The Constitution of Status– Part II

Copyright 1997 Jack M. Balkin. All Rights Reserved.

C.Status Groups and Symbolic Capital

Status groups compete not only for material resources, but for prestige and honor. Members of status groups often fight about things that seem merely symbolic, including flags, the placement and design of monuments, and the presence and content of prayers at civic ceremonies.(38) Whites and blacks fight over whether to install a statue of Arthur Ashe among a group of Confederate heros, or whether to remove a Confederate flag from the state capitol.(39) Groups often fight over relatively minor changes in statutory provisions that often will have little effect on the actual practices of law enforcement.(40)

These symbolic struggles are forms of status competition.(41) Status competition occurs in many different forms because one’s status can be diminished or augmented in many different ways. For example, people may experience a loss of status because of the way others treat them in day-to-day encounters.(42) However, because status is defined and measured in symbolic terms, direct interaction is not always necessary. People can experience threats to their status simply by watching or even hearing about conduct that is not specifically directed at them individually but that reflects on their status group. For example, even if an African American has never walked past the South Carolina capitol, she might be very upset to know that the Confederate battle flag flies there. Even if a religious parent never watches television sitcoms with gay characters, she might be very concerned about their symbolic approval of a gay lifestyle. Many Muslims were deeply hurt by the publication of The Satanic Verses even though they had no intention of ever reading the book. The mere existence of an offending monument, television program, or book, can produce a felt loss in status and esteem for groups and for their idealized styles of life.(43) Groups who fear a loss of status, either due to competition from other groups or general social and economic changes, experience status anxiety; often this leads them to try to reassert their status through new forms of status competition.(44)

One should not assume that symbolic struggles between status groups are “merely” symbolic. Much politics is fought over the control of symbols because these symbols are markers of social status, and social status is itself a valuable good. Status includes social approval, respect, and admiration for one’s self and one’s style of life; these attitudes are largely demonstrated and received through symbolic activity. Hence the visible signs of increased status are hotly contested by competing groups, and the contestants often look closely for any signs of slights or disrespect, whether intended or unintended.(45) Symbolic conflict is not “just” symbolic; it is the very currency of having and maintaining higher or lower status. The ability to gain a symbolic victory is itself evidence of the achievement or preservation of higher status, which is proved by the symbolic trophy carried away.(46)

Groups often pursue status competition with amazing vehemence. They do so for two reasons. First, dignity, honor, and moral approval are important to most people both intrinsically and for the further advantages that they bring. Status is not identical to wealth, political power, or other social goods, but it is often correlated with them.(47) It can help people attain other social goods, and in any case it provides its own compensations. Higher status can confer increased political power; it often reflects wealth and may help create it.(48) Status capital can be converted, though often imperfectly and unpredictably, into other forms of capital and economic and social power. Not surprisingly, conflicts for increased social status often overlap with struggles for other social goods. Thus, status competition is a method of upward social mobility. It is a means for groups that have previously held lower status to raise their social esteem, and gain other potential advantages that higher status normally confers. Conversely, it is a method for groups who enjoy higher status to preserve their prerogatives.

Second, status competition is intense because status is a relative good. One has more of it because others have correspondingly less. Status competition tends to be zero-sum, at least in the short run.(49) More generally, it is non-Paretian: One cannot increase the status of one group without decreasing the status of another.(50) High prestige is prestige over others and in distinction to others. Increased respect for lower status groups means a corresponding loss of respect for higher status groups because their identity has been constructed around their greater prestige and the greater propriety of their ways of living.(51)

Put another way, status competition tends to be zero-sum–or at least non-Paretian–because the identities of the antagonistic groups are not independent of each other. Social identities depend on social meanings–sets of positive and negative associations–that compare and contrast social groups. An increase of positive associations for one group changes its social identity, and hence affects the social identity of groups superordinate to it. For example, in a system of white supremacy, whites gain positive associations of honesty, reliability, industry, intelligence, and morality in comparison to blacks. To increase the status of blacks in society means that these positive associations must be weakened or eliminated. Whites can no longer expect a certain set of positive assumptions to be made about them simply because they are white. The social meanings of whiteness and blackness are subtly altered, and the social identities of individuals are thereby changed.

