lesl at UDEL.EDU
Sat Aug 19 18:28:18 PDT 2000
"Invidiousness" means hostility to the group in question. If a law
discriminates against a group out of a desire to hurt them, that law
violates both due process (the process of lawmaking that is due, i.e.
wielding state power to serve the public intereest, not to satisfy
personal animus) and equal protection.
"Volokh, Eugene" wrote:
> 1) JEB v. TB, a civil case, can't be understood, it seems to
> me, as justifiable under the 6th Am.
> 2) I'm still looking for the definition of "invidiousness", a
> necessary prerequisite to answering the original question, which was
> why shouldn't the E/P Clause be read as barring only invidious
> discrimination. But if the claim is that "in sex cases [the Court]
> do[es]n't look for invidiousness" -- and I take it implicitly also
> that it *shouldn't* look for invidiousness -- then I don't quite see
> why it should do so in race cases.
> -----Original Message-----
> From: Leslie Goldstein [SMTP:lesl at UDEL.EDU]
> Sent: Sunday, August 13, 2000 12:47 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: "Invidious" discrimination
> my reply is that in sex-based cases they don't look for
> invidiousness. The test is intermed. scrutiny but if the discrim
> is "substantially related" to compensating women for sex-based
> discrimination that they face in society then it is permitted.
> In other words, THEN it is eliminated from the category
> "invidious." I find this a sensible rule. In my view the draft
> case turned not on compensation as the "important govt interest"
> but rather the need to give deference to a co-equal govt branch
> (2 of them) in matters traditionally viewed as unsuitable to be
> governed by judges, viz. military policy. In the gender cases
> the Court seems to treat success at passing the test to be the
> proof of non-invidiousness. I think that could work for race as
> Barring women from juries, or exempting them, involved the
> fundamental right to a jury trial (6th am) and this then
> triggered strict (not intermed) scrutiny (Taylor v. LA). I have
> not looked at JEB lately but would guess that even if not
> explicit, this approach is lurking there somewhere.
> best wishes,
> "Volokh, Eugene" wrote:
> As U.S. v. Virginia makes clear, the "intermediate
> scrutiny" in sex discrimination cases has in fact become
> quite close to strict scrutiny. If Leslie is indeed
> suggesting that a similar test should be applied in race
> preference cases, then I'm not sure the result will be that
> different from the rule we have now. For instance, given
> that J.E.B. v. T.B. condemns classifications based on
> plausible assumptions about the sexes' likely ideas,
> outlooks, and experiences, it seems to me that applying the
> test faithfully to race preferences would at the least bar
> "diversity"-based race preference systems.
> What's more, it's hard to see the Court's sex
> classification cases as involving a search for
> "invidiousness," at least in the sense of motives that were
> not "benign or at least neutral." The differential drinking
> ages in Craig v. Boren were quite unlikely to have been
> motivated by malice or ill will; likewise, I would wager,
> for the sex-based peremptory strikes in J.E.B. v. T.B.; even
> the modest all-things-being-equal preference in Reed v. Reed
> was probably not motivated by malign considerations. It's
> true that the Court has accepted some "affirmative action"
> sex preferences, see, e.g., Kahn v. Shevin and Califano v.
> Webster, but these cases seem to me hard to describe as
> involving a true search for "invidiousness" across the
> board; rather, they just reflect an unusual coalition
> (pro-preference liberals and
> conservatives) that ended up applying a more relaxed rule
> for what some of the coalition saw as compensatory
> The principle behind the sex classification cases, I
> think -- and the reason that the intermediate scrutiny has
> gotten much closer to strict scrutiny -- is rather that
> treating people based on sex is wrong even if your motives
> are nice or perhaps even beneficent. The exceptions have
> been generally for classifications that are seen as linked
> to biological differences (such as in Parham et al.) and for
> classifications that are closely tied to military affairs,
> which are in practice probably motivated by a combination of
> very deeply seated history and I think implicitly a concern
> about sexual abuse of female prisoners. It seems to me more
> accurate to describe the sex classification cases as
> implementing a categorical rule against sex classifications,
> well- or ill-motivated, with a few narrow exceptions that
> are aimed to reflect either biological or deeply seated
> sociological (e.g., privacy, or the fact that women
> prisoners are more likely to be sexually abused than male
> ones, and cf. Dothard v. Rawlinson for a similar concern in
> the prison guard / BFOQ context), rather than a pervasive
> search for invidiousness.
