When I first posted Sticky Slopes onto SSRN (way back in 2009), Larry Solum gave it his coveted blue stamp of approval. It was the pale blue version, and as every reader of the Legal Theory blog knows, his endorsement comes in levels. Today, Unsuspecting made its appearance on Solum's blog, and it got the bold blue seal of approval. Ladies and gentlemen, I am moving up in the world!
(And of course, my thanks to Larry for the recommendation and kind words! He really is one of a kind in the legal marketplace, and his Legal Theory blog is an indispensable resource for anyone working in ... well, any area of law, really. It's really quite amazing).
Congrats! It's an interesting concept especially with the Michigan affirmative action case coming before the Supreme Court -- how they'll distinguish from Romer etc.
ReplyDeleteOne thing that made the Amendment 2 in the Colorado referendum look especially motivated by animus is that it actually referred to a class rather than a classification. Instead of barring laws that prohibited discrimination on the basis of "sexual orientation" (a classification that would protect straights from discrimination by gays, gays from straights, and bisexuals from everyone), Amendment 2 specifically said "homosexual, lesbian or bisexual orientation, conduct, practices or relationships" couldn't be a basis for protective laws -- heterosexual orientation, conduct, practices or relationships still could be.
Most haters are more sophisticated, so they usually push ballot initiatives that are superficially equal because they're based on classification rather than class: you can't discriminate in favor of men OR women, against blacks OR whites.
Anyway, while I see why a group might no longer need protection (though I'll be curious to see which groups you give as examples of this... the Irish maybe? and other groups that have gotten fully folded into whiteness. but I'd still want to protect Catholics and Mormons as such), I don't see why we'd want to do that with classifications. I think classifications reflect a feeling that certain aspects of oneself *shouldn't matter* to government, and these include things like race, sex, perhaps sexual orientation. It goes beyond protecting just the minority or (in the case of sex) historically disempowered group to a larger sense of what's just.