The Supreme Court has long endorsed the theory of the “colorblind” Equal Protection Clause, viewing it as a mandate of only facial equality. Due to rigid doctrine that limits true protection to only a short, stagnant list of fundamental rights and suspect classifications and that requires proof of discriminatory intent, only the most blatant, purposeful inequality is within constitutional reach. Festering outside of this doctrinal sphere are powerful examples of state actions that impose disparate impacts on marginalized communities, such as the nationwide system of laws that disqualify individuals—disproportionately black men—with felony convictions from the jury pool.
However, the door to a new approach for combatting such issues may have recently opened. In Obergefell v. Hodges, the Supreme Court embraced the interconnection between the Fourteenth Amendment’s Due Process and Equal Protection Clauses to move beyond the restrictions of current equal protection doctrine and strike down same-sex marriage bans. This “equal dignity” approach embraces a different view of equality protection: antisubordination theory, which focuses on ensuring substantive equality. This Note proposes a framework for applying equal dignity, utilizing the example of felon-juror exclusion to argue that it can serve as a principled approach for addressing disparate impact claims.
Kyle P. Nodes, Equal Dignity and Unequal Protection: A Framework for Analyzing Disparate Impact Claims, 68 Duke Law Journal Online 149-185 (2019)