in particular, come to mind in the wake of discussion. First, no one can credibly suggest today that concern about sexual assault and other gender-based misconduct on college campuses is unwarranted. Indeed, the issue until recently might best have been characterized as a dramatic case of underreporting, where serious problems existed but could not break into the national, or even the local, news. Second, the combination of media coverage, student activism, and a new generation of leadership in higher education and in politics has prompted an important increase in resources. Schools have expanded counseling and crisis center staff, strengthened their enforcement efforts, and enhanced prevention training. And finally, a new frame focused on creating a culture of prevention has enhanced traditional debates about who bears responsibility for preventing sexual assault. Even the name of the White House public awareness campaign – “It’s On Us” – powerfully makes the point, as do bystander intervention programs at colleges around the country. In a related dimension of culture change, more college administrators are speaking forthrightly about the issue than ever before. Take Back the Night marches and other events that have been a staple on many campuses dating back to the 1980s now receive high-level attention and promotion as part of Sexual Assault Awareness Month activities each April. The message of intolerance for sexual violence embraced by pockets of professional sports leagues is also starting to reverberate in some college sports. The N.C.A.A. and several other athletic conferences became partners in the It’s On Us campaign along with a growing number of athletics departments nationwide. These developments, along with new federal guidelines, have substantially transformed the environment from what it was years ago, when there were fewer resources dedicated to prevention or to investigation and discipline. In fact, considerable changes have continued even since the beginning of this academic year. To be sure, the rapid-fire growth in attention, resources, and pro-prevention messaging does not mean that the “story” is over. But taking meaningful account of these changes while also investigating ongoing problems will be important for media coverage going forward. Indeed, an important next question will be how higher education institutions continue to strengthen and refine their resources and disciplinary processes in light of implementation experience and new research. For prevention, especially, more needs to be known not only about the prevalence of sexual assault but also about how best to structure and strengthen campus-wide efforts. Here, we are not in a world of known solutions. While some research is underway and much more data will be forthcoming, the existing research is hardly definitive. Even the White House’s extended analysis of the academic literature reveals that much more can be done to determine which types of prevention interventions will be effective in higher education environments. And given the diversity of student bodies and campus cultures, this, too, will vary at institutions throughout the country. And while enhancing policies and qualifications for disciplinary proceeding participants is unquestionably important – for students on both sides of these cases – the issues in individual cases can be complex. Insuring fairness amidst this complexity remains among schools’ paramount responsibilities and among the subjects that will continue to attract media review. Yet one feature relevant to media coverage of campus discipline will remain relatively fixed. College and university administrations will not typically speak about individual cases, whether they’re asked about the evidence presented in the adjudication process or the factors that led to a particular disciplinary determination. This commitment not to comment remains even when students or others share their competing accounts of what occurred and whether a college or university handled a given case well or poorly. Why? One might reasonably think that higher education institutions, whose mission is to educate and to “produce knowledge,” would want to add their insights to these public conversations. The oft-cited reason is FERPA, the Federal Educational Records Privacy Act, which places constraints on information that schools can share about their students, including facts related to disciplinary charges and proceedings. But there is another important reason for schools not to discuss individual cases. Students who need help are less likely to seek out campus resources if they think their college or university might one day comment on them in public forums or to reporters. Students already face many unofficial barriers to seeking out a campus rape crisis center or deciding to file a disciplinary complaint. Fears that their classmates or professors will find out what happened, or worry that information about their experience will “go public” on social media, are stoked by the stubborn persistence of stigma associated with sexual violence.

