As we think about the future role the judicial branch will play in our governance, we might consider one important function of the courts: addressing claims of constitutional inequality. In this Article, I explore this question by juxtaposing two claims of inequality that have been pressed by advocates—one concerning sexual orientation, the other concerning poverty. These two contexts are undoubtedly different in ways both numerous and significant. The lesbian, gay, bisexual, and transgender (LGBT) rights movement is today, while the constitutional movement for the rights of the poor was yesterday.1 The LGBT movement has won major Supreme Court victories in its biggest cases of the last generation—Romer v. Evans,2 Lawrence v. Texas,3 and, most recently, United States v. Windsor,4 and it seems to be on a constitutional roll of sorts. The constitutional movement for the poor, by contrast, won some significant Supreme Court victories in the 1960s and early 1970s in cases like Harper v. Virginia Board of Elections,5 Shapiro v. Thompson,6 and Goldberg v. Kelly,7 but then lost its most ambitious claims in Dandridge v. Williams8 and San Antonio Independent School District v. Rodriguez. 9 It never really recovered. Indeed, it is not uncommon to hear laments like the one sounded in Justice Marshall’s dissent in James v. Valtierra,10 which excoriated the majority for the toothless standard of review it applied and suggested that equal-protection claims made on behalf of poor people receive “no scrutiny whatsoever."
Schacter, Jane S.
"Unequal Inequalities? Poverty, Sexual Orientation, and the Dynamics of Constitutional Law,"
Utah Law Review: Vol. 2014:
4, Article 8.
Available at: https://dc.law.utah.edu/ulr/vol2014/iss4/8