Indeed, one way of tracing the history of the successes and failures of American civil rights law is to ask how much social superiority whites have felt comfortable surrendering at any time while still retaining their superior status. Justice Harlan makes this point inadvertently in his famous dissent in Plessy v. Ferguson.(52) Immediately before his famous declaration of colorblindness and his announcement that “[t]here is no caste”(53) in the United States, he notes that “[t]he white race deems itself to be the dominant race in this country.”(54) Whites, Harlan argues, are dominant “in prestige, in achievements, in education, in wealth and in power,”(55) and so they “will continue to be for all time.”(56) Harlan sees no contradiction between these claims and the anti-caste principle he is about to announce, for he does not think that granting legal equality to blacks will destroy the social superiority of whites. Harlan thinks that one can and must make a distinction between legal equality and social equality, and that the granting of legal equality will not eventually lead to social equality: Even if blacks can sit in railway carriages with whites, the white race will continue to be the dominant race for all time. Of course, the whole debate in Plessy is how much the white race can afford to give up in terms of legal protection and still remain “the dominant race.” Justices Brown and Harlan disagree on precisely this point.(57) Yet neither Justice is willing to surrender the social dominance of whites. They simply represent two different takes on the management of that dominance. As soon as whites fear that legal reforms have left them no longer “the dominant race in the country,” their backlash has been as ferocious as it has been predictable.

Just as status is partly convertible into other social goods, these goods can partly compensate individuals for changes in their status. One can increase an individual’s level of social comfort by giving that person political power, a higher income, or greater social esteem. Increases in one dimension can sometimes compensate, albeit imperfectly, for losses in another.(58) Conversely, losses to social esteem are probably felt most keenly by those who have less compensation in other dimensions of social goods.

It is not surprising that the middle of the 1950s and most of the 1960s witnessed both a significant breakdown in status hierarchies as well as abundant prosperity in the United States, not simply for the rich, but more importantly for the middle and working classes. Middle- and working-class whites and males had the most to lose from a loss in their social status, but increasing affluence partly compensated them for a change in their social identities.

Yet such balm can spread only so far. For all of their affluence, the 1960s hardly witnessed a complacent acceptance of changes in the social meanings of race and gender. Moreover, status politics and status competition usually intensify when economic growth slows, as it inevitably must. When the size of the economic pie is no longer growing or is even shrinking, social groups may return avidly to the zero-sum game of status politics. Tolerance is replaced by suspicion, and cooperation is replaced by increased demands for respect and esteem.(59) This fact has not gone unnoticed by politicians. The so-called wedge issues perfected by the Republican Party in the 1970s and 1980s have often been based on appeals to status politics, whether organized around race, religion, ethnicity, or gender.(60)

Moreover, a booming economy does not always distribute its benefits equally. Even when the rich are doing well, working- and middle-class Americans may not be. Restructuring may cost jobs and produce lower wages, and thereby create economic insecurities leading to a renewed hunger for status and respect. This hunger can lead to new rounds of status competition, and the scapegoating of blacks, Hispanics, and immigrant groups.(61)


D.Status Competition and the Clash of Moral Values


Because status groups are organized around contrasting styles of life, status competition is often phrased in terms of moral approval or disapproval. The preservation of the status of one’s group is seen as the preservation of morality itself or at the very least of a particularly upright way of life. As Joseph Gusfield argued in his study of the Temperance movement, “[e]ach status group operates with an image of correct behavior which it prizes and with a contrast conception in the behavior of despised groups whose status is beneath theirs.”(62) The fight over temperance was expressed in distinctively moral terms, with abstemious Protestants berating Catholics and immigrants for their immoral ways.

Men who sought to defend traditional gender roles (in which women hold lower status) have often done so on the grounds of preserving the family and traditional moral values. Women who abandoned traditional female roles were either themselves immoral or were unwittingly contributing to moral lassitude and the destruction of the family. Symbolic politics often concerns issues of moral reform through which status groups attempt to defend or enhance their

social prestige and the prestige of their style of life.(63) Usually groups do so at the expense of the prestige and esteem of the losers in the cultural struggle.(64) Stereotypes often play an important role in these moral conflicts. White beliefs about black immorality and the bankruptcy of black culture have surely affected struggles ranging from welfare policy to censorship of rap music.(65)

Because status competition is tied to competing conceptions of morality, it is tempting to assume that moral discourse and moral condemnation in cultural struggles are merely a cover for status competition. But this view is mistaken. The word “morality” itself comes from the Latin mores, or modes of life, and the two concepts remain deeply connected. Debates about morality are not smokescreens for debates about status; rather, struggles over status are struggles over what forms of life should be honored and receive general moral approval. Debates about morality and moral approval are the medium through which status competition is carried out, but the moral debates are no less authentic for that reason.(66)

Similarly, status competition does not always involve animus or hatred toward competing groups. Animus may be present, but only in extreme situations. Members of status groups are equally likely to feel disgust, fear, condescension, or pity for their opponents. Often one finds only a sincere desire to preserve the moral approval of a way of life that a status group has adopted or that it holds up as an unfulfilled ideal. Just as moral disapproval is not simply a cover for status competition, a status group’s attempt to maintain a preferred status or a status hierarchy is no less real simply because hatred or animus is absent.


