By: Eli Balsam  | 

Discrimination or Not? You Decide

We often consider popular opinion to be an unsound identifier of discrimination. After all, the Constitution seeks to protect minorities from the whims of the majority by allowing federal courts to strike down any law that encroaches on equal rights. If we allow the majority to decide what constitutes discrimination, how do we protect vulnerable minorities from the majority’s caprices? But if it were practically true that the majority’s opinion matters not at all, there would be little value in social movements. Their concerns wouldn’t help redefine the unvarying constitutional standards of discrimination.

Luckily, we can prove that popular opinion has historically affected the constitutional definition of discrimination because there is no rigid definition of discrimination. The persuasive power of social movements spurs a novel opinion shared by few to become a federal law accepted by all. This is the mechanism which helps redefine discrimination when needed. Your opinion matters, at least when in concert with the opinions of other citizens.

If it seems impossible for social movements to directly change popular opinion, they will often try to change laws which they deem discriminatory by appealing to the court system. This tactic ultimately helps change popular opinion as well, because we are likely to change our attitudes de facto after new laws designate them prejudiced or racist de jure. For example, the racism towards blacks nowadays is not nearly as bad or pervasive as the racism that was rampant right after the Civil War. This is partly because slavery becoming illegal paved the way for blacks to be granted suffrage, which led to their being granted full citizenship rights and true equality, culminating in Brown v. Board of Education. After each progressive legal change our country’s past bigotries appeared increasingly foreign.

But before each legal change, a certain critical mass of increased abhorrence towards racism was necessary for the reform to garner sufficient support. This exemplifies the codependence of society’s attitudes and its laws, which is the first premise I want to establish. This reality is well known to social movements which often work on two fronts, the social front, and the legal front. Even a minor success on one front can lead to a sequence of interrelated successes. These movements try to awaken a sleeping society to an injustice which they think is being overlooked. They do so directly by appealing to society, and indirectly by appealing to the judicial system.

My next point may be somewhat controversial in the world of judicial philosophy. It involves the Equal Protections Clause of the Fourteenth Amendment which is the hinge on which many social movements have swung, and which has determined the success of social movements irrespective of federalist concerns. It states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The controversy arises over how to identify the denial of “the equal protection of the laws.” May Congress pass a law that makes biological distinctions between men and women for medical insurance purposes? What about an employer who only grants maternity leave to women? These and other multifaceted questions often lead to debates between social progressives and social conservatives. By the way, courts have ruled that lawmakers may legislate with reasonable biological distinctions between the sexes, although their making distinctions based on societally-conceived gender roles is verboten. I believe this would be the common-sense answer of perhaps a majority of U.S. citizens. That the consensus of modern federal courts reflects the common-sense opinion will soon be important, but first let’s discuss the definition of discrimination.

Professor Kermit Roosevelt of the University of Pennsylvania Law School believes that the correct methodology for deciding if something is constitutionally discriminatory lies in determining whether the prevailing attitude of society considers it to be socially discriminatory. If few people think it’s discriminatory, it will be very hard for a social movement to convince the federal courts that it is. But once society believes a law to be denying equal protections, the courts are likely to agree. This is not because the courts are pandering to popular opinion as the cynic might suggest. Rather, Professor Roosevelt believes, the allowance for societal change is embedded in the “forward-looking clauses” of the Constitution, as I will explain.

Now, saying that a clause conforms to popular opinion seems to contradict Originalism, one of the major philosophies of jurisprudence, which says that the meaning of the Constitution does not change from its original (hence Originalism) meaning. This approach sounds more like Pragmatism or the philosophy of “the Living Constitution.” Professor Roosevelt counters that even the Originalist interpretation of the Equal Protections Clause should lead us to conclude that the definition of discrimination is based on the zeitgeist. He argues that since the drafters of the Amendment left discrimination unexplained, it must be dependent on America’s prevailing attitude. He dubs a clause which changes in connotation because it was designed to, “a forward-looking clause.”

