The Yale Law Journal

VOLUME
125
2015-2016
Forum

Brown, Not Loving: Obergefell and the Unfinished Business of Formal Equality

28 Apr 2015
Katie Eyer

Introduction

Nearly fifty years ago, in the 1967 case Loving v. Virginia, the Supreme Court struck down bans on interracial marriage.1 This Term, the Court seems poised to further expand marriage equality by holding that same-sex couples, too, are guaranteed the constitutional right to marry. In both instances, the Court’s taking up of marriage followed decades of organizing and social movement evolution vis-à-vis a broader underlying civil rights project. In both instances, marriage has had special symbolic significance as an area of marked, sometimes visceral, opposition among the social movement’s opponents.

While there are thus numerous parallels between Loving v. Virginia and the latest marriage case before the Court, Obergefell v. Hodges,2 this Essay suggests that there is at least one important difference between the two: their position vis-à-vis the institutionalization of a formal equality3 regime (that is, a legal regime in which discrimination against a group is presumptively unlawful).4 Whereas Loving marked the endpoint of an era of the institutionalization of formal racial equality norms in constitutional Equal Protection doctrine and in federal statutory law, Obergefell stands much closer to the beginning of such a process.5 Indeed, although the L/G/B6 rights movement has achieved substantial success—in shifting public opinion, and in securing litigation victories—explicit guarantees of formal equality have—at least at the federal level—largely remained elusive. And to the extent that Obergefell follows the trajectory of prior case law, the Court seems likely to frame its holding in opaque terms; terms that fail to clearly implement a legal regime of formal equality for the L/G/B community.

This Essay argues that this lack of explicit formal equality guarantees matters. Although the L/G/B rights movement has achieved significant gains in both law and constitutional culture, doctrinally we remain closer to Brown v. Board of Education—and its unsettled posture vis-à-vis formal equality—than to Loving. And there are reasons to believe that this doctrinal uncertainty, in both the constitutional and statutory domains, has real costs, especially for the most marginalized members of the L/G/B community. These costs may come in the form of litigation losses—a continuing concern for many areas of L/G/B equality law—but perhaps more fundamentally in the failure to provide the type of clear legal and moral messaging that produces voluntary compliance. In short, insofar as we view deterrence and culture change as key objectives of an antidiscrimination regime, the lack of formal equality provisions explicitly barring anti-L/G/B discrimination should be deeply troubling.

Thus, if the Supreme Court rules this Term in favor of same-sex marriage, its holding should be cause for celebration among supporters of L/G/B rights, but not for rest. The project of achieving formal equality —itself just the first step in the longer project of achieving real equality on the ground—is not yet won for the L/G/B rights movement.7 And, whether formal equality is ultimately achieved may well depend on urgency with which its supporters—academic, financial, political, and among the general public—continue to pursue the project of legal reform.8

I. the elusiveness of l/g/b formal equality

Brown v. Board of Education is often thought of today as institutionalizing a categorical norm of formal equality vis-à-vis race.9 But in fact, Brown’s reasoning—focusing on the importance of education, and the harm to minority children—could be, and often was, understood in its immediate aftermath in much more limited terms.10 Thus, as scholars such as Michael Klarman have shown, Brown was often understood as a “fundamental rights” case—one extending equality rights to African Americans only within the context of education (as opposed to within all areas of the law)11 by virtue of education’s singular contemporary significance.12

By June 1967, when Loving v. Virginia was decided, much had changed in the landscape of race antidiscrimination law. In the constitutional domain, the Court had signaled a move toward broad presumptive constitutional invalidity of race-based laws (that is, formal equality) in McLaughlin v. Florida13—a move it confirmed and solidified in Loving itself.14 In the statutory domain, Congress had enacted a series of laws effectuating formal equality guarantees (and, at times, arguably going farther in providing not only for formal, but also substantive, equality mandates).15 As such, Loving can be seen as the endpoint of a process of institutionalization of formal racial equality norms; as the last piece of a legal regime protecting against invidious racial classifications in most public and private domains.16

