Equal Protection Clause

Gay Marriage in the Supreme Court - Podcast

Religious Liberties Practice Group Podcast
Gerard V. Bradley, Ilya Shapiro January 28, 2015

On January 16, 2015, the Supreme Court granted cert in four same-sex marriage cases from the Sixth Circuit (one case from each of four states of the circuit, -- Ohio, Michigan, Tennessee, Kentucky). The Court called for Reply Briefs by April 17, with oral argument and decision expected this term. Cert was granted on two questions about the Fourteenth Amendment. The questions are: whether the Fourteenth Amendment "require[s]" a "state to issue a marriage license to two people of the same sex", and/or "to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed" in another state or jurisdiction.

The relationship between the two questions is asymmetrical. An affirmative answer to the first settles the second likewise, where the Court could coherently, hold that states must recognize out-of-state same-sex marriages, but not necessarily license them.

  • Prof. Gerard V. Bradley, University of Notre Dame Law School
  • Ilya Shapiro, Senior Fellow in Constitutional Studies, The Cato Institute

Is the Akaka Bill Back? - Podcast

Civil Rights Practice Group Podcast
Hans A. von Spakovsky December 17, 2014

The Akaka Bill, originally proposed by former U.S. Senator Daniel Akaka, was designed to establish a process for Native Hawaiians to gain federal recognition similar to that of some Native American tribes. Based on this status, members can then receive preferential treatment. Critics argue that such treatment would violate the Equal Protection Clause of the U.S. Constitution. Supporters argue that such preferences would be authorized because they would be on the political relationship that existed between the U.S. government and its native peoples, and based on the pre-existing sovereignty of those native peoples. Will the Akaka Bill, or some version of it, resurface? If so, is it good law? Good policy?

  • Hans A. von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation

Challenging Racial Preferences in Government Contracts - Podcast

Civil Rights Practice Group Podcast
David F. Barton, Roger B. Clegg October 17, 2014

While the Supreme Court in City of Richmond v. J.A. Croson Co. (1989) and Adarand Constructors, Inc. v. Pena (1995) handed down landmark decisions against the use of racial preferences in government contracting, the practice continues. One of the largest such federal programs is run by the Small Business Administration, but Rothe Development Co. has now challenged it, in a case where the federal district court will hear oral argument later this month. The lawyer in that case -- who also represented Rothe in its successful challenge to a similar U.S. Department of Defense program -- is David Barton, and he discussed the case in this Teleforum. Also participating in the discussion was Roger Clegg, President and General Counsel of the Center for Equal Opportunity.

  • David F. Barton, Partner, The Gardner Law Firm
  • Roger Clegg, President and General Counsel, Center for Equal Opportunity

Racial Preferences and Promoting Diversity: Are These Policies Taking Us in the Right Direction? - Event Audio/Video

Civil Rights in the United States
Hans Bader, Louis Michael Seidman, Stuart S. Taylor, Roger Pilon September 14, 2014

The Obama administration is widely perceived to be an avid proponent of racial preferences. As Attorney General Eric Holder said in 2012, “The question is not when does [affirmative action] end, but when does it begin.” Several landmark pieces of legislation that President Barack Obama has signed into law—primarily on other topics, such as the Dodd Frank Wall Street Consumer Protection and Reform Act and the Patient Protection and Affordable Care Act—have expanded racial preferences in federal hiring, contracting, and at regulated entities. The president has also issued multiple executive orders and related instructions that aggressively seek to expand the numbers of women and minorities in the federal workforce. The Obama administration’s response to Fisher v. University of Texas, 133 S. Ct. 2411 (2013), which directed courts to use strict scrutiny in analyzing whether admissions policies are narrowly tailored to achieve universities’ diversity goals, may be another such example. After Fisher, officials at the Departments of Education and Justice produced guidance documents that have been read to assure colleges and universities that they could continue using large racial preferences in student admissions. This panel will explore this proliferation of racial preferences and the likely effects of such policies. Among other things, panelists will discuss evidence that racial preferences in education do more harm than good to their intended beneficiaries, resulting in fewer under-represented minorities going on to high-status careers. The panel will also discuss efforts to protect women and minorities from ill-defined “harassment” as a means of maintaining diversity in the workplace and on campuses—and how these efforts may raise First Amendment concerns and create perverse incentives to discriminate against persons who are perceived as likely to view innocent or trivial workplace and campus interactions as harassment.

This panel on "Racial Preferences and Promoting Diversity: Are These Policies Taking Us in the Right Direction?" was part of a day-long conference on Civil Rights in the United States held on September 9, 2014, and co-sponsored by the Federalist Society's Civil Rights Practice Group, the Cato Institute, and the Heritage Foundation.


  • Mr. Hans Bader, Senior Counsel, Competitive Enterprise Institute
  • Prof. Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center
  • Mr. Stuart S. Taylor, Jr., Nonresident Senior Fellow in Governance Studies, The Brookings Institution
  • Moderator: Dr. Roger Pilon, Vice President for Legal Affairs, B. Kenneth Simon Chair in Constitutional Studies, and Director, Center for Constitutional Studies, Cato Institute

The Mayflower Hotel
Washington, DC

Disparate Impact Analysis - Event Audio/Video

Second Annual Executive Branch Review Conference
Gail Heriot, Peter N. Kirsanow, Theodore M. Shaw, Adam Liptak May 14, 2014

Disparate Impact Analysis - Event Audio/VideoUnder disparate impact analysis, certain practices might be considered discriminatory if they have a disproportionate adverse impact on a protected class of persons, even without discriminatory intent. A number of commentators have noted an expansion of the use of disparate impact analysis in the federal government to areas other than employment, now including education, housing, government contracting, and auto financing, to name a few. Our panel of experts will discuss whether or not there has been such an increase, and, if so, what the ramifications might be.

A key element of the Practice Groups' Executive Branch Review project is our annual conference. This year's Executive Branch Review Conference took place on May 7th at the Mayflower Hotel in Washington, D.C.

Disparate Impact Analysis
11:00 a.m. – 12:15 p.m.
Promenade Ballroom

  • Hon. Gail Heriot, Professor of Law, University of San Diego School of Law and Commissioner, U.S. Commission on Civil Rights
  • Hon. Peter N. Kirsanow, Benesch, Friedlander, Coplan & Aronoff LLP and Commissioner, U.S. Commission on Civil Rights and former Member, National Labor Relations Board
  • Prof. Theodore M. Shaw, Professor of Professional Practice in Law, Columbia University School of Law
  • Moderator: Mr. Adam Liptak, Supreme Court Correspondent, The New York Times

Mayflower Hotel
Washington, DC