Equal Protection

Administering the Constitution in 2020

Crosspost from Balkinization

In February of this year, Stephen Reinhardt became the first federal judge to rule that section 7 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7 (2009), violates the Fifth Amendment’s equal protection provisions. Section 7 defines marriage for purposes of interpreting federal laws, regulations, rules, or agency interpretations to include only heterosexual unions. Judge Reinhardt issued his ruling after a federal public defender, Brad Levenson, argued that his employer violated Levenson’s constitutional rights when it determined that, because of DOMA’s definition of marriage, Levenson could not add his husband to his federal employee benefits. Remarkably, Reinhardt made this path-breaking ruling not on behalf of the United States Court of Appeals for the Ninth Circuit, but as the chairman of the Ninth Circuit’s Standing Committee on Federal Public Defenders. In other words, Reinhardt was acting as an administrator, not as a judge.

Since the inception of the Constitution in 2020 project, there has been spirited debate about whether courts or legislatures, national or subnational constitutions, and national or transnational adjudicative bodies are best suited to deliver progressive constitutional goals by the year 2020. I’d like to turn the conversation to an institution that has been largely absent from the Constitution in 2020 debates: administrative agencies.

Judge Reinhardt was not the first federal administrator to adopt a more progressive understanding of equal protection than most federal judges. During the 1960s and 1970s, administrators in a range of agencies advocated for, and adopted policies based on, a broader conception of state action and a more affirmative understanding of the government’s equal protection obligations than was found in the judicial opinions of the day.

For instance, in the 1960s and 1970s, administrators adopted the view that equal protection obligated agencies such as the Federal Communications Commission (FCC) to require that the businesses they regulated ensure equal employment. Even more surprising, administrators deemed regulated businesses—otherwise private companies—state actors with an independent obligation to ensure equal employment. The FCC ultimately adopted equal employment rules to this effect. Decades later, despite drastic changes in the Supreme Court’s equal protection doctrine and lengthy Republican control of the White House, even after the D.C. Circuit Court of Appeals struck the FCC’s equal employment rules down as a violation, rather than a vindication, of the Fifth Amendment’s equal protection provisions, the FCC still described its rules as implementing equal protection.

The Constitution’s life in administrative agencies has largely escaped the notice of constitutional scholars, political scientists, and historians of the United States. But progressives should consider administrators’ role in shaping the Constitution in 2020, because administration may be an underappreciated means of both achieving a progressive Constitution in 2020, and of preserving it in the decades that follow. Indeed, in the area of LGBT rights, interesting parallels with the equal employment rulemaking of the past are already emerging.

Initially, presidential policy inspired administrators to push for equal employment rules, but they nurtured their constitutional argument for these rules outside public view. Administrators first gestated the idea that equal protection mandated equal employment by regulated industries in the early 1960s. The inception of this constitutional policy followed in the footsteps of President Kennedy’s broader effort to use executive action to ensure non-discrimination in hiring by federal agencies and government contractors, an effort that was made at a time when legislative action seemed extremely unlikely. During this time, the constitutional argument for equal employment rules was the subject of internal memoranda, not public statement.

Over the 1960s, presidents, their priorities, and their parties changed, but the view that equal employment rules would implement equal protection persisted, even thrived, within administration. Indeed, when the FCC adopted equal employment rules in the late 1960s, it did so despite, rather than because of, President Nixon. The FCC also maintained its equal employment rules through the Reagan years, and defended them under George W. Bush. The administered Constitution, it appears, can not only instantiate particular constitutional understandings, but also preserve them.

This history suggests that administration offers opportunities for achieving a progressive Constitution in 2020, and for preserving it thereafter. In fact, there are already interesting parallels between LGBT rights today and the equal employment rulemaking of yesterday. As in the early 1960s, progressives are using administration—either by working from within, or advocating from without, to achieve progressive constitutional goals, most notably the equal treatment of same-sex couples. Brad Levenson’s grievance, which led to Judge Reinhardt’s DOMA decision, is one such example.

But there are also signs that equal protection concerns are influencing—or are ripe for introduction to—a range of administrative agencies. For instance, the Commerce and State Departments have both recently announced policies giving more equal treatment to same-sex couples. Meanwhile, the Office of Personnel Management (OPM) has vocally supported extending full benefits to the same-sex partners of federal employees.

So far, as occurred during the early stages of equal employment rulemaking, these policy changes are closely tied to the White House. In addition, these changes have not been publicly justified in constitutional terms. The history of equal employment rules, however, suggests that administrators’ commitment to equal treatment for same-sex couples, like their earlier commitment to equal employment opportunity, may yet ripen into constitutionally based policies.

