Rights of First Refusal
Vol. 137 No. 1
In 303 Creative LLC v. Elenis, the Court held that a Christian web designer who declined to make wedding sites for same-sex couples could...
Author
Kenji Yoshino
A New Birth of Freedom?: Obergefell v. Hodges
Vol. 129 No. 1
The decision in Obergefell v. Hodges achieved canonical status even as Justice Kennedy read the result from the bench. A bare majority held that...
The New Equal Protection
Vol. 124 No. 3
Over the past decades, the Court has systematically denied constitutional
protection to new groups, curtailed it for already covered groups, and limited Congress’s capacity to protect groups through civil rights legislation. The Court has repeatedly justified these limitations by adverting to pluralism anxiety. These cases signal the end of equality doctrine as we have known it.
The end of traditional equality jurisprudence, however, should not be conflated with the end of protection for subordinated groups. The Court’s commitment to civil rights has not been pressed out, but rather over to collateral doctrines. Most notably, the Court has moved away from groupbased equality claims under the guarantees of the Fifth and Fourteenth Amendments to individual liberty claims under the due process guarantees of the Fifth and Fourteenth Amendments. This move reflects what academic commentary has long apprehended – that constitutional equality and liberty claims are often intertwined. I refer to such hybrid equality/liberty claims as “dignity” claims. Based on whether the liberty or the equality dimension of the hybrid claim is ascendant, I call it the “libertybased” or “equality-based” dignity claim.