The Constitution of Status-- Part I

Copyright 1997 Jack M. Balkin. All Rights Reserved.

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The Constitution of Status

 



J.M. Balkin

 


I. Introduction: The Idea of a Democratic Culture

 

A.Democracy's Sociological Predicament

 

Democracies are societies. Behind the formal features of democratic self-governance--whether regular elections or majority rule--lie social organization and social structure. Like other societies, democracies have varying degrees of social stratification and social hierarchy, group competition and group subordination. But democracies are special in this respect: Their political ideals seem partly in tension with their social structures. Democracy is more than a commitment to a set of procedures for resolving disputes. It is more than a culture of respect for those procedures. Democratic ideals seem to require a further commitment to democratic forms of social structure and social organization, a commitment to social as well as political equality.

Imagine a democracy organized according to strict lines of racial caste, in which all citizens have equal rights to express their views, vote and hold office, but in which job opportunities and life chances are practically and definitively limited by membership in one's social group. Government discrimination based on caste membership is strictly forbidden, but the social hierarchy remains rigidly in place even without the overt support of law. The citizens of this society take their commitment to voting and freedom of speech very seriously, yet as a society they seem equally committed to their traditional social structure. In one sense this society is a democracy, and yet in another it is very antidemocratic. Indeed, it is hard to imagine this society precisely because we think that accepting the democratic ideal of equal citizenship is inconsistent with social caste; this principle will either ultimately corrode a society's social organization or be co-opted and disfigured by it.(1) Of course, that is precisely my point: Democratic ideals do tend to corrode hierarchies; they tend to push social organization in particular directions, unless and until they are deflected and blunted by even stronger social forces.

Ideally, one might think, in a truly democratic society all unjust forms of social stratification--caste being only the most extreme example--would cease to exist. The democratic ideal must include the idea of a democratic culture: one that opposes all unjust hierarchies of status, and that promotes equal status and equal standing for all its members. Thus the democratic ideal calls for a social revolution: not only a transformation in legal form but in social structure. Indeed, this revolution cannot be achieved through legal regulation alone, for law is usually complicit in the preservation of existing social structure, even when its asserted purpose is to reform that structure. Democratic culture requires changes in all the devices of social stratification, even those that persist in the face of legal reform.

In this sense, no democracy is fully realized until it becomes a democratic society with a democratic culture. Yet we also know that democratic institutions have always existed in societies with various forms of social stratification and unjust social hierarchy. The America of 1800, for example, thought itself a democracy, and yet it was also a society in which aristocratic privilege still reigned, in which women were subordinate to men and blacks were chattel. It was a democracy in a profoundly undemocratic society.

Nor is this example exceptional. Indeed, it is the standard case. Democracy always exists in a sociological predicament: Democracy is not merely a procedure, but a form of social organization never fully realized. The deepest ideals of democracy are in tension with the social world in which all democracies exist and have always existed; democracies are always begun and carried out in the shadow of older regimes, existing social structures, past misdeeds, and continuing injustices. If social hierarchy is a sin to democratic ideals, then democracy always exists in a fallen condition, a penitent perpetually in hope of redemption. Democracies are always unfinished projects; they are always, in some sense, antidemocratic.

Because democracies are societies, they have social structures; they contain different social groups with different places in those social structures. These social groups have contrasting social identities. They compete with each other for social esteem and material resource, for privilege and prestige. They have conflicting views about society; they have conflicting views about morality. And all of their conflicts are played out against the backdrop of those social hierarchies--just and unjust--that exist in any actual democracy.

Constitutional lawyers know that group conflicts are inevitable features of democratic life. What is more difficult to determine is the Constitution's proper role in dealing with these conflicts. Does the Constitution merely lay down rules of fair competition in the endless struggles of social groups? Or does it take sides in some of these struggles because the Constitution is a charter of democracy, because democratic ideals commit us to break down older forms of social hierarchy and to democratize social structure? What role, in short, should the Constitution play in what I have called democracy's sociological predicament?

