The anti-humiliation principle and same-sex marriage.

• Author: Yoshino, Kenji
• Position: The Meaning of the Civil Rights Revolution

ESSAY CONTENTS INTRODUCTION I. THE ANTI-HUMILIATION PRINCIPLE II. THE SUPREME COURT'S EMBRACE OF THE ANTI-HUMILIATION PRINCIPLE III. PROPOSED WAYS OF ESTABLISHING THE ANTI-HUMILIATION PRINCIPLE A. Situation-Sense B. The Brandeis Brief IV. THE CIVIL RIGHTS TRIAL AND THE ANTI-HUMILIATION PRINCIPLE A. Individual Voices B. Expert Framing of Individual Testimony C. Adversarial Testing CONCLUSION INTRODUCTION

Bruce Ackerman's volume on the civil rights revolution casts the Second Reconstruction as centrally concerned with the "anti-humiliation principle." (1) He critiques that revolution for gradually replacing the anti-humiliation principle with more technocratic doctrinal formulations, such as the test for heightened scrutiny. He also outlines two avenues through which jurists might establish the presence of institutionalized humiliation--their "situation sense" and the Brandeis brief. In doing so, he provides an important alternative framework for looking at constitutional civil rights discourse today. Ackerman briefly observes that recent same-sex marriage jurisprudence represents a domain in which this alternative framework has found new life.

In this essay, I supplement Ackerman's analysis in two ways, rooting his analysis more firmly in the gay-rights jurisprudence and offering a different avenue through which institutionalized humiliation might be established. In Part I of this essay, I outline Ackerman's theory of the "anti-humiliation principle," summarizing his critique of how the civil rights movement drifted from the conceptual moorings erected by Brown v. Board of Education. In Part II, I elaborate on his view that recent gay-rights jurisprudence revives the anti-humiliation principle, and inquire whether this jurisprudence can be extended into other domains. In Part III, I take up Ackerman's proposed means of establishing the existence of institutionalized humiliation. In Part IV, I argue that the civil rights trial provides an additional resource by focusing on the celebrated trial in Perry v. Schwarzenegger. (2)

1. THE ANTI-HUMILIATION PRINCIPLE

   Perhaps the most compelling introduction to Ackerman's anti-humiliation principle can be found in his ringing defense of the opinion in Brown v. Board of Education. (3) Brown's holding needs no champion. Yet Ackerman notes "something very curious about Bronw's current status: None of the protagonists [in legal debates] takes Chief Justice Warren's opinion seriously." (4) In the spirit of doing so, Ackerman contends that "a single master-insight will suffice," namely, "the Court's emphasis on the distinctive wrongness of institutionalized humiliation." (5) Ackerman cites a famous passage from Brown to underscore his point: "Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group." (6) He observes that this emphasis on institutionalized humiliation constitutes the "lost logic" of Brown. (7)

   This logic was not the special province of the judiciary. One of the book's core insights is that the constitutional canon should expand beyond Supreme Court cases to encompass the political Zeitgeist. Ackerman produces evidence that key political actors--from legislative and popular realms--understood institutionalized humiliation as the distinctive wrong of racism. Ackerman quotes Senator Hubert Humphrey, the sponsor of the Civil Rights Act of 1964: "It is difficult for most of us to comprehend the monstrous humiliations and inconveniences that racial discrimination imposes on our Negro fellow citizens." (8) Similarly, Ackerman points to Rosa Parks's 1955 statement, which accompanied the act that catalyzed the Montgomery bus boycott: "it was the very last time that I would ever ride in humiliation of this kind." (9)

   What, exactly, is "institutionalized humiliation"? In answering that question, Ackerman begins with the more accessible concept of "personal humiliation," which he defines as "a face-to-face insult in which the victim acquiesces in the effort to impugn his standing as a minimally competent actor within a particular sphere of life." (10) He then observes that the institutionalization of such harm amplifies its effect. In the institutional context, face-to-face interaction may not be necessary, as signs like "No Negroes Allowed," or norms expressing the same sentiment, could achieve the same result. (11) Nevertheless, the other components remain necessary to his definition. The individual must accept, rather than defy, the affront; the affront must strike at the individual's minimal competence within a particular sphere of life; and the affront need not (although it may) apply across the board.

