Note
Deciding on Doctrine: Anti-miscegenation Statutes and the Development of Equal Protection Analysis
This note explores why the Warren Court chose the path it did to invalidate anti-miscegenation laws. Using evidence from the papers of three of the Justices, it argues that the Court was very close to announcing a per se rule against racial classifications, as Stewart’s concurrence advocated in the context of criminal laws. More generally, this note analyzes the Warren Court’s treatment of anti-miscegenation statutes with the object of gaining perspective on the relationship between decision and doctrine: Assuming that Justices are in agreement as to which party should prevail, what factors, legal and nonlegal, can influence a Court’s preference for one doctrine over another? Had the Court followed Stewart’s reasoning, review of criminal statutes, at least, would not require even a cursory analysis of the legislature’s purpose once a racial classification was detected. Loving’s now-controversial place in right-to-marriage jurisprudence, however, would have been minimized, if not eliminated. It may be difficult to predict the ramifications of doctrinal choices, particularly with respect to the interaction between equal protection, due process, and fundamental rights. Ultimately, this paper argues that the Warren Court showed a preference for a less rule-like approach to equal protection analysis in part because the conditions surrounding desegregation exacerbated the difficulty of analyzing the scope of rules. Recovering the circumstances under which the Warren Court viewed its potential paths to a ruling against Virginia in Loving may help us to understand how and why Courts resolve such problems in particular ways.
Rosenberger and Davey
In Rosenberger (1995), the Supreme Court decided that the University of Virginia could not exclude religious organizations from an activities fund that subsidized student organizations. Nine years later, the Court in Locke v. Davey held that Washington could exclude students of devotional theology from a generally available scholarship program; there was, in the Court’s words, “play in the joints” between what the Establishment Clause forbids and what the Free Exercise Clause requires. The cases seemed to contradict one another.
This Note explores whether Rosenberger announced a broad principle of nondiscrimination with respect to religion and whether Davey reneged on that promise. There is a strong, though by no means dispositive, argument that Rosenberger embodies a nondiscrimination principle. Assessing whether the principle has applicability in a wider array of cases, such as Davey, requires analysis of three lines of precedent—“play in the joints” cases, governmental funding cases, and public forum cases. Daveyessentially inaugurated a new era of Religion Clauses jurisprudence by reinvigorating the theory of “play in the joints.” Consequently, hardly any scholarship has addressed the theory. Scholars have also neglected how Davey affected public forum cases (likeRosenberger). Most significantly, no analysis to date has explored the interaction of these three lines of precedent. My analysis is generally positive in nature, although it has important normative implications, particularly in light of the tension betweenRosenberger and Davey.
Finally, I consider how courts have treated Rosenberger. Culminating with Davey, courts consistently have refused to recognize a broad nondiscrimination principle, thereby sounding the death knell for Rosenberger.