In this Essay, I argue that the Constitution is committed to the realization of a democratic culture, even though constitutional law--and indeed, law generally--cannot realize this goal by its own efforts. Large-scale changes in social structure require social transformation over long periods of time, and law forms only a part of that phenomenon. But to understand the Constitution's proper role in forging a democratic culture, we must understand something about the nature of social hierarchies and how social groups struggle for power and status within those hierarchies.(2)

America's commitment to a democratic culture began with the social revolution against aristocratic privilege that formed the basis of the American Revolution. The political act of revolution accompanied a deeper and longer-lasting social transformation. The egalitarian urge of the American Revolution is enshrined in the Declaration of Independence and forms the underlying spirit of our constitutional tradition. The social revolution let loose in the 1770s hardly ended with the Founding; it has gained strength over time and has propelled itself through American history, undermining different elements of then-existing social hierarchies, and continuing to this day through many social movements and social transformations that have left their mark both on American society and the Constitution itself.

To see the Constitution's relation to this revolution, we must think of the Constitution not in terms of its individual clauses, but as a document whose interpretation has responded to social movements demanding changes in social structure. To appreciate the meaning of democratic culture, we must think less in terms of familiar legal categories of unequal treatment and more in terms of underlying sociological realities: the existence and the perpetuation of unjust status hierarchies. To confront the problem of social equality, we must confront the problem of social structure. To understand the Constitution, we must understand the constitution of status.

 

B.Kulturkampfs and the Constitution

 

Whether they recognize it or not, courts constantly face the problem of social hierarchy in cases involving group conflict. The U.S. Supreme Court was faced with the problem once again when it considered the constitutionality of Colorado's Amendment 2 in Romer v. Evans.(3) Amendment 2 repealed existing local ordinances that protected homosexuals from discrimination, and effectively required a state constitutional amendment to reinstate any of them.(4) From one perspective, Romer v. Evans concerned only a dry issue of local government law: whether state referenda could require that regulatory decisions be made at the state level rather than at the level of local municipalities. Yet the parties and the Justices of the Supreme Court alike understood that the campaign for the Amendment, and the battle over its constitutionality, signified something much more. They were symptomatic of an important cultural struggle in the United States: the struggle over gay rights and the status of homosexuals in American society.

The Court intervened in this cultural dispute, but only in the most tentative way. Justice Kennedy's majority opinion claimed that Amendment 2 was unconstitutional in part because it rested upon "`a bare . . . desire to harm a politically unpopular group.'"(5) The Constitution, Justice Kennedy seemed to say, allows social groups to struggle and majorities to have their way. But majorities cannot express overt hatred for groups by declaring them legally unprotected, or strangers to the law.(6)

Justice Scalia's dissent strongly took issue with this characterization. To his credit, Justice Scalia did not attempt to hide the political background of the case behind a veneer of neutral principles. Indeed, he made the political context central to his opinion. In his view, the Constitution had nothing to say about this particular social struggle; he rejected the majority's contention that Amendment 2 reflected irrational hatred or invidious animus. "The Court," argued Justice Scalia, "has mistaken a Kulturkampf for a fit of spite."(7)

Justice Scalia insisted that hatred of homosexuals and homosexuality did not necessarily motivate the Amendment. Rather, it might have been designed merely to "preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws."(8) To be sure, Colorado had repealed its criminalization of homosexual sodomy. Nevertheless, Justice Scalia argued, its citizens might well have wanted to decriminalize sodomy while still expressing moral disapproval of it.(9) They may have wanted to preserve the idea that homosexuality is not simply a lifestyle choice as worthy as heterosexuality. And they may have wanted to resist a drive by gay activists toward "achieving not merely a grudging social toleration, but full social acceptance, of homosexuality."(10)

The miasma that is contemporary equal protection doctrine created genuine problems for the majority, problems that bolstered Justice Scalia's argument. The majority seemed to accept that only a showing of severe and invidious animus toward homosexuals--what it called "`a bare . . . desire to harm a politically unpopular group'"(11)--could justify striking down Amendment 2 where neither a suspect classification nor a fundamental right was involved. Hence it argued that Amendment 2 was motivated by just such hatred, a hatred it inferred from the breadth and scope of the Amendment's prohibitions.(12) Yet, as Justice Scalia suggested, Amendment 2 actually involved nothing more than one of the many recurrent struggles over the terms of American society's culture and morality. Although such struggles may cause tempers to flare and even lead to occasional violence, they do not necessarily involve widespread and invidious hatred or the bare desire to harm opponents. At bottom, these struggles concern whose moral and cultural vision shall prevail.