Roosevelt gives an illustrative example. Imagine a theoretical clause of the Constitution stating “all members of Congress must dress respectfully when on the Congressional floor.” Would the Originalist jurist maintain that the modern-day Congressman needs to wear a wig, stockings, and a waistcoat, just because that would have been the original meaning of ‘respectful’ to the Framers? Our intuition says no. What is respectful in one era is clownish in another; a natural boundary between groups yesterday may seem overtly racist today.  Roosevelt says of the clause in question: “It’s a general ban on unreasonable discrimination, but judges look to current social attitudes to decide what is unreasonable.” That violations of Equal Protections are determined by society does not contradict Originalism. Indeed, it was the original intent of the Framers for the clause to be interpreted and to later be reinterpreted.

If this is not the case, how was the “separate but equal” treatment of blacks, which lasted for nearly a century (from the amendment in 1868 until Brown v. Board of Education in 1954), sanctioned by the very people who wrote the Equal Protections Clause? Either the Amendment was a farce to its drafters, or its meaning changed with time. I prefer the latter explanation. Roosevelt is correct that the Equal Protections Clause does not purport to lay down any objective standards as to what is discrimination; the definition of discrimination—in a word—evolves.

From a democratic standpoint as well, this method of identifying discrimination makes sense. While judges have the responsibility to override democratic wishes that violate the rights of other citizens, here the question itself is whether those rights are being violated, and the answer isn’t easily determined. I’ve heard Antonin Scalia himself explain that judges are trained as lawyers, not as moral philosophers. Why should their opinion on moral issues carry more weight than the prevailing opinion of society? The job of the courts is to ensure that a local, state, or federal authority doesn’t impose laws which the majority of America knows to be discriminatory, but it is beyond their purview to extend the definition of discrimination on their own. Let us now leave the theoretical world and examine some American history.

Our nation has seen major social movements addressing discrimination of three types: race, sex, and sexual orientation. In 1896 the Supreme Court ruled in Plessy v. Ferguson that the separate-but-equal treatment of racial minorities was constitutional. No doubt this is one of the Court’s most embarrassing decisions, but back then it seemed fair to most Americans. 58 years later, Brown v. Board of Education overturned that decision, rendering “separate but equal” unconstitutional. At the time, the decision was controversial, but this decision has since been championed as causing a sea-change in our country’s attitude towards minorities. Today, virtually nobody with whom you could enjoy an intelligible conversation contests the correctness of the decision.

The battle for equality between the sexes in the courts starts in 1873 with Bradwell v. Illinois. The Supreme Court ruled that Illinois is allowed to (if you’ll excuse the irresistible pun) bar women from becoming lawyers. 101 years later, in Cleveland Board of Education v. LaFleur, the Court overturned that opinion. Women could not be excluded from certain jobs because of perceived gender roles. As the laws changed, the notion of women not being capable became increasingly foreign to Americans born in an era where women were becoming progressively equal.

America is in the midst of a battle between social conservatives and social progressives over the legalization of gay marriage. It has been sensibly noted that the battle over gay marriage would not have been possible had sodomy not been first ruled constitutionally-protected in the 2003 case Lawrence v. Texas. This exemplifies our first premise, that a success in one area paves the way for the social movement to progress in further areas. However, seventeen years prior to Lawrence, the Supreme Court ruled in Bowers v. Hardwick that states could forbid sodomy. Seventeen years is not long when considering the time span it took for the other social movements to succeed, but the movement has still not achieved all of its goals. There is a split in the Federal Circuit Courts over whether same-sex marriage bans are constitutional, with 70% of Americans living in jurisdictions allowing same-sex marriage, and a majority of Americans supporting it. According to a joint dissent by Justices Scalia and Thomas, the Supreme Court’s recent refusal to even temporarily uphold Alabama’s ban on gay marriage, clearly indicates that it will rule in favor of nationwide gay marriage in June. What is propelling the gay-rights movement forward so unprecedentedly?

