//  6/16/20  //  Commentary

A few days after I started law school in 2008, my sectionmates and I had a welcome dinner with some of our professors. Our criminal law professor, the late, great Bill Stuntz, made a speech whose goal was to give us some food for thought for our law school tenure and beyond. Boy, did it. I think about that speech all the time—including yesterday, when I read the Supreme Court’s remarkable opinions in Bostock, which granted gay and transgender people full protection against discrimination in employment. Stuntz’s speech helps me understand what the decision means for gay rights in particular and for civil rights—especially racial equality—more broadly. 

 Professor Stuntz’s welcome speech hinged on an observation so obvious that it is all-too-easy never to think of it: some legal changes accomplish exactly what they are supposed to, while others don’t. Why the difference?

He gave us two contrasting examples. He first told us about laws that prohibit drunk driving. When Professor Stuntz was growing up, he said, drunk driving was common. But, in the 1980s, the law caught up to how dangerous the act was: states raised the drinking age, toughened enforcement, and increased penalties, and society was revolutionized. Drunk driving has not been eliminated, but it’s been drastically reduced in the last several decades. As importantly, no one today, in most parts of society, thinks drunk driving is acceptable. Across the United States, people caught driving drunk are shamed, ostracized, fired, or worse (with the caveat that, as with so many other things, those with power and status often get more leniency here than others). Piggy-backing on Stuntz’s framework, we might grade ourselves on how well we internalized this legal change, on how well we put words on paper into real-world change. In this area, I think a solid B+ or even an A- would be appropriate. Nice work, America.

Stuntz contrasted that story with the drug war. At roughly the same time American law got tough against driving drunk, it also got tough against using illegal drugs like cocaine, heroin, and marijuana. Penalties skyrocketed; enforcement multiplied; cultural messages to stay away from drugs proliferated. But nothing particularly good came of it. Illicit drug use remains high across many demographics, ages, and regions. Meanwhile, the drug war accelerated the mass incarceration of millions of Americans, disproportionately of people of color; led to the overpolicing of America; and caused billions and billions of dollars to be wasted on ineffective or counterproductive government programs. I’d give the drug war an F, maybe an F-. It could hardly be worse.

Why the difference? At the end of his speech, Professor Stuntz shrugged and gave a few thoughts, but he admitted he wasn’t really sure. “You should probably figure it out,” he told us. And then he sat down and finished his dinner. 

* * *

Here is how I read hot-off-the-press Supreme Court decisions: I first read the syllabus, which summarizes the majority opinion and tells you what the vote was. But then I skip over the majority opinion—I already know how it turned out!—and go straight to the dissents. How angry are the dissenters? Do they have any good points? 

The dissents in Bostock are remarkable for what they are not. Here is a major civil rights decision, decided by a 6-3 vote, that grants gay and transgender people full protection for discrimination in basically every American workplace. The majority’s reading of the law had not been endorsed by a single federal appellate court until 2017. So you would think the conservative dissenters might go nuts and lament the continued descent of society into liberal, individualistic oblivion. 

But they don’t, really. Sure, the three dissenters disagree with the majority’s legal reasoning. But even the dissenters appear to agree that, yeah, it’s actually a good thing that gay people can’t be fired for being gay. Justice Alito, joined by Justice Thomas, said the majority opinion stemmed from “humane and generous impulses” and recognized that “many Americans” want gay, lesbian, and transgender people to be “treated with the dignity, consideration, and fairness that everyone deserves.” Justice Kavanaugh went even further: he practically asked to be the Grand Marshall of the next pride parade (note to Justice Kavanaugh: I doubt anyone will ask). He recognized “the important victory achieved today by gay and lesbian Americans” who “have exhibited extraordinary vision, tenacity, and grit.” Justice Kavanaugh even said they should “take pride” in the result. So they will. So every American should. 

Contrast that with the dissent that Justice Scalia wrote only seventeen years ago, in Lawrence v. Texas, an early gay rights opinion that held that laws banning sodomy were unconstitutional. Scalia didn’t just quibble with the majority’s reasoning; he thought society was descending into madness. Scalia said that decision showed that the Supreme Court had “largely signed on to the so-called homosexual agenda,” which was the “agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” Scalia then casually noted that “many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home” because those Americans want to “protect[] themselves and their families from a lifestyle that they believe to be immoral and destructive.” And he thought the Supreme Court should let those Americans get on with their lives and continue to ostracize and criminalize gay people. 

Spoiler alert: he lost. But he didn’t just lose legally, under the letter of the law; he lost in every way possible. The Court’s opinions are a reflection of the fact that it’s orders of magnitude better to be gay now than it was in 2003 everywhere in America. Gay people can get married and now cannot be fired for being gay in any state. They also are largely free to live their lives openly without negative consequence. There are out singers and movie stars and executives. There are out teachers and coaches and federal judges. In most places in America, most of the time, gay people can have dinner together or go on vacation or show affection without being too worried about being beaten up or refused service. True, not everywhere; true, not for everyone, and being white or wealthy helps; true, it’s much harder for transgender people, who still face more overt discrimination in so many places. But: better now than ever, and getting better still. 