The waging of these cultural struggles, Justice Scalia reasoned, is best left to the democratic process. Democracies often operate without a moral consensus on many significant issues, and their citizens may have widely divergent views about what is moral and immoral; but the Constitution permits majorities to impose their vision of morality as long as no fundamental right or suspect classification is affected. The best example of this principle is Bowers v. Hardwick,(13) in which the Court argued that Georgia's criminalization of homosexual sodomy could be justified by moral disapproval by a majority of its citizens. It was no accident, Justice Scalia thought, that the majority avoided citing this opinion in Romer.(14)

Justice Scalia's argument, in short, is that cultural struggles over moral vision are best left to the political process and to the judgments of ordinary people, not to the judgment of unelected elites in the federal judiciary.(15) Elites who disagree with the moral views of majorities may well regard them as nothing more than unthinking prejudice, and it is a short slide from this smug conclusion to branding majority opinion as irrational hatred. But this accusation is both unfair and deeply confused; it misunderstands the social reality of cultural conflict and the pervasiveness of social struggle. It is itself an example of the prejudice it attributes to others.

Justice Scalia tried to invoke this idea of democratic struggle over moral values by using the term "Kulturkampf." Ironically, Justice Scalia, who is so fond of dictionaries, failed to consult one in this case. The word "Kulturkampf" is defined as a "conflict between civil government and religious authorities esp. over control of education and church appointments."(16) The original Kulturkampf was an attempt by German nationalists to destroy the political power of the Catholic Church by, among other things, seizing control of church appointments and arresting Catholic priests.(17) Presumably even the author of Employment Division v. Smith(18) would agree that the Constitution is implicated in such an action.

Today the term "Kulturkampf" is sometimes applied more broadly to denote any struggle between groups over a common national culture. It presupposes both the existence of social groups with distinct identities and conflicts between them over values, status, power, and authority. That was the rough sense in which Justice Scalia used the term. He meant it innocently, of course, but in hindsight his unintentional reference to a sustained government attempt to destroy the political power of Catholics is both ironic and eerily appropriate.

Scalia was right to see Romer as part of a larger struggle over morality and culture. But he was wrong to think that the Constitution is necessarily silent in such a struggle. Just as the original Kulturkampf in Germany implicated human rights questions, so too group conflict over social status and moral authority is one of the deep concerns of the Constitution. The question is not whether the Constitution is implicated in cultural struggles, but how it is implicated.

Both Amendment 2 and the gay rights movement to which it responds are symptoms of a larger social phenomenon: a gradual but accelerating breakdown of a powerful hierarchy of social status buttressed by a system of social meanings. This hierarchy understood heterosexuality as normal, moral, and honorable, and homosexuality as abnormal, immoral, and stigmatizing by comparison. As this hierarchy has begun to break down, the certainty of these social meanings has begun to dissolve, and with it the hierarchies of status, authority, and moral prestige that go with them. Groups whose world-views are most undermined by such changes, as well as people who have the most to lose from a change in status relationships, will understandably seek to halt what they see as an accelerating slide toward moral degeneration. In such moments a certain kind of cultural struggle is born: a rearguard action in which an older order of social meaning tries to prevent the emergence of a newer one. The outcome of such a struggle cannot always be foreseen, but its

urgency and deep symbolic meaning are apparent to all. It is a tribute to the inanity of current doctrinal categories that this complex social phenomenon had to be redescribed as the unreasoning animus of particular individuals and groups before the law could provide any remedy.

In short, many of the struggles that define America's "culture wars"--of which Romer is only one example--are really battles over social status and social structure. The combatants are fighting over whether an existing form of social stratification will prevail or be transformed, whether an older social hierarchy will be problematized or perpetuated. These Kulturkampfs are a special kind of group conflict--a group conflict whose prize is social status.

Justice Scalia thought that Amendment 2 was insulated from constitutional scrutiny if it reflected a majority's desire to assert (or reassert) its moral values. But Scalia was wrong to think that phrasing the matter in this way is determinative. The real question is whether state power has been harnessed to maintain or perpetuate an unjust hierarchy of social status. The fact that moral values are invoked does not dispose of the question. Status hierarchies are often preserved by appeals to morality. Assertions about what is moral and immoral, normal and deviant, honorable and dishonorable are not smokescreens for illicit motivation, but the very fabric of a system of social domination.

For these reasons, the Constitution cannot always be neutral in cultural struggles. It places itself on the side of the values of some groups and in opposition to the values of others, even (and especially) if the grounds of dispute include disagreements about religion, custom, tradition, or morality. The Constitution is driven by a vision of democracy, but this democratic vision is more than a formal commitment to majority rule. It is a commitment to a democratic culture: one devoted to the dismantling of unjust hierarchies of social status and the gradual realization of social equality for all citizens.

