904 SP Con Law: Politics & Equality - §001, Fall 2012

Categories: Constitutional Law

Instructor(s) Greene, Linda

This seminar will focus on the extent to which questions of equality are determined or influenced by political processes such as legislation, initiative processes, or political activism such as demonstrations and advocacy. Have political processes defined the content of equality? Have courts imposed limitations on those political determinations of equality or defer to those determinations? The seminar will focus on politics and equality in three contexts: race/ethnicity, gender, and sexual orientation.

We will explore previous contexts that illustrate the interplay between political processes and equality. I will examine this interplay in three contexts, the political activity leading to the Civil Rights Act of 1964 and the Voting Rights Act of 1965 and the opposition to equal measures in the initiative and referendum process, the political activity in support of and against women’s reproductive choice and the increasing resort by opponents of reproductive rights to ballot measures to restrict rights; and the political activity leading to the increase rights for gays and lesbians and the use of the initiative process to constrain or preempt those rights, for example gay and lesbian marriage. At every turn, the question arises whether equality should be defined by political majorities, and whether the role of courts in the oversight of these measures is essential or illegitimate.
We will use legal and non legal sources, including film, to explore these issues. What do does the recent presidential election the election say about equality and politics?

Do the candidacies of Hillary Clinton, Barack Obama, Sarah Palin, and the ascendancy of Barney Frank in Congress mean that we are heading towards a gender, sexual orientation, and race blind society? Does the election of an increasing number of blacks, women, Hispanics and others to elective offices signal the end of political inequality and a corresponding need for a lesser judicial role in the protection of equality? Against the background of these recent electoral developments, what meaning do we ascribe to the numerous anti-affirmative action measures, anti abortion, and anti gay marriage initiatives on the nation’s ballots.

What power does Congress possess to define equality, and has the Supreme Court imposed constraints on its role? In this seminar, we will return time and again to an over arching questions-What is the appropriate role of legislatures, the people, and the courts in defining and protecting Equality. You may begin to think about the issues in the course by reading the following articles on the same sex marriage debate before the beginning of the semester.
Klarman, “Brown and Lawrence and Goodridge” 104 Mich. L. Rev. 431 (2005); and Mary Bonauto, “Goodridge in Context,” 40 Harv. CR-CL 1 (2005).

I will be in touch again to let you know about other course materials and with a tentative seminar syllabus. I look forward to these discussions! Each Student will choose a topic and write a paper which will count for 70% of the grade. The remaining 30% will be based upon class participation and several short (1-2) page writing assignments. Class Participation and Attendance are required and No Pass-Fail grades will be permitted.

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