VAWA@20: Reflecting, Re-imagining & Looking Forward

Posted on January 5th, 2015 by Cindy Gao

goldscheidBy Julie Goldscheid

The year 2014 marked the 20th anniversary of the federal Violence Against Women Act (VAWA).  That milestone presents an opportunity to critically reflect on current gender-violence policy, and to build on shared critiques to flesh out an alternative agenda.  In that spirit, two new resources offer inspiration for mobilization and advocacy.  First, the City University of New York (CUNY) Law Review’s Footnote Forum has published an online collection of 15 short essays “re-imagining” VAWA in service of progressive reform.  The essays are based in an intersectional understanding of the ways in which various forms of inequality create and sustain violence.  They draw on critiques grounded in the movement against mass criminalization and intrusive state intervention in the lives of poor people, as well as in work for immigrant rights, economic rights, LGBTQ equality, disability rights, racial justice, and human rights.  The multi-disciplinary essays, plus an introduction that summarizes the works and draws out themes, can be found here:

Similarly, the conversation held at CUNY Law School on November 13, 2014, “VAWA@20:  Reflecting, Re-imagining & Looking Forward,” with Professor Kimberlé Crenshaw, Sharon Stapel and Sujata Warrier, and moderated by Professor Julie Goldscheid, is now available on line for those who missed the event:  The conversation explored similar themes to those elaborated in the essay collection.  Speakers reflected on how lessons from the last 20 years can inform policies and programs that promote gender, racial and other forms of equality, while working to end intimate partner and other forms of violence.

Columbia Law School Clinic Argues for Marriage Equality in Florida

Posted on December 24th, 2014 by Cindy Gao
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Media Contact: Public Affairs, 212-854-2650 or

New York, December 19, 2014—Florida marriage laws violate the constitutional rights of lesbians and gay men to marry the person of their choice and to have that marriage recognized, Columbia Law School’s Sexuality and Gender Law Clinic argues in an amicus brief filed today with the U.S. Court of Appeals for the 11th Circuit.

In the brief filed in a pair of consolidated cases, Brenner v. Armstrong and Grimsley v. Armstrong, Columbia Law School Professor Suzanne B. Goldberg argues that the U.S. Constitution’s due process and equal protection guarantee have long been understood to protect against government interference in fundamental personal decision making, including the choice of one’s spouse. In fact, Florida imposes few restrictions on the choices of married couples but nevertheless prohibits people from choosing a spouse of the same sex.

 “On the whole, Florida’s marriage laws impose few restrictions on adults’ choice of marital partners and on the recognition of valid marriages.  Yet, by contrast, Florida imposes a singular, categorical, and constitutionally impermissible burden on lesbians and gay men who seek to exercise their fundamental right to marry their chosen partner and to have that marriage recognized,” writes Goldberg.   

Goldberg’s clinic, founded in 2006, has filed amicus briefs in numerous cases challenging state bans on marriage rights for same-sex couples in the wake of the 2013 U.S. v. Windsor decision striking down a provision of the federal Defense of Marriage Act barring recognition of same-sex couples’ marriages.

“At this point, the majority of states allow same-sex couples to marry, which reinforces that Florida’s ban is not only unconstitutional but also out of step with the nation’s growing realization that denying marriage rights in this way is anti-American,” said Goldberg.  “Florida’s ban also causes direct and immediate harm to Florida families, who are treated as legal strangers in the eyes of the law,” she added.

Columbia Law School Sexuality and Gender Law Clinic students Lucas Qijing Fu ’15 and Julia Maddera ’16 assisted with research for and preparation of the brief.

Read the brief. 

Goldberg is available for interviews and can be reached directly at or via the Law School’s Public Affairs Office at 212-854-2650, or email

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marriage-licenseIn recent months litigation in federal courts has resulted in the lifting of a ban on same-sex couples access to civil marriage in 33 states. (This number is changing almost every day as new jurisdictions are ordered to lift the ban on marriage for same-sex couples.)   In the wake of this wave of successes for the marriage equality movement, some policy-makers have proposed that public officials responsible for officiating over civil marriages and/or issuing marriage licenses be granted an exemption from presiding over the marriages of same-sex couples if doing so would offend their conscience or sincerely held religious beliefs.  Some of these proposals suggest that officials who have religious or conscience-based objections to issuing a marriage license could lawfully delegate responsibility for issuing that license to deputies or assistants who do not have the same objections. These advocates assert that these proposals lawfully balance the constitutional rights of same-sex couples to marry with the religious liberty rights of public officials.  While there are a number of such proposals being put forward in jurisdictions across the country, we will refer to them collectively in this memorandum as “marriage license exemption proposals.”

