Washington Law Review


Luke A. Boso


In Obergefell v. Hodges, the Supreme Court held that same-sex marriage bans violate the Equal Protection Clause for two primary reasons. First, they subordinate; they send the message that lesbians and gays are inferior to heterosexuals. Second, they unequally deny lesbian and gay individuals the liberty to make fundamental decisions about identity and self. These two conjoined themes—anti-group subordination and pro-individual liberty—comprise the two pillars of “equal dignity” that anchor Obergefell’s holding. This Article proposes that these pillars also support the Court’s anti-stereotyping jurisprudence, and equal dignity is thus one important aspect of what the Equal Protection Clause protects. To illustrate: in sex discrimination cases, courts reject state stereotyping when it perpetuates ideas about men’s and women’s roles and reinforces women’s inferior social status; in transgender and sexual orientation discrimination cases, courts have begun to protect LGBTQ individuals from state demands for conformity to normative stereotypes about how to be a man or woman. Protecting individuals’ equal dignity can sometimes become complicated when the reasons for addressing a group’s purported needs elide individual concerns and attachments. For example, the government sometimes relies on normative and statistical information about groups to combat group-associated health and poverty risks, to remedy individual disparate treatment, and to prevent wholesale group exclusion from opportunities and civic duties. Addressing these group-based needs, however, may effectively perpetuate stereotypes about what group membership means. Individual group members may object to the identitarian implications of the government’s help. Not all stereotyping both subordinates a group and denies individuals the liberty to be and express who they are. Accordingly, stereotyping is not wrong in and of itself; how the government uses stereotypes should determine whether state action violates the Equal Protection Clause. Counterintuitively, stereotyping can sometimes promote rather than deny equal dignity. While any state reliance on stereotypes risks essentializing identity, an absolute stereotyping prohibition exacerbates certain forms of race, sex, and sexual orientation blindness. Groups are important, and the government requires some flexibility to address group-based needs.

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