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excerpted from: Russell K. Robinson and David M. Frost, "Playing it Safe" with Empirical Evidence: Selective Use of Social Science in Supreme Court Cases about Racial Justice and Marriage Equality, 112 Northwestern University Law Review 1565 (2018) (173 Footnotes) (Full Document)


Russell RobinsonThe last five years have seen historic shifts in social justice movements that focus on race and sexual orientation. In 2013, a jury acquitted George Zimmerman of charges related to the shooting of Trayvon Martin, an unarmed African-American teenager whom he wrongly suspected to be a criminal. Three black women activists responded with a social media-fueled movement called #BlackLivesMatter. Additional tragic deaths of unarmed African-Americans in 2014 and 2015 galvanized unrest in African-American communities (and beyond) and activism contesting police tactics such as racial profiling and excessive force. At the same time, marriage equality activists and lawyers were building the cases that they hoped would secure a nationwide constitutional right to marry a partner of the same sex. In 2013, they persuaded the Court to invalidate part of the Defense of Marriage Act, a federal law refusing to recognize same-sex marriages. Two years later, the Court, in Obergefell v. Hodges, announced that every state had to license same-sex marriages, a decision viewed by many as the capstone of decades of lesbian, gay, bisexual, and transgender (LGBT) legal advocacy. By late 2016, however, both of these issues--marriage equality and police violence directed at African-Americans--would be swept off the front pages of newspapers by the unexpected election of Donald J. Trump as President. Although the Black Lives Matter (BLM) movement continues to organize and protest, it has, at present, left little mark on federal law. The battery of Supreme Court cases that rebuff the overwhelming majority of legal challenges to police misconduct remains very much intact. This disparity might lead a casual observer to think that LGBT people secured full legal equality in recent years, while African-Americans and other people of color continue to lose at the Supreme Court.

David  FrostWhile there is truth to the divergent trajectories of African-Americans and LGBT claimants at the Supreme Court level, this Essay seeks to supplement and complicate that narrative. We argue that a "fear of too much justice" connects race and sexual orientation cases. Even when LGBT people win in cases like Obergefell, or underrepresented racial minorities win in affirmative action cases like Fisher v. University of Texas, the Court carefully cabins its opinions to preserve the social hierarchy with only incremental changes. Pressure to "play it safe" may operate at multiple levels: lawyers frame arguments to appeal to Justice Anthony Kennedy's conservative ideology; Justice Kennedy may refrain from articulating arguments that he fears will inflame the religious right; and liberal Justices may opt not to write separately and repudiate troubling aspects of Justice Kennedy's analysis for fear of losing his swing vote.


Marriage equality lawyers played this game by presenting predominantly white, middle-class, and "all-American" plaintiffs--people who were ultimately depicted by Justice Kennedy as "needing" to assimilate into marital norms rather than desiring to change them. We demonstrate that these lawyers selectively drew on social science, sidestepping studies suggesting positive differences between same-sex and different-sex couples and the transformational potential of same-sex relationships. Rather than telling a story of sexual minorities becoming like heterosexuals, the Court could have acknowledged that same-sex couples may offer valuable lessons for the broader society. By sketching the road not taken--an intersectional, more inclusive, and more LGBT-affirming marriage equality claim--our analysis suggests that the actual claim in Obergefell mainly mirrored the interests of the most privileged members of the class.

Moreover, in this Essay, we extend the story about racial justice by considering how affirmative action has fared at the Court during this time period. The Court's Fisher decision in 2016 surprised court observers by reaffirming Grutter v. Bollinger's diversity rationale and giving universities significant leeway to take race into account as part of a holistic review of applicants. Fisher, like Obergefell, is a notable victory and worthy of celebration. But affirmative action, standing alone, is a rather limited means of challenging racial subordination in education. It is no substitute for a systematic challenge to the de facto segregation and insufficient funding that  hobble many of our nation's public schools. Nor does it require critical engagement with university admissions processes that effectively prioritize socioeconomically privileged applicants. Importantly, the corollary to Fisher's validation of affirmative action is the Court's ruling, in Schuette v. Coalition to Defend Affirmative Action, that states may amend their constitutions to forbid race-conscious policies without triggering meaningful judicial review. Thus, even though underrepresented people of color won in Grutter, Michigan voters quickly stripped them of this victory, and the Court provided no judicial recourse. Our triangulation of affirmative action, criminal justice, and marriage equality suggests the Court's preference for affirming civil rights only when doing so will not dismantle entrenched social hierarchies.

Our analysis builds on some first principles. First, science has sometimes been used to perpetuate the subordination of people of color, women, LGBT people, and many others. Second, courts sometimes invoke science in order to conceal their value choices in "objective" garb. For both of these reasons, scholars should subject scientific findings, and legal claims utilizing such findings, to critical analysis. A close examination of the Court's treatment of social science in certain leading equal protection cases also undercuts any assumption that the Court treats social science in a uniform manner. We suggest that the Court's openness to social science in such litigation will depend on the extent to which its presentation threatens to unleash what the Court regards as "too much justice." When faced with competing bodies of social scientific discourse, we can expect the Court to emphasize the strand that minimally disrupts the status quo.

. . .

This Essay highlights how various institutional pressures influence and, in some cases, confine civil rights claims and the presentation of social science research that bears on such claims. We have shown the importance of holistic, multidimensional representations of stigmatized groups rather than, for example, framing sexual minorities as only the same as or only different than heterosexuals. Marriage equality advocates treated all differences as problematic, yet we recognize that some differences arise from discrimination-- which ought not be minimized--and other differences may be positive. The centrality of the most privileged gays and lesbians in the marriage equality movement obscured how minority stress, race, class, gender identity, and other factors overlap to limit access to relationships and marriage, even after Obergefell. Thus, marriage equality lawyers' attempt to "play it safe" may have exposed LGBT people to future vulnerabilities by downplaying the effects of homophobia.

Although the first third of this Essay focused on race and the remainder concerns sexual orientation, we have sought to show how race and sexuality are intertwined and should not be understood as distinct struggles. For example, there is evidence that being a sexual or gender minority (such as a black transgender woman) compounds the discrimination generally faced by black and brown people in the criminal justice system. Thus, our story about judicial indifference to racial disparities in criminal law should not be understood as a story disconnected from sexual orientation and gender identity. Similarly, our sketch of a more inclusive marriage equality movement makes evident how the most marginalized sexual and gender minorities, including people of color, were relegated to the sidelines in Obergefell. This dynamic unnecessarily perpetuated perceptions that marriage equality is a white, assimilationist project. We have also sought to draw doctrinal connections between cases that otherwise might be regarded as strange bedfellows, including McCleskey, Obergefell, and Grutter. The connecting thread in these cases is the judicial struggle to enforce equal protection while minimally disrupting the status quo and extricating the courts from extended structural reform. Although many lawyers have catered to this judicial instinct, we want to highlight those who have pressed the Court to think bigger, including the brief by experimental psychologists in Fisher, who sought to show a connection between standardized tests and stereotype threat, and the APHA brief in Obergefell, which characterized marriage equality as a public health issue. We encourage scholars and lawyers similarly to resist the "fear of too much justice."

Russell K. Robinson is the Distinguished Haas Chair in LGBT Equity and Professor of Law, University of California, Berkeley School of Law;

David M. Frost is a Senior Lecturer in Social Psychology at University College London.