This legal memorandum analyzes the legality of these “marriage license exemption proposals” under the First and Fourteenth Amendments to the U.S. Constitution and Title VII of the Civil Rights Act of 1964.  (The memorandum does not examine their legality under the federal Religious Freedom Restoration Act, or RFRA, as RFRA does not apply to state or local employees. )  The memorandum concludes that nothing in the Constitution or in Title VII requires such exemptions.  Instead, adopting such exemptions by statute or policy would violate fundamental constitutional rights secured by the Fourteenth Amendment Equal Protection clause and the First Amendment’s prohibition against the establishment of religion.

The legal memorandum is available here.


Originally published in The New Republic on October 29th, 2014.

By Lee Bollinger and Suzanne B. Goldberg.

Universities have long enjoyed the privilege of educating successive generations of young people. This comes, of course, with the responsibility to uphold essential values and to address society’s problems through our institutional leadership and our scholarship. Our constructed communities are drawn from and reflect society at large, so it is inevitable that the issues of the day are our issues as well.

The problem of gender-based misconduct, including sexual assault, is both similar to yet different from the typical work of universities on these issues, in that it involves the safety and well-being of young people in our care as well as larger questions for thought and research. Indeed, the first and highest priority for all credible people who devote their professional lives to higher education is to ensure that studentsand all community membershave the opportunity to learn and thrive in their educational environment.

As faculty members, leaders within our institution and parents ourselves, the need to prevent sexual violence is something we feel urgently, both personally and professionally. No person who comes to a university or college to learn and live should have to endure gender-based misconduct today, particularly the young women who most frequently sustain these violations and already are saddled with gender-based burdens in their lives and interactions with others that remain deeply embedded in society even as we make great progress on this front.

In this context, the national attention to issues of sexual assault and other gender-based misconduct is both welcome and long overdue. And its intensity has provoked a re-examination of accepted norms in many sectors of society from the U.S. military to the National Football League.

The conversation as it relates to universities and colleges is distinct in many ways, perhaps most significantly in the widespread public misunderstanding about what happens on campuses and what our schools can and cannot do as a matter of law and sound institutional policy.

There is a prevailing misperception that universities elect to handle sexual assault allegations when they should instead defer to police and local prosecutors in the resolution of these matters. The reality is very different. In fact, federal law mandates that universities and colleges provide a forum for hearing such complaints precisely because campuses must do all they can to create a learning environment free from sex discrimination. These processes must be both fair and sensitive to all involved.

Students are free to file a criminal complaint with police alongside, or instead of, engaging a university’s disciplinary process. At Columbia and at many other schools, a trained staff person or peer advocate will, if requested, support the student throughout the reporting process and prosecution, if one occurs. One other point worth noting: few police reports of sexual assault result in prosecution, and even fewer prosecutions result in conviction. So it is critically important that even if a student reports to law enforcement, they have access to campus-based support and disciplinary processes.

The picture of gender-based misconduct on campus is complex. University-based education efforts need to focus prevention efforts not only on scenarios where students have a one-time sexual encounter but also on situations where sexual coercion and other forms of violence and intimidation form part of ongoing relationships and post-breakup behaviors.

Universities also have a specialized understanding of their students’ needs within a semester-based life. This enables them not only to handle complaints more quickly than law enforcement but also to provide immediate and ongoing accommodations related to academic schedules and living arrangements that are outside the scope of law-enforcement’s capacity. Indeed, at Columbia and elsewhere, these accommodations are available to students regardless of whether they seek resolution through the institution’s disciplinary processes.

This helps explain, too, why colleges and universities do notand should notdiscuss individual students or their cases in the press or public. In addition to federal laws protecting student privacy, we understand that students in need are less likely to get help on campus if they worry that the university might one day comment on them. This is true even if some students speak publicly about their own experiences.