E.The Paradox of Status Hierarchy


Status competition can occur between groups with comparatively equal status in society, for example blacks and Hispanics, both of whom currently enjoy less social status than non-Hispanic whites.(67) However, the examples I am most concerned with in this Essay are cultural struggles between higher and lower status groups in a status hierarchy. Status hierarchies are kept in place by a system of social meanings and the attribution of positive and negative qualities. When this set of social meanings starts to weaken, so too does the status hierarchy, and new forms of status competition become possible between superordinate and subordinate groups. This movement from relatively taken-for-granted status hierarchies to relatively contestable ones is an important source of cultural struggles.

When status hierarchies are relatively rigid, higher status groups may treat lower status groups with condescension and even affection. Gordon Wood tells of upper-crust American colonial aristocrats who joked and ate with their social inferiors and treated them affectionately like children.(68) These aristocrats could afford to intermingle because they were confident that their social status was unaffected by such encounters. Indeed, the very idea of “condescension” toward one’s social inferiors was viewed as a positive quality, whereas in our more egalitarian times it is viewed as an insulting form of snobbery.(69)

Yet the aristocracy’s comparatively easy attitude toward poor and working-class Americans changed significantly in the years after the Revolution, when the boundaries between classes had begun to break down and republican zeal had started to dismantle native aristocracies.(70) As the ideology of the American Revolution succeeded in weakening social distinctions, condescension gave way to fear and distrust.

This point can be generalized. As social hierarchies break down, they are increasingly replaced by new forms of status competition. This leads to what I shall call the paradox of status hierarchy: Societies with relatively rigid social roles and hierarchical orderings tend to appear relatively stable and peaceful on the surface. Consensus seems to rule. The system of social meanings that convey higher and lower status is reproduced effectively, and without great effort. Higher status groups may treat lower status groups with condescension and paternalism.

Yet as status hierarchies weaken, it takes considerably greater effort to keep subordinate groups subordinate and inferior meanings inferior. Lower status groups feel able to assert themselves and demand greater respect. Higher status groups experience increasing fears that they will suffer a corresponding loss of prestige in the non-Paretian world of social status. People certain of their superior social status may treat their social inferiors with indulgence and even paternal affection, but when the status barriers begin to break down, their rhetoric turns to fear, anger, and hate. They can no longer afford the luxury of condescension.

As Richard Abel has noted, dominant groups faced with upstart competitors are likely to feel extremely threatened; they cling ever more fiercely to their symbols of pride and prestige. Hence, “[e]ven if a subordinate group asks only a minimum of respect, the dominant group rightly perceives this as challenging its superiority.”(71) The result can be not only ill will and intemperate language, but mindless, recurring cycles of violence and mutual recrimination. Both subordinate and superordinate groups may lash out at each other, wielding the weapons of rhetoric, law, or brute force: the former to demand new social prestige, the latter to reinforce and reproduce old hierarchies of respect and social meaning.

The paradox of status is that intense social conflict between status groups emerges not at the height of a system of social stratification but during its decline. The more clear-cut and well-defined that status hierarchies are, the less overt are the kinds of discontent and strife one may see. A regime in which “everyone knows their place”–and does not even imagine it possible to alter that place–can create the illusion, if not the reality, of a harmonious, well-ordered society. Conversely, when the clarity of status hierarchies is breaking down, when social meanings become contested, and when previously lower groups begin to demand higher status and a greater share of respect, there is likely to be great confusion, discord, strife, even violence. Yet this may not be because a perfect harmony has been shattered, but because the chains of a particularly egregious hierarchy have begun to be loosened. The halcyon “good old days,” by contrast, may have reflected the robustness of then-existing social hierarchies and the rigidity of social stratification.

