North Carolina Law Review

University of North Carolina School of Law

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Chapel Hill, NC 27514

Temporal Equal Protection

January 12, 2020

98 N.C. L. REV. 59 (2019)

 

In law as in life, we make both cross-sectional comparisons between analogous things at the same time and temporal comparisons involving the same thing at different times. Equal protection analysis, however, has been entirely cross-sectional. Applying equal protection temporally would address the all too common situation where the dominant group benefits from laws and then pulls up the ladder behind it before minorities can follow.

 

Courts have struggled when confronted with temporal denials of equal protection. State and local governments terminated public services during the “massive resistance” period. Similarly, after Obergefell, some jurisdictions stopped issuing marriage licenses. Subtler problems have arisen as schools and other public programs have steadily lost funding after being opened to people of color and as states tighten voter identification rules when people of color vote in larger numbers. Debates on the intent required for an equal protection claim obscure questions about how to measure inequality.

 

Temporal equal protection would add to a wide range of constitutional and quasi-constitutional doctrines that inhibit change. These stasis-reinforcing doctrines provide valuable guidance on how temporal equal protection could function. Because the remedy of blocking, rather than forcing, change is less intrusive on the political branches, courts have applied searching scrutiny more freely under exacting stasis-reinforcing doctrines than when forcing change under cross-sectional equal protection. They have recognized economic-based oppression, have not demanded overwhelming evidence of intent, and have considered context more seriously.

 

Temporal equal protection alone will not remedy persistent inequality, but it can address some problems that current doctrine cannot.

 

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