Status Inequality and Social Groups
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Iris Marion Young
What is the content of the value of equality contained in the Equal Protection Clause? In his classic essay, "Groups and the Equal Protection Clause," Owen Fiss argues that the value of equality that the clause expresses should be understood as equality of status. "What is needed in order to bring a state practice within the equal protection ban is a theory of status-harm, one that shows how the challenged practice has this effect on the status of the group." Fiss offers this interpretation of equality as an alternative to an interpretation of the Equal Protection that he rejects, an interpretation that relies on a principle of nondiscrimination. According to this latter interpretation, equality is a formal or procedural value; this interpretations reduces the ideal of equality to a principle of equal treatment. Like cases should be treated alike, and the mechanisms for determining whether cases are alike should be impartial among interests, value neutral, and objective. In Fiss's view, the principle of nondiscrimination is too thin and superficial and interpretation of equal protection. By implicitly requiring equal treatment of persons significantly different in their level of social advantage or disadvantage, moreover, the nondiscrimination principle fails to remedy important harms of inequality and sometimes reinforces them.
Given the events surrounding the writing of the Equal Protection Clause and the weight it has carried at many points in Constitutional history since, Fiss's claim that it rests on a substantial value of equal status seems more plausible than that it names only a value of procedural fairness. In his essay, however, Fiss offers only a sketchy understanding of what status equality means. Here I aim to fill in the lines a bit, and explain why conceptualizing status inequality as a kind of injustice entails thinking about harm in terms of social groups. While Fiss is also right about the latter claim, in my view his articulation of a concept of social groups is too naturalistic and reifying. I will suggest better ways of interpreting the concept of social group, and give some examples of persisting relations between status inequality and law.
©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