The most conflicted moments in American history may be the times when old social meanings about status are dissolving and new ones are taking their place. These are moments of heightened cultural struggle or Kulturkampf. To be sure, they are not necessarily Kulturkampfs in Bismarck’s original sense. These cultural struggles are the effect of social forces that have already begun to change. They feature not only the new assertions of groups rising in status, but the rearguard actions of an older order that is starting to pass away. Higher status groups employ whatever muscle they can offer–whether cultural, legal, or physical–to replenish their diminishing status capital and to put things back the way they were.(72) But often, perhaps usually, it is already too late. The system of social meanings has changed, and all of us are carried along by its powerful tides. Faced with dissensus, open conflict, and even violence, people often harken back to the “good old days” when people were moral, social expectations were preserved, social deviance was invisible, overt enforcement of status norms was unnecessary, and everybody knew their place. I call this phenomenon status nostalgia.(73)


F.Romer v. Evans as an Example of Status Competition


It is not difficult to see how Romer v. Evans fits into this analysis. Amendment 2 was a shoring-up exercise, designed to reassert what had lately come into question. The proponents of Amendment 2 attempted to reestablish traditional values through legal declaration. They wanted to ensure that discrimination on the basis of sexual orientation was not put on the same level of immorality as discrimination on the basis of gender or race. They wanted a clear statement by the state of Colorado that it was not so reprehensible an act to discriminate on the basis of sexual orientation. What was at stake in Amendment 2 was a symbolic affirmation of the comparative value, prestige, and morality of different styles of living, and of the different groups who practiced those different styles of life.

The hierarchy of social meanings that granted superior prestige to heterosexuality was not primarily based on animus toward homosexuals. It was based on moral disapproval. It involved discrimination to be sure, but between those morally more and less worthy. It was discrimination in the same way that people discriminate between the honest and the dishonest. Morality and social propriety are surely at stake in the debates over the legalization of homosexuality and the social equality of homosexuals. Unfortunately, moral discourse is often the most important way in which existing social hierarchies are defended and maintained. The lower status of women, and of blacks, has repeatedly been defended in terms of religious and moral values.(74)

Understanding the struggle in Romer as the result of status competition also helps to explain two claims that may at first seem mystifying from the perspective of advocates of gay rights. The first is the claim that protecting homosexuals from discrimination offers them “special” rights. The second is the claim that antidiscrimination ordinances place an official stamp of approval on homosexuality and will destroy the traditional family. A related claim is that the recognition of gay marriage will endorse homosexuality and make a mockery of heterosexual marriage. These assertions should be understood in their cultural context. They are reactions to the gradual change in the social status of homosexuals, and in the social meanings of homosexuality and heterosexuality.

An ongoing status regime relies on the continual reproduction of a set of social meanings about what is normal and abnormal, moral and immoral, prestigious and base, that provide a baseline of expectations about what is happening in society and what things mean. In a cultural struggle or Kulturkampf like that over gay rights, superordinate status groups are trying to preserve this older baseline of social meanings and expectations from gradually occurring changes.

Protecting homosexuals from discrimination is understood as a sign of increased social status mirrored in new legal protections. Because status competition is zero-sum, this increase in status necessarily occurs at the expense of heterosexuals. From the perspective of the older baseline of social meanings, it appears that homosexuals are being given something new that is being taken away from heterosexuals. They are being given increased honor, respect, and esteem, hence “special treatment.” At the risk of trivializing the phenomenon, it is somewhat like an older brother who resents the new toy purchased for his younger sibling. Or more accurately, it is as if the toy were taken from the older brother and given to the younger. Every change in the semiotic status quo, no matter how unfair the previous baseline of social meanings, may be seen as sending the message of favoritism and special treatment. Any departure from a baseline that views homosexuality as deviant and immoral will be viewed by some members of the dominant status group eager to retain their status as a movement toward treating homosexuality as normal and morally appropriate.

In this zero-sum world, tolerance for homosexuals can be reconciled with their lower social status only so long as this tolerance is given grudgingly and without any social or moral approval of homosexuality. Tolerance that demands moral acceptance of homosexuality, however, is in tension with the existing baseline of social meanings and hence will be viewed as deliberate approval or advocacy of gay lifestyles. This baseline of expectations explains the politics of the closet: Homosexuals who remain in the closet and act like heterosexuals will be treated equally as long as they do not make an issue of their homosexuality. To declare their homosexuality openly and then to demand equal rights appears to assert that it is wrong to discriminate against homosexuals because of their lifestyle, which in turn implies that perhaps homosexuality is not so immoral after all. Because such overt demands disturb the hierarchy of social meanings and the implicit moral superiority of heterosexuality, they are viewed as “flaunting,” and thus as presenting demands for “special” treatment.

