PATERNALISM, TOLERANCE, AND ACCEPTANCE: MODELING THE EVOLUTION OF EQUAL PROTECTION IN THE CONSTITUTIONAL CANON.

• Author: Tehranian, John

TABLE OF CONTENTS INTRODUCTION 1619 I. PATERNALISM/NOBLESSE OBLIGE AND FIRST-ORDER 1625 PROTECTION A. The Unbearable Lightness of Dissenting: The Limits of 1626 Equality in Harlan's Interrogation of Segregation B. White Paternalism, First-Order Equal Protection, and 1628 Harlan s Fourteenth Amendment Jurisprudence: Reconciling the Plessy Dissent with Chae Chan Ping, Wong Kim Ark, and dimming 1. Colorblindness and White Supremacy: The Curious 1632 Case of dimming 2. The Historicization of Racism and the Legacy of Colorblindness: The Enfeeblement of 1635 Equal Protection into the Modern Era C. Establishing the Legal Machinery of White Hegemony: 1639 The Limited Progressivism o/Strauder 1. Facial Neutrality and White Hegemony 1639 2. Not All Rights Are Created Equal: The False 1644 Dichotomy Between Civil Rights and Other Rights D. First-Order Protection and Suspect Categories Beyond 1649 Race II. TOLERANCE, NOT ACCEPTANCE: EQUALITY, SUBORDINATION, AND 1651 SECOND-ORDER PROTECTION IN FOURTEENTH AMENDMENT JURISPRUDENCE A. The Denouement of 'Deliberate Speed': Brown and 1653 B. Assimilation and Interest Convergence: The Measure of 1656 C. Second-Order Protection Beyond Race: Sexual 1663 Orientation and the Laissez-Faire Limits of Lawrence III. ENVISIONING THIRD-ORDER PROTECTION 1665 A. Third-Order Protection and the Evolution of 1666 Sexual-Orientation Jurisprudence B. Prom Tolerance to Acceptance: Equal Protection and 1668 the Constricting Nature of the lmmutability Factor C. Acceptance and the Problem of "Like-Straight"and 1679 Assim ilatory Logic IV. CALLING BALLS AND STRIKES: CAVEATS AND 1683 CONCLUSION INTRODUCTION

This Article proposes a legal taxonomy through which we can model changes in interpretations and applications of antidiscrimination principles to best understand the evolution of equal protection doctrine. The goal for doing so is twofold. First, the analysis provides a positive theory to chart how respect for minority rights can progress within a given doctrinal space. As such, this Article seeks to explain the course of equal protection jurisprudence through various stages of legal development. Second, the analysis provides an unabashedly normative assessment of how closely a given legal regime comes to accepting and celebrating the inherent dignitary interests of marginalized groups and the extent to which its jurisprudence begins to undo the impact of long-entrenched prejudices. Consequently, the Article attempts to trace both how far we have come and to scrutinize the potential shortcomings of the extant body of jurisprudence from the Supreme Court on issues related to equality.

Specifically, the Article conducts a close textual reading of a wide range of equal protection cases of the past hundred and fifty years to argue that juridical conceptions of minority rights have advanced in roughly three stages: paternalism, tolerance, and acceptance. In the first stage, courts, driven by noblesse oblige, reluctantly prohibit discrimination on the grounds that those who warrant the government's protection cannot help what or who they are. In the process, first-order protection expressly reaffirms hierarchy and tiers of citizenship, thereby doing little, in practice, to address inequality or challenge the supremacist ideologies underlying "proto-tolerant regimes. In the second stage, courts advance a less condescending form of tolerance that rejects discrimination against minority groups. But this judicial pivot is typically both laissez-faire in its approach and instrumentalist in its drive. As such, it promotes tolerance primarily when doing so advances the praetorian interests of the majority and those in power. Finally, in stage three, courts actively solemnize the rights of minorities and reject structural hierarchies that put that group on an unequal footing. As such, the law begins to play a role in actively resisting and subverting subordination practices. (1)

In advancing this evolutionary model of civil rights jurisprudence, the Article charts the key characteristics of these three stages of advancement in the protection of minority rights. In the process, the Article reassesses and critiques some of the most canonical decisions in the civil rights firmament and considers how these purported hallmarks of progressive jurisprudence--from Justice Harlan's prescient dissent in Plessy v. Ferguson (2) and the Supreme Court's rare moment of post-Reconstruction racial awakening in Strauder v. West Virginia (3) to Mendez v. Westminster School District (4) and Brown v. Board of Education (5) right through the modern-day sexual orientation triumvirate of Lawrence v. Texas? United States u, Windsor/ and ObergefeU v. Hodges (8)--fell short in key ways. Based on an exegesis of these cases, the Article posits that the work of creating a society and legal system free of invidious discrimination is not nearly done and that we can, and should, demand more from the Court.

