Superior Status: Relational Obstacles in the Law to Racial Justice and LGBTQ Equality

Abstract

Animus and discrimination are the two legal lenses through which inequality is typically assessed and understood. Insufficient attention, however, is paid to the role of status in animating inequality, even in landmark cases thought to be equality-promoting. More than an animating force between intractable political conflicts, status also informs the development of equality law in the United States. When courts, advocates, and policymakers affirm, ignore, miss, or concede to status hierarchies instead of dismantling them, those groups that perceive a decrease in their status relative to others will only use “equality-promoting” doctrine to rebalance status hierarchy in their favor. Public school integration and same-sex marriage threatened status hierarchies primarily favoring white people in the former, and straight white males in the latter. Thus, both movements present opportunities to consider how education and marriage work to secure status, examine how the two “successful” equality movements actually preserved and created new opportunities for superordinate groups to maintain superior status, and theorize how law might better account for retrenchment demanded by the status-privileged.