Part II of this Essay explains the theory of status groups and status hierarchies. It shows how these phenomena produce group conflicts and cultural struggles over moral vision. Part III argues that many clauses of the Constitution--including many predating the Bill of Rights and the Reconstruction Amendments--are concerned with dismantling unjust social hierarchies of status and realizing a democratic culture. This is true even though these same clauses also serve many other independent functions, and even though the original Constitution was itself partly an attempt to stem the tides of America's egalitarian social revolution. Part IV is a brief conclusion that describes how the essays in this Symposium connect to the problem of status conflict.

 

II. Group Conflict and the Economy of Status

 

A.Status Groups and Status Hierarchy

 

To understand the relationship between the Constitution and group conflict, one must understand how and why cultural struggles arise. Democracies always involve struggles between groups. Interest groups contend over wealth and political power. Yet what is distinctive about what I am calling cultural struggles--like those over homosexual rights, school prayer, gun control, and educational policy--is that they prominently feature conflicts over social status. Put another way, cultural struggles are group conflicts where social status and associated symbolic benefits are an indispensable and central bone of contention and a crucial part of the prize sought.(19) In describing how these cultural struggles arise, I want to introduce five key ideas: status group, status hierarchy, status competition, status anxiety, and status nostalgia.

Social status is the degree of prestige and honor that individuals or groups enjoy.(20) This prestige involves the approval, respect, admiration, or positive qualities imputed to a person or group. Lower social status confers and imputes corresponding disapproval and negative qualities. Although individuals may have different degrees of status within a single group, they also have status because they are members of a group.(21) One can have higher or lower status, for example, because one is an immigrant, a woman, or a member of "the upper crust." Critical race scholars have repeatedly noted that white Americans have certain status privileges conferred on them merely by being white.(22)

Accordingly, a tradition of sociology beginning with Max Weber analyzes social structure in terms of status groups, which demand and command different degrees of respect and esteem in society.(23) Weber's idea of status groups is usually distinguished from Marx's idea of economic class.(24) Members of an economic class share a common economic interest because of their common position in the structure of economic relations. They are people who are subject to market forces in essentially the same way. Status groups, on the other hand, do not have to contain members of the same economic class. They are organized around common styles of life and common senses of honor, prestige, or moral rectitude. Their members' common interest is in defending and increasing the prestige of their group, their common ideals, or their common styles of life.(25) There can be and often are significant overlaps between status identity and economic class.(26) Yet status groups can also be organized around religious and ethnic identities that cut across lines of economic class, and both class and status can serve as distinctive methods of social stratification.(27)

In many societies, status hierarchies emerge between groups with distinctive identities or styles of life. The most obvious example of a status hierarchy is a system of social caste; but status hierarchies can be much less rigid and even quite fluid. Status hierarchies differ from mere separation of groups, where the members of each group hold the other in mutual disdain. As Weber noted, "the caste structure transforms the horizontal and unconnected coexistences of ethnically segregated groups into a vertical social system of super- and subordination."(28) In other words, a status hierarchy is sustained by a system of social meanings in which one group receives relatively positive associations and another correspondingly negative associations. As a result, their identities are not freestanding: The identity of one is defined in part by its relationship to the identity of the other, and a change in the meanings attributed to one will affect not only its own social identity, but the identity of the other group. In a hierarchy with many status groups, there can be many different ways of differentiating the various groups and their respective lifestyles, and hence the system of social meanings (and the results of changes in social meanings) can be quite complex.

There is no necessary limitation on what characteristics can serve to distinguish status groups in a status hierarchy. They can be mutable or immutable, physical or ideological, matters of behavior or matters of appearance. The most familiar ones in the United States are organized along lines of race, sex, religion, immigrant status, and ethnicity.(29) Conversely, not every distinguishing trait or characteristic corresponds to a status group in a status hierarchy. The number of traits that might be used to distinguish human beings is limitless, but the organization of a status hierarchy is a result of a particular history of social stratification and subordination. The question is not whether identifying traits exist that might distinguish people, but whether society has organized itself into a system of super- and subordination based on those traits. The issue is social stratification based on traits, not the nature of the traits themselves.

Thus, what constitutional lawyers call "immutability" is neither a necessary nor a sufficient criterion for a status group. The question is whether the trait can be endowed with sufficient cultural meaning to support a system of social stratification. Religious identity can serve this function even though religions proselytize and gain new converts. The point is not what the trait is, but what it can be made to mean in opposition to other traits.

