Abstract

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.

Recommended Citation

Kenneth Karst, "Sources of Status-harm and Group Disadvantage in Private Behavior" Issues in Legal Scholarship, The Origins and Fate of Antisubordination Theory (2002): Article 4.
http://www.bepress.com/ils/iss2/art4