Sources of Status-harm and Group Disadvantage in Private Behavior
This article, considering competing visions of the equal protection clause, takes note of some consequences of the current Supreme Court majority's rejection of Owen Fiss's "group disadvantaging" principle in favor of a jurisprudence of formal neutrality. One result is that constitutional doctrine offer minimal substantive protection for the values of equal citizenship in people's real lives. In particular, the prevailing doctrine leads the judiciary to ignore the crucial role of private behavior in imposing status-harms. Given this crabbed view of the equal protection clause, the achievement of equal citizenship increasingly depends on the enactment and enforcement of civil rights statutes. Yet, if judges are reluctant to interpret these laws generously, or inclined to hold them unconstitutional, private behavior--still the most important source of group disadvantage and status-harm--will remain. The article initially makes these points in reference to racial equality--Fiss's central concern in the 1970s--and goes on to show their application in the fields of sex equality and sexual orientation equality.
©2011 Walter de Gruyter GmbH & Co. KG, Berlin/Boston
Articles in the same Issue
- Article
- Equal Protection and the Irrelevance of "Groups"
- A Partial Defense of an Anti-Discrimination Principle
- Group Rights, Judicial Review, and "Personal Motives"
- Sources of Status-harm and Group Disadvantage in Private Behavior
- "Law", "Philosophy," or "Politics"? Identifying the Status of the Arguments in Owen Fiss's "Groups and the Equal Protection Clause"
- I and Thou and We and the Way to Peace
- The Return of the Repressed: Groups, Social Welfare Rights, and the Equal Protection Clause
- Groups, Equal Protection and Law
- Status Inequality and Social Groups
- "Groups" and the Advent of Critical Race Scholarship
- The American Civil Rights Tradition: Anticlassification or Antisubordination
- Unnatural Groups: A Reacton to Owen Fiss's "Groups and the Equal Protection Clause"
- Groups, Equality, and the Promise of Democratic Politics
- Affirmative Action and the Group-Disadvantaging Principle
- Groups in a Diverse, Dynamic, Competitive, and Liberal Society: Comments on Owen Fiss's "Groups and the Equal Protection Clause"
- "Black" and "White" in Brown: Equal Protection and the Legal Construction of Racial Identities
- "Group Rights" and the Problem of Statistical Discrimination
- Owen Fiss, Equality Theory, and Judicial Role
- Groups, Politics, and the Equal Protection Clause
- Another Equality
Articles in the same Issue
- Article
- Equal Protection and the Irrelevance of "Groups"
- A Partial Defense of an Anti-Discrimination Principle
- Group Rights, Judicial Review, and "Personal Motives"
- Sources of Status-harm and Group Disadvantage in Private Behavior
- "Law", "Philosophy," or "Politics"? Identifying the Status of the Arguments in Owen Fiss's "Groups and the Equal Protection Clause"
- I and Thou and We and the Way to Peace
- The Return of the Repressed: Groups, Social Welfare Rights, and the Equal Protection Clause
- Groups, Equal Protection and Law
- Status Inequality and Social Groups
- "Groups" and the Advent of Critical Race Scholarship
- The American Civil Rights Tradition: Anticlassification or Antisubordination
- Unnatural Groups: A Reacton to Owen Fiss's "Groups and the Equal Protection Clause"
- Groups, Equality, and the Promise of Democratic Politics
- Affirmative Action and the Group-Disadvantaging Principle
- Groups in a Diverse, Dynamic, Competitive, and Liberal Society: Comments on Owen Fiss's "Groups and the Equal Protection Clause"
- "Black" and "White" in Brown: Equal Protection and the Legal Construction of Racial Identities
- "Group Rights" and the Problem of Statistical Discrimination
- Owen Fiss, Equality Theory, and Judicial Role
- Groups, Politics, and the Equal Protection Clause
- Another Equality