An absolute rule of never commenting can help lay the groundwork for students to feel comfortable confiding in the medical or rape crisis counseling professionals who can help them, or to engage the university disciplinary process. In an environment of substantial underreporting of sexual assault, whatever value could be gained from adding the University’s perspective about any one student’s case is far outweighed by the importance of protecting all students’ access to resources.

As law professors and members of a university community, we believe criminal behavior can and should be prosecuted in our criminal justice system, though it is important to realize that many of the behaviors we address on campus are not criminal matters subject to reporting requirements. Still, the essential question remains: What steps should universities and colleges be taking to build safer and more respectful campuses, contribute to lasting and meaningful change across society, and deliver the leadership that institutions of higher education rightly are expected to provide?

First, we must do what we can to create environments in which all students find ways, if they choose, to participate in these conversations. Universities increasingly stand alone in society as forums for open community-based discourse and that surely is the correct and useful path here.

Second, we must measure our efforts not by how we fare in the context of short-term media coverage focused on individual cases, but rather by the lasting quality of the initiatives we launch now and continue to develop, and by the degree of their effectiveness in changing campus culture long after the attention of the press has waned.

Third, we must act boldly, creatively and energetically. This means a commitment to dedicating the financial resources and personnel needed to effect change, coupled with a willingness to explore different initiatives and replace those that prove ineffectual with better ideas. In the past few months, Columbia has opened a second rape crisis center; more than doubled the professional staff there; ensured around-the-clock access to those staff while preserving our valuable cohort of peer counselors; announced a new gender-based misconduct policy designed to be easily accessible to students; reinforced due process protections by providing counsel to students seeking such support in the disciplinary process; created and hired staff in our gender-based misconduct office whose sole responsibility is to support students in arranging accommodations, accessing resources, and educating them about the disciplinary process; and expanded consent and bystander training for incoming undergraduates.

Still more work remains to be done. One immediate goal is the creation of targeted training for our diverse population of undergraduate, graduate and professional students to be developed and made mandatory by next semester.

There is a long history in America of movements seeking to change deeply rooted behavioral norms that show promise and then, disappointingly, produce only marginal recalibrations of the status quo. No one can guarantee that the present public focus on sexual assault and other forms of gender-based misconduct will result in the degree of prevention and culture change we seek across society. What we can and must do, though, is sustain the effort to make our campuses safer over the long term and to encourage and train students to contribute thoughtfully to these changes in their own communities, both while they are in school and as they take their place in the broader world.

Lee C. Bollinger is president of Columbia University. Suzanne B. Goldberg is Herbert and Doris Wechsler Clinical Professor of Law at Columbia and Special Advisor to President Bollinger on Sexual Assault Prevention and Response.

Do Different-Sex Couples Have A Property Interest in their Marriages?

Posted on October 25th, 2014 by Katherine Franke

That’s the argument being made by Phillip and Sandra Unruh.  The Unruhs, a straight married couple, claim that their property interest in their marriage will be diminished if same-sex couples were allowed to marry in Kansas.  So worried are they that their marriage would be rendered less valuable if same-sex couples could marry that they moved to intervene in the case challenging Kansas’ hetero-only marriage law, Kail Marie v. Robert Moser.  “They claim, due process requires that they have an opportunity to participate in this litigation because the Court’s decision about the constitutionality of Kansas’ same-sex marriage ban could diminish their marital status and hence, their property right.”

Philip Unruh is an attorney in Harper, Kansas and is representing his and his wife’s “interest” in this case.

Is Hetero-Only Marriage a Private Club?