Similarly, gay marriages “threaten” or “make a mockery of” traditional marriage because from the standpoint of the older baseline of social meanings they send the message that gay marriage is “just as good as” heterosexual marriage. Legal recognition of gay marriages, like antidiscrimination legislation, is symbolic of a change in the status relationship between heterosexuality and homosexuality, and thus appears to equate the morality of one with the morality of the other. Because homosexuality is presumed immoral under the older set of assumptions, gay marriages degrade heterosexual marriage by comparison. From the standpoint of gay rights opponents, it is as if one equated property with theft. Nothing could be more damaging to the hierarchy of heterosexuality over homosexuality, and produce a greater loss of status, than the symbolic statement that homosexual unions are just as moral, just as normal, and deserve just as much social approval as heterosexual marriages. Because legal recognition of gay marriage departs from the symbolic status quo, it can be interpreted in precisely this way–as “advocacy” of the gay lifestyle rather than a demand for equal treatment.

It is not accidental that the most vocal opponents of gay marriage and gay rights have repeatedly raised the specter of children being taught in the public schools that homosexuality is just as normal and morally appropriate as heterosexuality.(75) This is understood as a powerful argument against reform precisely because it poses the question of a change in status relations in its starkest form: It asks straights if they are really willing to accept fully equal moral status with homosexuals. Opponents of gay rights assume that most heterosexuals, no matter how tolerant, will not be willing to take that step; once they understand what full social equality for homosexuals means they will recoil in horror. The instincts of these gay rights opponents are entirely correct: Few groups ever surrender the whole of their higher social status willingly.


G.The Role of Social Movements


Indeed, because status competition is zero-sum, higher status groups are loath to surrender any of their status unless it conflicts with practical political necessities or with other deeply held beliefs. Hence social movements like abolitionism, the civil rights movement, the gay rights movement, and the many incarnations of American feminism are vitally important in explaining why superordinate groups eventually accept a redistribution of status.

Social movements are more than movements for legal reform. They are movements for status disestablishment. Hence they are movements for changes in social structure and changes in social meaning. The feminist movement in America, for example, has not been simply about gaining legal rights for women; it has also tried to change the day to day behavior and beliefs of both men and women. Law plays an important role in this process, but it is only one element.

Social movements attempt to create practical problems in maintaining social order and social control. Social movements also attempt to change the social meaning of subordination so that it eventually comes to conflict with other deeply held beliefs about justice, equality, and fair play.(76) A dual attack on both practical interests and ideological commitments is often the best strategy. A good example is the gradual change of heart that elites experienced concerning southern segregation as a result of America’s foreign policy initiatives in the Cold War.(77)Distinguishing the American way of life from Communism caused many elites to become increasingly uncomfortable with America’s system of apartheid. This change in attitude by elites, and particularly northern elites, probably helped buttress the fledgling civil rights movement in the South in the 1950s.

Furthermore, social movements can often gain advantages by forming alliances with more powerful groups. The early civil rights movement took place against the backdrop of a more general assault on southern culture and southern institutions by northern elites. Even before the Supreme Court finally put its weight behind school desegregation in Green v. County School Board(78)it demanded an end to Bible readings and school prayer.(79)

The present struggle over gay rights is also much more complicated than a simple status conflict between the forces of social hierarchy and the righteous armies of egalitarianism. Many different groups are usually involved in cultural struggles, forming complicated sets of alliances. Struggles for equality are often bound up with other struggles that are not so egalitarian. The civil rights movement, for all of its moral authority, was allied with the drive by northern managerial and technical elites to dominate and reshape the culture of southern working-class whites. Moreover, different groups, each of whom is attempting to rise in status, may be on different sides of a cultural struggle.

In like fashion, the current struggle over gay rights is more than a battle between the Goliath of heterosexual America against the David of the gay rights movement. Among the most vocal opponents of gay rights initiatives are Christian conservatives, who are themselves struggling to increase their status and respect vis-à-vis secular America.(80) Conversely, the struggle for gay rights may well be facilitated by the emergence of a new status regime that features a rising economic class of professionals and information producers.

This new information or knowledge class earns its living through the manipulation of symbols, the production and interpretation of information, and the creation of objects of informational consumption through computers and mass media. The new knowledge class is largely secular, and tends to be liberal on so-called social issues. The rise of this class signals the increasing economic and social downfall of non-symbol-manipulating, nonprofessional, lesser-educated Americans. It was no accident, then, that Justice Scalia angrily identified the result in Romer with the prejudices of “elites,”(81) or that Republicans ranging from Bob Dole to Pat Buchanan have made anti-elitist appeals both to working-class Americans and religious conservatives.(82) Gay rights advocates will probably find this rising knowledge class among its most hospitable allies, but it is unclear whether this new class is producing a more just and egalitarian order of status.