Obviously, a system of subordination cannot be stable if it is too easy to exit from the criteria of subordinate status. That is why biological traits can be such useful markers of cultural differentiation. The advantage of immutability lies in its guarantee of stability--it helps ensure that social hierarchy can be reproduced effectively. Yet a trait does not have to be biologically based for group membership to be relatively stable over time.

Conversely, even biological traits like skin color can allow for the exit of one's children (through miscegenation), and hence so-called immutable criteria like race may have to be buttressed or even constituted by legal or cultural rules. Thus the Jim Crow regime featured cultural and legal prohibitions on interracial marriage (if not interracial sex) and elaborate rules of hypodescent to define who was white and black given the inevitability of racial mixing.(30)

Groups lower in a status hierarchy may respond to their lower status by developing a compensatory sense of esteem in their own ways of living, condemning the lifestyles of higher status groups as immoral or inauthentic, or attempting to turn their lower status into a point of pride through irony. Weber believed that Jewish pride in being a "chosen people" was in part a compensation for the experience of being social pariahs.(31) Working-class culture has found innumerable ways to express resentment and disapproval of upper-class manners; blacks, homosexuals, and other lower status groups have often used derogatory epithets and stereotypes ironically and subversively.

 

B.Legal and Sociological Status Contrasted

 

The idea of "status groups" may be confusing at first because lawyers have their own concept of "status" which is used in a number of legal contexts and forms the basis for many important doctrines. For example, the famous case of Robinson v. California(32) held that mere status could not be the basis of criminal punishment. However, the legal and sociological concepts are importantly different. In law, status is generally a characteristic of an individual that has some legal consequences. Examples are being a servant, a woman, or a minor. Sometimes legal status refers to a characteristic wholly created by law, such as being a Social Security recipient. Sometimes it refers to the legal results of previous action that has legal consequences, such as being someone's spouse, an immigrant, or a felon.

Sociological status differs in three important ways. First, lawyers usually understand legal status as a feature of individuals and their relationships to the law (including their legal relationships to other individuals). By contrast, the theory of status groups is concerned about social structure: It is concerned with competition and hierarchy among social collectivities.

Second, sociological status is usually tied to a system of social hierarchy or a system of comparative social evaluation. By contrast, legal status--at least in modern times--is primarily concerned with legal meanings and legal consequences. To be sure, in different times and places, legal status categories like master and slave or husband and wife have helped support and even constitute systems of social hierarchy. That is only one of the ways in which legal form plays an important role in the structure of social relations. But with modernization, legal status has increasingly been divorced from the task of directly mapping or constituting social status categories.(33) Nineteenth-century concepts like "pauper" or "servant," for example, have increasingly been replaced by twentieth-century concepts like "AFDC recipient" or "part-time employee" as defined by particular statutory schemes.

Third, the legal concept of status is often distinguished from conduct. Thus, in Robinson the Court argued that one could not punish a person for being a heroin addict because being an addict was a preexisting status, not current conduct.(34) However, sociological status groups are differentiated by many different cultural markers, including speech, patterns of behavior, tastes, and styles of life.(35) It includes both what the law would call "status" and "conduct." The esteem that one holds in society (including both positive and negative associations) is tied to how one dresses, how one prays, the kinds of goods one purchases and consumes, and so on. Discrimination against African Americans is usually based on negative judgments not about skin color, but about dress, speech, bodily movements, consumption patterns, etc. When whites make racist jokes about blacks' speech, dress, or mannerisms, for example, they engage in demeaning stereotypes about behavior. Status-based discrimination in the sociological sense is discrimination with respect to all of the cultural markers--including "conduct"--that distinguish groups or are otherwise associated with them.

Although the legal status of individuals and the sociological status of groups are distinct concepts, law often directly reflects social status or helps preserve status markers. Sometimes law helps constitute hierarchies of social status directly. Examples are nineteenth-century doctrines regarding slaves, Jim Crow laws, laws against miscegenation, and rules about the comparative political and property rights of men and women. In the nineteenth century in particular, the criteria of citizenship and the distribution of civil and political rights often directly mapped or even helped define and constitute differences in social status.