In their brief to the court the Unruhs argued that:

The extension of marriage to same sex relationships inflicts profound harm on the Unruhs. For the court to say that from this day forward marriage in Kansas must be extended to a same sex couple is and for ever will be deeply disturbing to the Unruhs and undoubtedly to those that cared enough to pass an amendment to protect it, a departure from the joy and celebration normally associated with the word marriage. Disturbed, not because of bigotry, but out of solemn respect for what marriage is, what it has meant to them and to society in general. Marriage is perhaps the single most valuable institution society has ever had. The standards established by marriage and its exclusive nature enjoyed by the Unruhs can not be ignored or impaired without fundamental civil rights of the Unruhs being disturbed and married people being discriminated against….a ruling extending marriage to same sex relationships would violate the Unruhs’ right to equal protection under the law by the Court’s failure to protect marriage and support the right of Kansas citizens to codify its implicit meaning.

Their brief is available here.

Thankfully, yesterday the judge presiding over the case denied the Unruh’s motion to intervene as defendants in the case.  “Instead, the Court will permit the Unruhs to file an amicus brief setting forth any arguments they wish to advance,” Judge Daniel D. Crabtree ruled. “This process will afford the Court the benefit of the Unruhs’ arguments without burdening them with the procedural responsibilities that come with formal-party status.”

The court’s ruling is available here.


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Originally posted at Religion Dispatches on October 24, 2014. 

By Kara Loewentheil

There’s been a lot of talk about the religious rights of “closely-held corporations” since the Supreme Court’s opinion in Hobby Lobby back in June. So you might be surprised to learn, as I did, that “closely-held corporation” is not actually a thing. Who knew?

It certainly sounds like a real thing, and the Supreme Court seemed to think it was a real thing. But in the course of drafting and submitting several sets of comments on behalf of my day job at PRPCP(and the 60+ professors who signed on with us) on the Administration’s proposed definition of the for-profit entities who can seek an accommodation to avoid complying with the ACA’s contraceptive coverage requirement, I discovered that “closely-held corporation” is not a universally-understood term in corporate law. Or even a nationally-understood term. There are statutes in some states called “close corporation” statutes, but fewer than half the states have them, and even in the states that do have them, the requirements and limitations differ.

That may sound like a corporate law issue, not a religious rights issue, but it gets to one of the complications of free exercise rights. Some areas of law operate vertically, let’s say, since they’re mostly self-referential and one can acquire expertise in them without much reference to other areas of law. But religious rights work horizontally, as they come into interaction, and conflict, with many other categories of law. And it’s impossible to be expert in all types of law, even for the Supreme Court (although arguably one doesn’t need to be that much of an expert to realize this particular close corporation point).

In this case, that means it doesn’t actually make sense to say that the type of for-profit entity that has standing to raise RFRA claims is a “closely-held corporation,” because that’s not actually a standard type of entity in corporate law. Instead, as our comments argued, it makes more sense to ask what types of for-profit entities the Supreme Court was trying to protect in its decision.

The Court’s theory of corporate rights in Hobby Lobby was associational–the individuals who come together to make up a for-profit entity have individual religious rights, and so the entity is simply the vehicle through which they act on them. As the Court explained:

It is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. . . . protecting the free-exercise rights of corporations like Hobby Lobby . . . protects the religious liberty of the humans who own and control those companies.

Given that, it makes sense only to recognize religious rights for a for-profit entity when the entity’s owners are unanimous in their beliefs and their desired action. If half of the owners of a company believe their religion requires them to seek an exemption and the other half of the owners believe their religion requires them to help women access health care including contraception, it would make no sense to say that a corporation was “protect[ing] the religious liberty of the humans who own it,” because whichever action it took (seeking an exemption or not seeking an exemption), half the owners would not only not be represented but would actively be thwarted in their own religious exercise.

That is why our comments, joined by 40+ corporate law experts, urged the Department to limit the exemption to privately-held for-profit entities of a limited size that could produce proof of a religious mission in their governance documents and could produce documentation of an annual owner agreement to seek an exemption. Now we wait and see what the Department will do, and how they will choose to interpret the opinion’s imprecise terms.

Kara Loewentheil is the Director of the Public Rights / Private Conscience Project and a Research Fellow at Columbia Law School.

