Shedding Tiers "Above and Beyond" the Federal Floor: Loving State Constitutional Equality Rights to Death in Louisiana

• Author: Robert F. Williams
• Position: Professor of Law, Rutgers University School of Law
• Pages: 917-931

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Art. I, Sec. 3 was intended to provide to the citizens of this state equal protection of the laws above and beyond that protected under the federal Constitution . . . . " Louisiana Associated General Contractors, Inc. v. State, 669 So. 2d 1185, 1198 (La. 1996) (emphasis added).

Distinguished Professor of Law, Rutgers University School of Law, Camden, New Jersey. This article is based on a presentation made by the author at the conference, "Is Civil Rights Law Dead?" held at Louisiana State University School of Law, March 13-14, 2003.

The latest trend in American constitutional law is to use "equal protection" as a concept not to eliminate discrimination, but to justify it. As a nation, we all now have collective amnesia.¹

I Introduction

Equality doctrine in state constitutional law has been important for many years. Within this larger context, Louisiana constitutional equality doctrine is important because the state of Louisiana added an equal protection clause to its state constitution in 1974.² Article I, section 3 of the Louisiana Constitution, the "Individual Dignity Clause," provides:

No person shall be denied the equal protection of the laws.

No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.³

In 1996, the Louisiana Supreme Court interpreted this provision in Louisiana Associated General Contractors, Incorporated v. State Page 918 of Louisiana, [Louisiana Associated General Contractors] to outlaw all forms of affirmative action which include race as a factor.⁴ John Devlin has provided an in-depth look at this case in the context of Louisiana's state constitutional history (or lack thereof) of equality.⁵ Louisiana Associated General Contractors should be evaluated on its own terms as well as in the broader context of state constitutional rights protections. Devlin's article provides both of these perspectives. I will add a few thoughts of my own.

II State Constitutional Equality Doctrine

Since the equal protection revolution of the Warren Court, state courts have tended to lose sight of the rich and varied equality provisions contained in their own state constitutions. Many state courts were mesmerized by the doctrines developed by the United States Supreme Court as it interpreted the Equal Protection Clause of the Fourteenth Amendment. These courts virtually ignored the following kinds of equality guarantees, often not contained in the Declaration of Rights, in their state constitutions:

1) The 1776-type provisions declaring that "[a]ll men are free and equal . . . . "⁶ Also included in this category are the less common types of clauses stating that government was created for the "common benefit" of its citizens. Based on such a clause, the Vermont Supreme Court in 1999 declared that the state had to permit either marriage or domestic partnership for same-sex couples.⁷

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2) The state constitutional provisions dating from the Jacksonian period, which took aim at government grants of special privileges.⁸

3) The provisions dating from the 1870's placing limitations on the legislative branch's ability to enact "special laws."⁹

4) The state constitutional provisions requiring uniformity in taxation.¹⁰

5) The state constitutional provisions requiring either thorough and efficient or uniform free public schools.¹¹

6) The state constitutional provisions barring discrimination against citizens in their exercise of civil rights.¹²

7) The state equal rights amendments ("state ERAs") adopted to provide equal rights for women.¹³

An examination of the Louisiana constitution makes it very clear that the 1974 "Individual Dignity Clause" is not the only equality clause to be found in that constitutional document. For example, article I, section 1, dating from 1921, provides that "[a]ll government, of right, originates with the people . . . and is instituted . . . for the good of the whole."¹⁴ Article I, section 12, also added in 1974, prohibits discrimination in public accommodations on similar grounds as those listed in the Individual Dignity Clause.¹⁵ Article III, section 12 prohibits the enactment of special laws by the legislature in an enumerated list of categories.¹⁶ Article VII, section 18 (A) requires uniformity in property taxation.¹⁷ In the Preamble to the Page 920 Education Article, article VIII, one of the goals of the public educational system is "that every individual may be afforded an equal opportunity to develop to his full potential."¹⁸ The Individual Dignity Clause includes a prohibition on discrimination on the basis of sex, making it also a state ERA.¹⁹ Thus, even before 1974, the Louisiana Constitution illustrated the point made by Paul Kahn: "no state constitution is indifferent to the principle of equality, even if the state text does not have an equal protection clause."²⁰

Each of these types of provisions is different from the federal equal protection clause, and should be interpreted according to its own text, history, and purpose. In other words, these kinds of clauses should be interpreted by the courts independently from the federal equal protection doctrine. Many state courts, however, have failed to accord these provisions their proper recognition, choosing instead to treat them separately, or sometimes lump them together, and apply the federal equal protection doctrine.²¹

Throughout the process of including these sorts of equality provisions, a number of states, including Louisiana in 1974, added "equal protection" clauses to their constitutions.²² When Louisiana included the equal protection provision in its new, revised constitution it is fair to ask whether it was leading its citizens by recognizing a new legal doctrine, or, rather if it was following its citizens by adopting a provision that reflected a change that had already taken place in society. In the words of Willard Hurst, provisions included in state constitutions often "did not direct, but merely recorded, the currents of social change."²³ John Devlin has argued very convincingly that this 1974 provision came after a substantial portion of the Civil Rights Movement had taken place and therefore may have "recorded" a change that had already taken place in at least some segments of society.²⁴

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Although many state courts were mesmerized by federal equal protection analysis, some, by contrast, began to take note of the variety of equality-based provisions in their own state constitutions, each with a text, history and purpose different from the federal equal protection clause. These courts embarked on an independent analysis, sometimes reaching decisions beyond the national lowest common denominator, or "federal floor," enforced by the United States Supreme Court.²⁵

III Louisiana Equality Doctrine

The history of Louisiana's judicial interpretation of article I, section 3 reflects a transition between the two approaches, following federal doctrine and independent interpretation, observable in state courts. Initially, right after the adoption of the provision of 1974, the court interpreted it to be the same as the federal equal protection clause.²⁶ It was not until 1985, in the Sibley decision, that the Louisiana Supreme Court embarked on an independent interpretation of its provision.²⁷ There, in an opinion by Justice James Dennis, a delegate to the 1973 Constitutional Convention, the Court rejected the federal three-tier approach to equal protection analysis and relied on article I, section 3 to strike down a statutory cap on damages as an unconstitutional classification based on "physical condition."²⁸Finally, in 1996, the Louisiana Supreme Court handed down Louisiana Associated General Contractors,²⁹ in which it outlawed all forms of affirmative action which take account of race. The Court Page 922 read the provision as though it was identical to California's Proposition 209, which states that the state "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race . . . . "³⁰ The Court embraced the Individual Dignity Clause with such zeal and enthusiasm that it literally "loved" affirmative action options in Louisiana, and part of its equality doctrine, "to death."

First, the Louisiana Court looked to the meaning of the word "discriminate," finding that it was "clear and unambiguous and must be applied as written."³¹ This textual and "plain meaning" approach to state constitutional interpretation has been one of the hallmarks of the New Judicial Federalism.³² The court equated the word "discriminate" with the word "classify," and concluded that under circumstances where "a constitutional provision is clear and unambiguous, and its application does not lead to absurd consequences, it must be applied as written without further interpretation in search of its intent."³³ As John Devlin has pointed out, however, the word "discriminate" is, under these circumstances, ambiguous.³⁴ In another context, he made the important point that "'clear and unambiguous' constitutional language usually exists only in the eye of the beholder."³⁵ Learned Hand put it bluntly:

There is no more likely way to misapprehend the meaning of language-be it in a constitution, a statute, a will or a contract-than to read the words literally, forgetting the object which the document as a whole is meant to secure. Nor is a court ever less likely to do its duty than when, with an obsequious show of submission, it...