As a wave of lower court rulings have invalidated same-sex marriage bans in the aftermath of United States v. Windsor,17 it is unsurprising that some have marked Obergefell—and the Supreme Court’s expected decision in favor of same-sex marriage—as a comparable juncture for L/G/B equality.18 And indeed, especially in the marriage domain, it appears that many lower courts have recognized, and chosen to follow, the Supreme Court’s shifting trajectory with respect to gay and lesbian rights.19 Public opinion has undergone similarly dramatic shifts, with support for many rights for the L/G/B community rising significantly in the past decade.20

But these changes—in both lower court approaches and public opinion—rest atop surprisingly thin changes in the regime of formal equality rules governing L/G/B equality. Most notably, despite supermajority levels of public support for an L/G/B-inclusive antidiscrimination law,21 there remain no explicit statutory protections at the federal level against sexual orientation discrimination. Thus, unlike race discrimination—which is proscribed by statute in the employment, public accommodations, housing and voting rights domains—federal statutory law is largely silent on the question of sexual orientation discrimination, leaving vast domains of private discrimination unaddressed.22

Even in the constitutional domain, the doctrinal framework undergirding recent advances for L/G/B rights arguably remains far closer to Brown than to Loving. In both the Supreme Court’s doctrine and in most circuits, no presumptive constitutional rule exists against sexual orientation discrimination.23 Rather, most recent constitutional advances have instead been achieved under minimum-tier scrutiny (rational basis review) or, in the marriage cases, under doctrines requiring stringent scrutiny of infringements on the right to marry.24 As such, there is, nationally, no generally applicable constitutional rule that automatically renders most instances of anti-gay government discrimination unlawful.25 Thus, the institutionalization of a formal equality mandate vis-à-vis anti-gay discrimination has remained elusive, even as successes—both legal and extralegal—have increasingly suggested that the L/G/B rights movement has “arrived.”26

There are few reasons to believe that Obergefell will disrupt this existing framework. Most obviously,the Courtcannot and will not modify the lack of a backdrop of gay-protective statutory law, and will therefore leave domains of private discrimination untouched. But there are also substantial reasons to believe that Obergefell, although likely to find in favor of same-sex marriage, will not do so by institutionalizing an L/G/B-protective formal equality regime (even in the constitutional domain). Most notably, Justice Kennedy—who has had, and will likely continue to have, an outsized role in shaping the Court’s gay jurisprudence—generally eschews speaking in such formally concrete doctrinal terms.27 Thus, it seems unlikely that Obergefellwill meaningfully reshape the doctrinal landscape vis-à-vis L/G/B formal equality; and thus, that we will remain, ultimately, far closer in the L/G/B rights movement’s formal equality trajectory to Brown than Loving.

II. why formal equality matters

If Obergefell seems unlikely to institutionalize formal equality for the L/G/B community, why might this matter? There have long been substantial scholarly critiques of formal equality’s limits.28 And the L/G/B rights movement has already achieved substantial gains without a statutory or constitutional regime of formal equality. One might reasonably question whether formal equality remains important; whether pursuing a regime that explicitly recognizes sexual orientation discrimination as presumptively invalid is worthwhile or needed.

But there are a number of reasons for thinking that, ultimately, formal equality does matter. Most obviously, without the backdrop of formal equality, there continue to be areas of major importance to the L/G/B community in which L/G/B litigants continue to regularly lose their claims.29 Thus, L/G/B litigants’ claims under federal antidiscrimination statutes—the primary body of law governing private employment discrimination and housing30—continue to have only modest success.31 As such, private employment discrimination and housing discrimination against members of the gay and lesbian community remains only rarely actionable under federal law.32 For the many members of the L/G/B community who live in one of the twenty-nine states that do not have their own L/G/B-inclusive antidiscrimination laws, such a lack of federal protections means that many forms of discrimination they face will be treated by the courts as entirely lawful.33