The centrality of social movements to contemporary attacks on status hierarchy shows the irony and the perversity of the categories courts have traditionally used to describe groups deserving of special constitutional protection. Courts often look to the “political powerlessness” of a group when deciding whether to treat it as disadvantaged and classifications affecting it as suspect.(83) Yet legal elites–whether judicial or legislative–usually respond to “disadvantaged” groups only after a social movement has demanded a response. Ironically then, a status group must display some degree of political power–whether at the ballot box or in the streets–before it can be considered “politically powerless” and hence deserving of legal protection.(84)

The centrality of social movements in promoting social change reflects the fact that law generally works most effectively in assisting the breakdown of a system of social meanings that has already begun. Rarely can it dismantle a status system on its own. The fact that members of status groups have organized into social movements like feminism, civil rights, or gay rights is a sign that social changes have already begun, that the social hierarchy has started to become controversial and hence can no longer hide itself under the camouflage of naturalness. Under these conditions, law can play an important, albeit supporting, role. After all, it is unlikely that members of higher status groups (who tend to dominate the legislatures and the judiciary) will even recognize the possibility of a problem until a social movement appears on the scene to demand increased status.

Thus, the ability of status groups to find supporters in the political process tells us only that a status hierarchy has begun to break down and therefore that its injustice has begun to become visible to increasing numbers of legal and governmental elites; it does not tell us whether the group is deserving or undeserving of legal protection. After all, African Americans have been the beneficiaries of remedial legislation since the passage of the 1866 Civil Rights Act. Over the years, many legal elites (including African-American members of those elites) have enlisted in the cause of racial equality. Yet this does not mean that unjust racial hierarchy has been eliminated from the United States. Indeed, groups that are truly politically powerless usually do not even appear on the radar screen of legal decisionmakers–including courts–because the status hierarchy is so robust that few in power even notice that there is a problem.

Nevertheless, once a social movement has gained widespread recognition, the law often expands its protection to other groups who may never have organized into a social movement but whose situation is understood as formally similar. Thus, the beneficiaries of Reconstruction were not only blacks, but also Hispanics, Asian Americans, and other ethnic minorities. Even though the Reconstruction Amendments were specifically designed to protect blacks, courts soon applied them to prohibit all discrimination based on race or national origin.(85) Today Polish Americans are protected every bit as much as African Americans even though the 1960s did not witness a Polish American civil rights movement. The internal logic of legal regulation grants rights to groups even without the creation of social movements, as long as some other group judged sufficiently “similar” has trod before them.

In fact, a focus on “political powerlessness” may be not only irrelevant but perverse: It plays into the hands of people who want to preserve status hierarchies. The very existence of a nascent social movement to break down unjust status hierarchies is evidence that the group is not politically powerless. It is evidence that the group is, in contemporary language, a powerful special interest group, or in public choice terms, a rent-seeking minority seeking to impose costs on the rest of society. It is no accident, therefore, that opponents of homosexual rights complain loudly about the power of the “homosexual lobby,” or that Justice Scalia thinks it important to note that homosexuals are a highly organized and politically influential group.(86)

Scalia’s impression of the massive political might of homosexuals may be due to their relatively recent self-assertion in the face of a declining, albeit still powerful, status hierarchy. Our sense of political clout depends, like so much else, on background assumptions of what is normal and appropriate. All groups tend to look more powerful once a boot has been lifted off their neck. If one never noticed the boot (or its impropriety) in the first place, the group may now look positively arrogant.

The more general lesson that we should draw is one about the sociology of legal knowledge–about lawyers’ use of doctrinal categories to judge the nature of the political and social system and to measure and remedy group disadvantage. Legal elites must be self-critical because their judgments are conditioned by their participation in the system they are trying to judge. The lawyer’s conception of “suspect classification,” for example, does not refer so much to a fact about social hierarchy as to the consciousness of legal elites in recognizing the existence and the unjustness of social hierarchy as the result of successful social movements. Few legal elites thought sexual orientation could be a suspect classification until social movements began to change their political imaginations.(87) Law always comes upon social inequities in medias res; lawyers only see the problem because some group has already imagined and acted upon the promise of a better world.