This Article begins by examining the proto-tolerance exhibitedby seemingly progressive decisions from the late-nineteenth and early-twentieth centuries. The starting point is Harlan's celebrated dissent in Plessy, which, despite its position against the constitutionality of segregation, was imbued with a paternalistic approach to the Fourteenth Amendment that fetishized formal colorblindness and ultimately supported White supremacy. (9) As I argue, a closer examination of Harlan's other race-related jurisprudence, including his seemingly inconsistent decisions in Chae Chan Ping v. United States, (10) United States v. Wong Kim Ark, (11) and Gumming v. Richmond County Board of Education, (12) limns his consistently circumscribed notion of equality. I also assess the impact of Harlan's trope of colorblindness in giving rise to a new first-order interpretation of equal protection in the modern period: the Supreme Court's recent jurisprudence on remedial race-based government action.

First-order notions of protection are, of course, not limited to Harlan and his colorblindness progeny. As I further illustrate, even the rare moments of victory for civil rights plaintiffs in such cases as Strauder--which struck the facial prohibition of African Americans from serving on juries (13)--perpetuated inequities and literally established the legal machinery of White hegemony that would come to dominate the post-Reconstruction/Jim Crow era. In the limited "victories" related to other suspect classifications such as gender, court decisions also reaffirmed patriarchy and grounded decisions upholding the rights of female workers in the most paternalistic of terms. In sum. these first-order cases are characterized by the reaffirmation of supremacist ideologies, the fetishization of formal colorblindness, and facial neutrality in a manner that severely constrains the scope of equal protection scrutiny by elevating appearance over impact.

The analysis then turns its attention to second-order protection cases, in which courts began to exhibit a more robust interpretation of the Fourteenth Amendment that averts an overt embrace of supremacist ideologies. Instead, courts started to demonstrate a commitment to broader nondiscrimination principles. Nevertheless, in second-order cases, protection is often grounded in conditional language and the service of majority interests, rather than a fulsome embrace of the dignitary interests of the targeted group. At the same time, in these decisions, courts carefully dole out tolerance using a negative conception of the right to equality that ultimately supports the maintenance of entrenched social hierarchies and tiers of citizenship. The oft ignored but problematic aspects of Brown and its processor case, Mendez v. Westminster (Mendez I), (14) illustrate these shortcomings. For all of its merit, the groundbreaking district court decision in Mendez I still grounded its holding in the service of White assimilatory interests and presumptions of cultural superiority. Meanwhile, the appellate court decision cravenly failed to reject the notion of inherent racial differences and left desegregation to the whimsies of the legislature.'" Brown also elided any denunciation of White supremacy. Meanwhile, its piecemeal approach to antidiscrimination principles precipitated predictably devastating consequences for a large group of African American professionals. Thus, as a close reading of both cases demonstrates, these key landmarks in civil rights jurisprudence ultimately continued to advance White hegemony. All the while, the watershed holding in Lawrence, the Supreme Court's celebrated foray into the recognition of gay rights, (16) suffered similar constraints. In Lawrence, the Court's tone of moral remove and its restrained and aloof language epitomized the ultimately tolerant, but not celebratory, basis of its holding and its negative conception of the equality to which gays are entitled.

With the limitations of Mendez I. Brown, and Lawrence in mind, I then ask. for aspirational purposes, what form a third-order level of protection might take and how courts might ultimately achieve it. To wrestle with this issue, I examine the seismic change in the Supreme Court's approach to sexual-orientation claims in recent years, as illustrated by Windsor and Obergefell. Though I argue that the Court has come close to third-order protection in these cases, a careful analysis reveals their stubborn resistance to celebrating acceptance and recognizing the inherent dignity interests of marginalized groups.

In particular, I emphasize two key areas of caution as the law attempts to evolve into third-order protection. First, I document how the continuing fetishization of immutability in the equal protection calculus has impeded the realization of a jurisprudence of acceptance (rather than one of mere tolerance) and stymied the achievement of a more potent form of constitutional equality--both with respect to sexual orientation and...