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By Kara Loewentheil

Back in August the Obama Administration responded to the Supreme Court’s opinion in Hobby Lobby and its order in Wheaton College by issuing two new sets of regulations to govern the accommodation process for employers with religious objections to the Affordable Care Act’s contraceptive coverage requirement. One was an interim final regulation, promulgated by the Department of Labor, that responded to the Wheaton College order by allowing objecting non-profit organizations that believed notifying their insurance company or third-party administrator (TPA) of their objection was also a violation of their RFRA rights to simply notify the government directly, after which DOL and HHS would work together to notify the insurance company or TPA. (I’ve written elsewhere about why this is, not to put too fine a point on it, a somewhat pointless exercise). The other was a proposed regulation that would define what kinds of for-profit entities could seek an accommodation under RFRA based on the Hobby Lobby ruling.

These regulations were open for public comments, and PRPCP, along with over 60 prominent legal academics, submitted comments on both rules. Along with more than 40 corporate law scholars, we argued that “[t]he Supreme Court’s approach to corporate religious rights in Hobby Lobby was associational in nature: for-profit entities have religious rights because they are a collection of individuals with religious rights. In that sense the entity is merely the vehicle through which a group of individuals with religious rights exercises those rights in a collective manner.” Given that, we urged the Department to only allow for-profit entities that (1) were privately-held and limited to a certain size, (2) could produce evidence of their religious operating mission, and (3)produced evidence of a unanimous owner agreement to seek the accommodation annually.

In addition, along with more than 20 important scholars of law and religion, we submitted comments urging both HHS and DOL to create stringent monitoring and enforcement standards in order to avoid Establishment Clause violations. As we explained in our comments, “[s]tatutes like RFRA may exempt religious actors beyond what is constitutionally required, but only if they do not offend superior rights found in the Constitution. The Establishment Clause can be violated when . . . accommodations shift the burden of a religious observance from those who practice the religion to those who do not.” Because the accommodation process has the potential to impose burdens on affected employees – like delays or gaps in coverage – it is essential that the accommodation process truly be seamless. Otherwise there will only be more lawsuits ahead.

Kara Loewentheil is the Director of the Public Rights / Private Conscience Project and a Research Fellow at Columbia Law School.

Unequal Protection

Posted on October 9th, 2014 by Katherine Franke


Russell K. Robinson
robinson_R_rdax_300x450The Supreme Court’s equal protection jurisprudence places people of color and LGBT people on segregated doctrinal paths heading in divergent directions.  While equality is expanding for LGBT people, it is evaporating for people of color.  Nearly 20 years ago, the Supreme Court decided Romer v. Evans, the first of a string of groundbreaking gay rights cases.  Justice Kennedy, writing for the majority, announced at the outset: “the Constitution ‘neither knows nor tolerates classes among citizens.”  (quoting Harlan, J., dissenting, in Plessy v. Ferguson).  Yet the Court’s equality jurisprudence has long been intensely identity-conscious.  And even champions of equality in famous cases have validated other forms of inequality.  Justice Kennedy’s reliance on Justice Harlan’s dissent thus was prescient.  Justice Harlan voted to dismantle the segregated railway cars at issue in Plessy, but he simultaneously praised the supremacy of the “white race.”  Justice Kennedy has been described as the foremost judicial champion of gay rights, yet he consistently votes to roll back basic protections for people of color and women, as signified recently by Shelby County v. Holder.