Thank you, law. You have made a positive difference in the way gay and transgender people actually live their lives. And you have done it with little downside or backlash or unintended consequence. In sum, the law has done with anti-gay discrimination what it has done with drunk driving: neither is legal, neither is cool, and neither is common. Grade: A. 

* * *

Today, it is impossible to think about civil rights for gay and transgender people, though, without thinking about civil rights for people of color. And here, the mismatch between the law and the lived experience is not so good. 

True enough, the law has a come a long way from “separate but equal.” As in gay rights, the courts and Congress have largely protected the idea of equality as a technical matter. There are protections from discrimination based on race in the workplace, in government, and in housing. The Voting Rights Act and the Constitution nominally protect the political process from being corrupted by racial discrimination, at least openly. Hate crimes are prohibited. It sounds almost embarrassing to say this, because it reminds me of how American history is so shameful, but Black Americans can legally vote, attend school, own homes, read, assemble together, and serve on juries, and there was a time when they could do none of these.

And yet the recent moment has made vivid what so many have always known: the lived experience for people of color is not the same as the experience they are supposed to have based on what the law says. Black Americans are guaranteed equality in voting while disgraceful gerrymandering, felon disenfranchisement, and voter suppression in predominantly black and brown areas persists. They are protected from discrimination in the workplace yet are woefully underrepresented in the corporate world, academia, law, medicine, and more. We are supposed to be a desegregated country, yet all recognize the national scandal that is the failure of public schools to educate students in areas where people of color make up a large percent of the student body. And, has become so clear lately, the equal protection of the laws exists on paper, but that guarantee rings largely hollow for Black Americans. They suffer from a combination of too much policing, in the form of brutal treatment by a harsh criminal justice system and militarized police forces, and too little, in the form of high crime rates in minority neighborhoods and clearance rates for crimes against Black Americans that are disgustingly low. 

In sum, the story of civil rights for people of color in the last several decades is the story of the drug war, not of drunk driving. It is a story of failed promises and of paper victories, not real progress for real people. The law on paper says one thing, but that doesn’t change the way people live their lives. If you looked around many parts of privileged America, would you even know that marijuana was illegal under federal law? Probably not. Now look around our prisons and jails, where 33% of prisoners are black and 23% are Hispanic. Would you know that racial discrimination was illegal? 

Sorry, law. You’re having a tough time with this one. Grade: F. 

* * *

Why the difference? 

Sadly, Professor Stuntz never told me, or anyone else in my class, the answer to this vexing problem, though his incredible final work, The Collapse of American Criminal Justice, has a few ideas. But, just before that book was published, he died in 2011 at age 52. I still miss him, and I really wish he were here now to keep working on the problem. It’s as urgent as it ever was. 

But here is a partial answer, one Professor Stuntz often wrote about. Law is at its most useful when it affects the proverbial us—the elites who both write the law and ensure that it’s doing its job—and not the proverbial them—those who lack the power to change the law or its operation. Anyone in the elite world can be gay, and anyone, rich or poor, can be hit by a drunk driver, so all elites can theoretically have an interest in protecting gays and innocent drivers. But, in practice, most elites do not spend substantial time in minority neighborhoods or interacting with the police, and they never did—so the elites in society aren’t particularly invested in the real-world impacts of legal protections for those groups. Writing equality into the law is the right thing to do. But whether that law is working well is not something, it turns out, that everyone who writes the laws cares too much about. 

Dave Chappelle put this as well as I’ve ever heard it in his recent set, 8:46, recorded earlier this month. He told the story of a former LAPD officer who was unjustly fired and began targeting cops and, sadly, killed several. When the cops found him, Chappelle says, 400 cops showed up at his door and “swiss cheesed” the killer. “And you know why 400 cops showed up?” Chappelle asked. “Because one of their own was murdered.” And then: so how can the cops not understand what’s going on “in the streets?” When Floyd was murdered, after all, Black Americans saw themselves hurt, and stood up, in just the same way that the cops saw themselves hurt when there was a cop-killer lurking. People are motivated to act when pain comes to one of their tribe. But what about when it’s another tribe? 

I get it: no one’s circle of concern is infinitely large. True, perhaps we should not care so much more about people who are like us or who are close to us, but, well, we do.  And given that, we have only choice: we should all see ourselves in George Floyd; we all must be aggrieved; we all must be outraged. Only then can we realize that we are standing up for ourselves when we demand real systemic change, regardless of our actual race. Turns out that’s pretty much the only way to get the law to work the way it should.


Espinoza v. Montana Department of Revenue – Requiem for the Establishment Clause?

7/1/20  //  In-Depth Analysis

Those who still believe that the Constitution precludes state involvement in promoting religious thought and experience now have some work cut out for them

Ira C. Lupu

George Washington University Law School

Robert W. Tuttle

George Washington University Law School

Religious Discrimination And Racial Discrimination

6/30/20  //  Quick Reactions

The Court’s decision in Espinoza is similar to the trajectory of the law of racial discrimination in some respects, it also offers a striking contrast in others

Leah Litman

Michigan Law School

The DACA Decision is Trouble for Discrimination Law

6/24/20  //  Commentary

The Dreamers’ victory has been celebrated as a sign that the Court is above partisanship and willing to serve as a check on executive branch abuses. But the price of that victory was a defeat for the Constitution’s guarantee of equal protection.

Jessica Clarke

Vanderbilt Law School