In their continuing analysis of the constitutional underpinnings of equality, Akhil and Vikram Amar explore the concept of birth equality in their latest contribution to their Brothers in Law series on SCOTUSblog. The discussion pivots around the Supreme Court’s treatment of alleged discrimination and whether it aligns with the principle that all individuals are born equal under the Constitution.
In the context of the Skrmetti case, the authors argue that the Supreme Court missed an opportunity to refine and clarify the doctrine of discrimination, particularly as it pertains to laws affecting transgender individuals. The Skrmetti controversy, involving laws that are inherently sex-based, challenges the judiciary to apply heightened scrutiny, a rigorous standard reserved for birth-based classifications. However, the authors note that the court failed to adhere to constitutional doctrine in scrutinizing these laws.
The discussion also revisits historical legal precedents such as the Geduldig decision, which dismissed pregnancy-based laws as not truly sex-based. The authors critique this position, positing that laws affecting pregnant women are, by their nature, sex-based and should merit heightened scrutiny under the Constitution’s principles.
Furthermore, the article delves into the broader implications of judicial interpretation and the necessity of rooting decisions in constitutional language and history. This approach highlights a persistent gap in judicial reasoning, as seen in both conservative and liberal rulings that do not fully incorporate the Constitution’s foundational principles.
Finally, the Amars point out the unique treatment of age laws as a birth-plus category that traditionally receives relaxed scrutiny. They hint at further exploration of this topic in future discussions, suggesting a continued interest in coherent judicial frameworks aligning with constitutional mandates.
For a deeper understanding of these constitutional concepts and how they translate into current legal discourse, readers are encouraged to anticipate Akhil Amar’s forthcoming book, Born Equal: Remaking America’s Constitution, 1840-1920.