In the latest installment of the Skrmetti and birth equality series, Akhil and Vikram Amar continue their exploration of how the United States’ legal framework addresses birth and age discrimination. These legal scholars are dissecting the constitutional underpinnings of discrimination laws and assessing the practical fairness embedded within these statutes.
The authors delve into the complexities surrounding age discrimination, looking beyond the surface of legislative language to the implicit theories about human nature and fairness. They argue that since personal characteristics such as age will change—even for those who may self-identify primarily through race or ethnicity—the potential impacts of age discrimination are markedly different from other types of birth-based inequities.
This discussion draws heavily from significant Supreme Court cases which illuminate the court’s historical stance on age discrimination, such as the landmark ruling in Massachusetts Board of Retirement v. Murgia. The Amars propose that age-based laws that disadvantage younger individuals should receive heightened judicial scrutiny, especially as younger citizens lack voting power and are disproportionately affected by such legislations.
Moreover, the article contemplates prejudice beyond age discrimination, prompting the legal community to consider whether transgender individuals face systemic scapegoating akin to historical injustices against ethnic and racial minorities like Jews and Blacks, referencing Justice Amy Coney Barrett’s inquiries during oral arguments in the Skrmetti case. The authors argue for a deeper reflection on societal biases that continue to evolve and manifest in the legal domain.
The article offers a comprehensive framework for questioning the fairness of birth-based laws and invites legal practitioners to follow the forthcoming analyses to better understand which laws might withstand heightened legal scrutiny under a modern interpretation of constitutional birth equality.