Equal protection and the status of stereotypes.

• Author: Green, Roger Craig
• Position: Case Note

Miller v. Albright, 118 S. Ct. 1428 (1998).

Miller v. Albright(1) is a case of missed opportunities. Miller could have affirmed the Equal Protection Clause's prohibition against gender-based stereotypes, and it could have extended existing principles to bar stereotypes that harm other vulnerable groups. Instead, two of three opinions composing Miller's majority weakened current case law disfavoring gendered stereotypes and dimmed hopes that similar doctrines might develop in the future.

I

Lorelyn Miller was born in the Philippines, the daughter of an unmarried American father and a Filipino mother. After living in her native country for twenty-two years, Miller moved to Texas, formally established her father's paternity, and applied for American citizenship. When the State Department denied her application, Miller filed an equal protection suit seeking to overturn that decision.(2)

The target of Miller's lawsuit, section 309 of the Immigration and Nationality Act,(3) prescribes citizenship standards for foreign-born children who have one unwed American parent. These standards vary depending on the American parent's sex. For their children to become citizens, unmarried American fathers must: (1) have resided in the United States for five years; (2) prove paternity by clear and convincing evidence; (3) promise in writing to support their offspring until they are eighteen; and (4) formally acknowledge paternity before their children reach majority.(4) Children of unwed American mothers, however, become citizens at birth if their mothers have been U.S. residents for one year.(5) Miller was denied citizenship because her father acknowledged her only after she had reached adulthood, and she claimed that this "acknowledgment requirement" amounted to unconstitutional sex discrimination.(6)

Three pairs of Supreme Court Justices rejected Miller's claim, offering three very different reasons for doing so. Justice Stevens, joined by Chief Justice Rehnquist, granted Miller standing to challenge the sex discrimination against her father. But Justice Stevens denied Miller's claim on the merits, holding that the interests served by section 309 satisfied intermediate scrutiny and did not rest on gender-based stereotypes.(7) Justice O'Connor, joined by Justice Kennedy, recognized the gendered stereotypes underlying the government's asserted interests and noted that such interests could not satisfy intermediate scrutiny. Because Miller herself was not classified by any suspect criterion, however, Justice O'Connor upheld section 309 using rational basis scrutiny.(8) Justices Scalia and Thomas held that no court could ever constitutionally grant United States citizenship; thus, they rejected Miller's claims for lack of standing.(9)

II

Although the facts of Miller were too complex to raise any legal question cleanly, the case may have a lasting impact on equal protection's approach to governmental stereotyping,(10) Equal protection is well-known as a shield for minorities and fundamental rights and as a sword against suspect classifications and deliberate discrimination.(11) In sex discrimination cases, however, equal protection serves a third function as well: It discredits government interests that rely on sex-based stereotypes and excises these interests and stereotypes from equal protection decisionmaking altogether.

This "anti-stereotype" function of equal protection has not attracted much academic commentary,(12) but it has been a theme in cases of sex discrimination, including the landmark decision, United States v. Virginia.(13) In Virginia, the Virginia Military Institute ("VMI") argued that admitting women would destroy its "adversative" method of instruction. Without directly disputing the State's empirical evidence, the Court noted that similar testimony had been used in bygone eras to exclude women from public medical schools, law schools, and military academies.(14) By casting VMI's interest as one more "scientific" story of female fragility and weakness, the Court rejected the argument out of hand, holding interests based on gendered stereotypes inadequate as a matter of constitutional principle.(15)

This doctrinal strategy--which I will call the "anti-stereotype rule"--marks an important, subtle departure from orthodox constitutional analysis. Under modern case law, a discriminatory policy should be constitutionally upheld if any government interest is sufficiently "compelling" and "tailored" to satisfy appropriate judicial scrutiny.(16) The anti-stereotype rule, however, allows plaintiffs to defeat otherwise satisfactory government interests without contesting their importance or relatedness. The. Court's scattered statements on the subject suggest that the government cannot rely on interests--even compelling, narrowly tailored ones--that depend upon gender-based stereotypes.(17)

The doctrinal power to reject gender-stereotyped interests outright, without applying any tier of scrutiny, enables courts to debunk invidious sexual generalizations without disputing their empirical validity. The reality of gender-based stereotypes is that, like most stereotypes, they are occasionally true. But pre-Miller case law implies that unconstitutional stereotypes should be overthrown in all circumstances, independent of their truth or falsehood in particular contexts.

Doctrines like the anti-stereotype rule are especially important given the modern Court's preoccupation with formally equal treatment for men and women.(18) Reva Siegel has argued that current judicial rules that enforce colorblindness and genderblindness fail to disturb, and may actually reinforce, more subtle forms of oppression.(19) An aggressive anti-stereotype rule could help remedy this shortcoming. Given that socially dominant stereotypes disproportionately harm weaker groups, a rule barring all gender-based...