Legal reforms (like the abolition of slavery) may withdraw direct legal support for categories of social status, often in the hope of dismantling status hierarchies. Even so, the law usually continues to support social stratification in other ways. Examples are the use of privacy doctrine in family law, or the use of colorblindness in equal protection law.(36) Thus, status hierarchies can gain the support of legal norms either directly or indirectly. Legal categories can map status distinctions and even help constitute them (as in the case of slavery). On the other hand, status hierarchies can manipulate or work around other kinds of legal distinctions to reproduce themselves in ever new forms.(37)

 

Notes

 


Lafayette S. Foster Professor, Yale Law School. My thanks to Bruce Ackerman, Akhil Amar, Owen Fiss, Robert Gordon, Sandy Levinson, Reva Siegel, and Jim Whitman for their comments on previous drafts.

1. India is perhaps the most obvious example of the eventual compromises that must be forged between democratic equality and the maintenance of social caste, but the United States is an equally compelling instance of compromise between democratic ideals and social structure.

2. Thus, this Essay is in a tradition of legal academic writing that looks to sociological realities to understand the Constitution's commitments to social equality.

In my view, this approach originates with Charles Black's cultural defense of Brown v. Board of Education, 347 U.S. 483 (1954). See Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 Yale L.J. 421 (1960). In the 1970s, the two most important exponents of this sociological approach were Owen Fiss and Kenneth Karst. See, e.g., Owen M. Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107 (1976); Kenneth L. Karst, The Supreme Court, 1976 Term--Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 Harv. L. Rev. 1 (1977). Fiss's insistence that "[t]here are . . . social groups," Fiss, supra, at 148, has unfortunately gone unheeded by the current Supreme Court. Fiss emphasized the sociological question of subordination in contrast to the legal question of equal treatment. See id. at 108, 154-58, 170-75. Karst emphasized the processes of social meaning by which individuals understand themselves as members of groups and through which groups are declared subordinate and superordinate. See Karst, supra, at 5-11. Each view complements the other: While acknowledging the dignitary elements of subordination, Fiss's theory of group disadvantage has tended to emphasize conditions of material deprivation; while acknowledging the importance of material deprivation, Karst's equal citizenship principle has tended to focus on social messages of inferiority.

Both the ideas of social subordination and cultural meaning have continued to be central to feminist and critical race theory scholarship in the 1980s and 1990s. See, e.g., Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987) (emphasizing reality of group subordination); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317 (1987) (emphasizing systems of cultural meaning).

The theory of status groups helps tie both strands of this tradition together. First, focusing on status groups gives us a much stronger account of what social groups are. The theory of status groups comes already equipped with an account of social stratification on the one hand, and group conflict on the other. Second, this theory argues that the identity of social groups in a social hierarchy is dependent on the identities of other social groups. Hence group identity is connected both to social meanings--the positive and negative associations of groups vis-à-vis each other--and to the group's place in the social structure. Groups fight about status because they are fighting about their relative social identities.

Most writers in this tradition (including Black, Fiss, Karst, Lawrence, and many others) have tried to explain the proper interpretation of a single clause of the Constitution: the Equal Protection Clause. I believe that our proper focus should be on understanding the ongoing social revolutions in American society that are later understood through many different clauses of the Constitution. It is also important to take some critical distance from the project of doctrinal exegesis. Constitutional doctrine is both a reflection of the demand for social equality and a means of blunting or avoiding the dismantling of status hierarchies. Precisely because the Equal Protection Clause seems on its face to concern what equality means at any point in time, doctrines of equal protection will often serve as the means through which status hierarchies will attempt to preserve themselves.

3. 116 S. Ct. 1620 (1996).

4. The Amendment read as follows:

No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.

Colo. Const. art. II, § 30b.

5. Romer, 116 S. Ct. at 1628 (quoting Department of Agric. v. Moreno, 413 U.S. 528, 534 (1973)). The actual holding of Romer is and likely will continue to be disputed for some time, but concerns about antihomosexual animus and the desire to stigmatize homosexuals seemed to be a central part of Justice Kennedy's opinion, and it was this feature that Justice Scalia particularly focused upon.

6. See Romer, 116 S. Ct. at 1629.

7. Id. (Scalia, J., dissenting).

8. Id. (Scalia, J., dissenting).

9. See id. at 1633 (Scalia, J., dissenting).

10. Id. at 1634 (Scalia, J., dissenting).

11. Id. at 1628 (quoting Department of Agric. v. Moreno, 413 U.S. 528, 534 (1973)).

12. See id. at 1627-29.

13. 478 U.S. 186 (1986).