38. Richard Abel’s recent work on freedom of speech is based on the theory of status conflict and is filled with many helpful examples of the phenomenon. See Abel, supra note 20; Richard Abel, Speech & Respect (1994). Sanford Levinson’s recent writings on public monuments and government-sponsored speech also contain many useful examples of symbolic conflicts over status. See, e.g., Sanford Levinson, Allocating Honor and Acting Honorably: Some Reflections Provoked by the Cardozo Conference on Slavery, 17 Cardozo L. Rev. 1969 (1996); Sanford Levinson, The Tutelary State, “Censorship,” “Silencing,” and the “Practices of Cultural Regulation”, in Censorship and Silencing: Practices of Cultural Regulation (Robert Post ed., forthcoming 1998); Sanford Levinson, They Whisper: Reflections on Flags, Monuments, and State Holidays, and the Construction of Social Meaning in a Multicultural Society, 70 Chi.-Kent L. Rev. 1079 (1995) [hereinafter Levinson, They Whisper].

39. See Abel, supra note 20, at IV-44-45; Levinson, They Whisper, supra note 38.

40. See, e.g., Murray Edelman, The Symbolic Uses of Politics 36-43 (1964) (discussing symbolic use of antitrust laws and other forms of economic regulation).

41. See Abel, supra note 20, at III-23-24; Abel, supra note 38, at 22-24 (describing controversies over freedom of speech as examples of status competition).

42. The analogous phenomenon is Erving Goffman’s conception of stigma, in which the individual conveys information about himself through personal interaction. See Erving Goffman, Stigma: Notes on the Management of Spoiled Identity 51-62 (1963).

43. See Abel, supra note 38, at 4-22. Because symbolism is the currency of status hierarchy, the mass media play an important role in the economy of status. First, the mass media widely disseminate social meanings that reinforce status hierarchies. That is one reason why people are concerned about stereotypes in television and movies. Second, mass media can spread alternative social meanings that might subvert existing hierarchies. An example would be sympathetic portrayals of homosexual characters. Third, mass media can amplify and expand the scope of symbolic conflicts by calling attention to local disputes and putting them “in the face” of people widely dispersed geographically. Recent controversies over graduation prayers, the Confederate battle flag, and the teaching of “ebonics” (Black English) are all examples.

44. See Gusfield, supra note 20, at 22-23 (describing examples of how loss of prestige leads to attempts to “cut down to size” newly rising classes). Gusfield attributes the rise of support for Prohibition largely to “the sense of cultural change and prestige loss which accompanied both the defeat of the Populist movement and the increased urbanization and immigration of the early twentieth century.” Id. at 102.

45. See Abel, supra note 20, at IV-1-8.

46. See id. at III-26; Gusfield, supra note 20, at 4, 21.

47. See Abel, supra note 20, at III-27; Bourdieu, supra note 23, at 125-43; Kevin Sack, Symbols of Old South Feed a New Bitterness, N.Y. Times, Feb. 8, 1997, at A1 (quoting view of historian Charles Reagan Wilson that disputes over southern flags are fights “about who has the power, really”).

48. See Abel, supra note 20, at III-27.

49. See id. at III-28-29; McAdams, supra note 21, at 1030-31 (arguing that status competition is zero-sum “when members of different [social] groups seek incompatible positions for their groups along some common, observable, and reasonably objective dimension”); id. at 1076 (noting that where one social group seeks superiority and the other seeks equality, “the struggle for social status is zero sum”); cf. Kenneth L. Karst, Religious Freedom and Equal Citizenship: Reflections on Lukumi, 69 Tul. L. Rev. 335, 351 (1994) (“Status domination is a zero-sum game, and one group’s achievement of dominance is matched by a `status harm’ to another group.”). See generally Kenneth L. Karst, Law’s Promise, Law’s Expression (1993) (offering various examples of zero-sum games of status domination involving race, religion, and gender).

50. A change in the economy of status might be non-Paretian without being zero-sum if members of a superordinate group lose less in status than members of a subordinate group gain.

51. See Gordon W. Allport, The Nature of Prejudice 371-72 (1954). Giving different groups equal status requires that high status groups lose status. Because status is valuable, the latter groups will not easily surrender it. In other words, in the economy of status one cannot reproduce the mythical Minnesota town of Lake Woebegone, where all the children are above average.

In the long run, a society can attempt to increase the size of the “status pie” by increasing the number of awards, prizes, and other markers of high status available in society. If people care about different metrics of esteem, their status competition may not be zero-sum and it may not even be non-Paretian. See McAdams, supra note 21, at 1031; Richard H. McAdams, Relative Preferences, 102 Yale L.J. 1, 49-55 (1992). On the other hand, if awards and status are distributed too liberally, this tends to cheapen their value.

A related strategy is to create many new and different kinds of status that are incommensurable or difficult to compare. In this way each group can have its share of status markers, but the very fact that new forms of status are incommensurable with each other undermines the sense that one is better than others, and therefore may be insufficient compensation.