Similarly, in the constitutional domain, the lack of a formal equality regime under Equal Protection doctrine arguably has had significant implications for the L/G/B community. For example, “no promo homo” laws—requiring the indoctrination of public school students with anti-gay messaging—continue to exist across a number of Southern and Western states, and would clearly be invalid under a formal equality regime.34 And yet successful legal challenges to such laws remain rare, even in federal judicial circuits or districts that have already ruled for marriage equality.35

Less obvious than the litigation implications, but equally troubling, is the impact that the lack of a formal equality regime is likely to have on antidiscrimination law’s deterrence value. For the vast majority of members of a protected group—who will never bring an antidiscrimination claim—antidiscrimination law’s benefits are felt, if at all, in its power to prevent discrimination.36 This is especially true for poor and otherwise marginalized members of a group, such as racial minorities or prisoners, who are disproportionally likely to lack access to the financial and network resources needed to successfully bring claims.37 For such members of the community, the promise of a litigation-based remedy is largely illusory—a theoretically possible, but not real, benefit of the law.

While the deterrence value of antidiscrimination law is difficult to measure—and thus to quantify—it seems deeply implausible that the absence of a formal equality baseline does not do harm to this key objective. Most obviously, under the type of opaque regime that exists today, those would-be discriminators whom the law is meant to deter are far less likely to even know that their conduct is unlawful.38 For example, while information regarding sex discrimination remedies for sexual orientation discrimination no doubt reach the largest companies able to hire specialized employment counsel,39 there are few reasons to believe that smaller employers—many of whom are entirely uncounseled—are similarly well-informed.40 And, for the truly intransigent, the opacity of the current regime provides an excuse to continue obstructionist and potentially unlawful conduct, conduct that will continue in the near-term to do real harm to L/G/B individuals and families.41

But perhaps the most concerning result of the absence of a formal equality regime is the loss of moral messaging that a formal equality regime provides. When the federal government—be it Congress, the Court, or the President42—adopts formal equality guarantees, it sends a deep message about what we, as a nation, believe is the type of invidious discrimination that should be deemed illegitimate. Conversely, the lack of such a clear, formal regime leaves that key moral question open to contestation. For the many who rely on the law’s capacity to persuade, this moral ambiguity is troubling indeed.43

In short, there are many reasons to believe that formal equality—while imperfect—remains an important starting point for deeper equality work. Especially for those many members of the L/G/B community for whom the true promise of antidiscrimination law will be in its capacity to change primary conduct, a lack of formal equality comes with the potential for real and substantial costs. Thus, although we should not diminish the L/G/B rights movement’s legal and societal gains, neither should we ignore its unfinished business: the important work of formal equality.

Conclusion

The fight for L/G/B marriage equality has captured the imagination of the American public, and rightly so. Marriage equality has long been one of the pivotal fields in which advocates and opponents of L/G/B rights have struggled over constitutional culture, just as it was one of the pivotal fields of struggle between advocates and opponents of racial equality.44 Moreover, marriage is a matter of deep personal and cultural significance to many Americans, regardless of sexual orientation. A decision mandating marriage equality will thus no doubt have many important implications.

But marriage’s political, cultural, and social significance should not be mistaken for its legal centrality. Unlike Loving, a favorable ruling for marriage equality in Obergefell is unlikely to establish a broader legal regime of formal equality in constitutional doctrine; and it is sure not to do so in the context of statutory rights. As such, while Obergefell will no doubt have real significance—social, political, and, in part, legal—it should not be mistaken for formal equality. For that unfinished business, as after Brown, much continuing work—in the courts, in the legislature, and among the people—lies ahead.

Katie Eyer is an Assistant Professor at Rutgers-Camden School of law. She thanks Lee Carpenter and Kati Kovacs for helpful feedback, and the editors of the Yale Law Journal for their excellent editorial suggestions.

Preferred Citation: Katie Eyer, Brown, Not Loving: Obergefell and the Unfinished Business of Formal Equality, 125 Yale L.J. F. 1 (2015), http://www.yalelawjournal.org/forum/obergefell-and-the-unfinished-business-of-formal-equality.