14. See Romer, 116 S. Ct. at 1631 (Scalia, J., dissenting).

15. See id. at 1637 (Scalia, J., dissenting).

16. Merriam-Webster's Collegiate Dictionary 648 (10th ed. 1993).

17. The original Kulturkampf was part of Otto von Bismarck's campaign for a unified sense of German nationhood. The expression "Kulturkampf" was coined in a March 1873 election appeal by Rudolf Virchow, who referred to the struggle against the Catholic Church as a struggle for culture. See E.J. Passant, A Short History of Germany 1815-1945, at 88-90 (1960). At Bismarck's instigation, the German government attempted to undermine the strength of the Catholic political party, the Zentrum, by asserting control over Church functions and appointments. The government arrested clergymen who resisted its initiatives, and left many parishes without priests. Ultimately, the heavy-handed persecution of political Catholicism backfired. The Zentrum was actually strengthened and remained an important force in German politics well into the twentieth century. See Gordon A. Craig, Germany 1866-1945, at 70-78, 280-81 (1978); Ellen Lovell Evans, The German Center Party 1870-1933, A Study in Political Catholicism 36-95 (1981); 2 Otto Pflanze, Bismarck and the Development of Germany, The Period of Consolidation 1871-1880, at 179-206 (1990); Helmut Walser Smith, German Nationalism and Religious Conflict: Culture, Ideology, Politics, 1870-1914, at 19-20, 37-50 (1995); Hans-Ulrich Wehler, The German Empire 1871-1918, at 76-78 (1985).

18. 494 U.S. 872 (1990) (holding that rules of general application that adversely affect religious practice do not violate Free Exercise Clause).

19. Because social conflict is often overdetermined, there is no reason to believe in a strict opposition between cultural struggles and other interest group conflicts. To take only one example, opposition to gun control may be financed by the arms industry in addition to being an issue of symbolic politics. Yet it also seems clear that gun manufacturers do not exhaust the sources of opposition to gun control; indeed, gun manufacturers may find it much more in their interests to play up the cultural associations of gun ownership.

20. See, e.g., Richard L. Abel, Speaking Respect, Respecting Speech, at III-24 (forthcoming 1997); Joseph R. Gusfield, Symbolic Crusade: Status Politics and the American Temperance Movement 14-15 (2d ed. 1986); Bryan S. Turner, Status 6-7 (1988). The original definition of status comes from Weber: a conception of "what is correct and proper and, above all, of what affects the individual's sense of honor and dignity." 1 Max Weber, Economy and Society 391 (Guenther Roth & Claus Wittich eds., U. of Cal. Press 1978) (4th ed. 1956) (describing notion of ethnic honor); see also 2 id. at 932 (defining status situation as "every typical component of the life of men that is determined by a specific, positive or negative, social estimation of honor").

21. In recent years, economists have produced models of status competition both within groups, see, e.g., Robert H. Frank, Choosing the Right Pond: Human Behavior and the Quest for Status (1985), and between groups, see, e.g., Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 Harv. L. Rev. 1003, 1029 (1995) (arguing that intergroup conflicts arise from mechanisms designed to resolve intragroup conflicts for status).

22. See, e.g., Patricia J. Williams, The Alchemy of Race and Rights 124 (1991); Derrick Bell, Xerces and the Affirmative Action Mystique, 57 Geo. Wash. L. Rev. 1595, 1602, 1608 (1989); Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1714 (1993); see also Alex M. Johnson, Jr., How Race and Poverty Intersect to Prevent Integration: Destabilizing Race as a Vehicle to Integrate Neighborhoods, 143 U. Pa. L. Rev. 1595, 1636-48 (1995).

23. See, e.g., 1 Weber, supra note 20, at 305-06; 2 id. at 932-39; Turner, supra note 20, at 6. Later sociologists have developed the idea of status groups in different ways. Pierre Bourdieu has emphasized the role of patterns of cultural consumption in social stratification. See Pierre Bourdieu, Distinction: A Social Critique of the Judgement of Taste (Richard Nice trans., Routledge & Kegan Paul Ltd. 1984) (1979). And there are many affinities between Weber's definition of status as lifestyle and Thorstein Veblen's earlier theory of consumption as a cultural marker. See Thorstein Veblen, The Theory of the Leisure Class (London, MacMillan 1899).