Brad Levenson and Judge Reinhardt are not alone in pursuing equal treatment through administrative action. The history of equal employment rules suggests that such actions can lead to significant and durable policies implementing the Constitution, including in ways that diverge from or even conflict with court constitutionalism. The life of the Constitution in administrative agencies merits the attention of constitutional theorists and should be part of the Constitution in 2020 conversation.


Sophia Lee is Assistant Professor of law at University of Pennsylvania Law School. She will be appearing on Saturday's "Constitutional Theory" panel with Jamal Greene (Columbia Law School, "How Constitutional Theory Matters"), Richard Primus (University of Michigan Law School, "The Necessity and Peril of Ethical History"), and David Law (Washington University School of Law, "The Failure, and Future, of Constitutional Theory").

Point-Counterpoint: Progressive Approaches to Achieving Marriage Equality? (Part 2)

Continuing last week's Point-Counterpoint, begun by Daniel Winik...
Counterpoint: Jeremy Kessler
I thank Daniel for getting the conversation rolling with several pragmatic reasons for why we should fight for same-sex marriage in the legislatures rather than the courts. Although I'm sympathetic to many of Daniel's points, I'm not convinced by his argument as a whole. Even if one were to argue for a "mixed" legislative-judicial strategy, it's hard to underestimate the importance of the courts to the overall marriage equality project or to the progressive project more generally.

Daniel raises the specter of Roe in arguing that "constitutional progress is most effective and most lasting when it derives from popular consensus." It's true that bold judicial decisions risk solidifying resistance to constitutional causes. But for every Roe there may be a Brown v. Board of Education. Brown (347 U.S. 483, full text) caused a major backlash in the South and even liberal intellectuals assailed it for its supposedly shoddy reasoning. But today it's one of the pillars of our constitutional order. Judge-made law often meets popular resistance, but this resistance may itself prove an important catalyst for positive democratic change. Why? Adjudicative action can raise awareness of the issue, help citizens think through what their position really is, and so, ultimately, bring pressure to bear on local political actors. The language of rights is all-American and the courts are high-profile communities where that language can be spoken and broadcast to the general public.

The conversation-changing potential of adjudication isn't restricted to the federal courts. Just as "the process of legislative change, state by state" can affect the evolution of public attitudes toward marriage equality, the process of judicial change on the issue at the state level may also positively inform public attitudes. We are a law-abiding people. If state courts believe that marriage equality is the immanent law of their land, other states' courts and citizenries should know about this belief. The more marriage equality is the law the better, especially if you are by disposition an incrementalist. Gradually, the weather will change, and the right to marriage will become the daily forecast. Both court and legislative action can contribute to this atmospheric shift.

Beyond strategy, there's at least one other compelling reason for pursuing marriage equality in the courts. It relates to Robin West's argument for the legislative articulation of constitutional law. West argues that the Supreme Court's ongoing failure to treat the Equal Protection clause as a guarantee of positive action to eradicate inequality (as opposed to a negative check on legislative discrimination) is inherent in the nature of jurisprudence itself. From West's standpoint, judges are inclined to think equal protection demands, and can provide no more than, formally equal treatment of the subjects of legislation because such formally equal treatment is what judges themselves are expected to provide. Unlike judges, however, legislators are neither expected to mete out blind justice, nor to respect the value of continuity with precedent that drives judicial reluctance to license new rights. When judges demand that legislators act like judges, making no distinctions between aggrieved groups and rarely breaking with the status quo, they do violence to democratic governance.

West takes this sorry state of affairs to mean that we should concentrate our energies on developing a "legisprudence" of how legislatures can best articulate constitutional doctrine. But this cure doesn't necessarily treat the sickness West diagnoses. However progressive legislative action might be, regressively formalistic courts can still act as a stumbling block. It is therefore dangerous for progressives to accept such obstructionist courts as the natural order. We know that courts have, at times, engaged in declarations of positive rights and prescribed the proper remedies for their violation. Post-Brown desegregation cases like Green v. County School Board of New Kent County (391 U.S. 430, full text) and Swann v. Charlotte-Mecklenburg Board of Education (402 U.S. 1, full text) demanded that local governments take substantial, positive steps in order to achieve the true promise of equal protection. Brown's own notion of inherent inequality suggests that courts can create doctrine that demands legislatures go beyond their contemporary understanding of formal equality. This legacy of the details-oriented affirmation of positive rights is a noble one.

