Scrutinizing Discrimination: a Conceptual and Normative Analysis of Legal Equality
Legal equality is a particularly troublesome ideal: it is at the same time non-negotiable(occupying a position lexically prior to other legal ideals shared by its proponents) and fundamentally ambiguous. The principal task for a theory of equality is to design a test fornon-discriminatory classifications. This paper argues that no version of a per-se theory(relying on the belief that certain characteristics of individuals, when used as a basis forclassifications, necessarily render a classification discriminatory) can be satisfactory. The main lesson of the critique of per se theories developed in this paper is that any test of nondiscriminatorinessof classifications which ignores legislative purpose, and the relationship between classification and purpose, is doomed to fail. But relevance-based tests yield acircularity which results from the temptation of implying a classification’s purpose from the terms of the classification itself. This danger can be overcome by heightening the level ofscrutiny applied to the purpose, and to the fit between the classification and the purpose. However, we need some good reasons for heightening the level of scrutiny of the legislation,and these reasons must be embedded in a general theory of what renders a classification discriminatory. Such a theory can be reached by a method of reflective equilibrium, that is,by reflecting upon the common evils of those discriminations which we consider intuitively to be particularly invidious. An intuitively justified answer to this question seems to be that aclassification is tainted as discriminatory by certain wrongful motives for legislation, in particular, if the legislation is based on prejudice, hostility and stereotyping. But it is not easyto ascertain those motives directly, so that we need some more objective indicia of suspectness of classification; those indicia, again, can be gathered in by thinking about thecommon traits of undoubtedly invidious discriminations.
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