In general, the measure of equality that the Court currently affords turns heavily on what “class” the law burdens.   The Court has long used the concept of a suspect class to identify a handful of groups that require special vigilance from the Court, while consigning most other classes to rational basis review.  Although this might seem to be in tension with the notion that the Constitution does not know classes, the suspect class model was based on an evaluation of social and political factors that rendered certain classes particularly vulnerable.  Thus, the “special “ scrutiny was designed to bring such classes up to a baseline of equal treatment , which other groups took for granted.  With Romer, however, the balance shifted.  The Court continues to apply the traditional model to virtually all classifications, including race and sex, but it has invented other ways of undermining this analysis—such as equating classifications that burdens whites with those burdening blacks and Latinos and diluting intermediate scrutiny in gender cases.  The one area in equal protection jurisprudence where the Court discards the traditional model and expands equality is gay rights.  Yet the Court has said absolutely nothing to explain this departure.  The central principle of animus does not justify these doctrinal distinctions because many groups face hostility of varying degrees in society, including people with disabilities, Muslims, and of course women and people of color (not to mention deeply reviled groups such as sex offenders and drug users).  But the Court generally refuses to see such bias and invokes the traditional model to turn away claims brought by these groups.

Too often scholars (including some of my colleagues who are writing in this symposium) seemingly accept the Court’s existing doctrine as fair and struggle to produce rationales and frameworks to fill in the gaps and elisions that riddle the gay rights opinion.   Such scholars apparently assume that the Court—really, Justice Kennedy, the swing vote in equality cases—is guided by neutral principles, and if legal scholars just keep poring over his opinions and trying really hard, we will discover the key that unlocks the animus principle.   This effort usually entails linking the modern gay rights cases to Moreno and Cleburne, which also opined on the illegitimacy of laws based on a “bare desire to harm” in very different contexts.  The problem is that those equally ambiguous opinions are roughly 40 and 30 years old, respectively.  They were decided by very different configurations of Justices during very different eras.  The modern Court has refused to extend those precedents in every context except gay rights.  In contrast to these efforts to explain the current doctrine, which may have the unintended effect of legitimizing it, I want to suggest that the doctrine is unprincipled and idiosyncratic.  It reflects one man’s intuition that people of color and women have obtained enough justice in the courts, and the focus of modern equal protection doctrine should be gay rights cases, which are typically fronted by white, affluent plaintiffs, such as Edith Windsor, and so-called “reverse discrimination” claims brought by whites in cases like Ricci and Parents Involved.  As laudable as I find the long-overdue holdings in favor of gay rights, which hold special meaning to me as a gay man, I cannot ignore the divergence that tramples doctrinal consistency and denies equality to most minority groups.

I will highlight two examples of doctrinal inconsistency.  Interested readers can learn more by consulting my forthcoming article, Unequal Protection.  First, in race and sex cases, the Court has rigidly used the concept of a “classification” as a gate-keeping device, but it has ignored this requirement in sexual orientation cases.  In theory, people of color and women enjoy suspect or quasi-suspect class status and thus can invoke heightened scrutiny.  The Court has avoided applying heightened scrutiny, however, by imposing the additional hurdle of a “classification.”  Thus, in Feeney and Geduldig, the fact that a veterans’ preference law and a benefits program that excluded pregnancy severely impacted women was deemed irrelevant because the Court perceived no gender classification.  In McCleskey, the Court applied similar reasoning to a racial challenge to Georgia’s biased capital sentencing scheme.  By contrast, the Court has never mentioned the requirement of a classification in gay rights cases.  The laws in Windsor and Lawrence did not mention sexual orientation on their face, just as the law in Feeney did not mention sex, and the law in McCleskey did not mention race.  Second, LGBT people can invoke animus, a standard that emerged from cases brought by people of color, poor people, and people with disabilities, but that the Court no longer recognizes in such cases.  In place of the contextual, intuitive and rather subjective animus test, the Court requires people of color and women to demonstrate malice—“smoking-gun” evidence that the legislature wanted to harm the group.  No Supreme Court litigant has been able to meet this standard.  LGBT plaintiffs have twice prevailed under the animus standard.

Unequal Protection calls on constitutional law scholars and teachers to think critically about the Court’s equal protection distinctions and consider whether the doctrine itself may perpetuate inequality.

This Post is part of the Symposium on Unconstitutional Animus (reposted from Blakinization)

Russell K. Robinson is a Professor at Berkeley Law and a visiting scholar at Columbia Law School’s Center for Gender and Sexuality Law.  He can be reached at: robinson at



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