The development of a jurisprudence of positive rights should not be abandoned because of contemporary resistance to this jurisprudence. Judges should say what the law is. If progressives think the law demands a positive interpretation of equal protection -- in the case of gay marriage, the entitlement of legal marriage for all -- then they should try to persuade judges, and the larger community, of this legal fact. Exiting the courts because they tend to enforce readings of equal protection that allow actual discrimination can only perpetuate an undesirable, and incorrect, jurisprudence. Taking the fight to the courts serves not just the cause of same-sex marriage but the broader progressive agenda.

Point-Counterpoint: Progressive Approaches to Achieving Marriage Equality?

Over the next few days, Daniel Winik and Jeremy Kessler will use this space to delve into one of the most pressing debates within contemporary constitutionalism: whether progressive advocates for marriage equality should focus their energies on legislatures or the courts. Consider it a lawyerly debate, with each writer arguing wholeheartedly for the merits of his client — Dan for an “incremental,” legislatively-focused strategy, Jeremy for a court-centered approach — rather than either trying to give a completely “rounded” view on his own. Like many questions, the answer probably rests somewhere in the balance.

Point: Daniel Winik

I’ll open with an argument for incrementalism, an argument shaped in large part by several pieces from The Constitution in 2020, especially Judith Resnik’s discussion of progressive federalism (Chapter 24, PDF) and Robin West’s analysis of “legisprudence” (Chapter 8, PDF). As the essays by Resnik and West suggest, any effective progressive agenda will have to move beyond single-minded reliance on the federal courts as guarantors of rights. This is particularly true, as I see it, for marriage equality: progressives should continue to favor a state-by-state approach to achieving marriage equality, and where possible, they should make their case in the legislatures rather than the courts. Both of these elements — federalism and legislation — are central to an incremental approach. (For similar thinking, see Aaron Zelinsky’s insightful posts here and here.)

Without a doubt, incrementalism makes concessions to the federal bench’s conservative tilt and to the ongoing debate — even among progressives — as to whether the Federal Constitution encompasses marriage equality. That said, my argument is not mainly a tactical one. Even if the Supreme Court were to uphold an Equal Protection challenge, that outcome might not be best for progressives in the long run. Let me suggest three reasons why.

First, constitutional progress is most effective and most lasting when it arises from popular consensus. Jack Balkin and Sandy Levinson have argued that the Supreme Court’s constitutional innovations tend to track the mainstream of political thought, insofar as constitutional change occurs through “partisan entrenchment.” On the rare occasions when the Court has deviated from mainstream trends — Roe v. Wade, 410 U.S. 113 (1973), being the prime example — its pronouncements have been slower to gain acceptance. Justice Ginsburg, among the pioneers of litigation for women’s rights, has herself suggested that the Roe Court “bit off more than it could chew,” upsetting a legislative “state of flux.” Had Roe come five or ten years later, after legislative progress had been made, the controversy surrounding it would likely not have endured for decades.

If present trends hold, advocates of marriage equality won’t have to wait long for their popular consensus. Statistical guru Nate Silver’s models suggest that “by 2012, almost half of the 50 states [will have] voted against a marriage ban,” and “[b]y 2016, only a handful of states in the Deep South would vote to ban gay marriage.” The recent wave of legislative progress toward marriage equality hasn’t sparked anything close to the backlash that followed Goodridge v. Dept. of Public Health, 798 N.E.2d 941, the 2003 decision that legalized same-sex marriage in Massachusetts. In fact, the most recent adoptions of marriage equality statutes have seemed almost routine.

Hence a second reason to favor a state-by-state approach: it provides models to counter public fear-mongering. In other words, federalism isn’t just useful to progressives as a vehicle for legal experimentation; it’s also a sound vehicle for social experimentation. To the extent that Massachusetts, Connecticut, Iowa, New Hampshire, Maine, and Vermont survive their transitions to marriage equality with their social fabric intact (and we’re not seeing any reason to ring the alarm), it will become increasingly difficult for trumped-up fears of moral collapse to deter further progress.

A third reason to favor an incremental approach is that the political process of legislating change, state by state, is itself a catalyst for the evolution of public attitudes toward marriage equality. In West’s model of the legislated constitution, the “conscientious, idealized legislator” looks to the Equal Protection Clause as a dictate “to do her moral, political, and constitutional duty by the citizenry.” That process of defining equality, and understanding its mandate, is central to a robust democracy. As Resnik argues, “Jurisdictions do not make rights, but people do . . . . [and] only when many actors, at national and local levels, in and outside formal legal structures, fully embrace propositions like racial and gender equality do such understandings become constitutive . . . .” Incrementalism, then, represents a democratic embrace of the constitutional mandate for equality—not a retreat from it.

