In response to:
The Bork Nomination from the August 13, 1987 issue
To the Editors:
Ronald Dworkin finds “surprising” the view that he attributes to Judge Robert Bork [NYR, August 13] that the “Constitution is silent about gender discrimination and homosexual rights.” If the Constitution speaks so clearly on these matters, then one wonders what the supporters of the Equal Rights Amendment, and their opponents, were up to when they fought over adding an amendment to extend equal protection to women over many years. They (and a good number of perfectly mainline legal commentators) agreed that the Constitution is indeed silent on these matters. Dworkin would force it to speak—and thus overrule legislators who in the Constitutional scheme have the right to make laws when the Constitution is silent—by discovering a very broad principle under the “equal protection” clause that would extend its protection to women and homosexuals. He seems alarmed that any judge would not accept his principle, even though he himself has no principled basis for deciding that it extends to women and homosexuals, but not, for example, to those engaging in sex with children. He, and the judges who follow his interpretation, would of course have to decide in the absence of any Constitutional guidance just how far this universal equal protection extends—women and homosexuals this year, maybe pedophiles the year after. But there is a more easily apprehensible principle that underlies “equal protection,” and that is, no distinction on account of race. No elaborate argument is necessary to find this principle under the “equal protection” of the Fourteenth Amendment. It would require a judge to subject racial distinctions in law to very close scrutiny, not so other distinctions. This is a perfectly good mainline interpretation of the Fourteenth Amendment and makes nonsense of Dworkin’s effort to excommunicate Judge Bork.
Ronald Dworkin replies:
In his confirmation hearings, Judge Bork abandoned a thesis he had maintained for decades: that the Equal Protection Clause extends special protection against discrimination only to racial minorities and not, for example, to other groups such as women. Professor Glazer still holds that view, though he does not suggest on what grounds. As Bork himself insisted, in a spirited defense of his new opinion that the Constitution condemns all “unreasonable” discrimination, the text of the Fourteenth Amendment requires “equal protection of the laws” for “any person.”
Glazer’s objections to Bork’s new view are embarrassingly weak. Most of those who supported the Equal Rights Amendment did so not because they doubted that the clause, properly interpreted, required special scrutiny of gender-discriminatory laws—the Supreme Court had held that it did in Frontiero v. Richardson in 1973—but because they feared that the court would not reach the results they thought justice required even with that special scrutiny. In 1979, for example, in Personnel Administrator v. Feeny, the court rejected the argument that a statute giving civil service preference to veterans, which worked overwhelmingly to the disadvantage of women, was unconstitutional just for that reason. The history of ERA makes plain that it was intended, among other things, to reverse that decision.*
Glazer’s other objection is no more persuasive. There is an evident “principled basis” for drawing a line between laws discriminating against women or making all homosexual acts criminal, on the one hand, and laws outlawing sex with children, on the other. Most of us believe that sex can be harmful to children, and that they lack the capacity for appropriate consent.
Since the court had already refused to infer discrimination from disparate effect in the cause of race—it had decided in 1976 in Washington v. Davis to sustain a test for applicants to the Washington police department that four times as many blacks failed as whites—the ERA might have protected women more strongly than the Equal Protection Clause protects racial minorities. ↩