Equal Protection and Social Meaning
American Journal of Jurisprudence, Vol. 57, 2012
22 Pages Posted: 30 Jan 2013
Date Written: October 27, 2012
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
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