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The Myth of RightsThe Purposes and Limits of Constitutional Rights$
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Ashutosh Bhagwat

Print publication date: 2010

Print ISBN-13: 9780195377781

Published to Oxford Scholarship Online: May 2010

DOI: 10.1093/acprof:oso/9780195377781.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 28 November 2021

Discrimination on the Basis of Sex, Sexual Orientation, and Other Characteristics

Discrimination on the Basis of Sex, Sexual Orientation, and Other Characteristics

Translating1 Equal Protection

(p.205) 9 Discrimination on the Basis of Sex, Sexual Orientation, and Other Characteristics
The Myth of Rights


Oxford University Press

Race discrimination was the original target of the Equal Protection Clause of the Fourteenth Amendment and remains in modern times the archetypal example of the type of discrimination the clause was designed to forbid. The nondiscrimination principle implicit in equal protection, however, has never been limited to race. Nowhere in the clause is race mentioned (unlike in the Fifteenth Amendment, which forbids discrimination in voting only on the basis of race), and there is no reason that the broad structural principle of equal protection has application only to groups defined by race. It is true that early in its history, the Supreme Court did suggest that the Equal Protection Clause should be so limited; indeed, the Court suggested that the clause prohibited only discrimination against African Americans, not even any other racial group. That position, however, was rejected soon thereafter, when the Supreme Court applied the Equal Protection Clause to protect Chinese laundry owners against racial discrimination, and by the time of the World War II Internment cases, the Court was able to invoke equal protection principles in evaluating (though upholding) discrimination on the basis of national origin against Japanese Americans, without dissent on this point. Today, moreover, it is well accepted that neither the text nor the purposes of the Equal Protection Clause limits its scope to race discrimination alone. This chapter considers what other forms of discrimination are sufficiently similar to race discrimination so as to fall within the purview of the Equal Protection Clause.

Keywords:   Equal Protection Clause, U.S. Constitution, constitutional rights, individual rights, sexual discrimination, sexual orientation

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