Marc R Poirier Marc.Poirier at
Fri Sep 3 14:10:51 PDT 2010

Oh there's so much more to say about the birth / choice dichotomy.   Much of our antidiscrimination jurisprudence has deep roots in the notion that race is fixed by birth, and I'm talking not just slavery and national original but also to some extent religion too (what's the case from the 1980s on Jewish as race for purposes of the Fourteenth Amendment?).  You're right, if we look at characteristics that by some accounts are easily determined by bodily characteristics (race, sex, certain disabilities) then we get clear boundaries.  It all seem so *objective*.

Not.  As troubling as it is to the liberal conception of the human being, the assumption that the protected categories are imposed by birth masks an ongoing construction of individual identity and what it means and its  practical consequences.  A huge raft of RaceCrit literature and related FemCrit literature and QueerCrit literature points out that these identity categories are constantly (re)produced and maintained - culturally transmitted, if you prefer a somewhat less loaded vocabulary choice -- in terms of what the significant categories are, who gets what classification, and what the consequences of these classifications are.  Moreover this process is by no means one that is fostered solely by the state; it is diffuse and occurs via various actors throughout any society.  In a capitalist system private enterprises inevitable will be tempted to sort people by criteria that they will unreflectively view as natural and clear with an eye to the market effects of their treatments of these visibly different and sometime stigmatized categories, behaviors, and appearances.  In specific contexts the performances of these identities categories do have consequences for those associated with them.

But what is someone concerned with fairness / equality / antisubordination to do about all this?  Can it be the case that *all* individuals' specific choices around appearance and behavior, if deeply felt, deserve constitutional or statutory protection?  Surely not. As a number of posts have in effect pointed out, though not in this precise language, we human beings share all kinds of resources and places where our identities are worked out - including workplaces owned by others -- and oftentimes one person's choice has offensive or even  harmful effects on others.  We can't all be free (in that sense, anyway) in all respects in which we might deeply desire to be - we are just packed in together too close, too interconnected, for that.

Some of the recent appearance/employment discrimination literature suggests a distinction that is conceptually appealing to me - appearance that is related to traditionally subordinated and deeply felt identity categories should receive protection in the workplace.  See e.g. work by Tristin Green and by Gowri Ramachandran, and I'm sure I've left out many who make this argument.  But then we get straightaway into tricky definitional arguments, both as to which categories and as to the details of which appearance and behavior choices get protected in specific conflicts.

As to religiously-motivated behavior and appearance, some folks claim that religiously-motivated appearance and acts should always be protected.  The position is understandable, given how deeply religion-based subordination and exclusion can beget deep and long-lasting societal strife as well as individual injury.  But I'm not sure the process of determining the large categorical distinctions and fact-specific determinations re religious appearance and behavior  is any less fraught with pitfalls when dealing with religion as opposed to race, sex, or sexual orientation. (See my post of an hour ago asking how vigorously courts actually police the Title VII accommodation requirement.)  Sometimes religion loses, and I think sometimes it should.  When?  Why?

I look forward to reading more on all this.

Marc R. Poirier
Professor of Law and Martha Traylor Research Scholar
Seton  Hall University School of Law
One Newark Center
Newark, NJ 07102
973-642-8478 (work)
201-259-0896 (cell)
973-642-8546 (fax)
Selected articles and drafts available at

Somebody has to plant the seed so that sanity can happen on this earth. -- Chogyam Trungpa, Rinpoche

From: conlawprof-bounces at [mailto:conlawprof-bounces at] On Behalf Of Steven Jamar
Sent: Friday, September 03, 2010 4:31 PM
Subject: Re: Choice

I think choice matters, but is not determinative.  Religion is a choice -- from a volitional, thought perspective from the outside, though not necessarily from the internal experience of the believer.  Some actors I know (and other artists) do it because they have no choice -- it is what they had to do.  But that is hyperbole in all or nearly all cases, howsoever psychologically true it may be.

But it is much easier to focus on birth characteristics -- accidents of birth such as race, nation, wealth -- as things that should not be counted.  Of course religion is mostly determined by parents and location, as are many other values.

Nature, nurture, free will -- none can be fully determinative nor excusing, but I think it wrong to discount nurture and free will as things that matter in deciding what gets protection and what does not.


On Sep 3, 2010, at 4:10 PM, John Bickers wrote:

Prof. Laycock has introduced an interesting twist into the discussion, and I wonder what people think about this matter.

When we discuss layers of scrutiny, my students are always drawn to a choice-birth dichotomy, as if choices are unworthy of protection but accidents of birth merit it.  I point out to them that the Court doesn't see it this way.  There are things that are up to an individual (I use religion, but Prof. Laycock has me wondering if I am right) which get strict scrutiny protection.  There are also things beyond one's control that only get rational basis scrutiny.  Age, for example--I would very much like the knees of my youth back, but I don't seem able to choose my age.

Of course, the entry point to this discussion--which I never start--is always sexual orientation.  I try to persuade my students that the birth-choice question is irrelevant for equal protection analysis.  Does anyone else have a similar experience?  Am I off base in thinking that, when it comes to deciding what scrutiny goes with what classifications, choice is a red herring?

John Bickers
Salmon P. Chase College of Law
Prof. Steven D. Jamar                     vox:  202-806-8017
Associate Director, Institute of Intellectual Property and Social Justice
Howard University School of Law           fax:  202-806-8567

"Our scientific power has outrun our spiritual power. We have guided missiles and misguided man."

- Martin Luther King Jr., "Strength to Love", 1963

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