Social Science and Equal Protection

By Mike Dorf

My latest Verdict column discusses the cert grant in the Michigan Proposal 2 case.  The Sixth Circuit invalidated Proposal 2--which imposes a state constitutional ban on govt affirmative action.  The Sixth Circuit relied on the authority of two SCOTUS cases: Hunter v. Erickson and Washington v. Seattle School Dist. No. 1.  Those cases held that even when some race-related law or program is not constitutionally required, a change in state law that makes it more difficult for racial minorities to obtain such a race-related law or program is unconstitutional.  I explain why I think the SCOTUS is likely both to reverse the Sixth Circuit and to narrow or even overrule the Hunter/Seattle principle.  In the course of doing so, I call attention to a number of related issues in cases currently pending before the Court--including last week's SSM oral arguments.

In this post, I want to draw a different connection between race-based civil rights cases and the SSM oral arguments.  During the Prop 8 case, several Justices and Charles Cooper, the attorney for the sponsors of Prop 8, suggested that the Supreme Court at least ought to wait before finding a right to SSM because we don't yet have sufficient data to evaluate its effects.  Justice Scalia concentrated this concern on adoption of children by same-sex couples but Cooper and other Justices suggested that the concern applies more broadly.

The idea that the Court ought to wait for the judgment of social science is at least a little curious coming from the conservatives.  Recall that in Brown v. Board of Education, the Court partly based its ruling on the conclusion that racial segregation stigmatizes African American schoolchildren, which in turn undermines their education.  That further conclusion was based on studies--cited in footnote 11 of the Court's opinion--that sought to measure the harmful effect of segregation.  The first authority cited was a study by Kenneth Clark involving self-images of African American children, as indicated through dolls.

There is an enormous literature on Brown's footnote 11, much of it critical.  The gist of the criticism was summed up nicely in a 2005 Cornell Law Review article by my colleague Michael Heise.  It consists of a technical critique that Clark's work was shoddy and a normative critique that says that the outcome in Brown should not have turned on such data.

The critique has not been confined to the academy.  In his passionate concurrence in (the 1995 version of) Missouri v. Jenkins, Justice Thomas first cited the technical critique (in his footnote 2) but then went on to argue that social science is simply irrelevant to applying equal protection analysis.  He wrote:
Segregation was not unconstitutional because it might have caused psychological feelings of inferiority. Public school systems that separated blacks and provided them with superior educational resources—making blacks “feel” superior to whites sent to lesser schools—would violate the Fourteenth Amendment, whether or not the white students felt stigmatized, just as do school systems in which the positions of the races are reversed. Psychological injury or benefit is irrelevant to the question whether state actors have engaged in intentional discrimination—the critical inquiry for ascertaining violations of the Equal Protection Clause. The judiciary is fully competent to make independent determinations concerning the existence of state action without the unnecessary and misleading assistance of the social sciences.

It is possible to read that language as saying only what the last sentence literally says--that social science evidence is irrelevant to determining "the existence of state action."  However, the issue in Brown was not whether there was state action; of course there was.  Taken in context, Justice Thomas appears to be saying that the impact of intentional discrimination--as measured by social science or by any other means--is simply not relevant to whether there is an equal protection violation.  The question is whether such discrimination exists.  And that is indeed the point that is made overwhelmingly by those who offer the normative critique of the Brown Court's purported use of the Clark study.

But if that's true for race, why isn't it true for sexual orientation as well?  To be sure, there are apparently empirical questions that go into the determination of what level of scrutiny applies to laws that discriminate based on sexual orientation.  Have LGBT Americans suffered a history of discrimination? Do they lack political power? Is sexual orientation an immutable trait? The Court's case law makes these inquiries relevant to the threshold level-of-scrutiny question and it's hard to see why social science (or history, which may be deemed a kind of social science for these purposes) would be irrelevant to them.

However, the question of whether SSM is good or bad for children or good or bad for society more broadly is exactly the sort of question that Justice Thomas and the other critics of Brown footnote 11 ought to consider irrelevant.  Will they?