Leveling Down Gender Equality

Abstract

The U.S. Supreme Court in Sessions v. Morales-Santana (2017) revived its decades old jurisprudence of "leveling down" -- that is, curing an equal protection violation by denying the requested benefit to all rather than extending the benefit to the excluded class. This article challenges that continuation of the conventional acceptance of leveling down or the "mean remedy" and the assumption that leveling down is an equally legitimate remedial option as leveling up for gender discrimination. Instead, it argues for the adoption of an alternative remedial calculus of a strong presumption of leveling up remedies, overcome only rarely by limited equitable considerations. Such a presumption better effectuates the substantive right of gender equality as well as the correlative due process right to a meaningful remedy.

Keywords: constitution, equal protection, gender, immigration, remedies