   Ackerman contends that the civil rights movement tragically swerved away from this anti-humiliation principle. He discusses Loving v. Virginia (12)--the canonical 1967 case in which the Supreme Court unanimously struck down bans on interracial marriage--as an emblematic misstep. (13) Ackerman concedes that Chief Justice Earl Warren's decision to avoid "excessive reliance on Brown" was politically understandable. (14) Because desegregation still divided the nation, Warren relied on the Court's earlier decisions upholding the detention of Japanese-Americans during World War II. (15) This move not only directed attention away from the civil rights revolution and back to World War II, but also replaced a moral principle with a more technocratic legal one concerned with "tiers of scrutiny."

   Ackerman argues that this move effaced the real harm of bans on interracial marriage. In his view, the lived injury of anti-miscegenation laws did not lie in the categorization itself. Rather, it resided in how "the marriage ban forced interracial couples to present their relationship to the larger community as if it were diseased, disreputable, criminal." (16) In his view, a "discussion of the countless humiliations of everyday life would have yielded a far more compelling vindication of Brown's concerns with real-world stigma...." (17)

   This reading usefully challenges entrenched conventional wisdom. Brown is often celebrated for its result, but derogated for its reasoning. Loving is lauded not only for its result, but also for establishing modern heightened scrutiny jurisprudence--not least by repurposing Korematsu's notion that racial categories were "inherently suspect." Ackerman praises Brown for capturing the anti-humiliation principle and criticizes Loving for deviating from it in favor of the less accusatory--but also less accurate--heightened scrutiny framework.

   Carrying that analysis into the present, Ackerman seems correct that in many contexts we have lost sight of the anti-humiliation principle in favor of a more technocratic doctrine that speaks of prongs, tiers, and classifications. In the context of race, Ackerman is surely right that we could not have the race-based jurisprudence we have today if the Court had adhered to the anti-humiliation principle. Our current Supreme Court seems increasingly intent on privileging the anti-classification principle (which holds that strict scrutiny is triggered whenever the government uses a racial classification) (18) over the anti-subordination principle (which holds that strict scrutiny is only appropriate when the government continues to disadvantage historically subordinated racial groups). (19) We can see the difference this makes in the affirmative action context, in which the anti-classification principle is plainly violated, but the anti-subordination principle is not. The University of Texas's affirmative action program certainly harms whites like Abigail Fisher. (20) Yet the program does not humiliate them, in Ackerman's sense of undermining their minimal competence in the sphere of education.

   At the same time, Ackerman correctly sees a potential revival of Brown's lost logic in the context of same-sex marriage. He focuses his attention on the Supreme Court's 2013 decision in United States v. Windsor, in which the Court struck down congressional legislation that defined marriage for all federal purposes as a union of one man and one woman. (21) Ackerman observes that Justice Anthony Kennedy's majority opinion in Windsor "treats Loving's concern with suspect legislative purposes as a secondary issue, emphasizing instead the evils of institutionalized humiliation in vindicating the claims of same-sex couples." (22) Ackerman lauds Windsor as a "breakthrough," because it invites "a new generation to restore the original understanding of Brown to its central place in the civil rights legacy." (23) Returning to this theme later in the book, Ackerman maintains : "In striking down the Defense of Marriage Act, United States v. Windsor decisively repudiated the Hirabayashi-Korematsu framework inherited from Loving, emphasizing instead a version of the antihumiliation principle inherited from Brown." (24) He quotes from Justice Kennedy's opinion about the humiliations imposed by DOMA on children being raised by same-sex couples, and writes, "This is a virtual paraphrase of Warren's denunciation of school segregation on the ground that it gives children 'a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.'" (25)

   While intriguing, Ackerman's analysis here bears elaboration. Without understanding the framework within which Windsor was decided, it is difficult to assess how much promise this single case holds. One could build a stronger case for the renaissance of the "anti-humiliation principle" by focusing on the concept of dignity in Windsor and beyond.

2. THE SUPREME COURT'S EMBRACE OF THE ANTI-HUMILIATION PRINCIPLE

   The closest the Supreme Court has come to embracing the anti-humiliation principle is through its use of...