Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action

Abstract

In this essay, Professor Siegel examines efforts to reform racial and gender status law in the nineteenth century in order to raise questions about the ways antidiscrimination law operates today. The essay demonstrates how efforts to dismantle an entrenched system of status regulation can produce changes in its constitutive rules and rhetoric, transforming the status regime without abolishing it. Part I illustrates this reform dynamic in the nineteenth century, a period when protest movements were demanding the abolition of slavery and reform of marital status law. Legislatures and courts responded by eliminating some of the more overtly hierarchical features of marital status law, yet adopted gender-biased policies governing domestic labor and domestic violence that were justified as promoting family privacy, rather than marital hierarchy. Similarly, in the aftermath of the Civil War, legislatures and courts granted the newly emancipated slaves "civil" rights, yet denied them "social" rights, rationalizing miscegation laws and segregation as preserving associational liberty, rather than racial hierarchy. As these examples illustrate, the rules and reasons the legal system employs to enforce status relationships evolve as they are contested. Part II of the essay uses this dynamic model of status regulation to analyze the operations of equal protection law today. We know that doctrines of heightened scrutiny have disestablished overtly classificatory forms of race and gender status regulation dating from the nineteenth century. Yet the doctrine of discriminatory purpose currently sanctions facially neutral state action that perpetuates race and gender stratification, so long as such regulation is not justified in discredited forms of status-based reasoning. Once we recognize that the rules and reasons the legal system employs to enforce status relations evolve as they are contested, we ought to scrutinize justifications for facially neutral state action with skepticism, knowing that we may be rationalizing practices that perpetuate historic forms of stratification, much as Plessy v. Ferguson once did.

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