Sociologists sometimes make a further distinction between status communities and status blocs. Status communities are groups of individuals defined by a relatively long-lasting set of common characteristics like language, religion, ethnicity, culture, locality, and occupation. Status blocs are associations, defined by their members' common characteristics, that come together to organize politically or socially for a limited time. Members of status communities can form status blocs (for example, blacks can form advocacy organizations like the NAACP), but they do not have to. An example of a status bloc not based on a status community would be a consumer protection group or an organization to promote the interests of single mothers. See Turner, supra note 20, at 13 ("[S]tatus [blocs] come together for rather limited and possibly short-term political or social objectives, while status communities tend to be long-enduring, multidimensional, complex, primary groups."); cf. Gusfield, supra note 20, at 21 (noting related distinction between status communities such as religions and status collectivities such as generations). My major concern in this Essay is with status communities. I am interested in status blocs only to the extent that status communities participate in social movements and form status blocs for this purpose.

24. See Gusfield, supra note 20, at 14-15; Turner, supra note 20, at 8, 45-46.

25. See Gusfield, supra note 20, at 16, 18. Note that one's "style of life" can range from one's religion to one's speech patterns; from one's family arrangements to one's favorite foods; from one's clothing preferences to one's sexual preferences; from one's musical choices to one's choice of heros and villains. There is an almost limitless array of behaviors that can become associated with a group and symbolic of its status. That is one reason why racial distinctions, for example, can be coded around so many different aspects of cultural life--for example, whether one watches Friends or Moesha. Cf. 1 Weber, supra note 20, at 391 ("[T]he belief in ethnic affinity has at all times been affected by outward differences in clothes, in the style of housing, food and eating habits . . . .").

26. As Frank Parkin has suggested, over time the defenders of the Marxist and the Weberian approaches to social stratification have begun to sound more and more alike. See Frank Parkin, Marxism and Class Theory: A Bourgeois Critique 25 (1979).

27. See Gusfield, supra note 20, at 14-15; Turner, supra note 20, at 13-14, 26-28; 1 Weber, supra note 20, at 302-06; 2 id. at 926-27.

The debate between Marx and Weber concerns whether, in the long term, status hierarchies will survive as a major form of social inequality in modern societies. See Turner, supra note 20, at 1-2, 45-50. Marx believed that capitalism and markets would ultimately be the primary mechanism of social stratification. He was not alone in this view. Tönnies and Maine had both suggested that free exchange in markets undermines community norms and status relationships. See Abel, supra note 20, at III-35-36; Sir Henry Sumner Maine, Ancient Law 100 (1917) (movement from status to contract); Ferdinand Tönnies, Community and Association (Charles P. Loomis trans., Routledge & Kegan Paul Ltd. 1957) (1887) (movement from community to society). Weber, by contrast, insisted that status distinctions and status conflicts would remain in capitalist and socialist societies. See Turner, supra note 20, at 2. The twentieth century has seen, if anything, ever-increasing varieties of religious conflict, nationalist assertion, ethnic tension, and other struggles over status, both in the Third World and in the West. See Abel, supra note 20, at III-36-37.

28. 2 Weber, supra note 20, at 934.

29. There are also "less explicit groupings, such as `the old aristocracy,' `the nouveau riche,' and `the lumpenproletariat,'" which invoke "the subtle interrelation" of status and economic class. Gusfield, supra note 20, at 14.

30. See F. James Davis, Who Is Black?: One Nation's Definition 4-5, 8-11, 54-66, 77-79, 113-17, 139 (1991); Neil Gotanda, A Critique of "Our Constitution is Color-Blind", 44 Stan. L. Rev. 1, 23-24 (1991); Harris, supra note 22, at 1738.

31. See 2 Weber, supra note 20, at 933-34.

32. 370 U.S. 660 (1962).

33. Indeed, laws invoking categories that directly refer to status groups like women or African Americans are now more likely to be understood as de jure discrimination.

34. See 370 U.S. at 667.

35. See 1 Weber, supra note 20, at 391.

36. See, e.g., Reva Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117 (1996). Siegel argues that law's relationship to status hierarchies changes over time as status hierarchies become "modernized." Modernization usually involves a movement from direct legal constitution of status hierarchy--as in the case of slavery or the definition of women's rights--to legal categories that seem irrelevant or even hostile to status distinctions but which actively perpetuate them in other ways. See id. at 2174-78. Thus, although legal and social status are analytically distinct categories, they have often been intertwined in historical practice. Legal categories like "slave" or "master and servant" were not only legal distinctions, but helped support a system of social hierarchy. We only see the relation between legal and social status differently now because of modernization. See id. at 2178-88.

37. On this phenomenon, see id. at 2178-87; Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. (forthcoming 1997).

 

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