> So that's my positive description of how so-called
> "intermediate scrutiny" in sex cases really plays out; but
> my challenge to Leslie is: Even if my characterization of
> these cases is wrong, what exactly is this "invidiousness"
> that the Court is supposedly looking for, and why is it
> present in Craig, J.E.B., etc.?
> Leslie Goldstein writes:
> Eugene of course is quite right about sex-based
> discrimination--Often, perhaps usually, it proceeded from
> motives that were benign or at least neutral. It is
> precisely for this reason that four justices in "Bakke"
> proposed using the intermediate scrutiny test for race-based
> affirmative action, the test developed for the situation of
> sex-based discriination where invidiousness cannot be safely
> assumed, but where there can be negative consequences (such
> as group-based assumptions of inferior capability that are
> fostered by the practice of easier standards). Eugene, what
> is wrong with this logic in your view?
> "Volokh, Eugene" wrote:
> And of course as to sex discrimination (which
> presumably is no more frowned on by the E/P Cl than is
> race discrimination), the "ill will or malice" test
> would strike down very few sex classifications. Most
> sex classifications in the law, while in my view often
> misguided, are hardly a result of ill will or malice.
> Naturally, one could theorize that the supporters of
> those discriminations that one dislikes are evil and
> were in fact motivated by ill will or malice
> (concluding, e.g., that legislation excluding women
> from being bartenders was really part of a broad
> misogynistic campaign by people who felt threatened by
> women and wanted to keep them down), and that
> supporters of those discriminations that one likes are
> good and were not motivated by ill will or malice
> (concluding, e.g., that even if one sets the threshold
> for ill will or malice very low, in order to block
> virtually all discriminations in favor of whites or
> male so long as there's any hint of possible hostility
> in their justification, preferences for nonwhites and
> women never flow even in part from any hostility or ill
> will towards white males). But if one does that, then
> again we're in an environment where "invidious" simply
> means "I don't like it."
> A similar issue, of course, arises with regard
> to Title VII. (I realize that Title VII need not be
> interpreted identically to the Equal Protection Clause,
> but it still provides a useful analogy.) It's hard for
> me to see the program struck down in L.A. DWP v.
> Manhart, 435 U.S. 7092 (1978), in which women had to
> contribute more to their pension plans because women
> live longer than men, as "invidious discrimination."
> It's likewise hard for me to see an Armenian prefering
> Armenians for his employees as "invidious." Once the
> law bans this, it has to be because discrimination is
> defined as something more than "invidious
> discrimination" or "discrimination motivated by
> ill-will or malice" or even "discrimination giving or
> likely to give offence or arouse ill feeling." Rather,
> the premise would be that, in Justice Stevens's words,
> "the simple test [for discrimination is] whether the
> evidence shows 'treatment of a person in a manner which
> but for that person's sex [or race or whatever] would
> be different.'" Id. at 711. Likewise, I think, for
> the Equal Protection Clause, unless we're willing to
> cut down the Clause's protections quite drastically.
> Leslie Goldstein writes:
> I , as it happens , favor affirmative action for
> minorities on policy grounds, and Eugene opposes them,
> but Eugene always
> refers to it as "race discrimination against" one or
> another group. I
> believe the 2 are distinguishable not only by
> benevolent motive vs. bad
> motive but also by practical impact--singling out a
> small group for
> mistreatment is different from singling them out for
> help with
> accidental slightly harmful consequences to the large
> unhelped group.
> This said, I wish to raise a question whther this
> general discussion is
> really still a constitutional law discussion?
> What is the evidence that the equal proteciton clause
> is best understood
> as a ban specifically on RACIAL discrimination, as
> distinguished form
> being a ban on INVIDIOUS racial discrimination or on
> some other
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the Conlawprof