A New Use for Federalism? The Benefits and Constitutionality of Randomness in Federal Policymaking

Determining whether progressives should pursue change through the legislatures or the courts depends on our understanding both of what each of these institutions should do and of what these institutions are capable of doing... and they might be more versatile than we've come to assume. As Adam Chandler explains, social science methods point to some interesting uses Congress could make of federalism.


Where laws and regulations differ across state borders, researchers are provided with natural tests of the impacts of those policies. For instance, folks with statistical training can use geographical panel data techniques to discover the effect of a law that is enacted in multiples states at staggered times. Such studies have been done on the deterrent impact of capital punishment and the impact of right-to-carry laws on crime rates to give just two examples. These analyses, however, are necessarily retrospective and constrained by inference techniques. Extensive and careful effort must be used to control for, among other variables, the underlying reasons some states enacted the laws and others did not. More often than not, the resulting answer is that there is not enough evidence to draw a conclusion.

Consider, in contrast, a federal law designed to apply only to randomly selected states (or congressional districts, etc.). Controlled randomized experiments are often described as a “gold standard” in social science research. Adapted from clinical trials, they attempt to isolate the effects of some intervention — say, a new sex ed program — from the environment’s chaotic soup of natural influences and trends. That’s done by comparing a randomly constituted “experimental” group’s experience under the intervention to the natural, everyday changes that a second randomly constituted group experiences when left alone (this second group is the “control” group). These comparisons can help us measure the causal link between a policy and an outcome. And where do the groups come from? I suggest we randomly assign geographical regions, like states, into one or the other.

Perhaps the law could grant twenty random states the funding for a new sexual education curriculum. Then some years later, we could determine the new curriculum’s impact on teen pregnancy rates by comparing the twenty “experimental” states’ teen pregnancy rates to the rates in the thirty “control” states. In this way, such a law could provide one of the first nationwide experimental tests of a policy’s effectiveness. That is, perhaps our country’s federalist structure could allow us to use the states as policy laboratories. Could this be a new use for federalism?

It’s rarely the case that government policies are purposefully applied to some people and not others for the sake of comparison. Even more rarely are policies randomly applied to some and not others, but there are a few impressive examples. In the fall of 1994, the Department of Housing and Urban Development began an experimental housing mobility program in five urban centers based explicitly on random assignment. Families were randomly selected to receive assistance in moving to wealthier neighborhoods. As a result of the randomization, and to the surprise of many, this “Move to Opportunity” program was convincingly deemed to be much less successful than had been previously argued. The National Job Corps Study in 1993 convinced a skeptical Department of Labor that the Job Corps, a training program for disadvantaged 16- to 24-year-olds, is effective for increasing earnings, increasing educational attainment, and decreasing criminality. The random assignment at the core of the study essentially saved the Job Corps from elimination. More recently, the “No Child Left Behind” Act called for the use of “scientifically based research” as the basis for many education programs, indicating at least some appetite for randomization in a recent Congress, if only implicitly.

Inevitably in a geographically-randomized scheme like this, there are concerns about state sovereignty to consider. Of course, the federal government regularly discriminates among the states in funding and regulation, but it rarely does so randomly. In the criminal sentencing arena, there could be Eighth Amendment arguments about “unusual punishments” if people committing identical crimes are subjected to different sentencing guidelines because of their state of residence. And indeed, the U.S. Supreme Court’s primary basis for selecting its cases is to smooth out differential interpretations of federal law among Circuits.

There are also potential Equal Protection complaints about such a randomization scheme. Because geography does not constitute a subject class and as long as no fundamental rights are implicated, such “randomization of application” laws would probably only have to pass the “rational basis” bar. But does the randomization built into the laws make them by definition "arbitrary" or "capricious," undermining their rationality? Or alternatively, when would the laws be rationally related to a legitimate government purpose? Is determining the effectiveness of a certain policy or program, like a new sex ed curriculum, “legitimate”? Such an inquiry has the potential to put courts in a role analogous to research funding bodies, answering the question: Does the potential result of this trial intervention justify its cost in arbitrariness and unfairness (for courts) or in dollars (for funders)?

Setting aside constitutional and ethical objections for the moment, the value of such a nationwide randomized study is easy to see. Political candidates often campaign on the promise of eliminating programs that do not work and expanding those that do. If they truly seek to know which is which, more randomization in federal policymaking is a powerful solution.

What objections to this randomization scheme, constitutional or otherwise, can you see?  Drop a comment below. Or, if you email me at Adam.C2020@gmail.com, I might highlight them in a future post.

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