Equal Protection and Social Meaning

American Journal of Jurisprudence, Vol. 57, 2012

Oxford Legal Studies Research Paper No. 11/2013

22 Pages Posted: 30 Jan 2013

See all articles by Richard Ekins

Richard Ekins

University of Oxford - Faculty of Law

Date Written: October 27, 2012

Abstract

This paper considers the argument that the application of the constitutional doctrine of equal protection to impugn some act turns on the “social meaning” of the act in question. The social meaning of an act, many scholars argue, is distinct from the intentions of the agent and from the perceptions of the subjects of the act. It is instead the meaning (or state of mind or attitude) that the act “expresses”, which meaning is a public construction. Equality, these scholars maintain, proscribes any act the social meaning of which is that the act fails to express equal respect for some class of persons, which is to say that it disparages, demeans, excludes, or expresses contempt for such persons. The point of this paper is to consider and refute the idea of social meaning in general, as well as its application in particular cases. While my focus is on equal protection, the social meaning argument extends to non-discrimination law, which the scholars take to parallel the former, proscribing some acts of private persons when those acts express disrespect of others.

Keywords: equal protection, expressive content, social meaning, discrimination, intention

Suggested Citation

Ekins, Richard, Equal Protection and Social Meaning (October 27, 2012). American Journal of Jurisprudence, Vol. 57, 2012; Oxford Legal Studies Research Paper No. 11/2013. Available at SSRN: https://ssrn.com/abstract=2207163

Richard Ekins (Contact Author)

University of Oxford - Faculty of Law ( email )

St Giles
Oxford, Oxfordshire OX1 3JP
United Kingdom

HOME PAGE: http://www.law.ox.ac.uk/profile/richard.ekins

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