There are two theories I want to mention which are probably both true. The first is quite simple. Maybe we have learned from history how destructive discrimination can be. When people think about granting gays full rights to marry, many cannot help but compare their struggle to those of women and racial minorities. Making this comparison is so natural that the religious and social conservatives who want to forbid gay marriage need to distinguish between the movements in debates, lest they tacitly appear to be marginalizing women or racial minorities. And since I’m not trying to offer an opinion on the matter, I’ll leave it to the reader to determine if their distinctions are convincing.

The swift progress of the gay-rights movement can therefore be attributed to our society reaching the maturity to reflect on its treatment of historically marginalized populations. Even if you think that the comparison between the social movements is unfounded, this theory works. Simply acknowledge that to a majority of Americans the comparison is well-founded, and it thus affects the majority’s opinion on how to treat gays. You’ll find that this theory perfectly fits the chronology and duration of the three movements we’ve been discussing.

Professor Roosevelt has a more complex explanation. He explains that prior to women being granted full rights, the prevailing attitude towards women wasn’t hostile. With an attitude called by some “Romantic Paternalism”, men treated women as recherché beings who shouldn’t be exposed to the realities and troubles of real life. Men believed they were protecting women by excluding them from certain professions and their attendant risks. Roosevelt memorably remarks, “it wasn’t that they weren’t good enough, it was that they were too good.” This attitude and the quasi-religious notions of the proper role of the woman, quixotic though they may have been, were not openly hostile, so they needed time to be purged from society’s collective mind. It took strong women to show society that the Dulcinea del Tobosos of the world were fine before the Don Quixotes sallied forth to “protect” them.

The struggle for blacks’ civil rights, however, was fighting against true hostility. Segregation and denying blacks the vote were based on overtly ugly attitudes. Society needed only to be jostled from its slumber to recognize that its attitudes towards blacks were despicable. This was an advantage that the civil rights movement had over the women’s rights movement in convincing society of its injustices, and this could be a partial explanation of why the civil rights movement was successful in fewer years than the women’s rights movement was.

However, the women’s rights movement enjoyed a different comparative advantage: discrimination against women struck men in their very homes. Men loved their mothers, sisters, daughters, and wives, so discrimination against them was deemed unacceptable quicker than it would have been had women lived isolated from men. In contrast, racial segregation and laws against intermarriage ensured that few whites married blacks or even became friends with them. Injustice always stings more when it affects people whom you know and love. Segregation was thus a formidable obstacle for the civil rights movement but it proved to be surmountable.

Just like racial discrimination, discrimination against gays is now considered by many as morally execrable and scientifically baseless. And just like discrimination against women did, discrimination against gays strikes society across every demographic. An ardently religious Catholic is as likely as a progressive liberal to have a gay child. An Orthodox rabbi cannot ward off homosexuality in his community simply by shelving the issue. Whatever our political and religious affiliations, we need to come to terms with gays. It has become increasingly difficult to sanction laws that affect our relatives, friends, and neighbors, even for people who have ideological or religious reasons to be against gay marriage. Since the gay-rights movement enjoys both of the relative advantages of the two prior social movements, it has progressed comparatively quickly.

Everyone is curious whether gay marriage will become a nation-wide right. I have attempted to transform the question from an ideological question (people will predict that it will succeed simply because they want it to, and vice versa) to a question that could be answered by examining society, social movements, and judicial history. The operative question is whether the movement has sufficiently influenced the prevailing American opinion in favor of gay marriage. If it has, as polls increasingly indicate, I believe the Supreme Court will support it. If not, then the time may not be ripe for the Court to give the movement its stamp of approval. But even this setback would not portend the movement’s ultimate failure; it would simply tell the movement’s promoters that popular opinion doesn’t yet consider it sufficiently discriminatory to deny same-sex couples the right to marry. They will bide their time and try again in a few years. As to the question of whether forbidding gay marriage is discrimination—in a very practical sense—you decide.