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Excerpted From: Osamudia James, Superior Status: Relational Obstacles in the Law to Racial Justice and Lgbtq Equality, 63 Boston College Law Review 199 (January, 2022) (275 Footnotes) (Full Document)


In the fall of 2020, following one of the most polarized presidential elections in recent American history, noted journalist and academic Thomas Edsall named status as the key driver of “intractable conflicts between left and right, Democrats and Republicans, liberals and conservatives” in America. Situating status competition as a force behind Trumpism, the rise of identity politics among whites, and increasingly destabilized democracy, Edsall named a “[r]esentment [t]hat [n]ever [s]leeps” among the previously powerful, whose fading hegemonic power will dictate the future of American politics. Indeed, Edsall later named waning status as having animated the manifestation of that resentment in the form of attacks on the U.S. Capitol in January 2021.

Observers of American democracy name status as a problem for good reason. Social status is ultimately about how groups--and the individuals that compose them--are valued by society. Status changes, as a result of successful political or social movements for equality, are relational and perceived as zerosum. Based on social science research, we can expect that perceptions of diminished social status relative to minoritized or lower-status groups will prompt attempts among the privileged to reinstate their superordinate status.

Status competition, however, is not limited only to political conflict. Rather, that competition is also implicated in advancements in American law. More concerning yet, obstacles to status equality are embedded in American law, even in those landmark cases thought to be equality-promoting. The interaction of law and societal status remains undertheorized, in part because lawyers understand the phrase “status” as referring to individual characteristics with legal consequences, which is distinct from positionality in a social hierarchy. Moreover, status is distinct from animus or discrimination, the two behavioral modes through which legal fights regarding equality are often understood.

Law and long-term litigation strategies in pursuit of equality, however, can entrench social hierarchy positioning, buttressing status even as equality movements attempt to dismantle it. Landmark cases implicating equality fail to engage status in both doctrine and dicta; this omission not only undercuts the symbolic and substantive significance of equality “wins,” but also preserves doctrinal paths for the status-threatened to reinstate or reaffirm superordinate positioning. Legal scholarship regarding status has drawn useful contours in this area, acknowledging the role of status in legal fights, or arguing for norms of constitutional interpretation that dismantle unjust social hierarchies. This Article builds on that work, drawing distinctions between status and the other behavioral motivations for inequality typically recognized in law, and showing how inattention to status helped stall two “successful” equality movements.

Education and marriage serve as useful contexts within which to make this contribution. In assessing the movement for same-sex marriage, advocates, politicians, and journalists compared the fight for marriage equality to the mid-twentieth century movement for education equality, characterizing the former as a new front in civil rights--the “[n]ext Brown.” Despite key distinctions, the comparisons had some merit. Access to both quality education and to marriage, for example, serve as potent symbols of citizenship, social belonging, and status--a key reason activists and advocates focused on both. Moreover, discourse regarding same-sex marriage echoed themes about access to public goods that earlier defined American public education.

Both movements further resulted in legal victories that required people in the majority to fundamentally reassess and change their treatment of those in a minority group. And in the beginning, equality gains were ostensibly being made. After reaching a high-water mark of integration in the early 1970s, however, the rate of school segregation has steadily increased. This re-segregation has taken place long after Brown v. Board of Education's prohibition on de jure segregated schools, facilitated by a series of cases applying the Fourteenth Amendment's equal protection mandates, and is helped along by individuals that purport to be progressive on matters of racial equality. Indeed, in 2018 white parents in New York City stridently opposed school enrollment plans that would facilitate racial integration of the city's public schools; instead they advocated for devoting more resources for their children's racially isolated peers.

Retrenchment in same-sex marriage has arguably started even sooner. In 2015 (the same year that the Supreme Court struck down state bans on same-sex marriage) the Court of Appeals of Colorado heard challenges to the state's prohibitions against discrimination on the basis of sexual orientation in places of public accommodation. Although the Supreme Court ultimately resolved the issue in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission on free exercise grounds, the Court did not directly address the “liberty versus equality” challenge which threatens to undercut social gains for gay and lesbian couples.

Shaped by landmark equality rulings, school integration and marriage both serve as important case studies for better contextualizing “victories” in equality law, for understanding and predicting retrenchment, and for better appreciating the interplay of law and social status. Despite being cast as key signposts along the path to substantive equality, the movements for same-sex marriage and public-school integration reified status. This was in part because the doctrine and remedies which emerged from the movements failed to undercut the consensuality of beliefs that inform and stabilize status hierarchies and left available opportunities for retrenchment. Failing to appreciate the impact of status only increases the likelihood that courts, advocates, and policymakers will affirm, ignore, miss, or concede to status hierarchies, instead of dismantling them.

This Article proceeds in three parts. Part I describes the current state of public-school integration and marriage equality. Despite the advent of Brown and its progeny, scholars increasingly note that public schools are more segregated today than they were at the time of the Courts' germinal desegregation ruling. Included among the multiple factors that contribute to this phenomenon is the ongoing preservation of white schools, facilitated by white parental choices. Distinct from the explicit opposition to public school integration observed in the years after Brown, this pattern runs counter to the support white parents articulate regarding racial equality in public schools. Similarly, the gains of marriage equality are also stymied: after the triumph of Obergefell v. Hodges, subsequent suits involved denials of service to same-sex couples on the basis of religious beliefs. Described not as opposition to the equality of same-sex couples, but rather as expressions of faith, this clash of liberty and equality also threatens the stability of the Obergefell “win.” These qualifications to the initial proclamations of equality reflect status conflicts the law does not address and movement litigation insufficiently contemplates.

Part II describes how status functions in a manner distinct from animus or discrimination in the distribution of material resources, the two analytical frames through which equality bids are typically engaged, and to which equality jurisprudence is most responsive. Education and marriage are valuable social goods that deeply implicate status, working to affirm white supremacy in the case of the former, and (white) patriarchy in the latter. The rhetoric and doctrine developed in Brown and Obergefell to advance public-school integration and same-sex marriage failed to undercut the consensuality of status, thus further enshrining these regressive cultural commitments, and counterintuitively helping to constitute a “vocabulary” that operationalizes the grammar of status hierarchy.

Part III draws conclusions from the operation of status in education and marriage, theorizing what the impact of status on otherwise progressive wins in public-school integration and same-sex marriage mean for movement litigation and social policy going forward. Status hierarchies may be inevitable, but anticipating the influence of status may help ensure more stable equality wins going forward.

[. . .]

Sixty-five years after the Court's decision in Brown v. Board of Education, public schools today are more segregated than they were at the time of the Court's landmark ruling, with racial isolation in schools for Blacks, Latinos, and whites on the rise. This gradual return to racial segregation, even as racial attitudes are purportedly improving, is a steady winnowing away of the 1954 victory that enhanced the status of Blacks relative to whites. If the ever-weakening Brown legacy is any lesson, the victory of Obergefell v. Hodges might be similarly undone down the road.

Nor are status issues limited to marriage or education. Rather, status is central to any number of political and legal societal conflicts. Immigration debates embody the most fundamental version of status: who counts as belonging to a polity? And the public debates between cis-gendered and transgendered women remind us that status hierarchies exist along multiple axes of identity.

Ultimately, status may be an inevitable part of the human experience, but that should not preclude thinking with more specificity about how to acknowledge status in the fight for equality. More than a symbol of what is at stake, status itself is what is at stake, and those stakes quietly, but powerfully, shape the trajectory and import of reform attempts. Better theorizing the role of status in major equality movements can limit equality's drag, resulting in more robust and enduring equality wins.

Professor of Law, University of North Carolina School of Law.

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