Skrmetti and birth equality (Part IV)

Brothers in Law is a recurring series by brothers Akhil and Vikram Amar, with special emphasis on measuring what the Supreme Court says against what the Constitution itself says. For more content from Akhil and Vikram, please see Akhil’s free weekly podcast, “Amarica’s Constitution,” Vikram’s regular columns on Justia, and Akhil’s new book, Born Equal: Remaking America’s Constitution, 1840-1920.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

Constitutionally, all Americans born on American soil under the American flag are born equal. To vindicate this grand constitutional ideal, courts should view with skepticism any government policy that formally treats one person better or worse than another because the two were born differently – because, say, one was born Black and the other white; or because one was born an Italian American and the other an Anglo American; or because one was born a Jew and the other a Gentile; or because one was born the eldest child and the other the second child; or because one was born female and the other male; or because one was born to married or citizen parents and the other was born to unmarried or noncitizen parents. Yet governments routinely treat people differently because some were born on an earlier or later date than others. Is this justified? (Readers should recall that the majority in United States v. Skrmetti upheld the law at issue in the case by claiming it was an age-discrimination law and not a sex-discrimination law. In fact, as our second column established, it was both, as a matter of elementary logic.)

In our last column, we explored one set of answers to the interesting issue of age discrimination. The written Constitution itself, we noted, features several formal age classifications for voting and officeholding. And we further explained that some formal age discriminations might actually promote substantive birth equality. In today’s column, we offer a second set of answers to the age-discrimination puzzle, exploring the implicit theory of human nature and legislative fairness that seems to undergird the discrimination-law framework of both the Constitution itself and the Supreme Court’s case law.

In a nutshell, the theory builds on two premises. First, that human beings are to some extent self-centered, and tend to act so as to avoid being hurt. And second, that in general – there are always exceptional cases – certain attributes are essentially fixed at birth. For example, some people are born with darker skin than others. When we combine this second reality with the first premise regarding self-interest, we see that a fair-skinned person – let’s call her Blanche – can generally vote to disadvantage dark-skinned people without having to run a significant risk that the law will ever be applied to disadvantage her; Blanche is highly unlikely to ever become dusky.

We need not assume that Blanche is a bigot or a proud racist. But if she cares most of all about herself (as do most people), she might well favor (perhaps even only subconsciously) laws that formally give preference to light-skinned citizens – like her! (Likewise, she might well be less interested in opposing laws that disfavor dark-skinned people.) Similar stories could be told about those born with other birth characteristics that are unlikely to change – characteristics that are, in doctrinal jargon, “immutable” or nearly so. (Famous discrimination cases that highlight the idea of immutability include Obergefell v. Hodges and Regents of the University of California v. Bakke.)

But age operates somewhat differently. Age laws are of course formally based on birth insofar as they pivot on birthdates and birth-years. But whereas a young and light-skinned Blanche is unlikely to turn dark as time passes, she will indeed age. A law disadvantaging older folks will one day likely disadvantage her should she live long enough. Assuming she is self-interested and self-protective, in the way that most humans are, we need not worry as much about age discrimination (at least against older folks) as we do about race discrimination or sex discrimination. Put slightly differently, some age-discriminatory laws have a near-universality that many other kinds of birth-based laws lack. This, in essence, is what the Burger court said in the landmark 1976 case of Massachusetts Board of Retirement v. Murgia, upholding a Massachusetts law requiring police to retire at age 50.

This crude psychological model rests on broad assumptions about human nature that some might challenge. If most people are self-loathing rather than self-loving – or if they in fact love others (including their children and grandchildren) just as much as they love themselves, as admonished by the Gospels – then the model makes less sense. The same is true if most folks are so short-sighted that they cannot be trusted today to protect their own future interests and future selves.

The model also suggests, asymmetrically, that laws disadvantaging the young might differ crucially from laws disadvantaging the elderly. Perhaps some judicial skepticism might be warranted for laws that formally disfavor younger folk – especially those who cannot yet vote, or that heap special costs on a small sliver of younger voters who are vastly outnumbered by older voters. Perhaps we might rely on most voters’ memory and empathy. Older voters were once young and can remember what youth felt like. (And maybe they also have younger offspring.) But if humans are inherently self-centered, then older voters should not always be trusted. When oldsters (like the two of us, we hasten to add) impose burdens on the young, they do so knowing that they will never themselves be young (again) and thus they themselves will never suffer personally from such laws. (Vik has written about why these principles call into question, for example, laws that permit mail-in absentee voting, which increases turnout for older but not younger voters.)

The reality of human empathy should not be ignored altogether. Still, our Constitution and our caselaw do not blindly assume that husbands will always protect their wives; adult sons, their mothers; or adult brothers, their adult sisters. Nor should the court always assume that grown parents will always safeguard the interests of their minor children. At present, the court’s doctrine (crafted largely by oldsters, of course) may not quite do full justice to youngsters.

The crucial question of prejudice

On the other side of the emotional spectrum (and outside the specific context of age discrimination), the court’s case law should also be, and at its best in years past indeed has been, on the lookout for scapegoating, demonizing, and “Othering” of those born very different from ourselves. Jews were once widespread scapegoats and perhaps are again today in some situations. For most of American history, Blacks were the objects of reflexive derision and disrespect – the victims of deep and widespread “prejudice” in the crucial language of the most famous footnote in Supreme Court history, footnote 4 of the Carolene Products case in 1938.

Although Justice Amy Coney Barrett in the Skrmetti oral argument asked interesting questions about the existence of prejudice against transgender people over the course of American history, her view was myopic. She focused on whether there is a longstanding history of governmental, as distinct from purely private or broadly social, hostility against transgender people. But precisely because social prejudice against gender nonconformists has been so deep and widespread for most of our history, many transgender people in years past likely remained firmly closeted and thus gave the government fewer excuses and opportunities to formally discriminate against them. (This hiding has not operated as powerfully for various other kinds of birth characteristics that are more visible, such as skin color.) Plus, various modern medical technologies and therapies simply did not exist in days of yore, so we can’t know whether prejudiced majorities and officials back then would have smacked down such technologies and therapies. 

Instead of framing the matter as Barrett did – looking at whether there has been a long history of formal governmental discrimination against transgender people – we suggest that a better approach would be to ask questions such as these: Can transgender people today be thought of as the new Jews or the new Blacks? That is, are transgender people today the object of widespread revulsion, fear, derision, and hatred, much as Jews and Blacks once were? Are they akin to the alleged “witches” of Salem and the scapegoats of medieval times? (We cannot help recalling a famous sketch from Monty Python’s Holy Grail movie, in which peasants surround an unjustly demonized woman and shout “She’s a witch! She’s a witch! Burn her! Burn her!” One peasant then pipes up: “She turned me into a newt!” After others flash quizzical looks, the alleged former amphibian sheepishly says, “I got better.”)

In our next two installments on Skrmetti, we will try to identify the best arguments for why the birth-based laws at issue in that case might perhaps deserve to survive the sort of heightened scrutiny we think is warranted; and why, on the other hand, these birth-based laws might perhaps deserve to be invalidated under a properly applied birth-equality framework. Stay tuned.