52. 163 U.S. 537 (1896).

53. Id. at 559 (Harlan, J., dissenting).

54. Id. (Harlan, J., dissenting).

55. Id. (Harlan, J., dissenting).

56. Id. (Harlan, J., dissenting).

57. Although nowhere directly stated, one senses that Justice Brown’s majority opinion is deeply concerned that granting blacks additional legal equality will inevitably lead to social equality through racial mixing. That is why it is necessary for Brown to prevaricate and insist that feelings of inferiority produced by segregation do not reflect social reality but are simply blacks’ idiosyncratic construction of the matter. See id. at 551. Justice Harlan can afford to be more honest in his racism because he is quite sure that civil equality for blacks will not lead to their social equality–that granting blacks additional rights will not significantly change the superior status of “the white race.”

58. Consider, for example, the tradeoff that many federal judges make when they surrender a much higher expected income for what is presumably greater political power and higher social prestige.

59. See Abel, supra note 20, at III-38; 2 Weber, supra note 20, at 938. By contrast, Gusfield, following Lipset, argued that class politics was heightened in times of economic downturns, while status politics was heightened in times of economic prosperity. See Gusfield, supra note 20, at 16-17 (citing Seymour Lipset, The Sources of the Radical Right, in The New American Right 166 (Daniel Bell ed., 1955)). A more plausible account distinguishes two different causes of status politics. The first is the scapegoating that accompanies economic downturns, as noted above. A second kind of status politics can occur during times of economic prosperity but the mechanism is more complicated: It occurs not because of scapegoating by superordinate groups but because of self-assertion by subordinate groups. During times of economic expansion, status hierarchies may loosen for two reasons. First, subordinate groups are energized because they have more resources and can spend less of their time eking out a living. Second, superordinate groups, enjoying the fruits of the same expansion, are partially compensated for changes in the status regime. This relaxation of status hierarchies in turn emboldens subordinate groups, who step up their demands and attempt to accelerate the process of transformation. This self-assertion leads eventually to status anxiety and backlash. Status conflict will be exacerbated still further if this backlash occurs as the economy is slowing.

60. See Thomas Byrne Edsall & Mary D. Edsall, Chain Reaction (1991) (describing history of Republican Party’s successful use of social, racial and other “wedge” issues).

61. See, e.g., Kevin R. Johnson, Civil Rights and Immigration: Challenges for the Latino Community in the Twenty-First Century, 8 La Raza L.J. 42, 60 & n.89 (1995). The situation is exacerbated because these groups are, in turn, attempting to better their status at the same time. Hence middle-class and working-class whites may feel squeezed between two different social trends. Economic insecurity may also lead to a resurgence of anti-Semitism–and not only among whites–because anti-Jewish stereotypes feed into a sense of economic frustration. See Allport,supra note 51, at 370-71.

62. Gusfield, supra note 20, at 27. Gusfield borrows the term “contrast conception” from the literature on racial and cultural relations. “It describes the ways in which groups impute significance to differences between their behavior and that of other social groups . . . .” Id.

63. See id. at 3.

64. See id.

65. The sources of racism are many and varied; racism is not simple moral disapproval of other races or their ways of life. But an important part of racial attitudes treats race as a proxy for culture. It is important to emphasize that even after whites accepted that blacks were not naturally inferior to them it was possible for them to believe that blacks were culturally inferior. White disapproval of black culture as ignorant and immoral is an important part of this belief.

66. Many debates over the relationship between law and morals–raising in one form or another the question whether the law should “legislate morality”–are debates about ideals and idealized styles of life connected with groups actively engaged in status competition. Prohibition is an obvious example, and homosexual rights are another. Religious groups in particular have often sought to bolster their esteem and reassert their importance to society through moral crusades about gambling, drinking, alcohol and drug use, and sexuality. Conversely, the rebuttal that law should “stay out of morality” is often made by secularists or opposing religious groups. Once again, the language of morality is not a smokescreen for invidious motivation, but the way in which cultural struggle is carried out. Although not all debates over “legislating morality” are linked to status competition, many important ones have had these links. Jurisprudential debates about the proper relationship between law and morals are both interesting and important philosophically, but often they are beside the point sociologically. Competing groups are after more than jurisprudential correctness; they are after a vindication of their world-view and hence their felt esteem in a larger polity that they believe gives them and their idealized styles of life less respect than they rightfully deserve.

67. Moreover, although status competition usually occurs between groups in a single society, it can also occur across national boundaries. Abel gives as an example the controversy surrounding Salman Rushdie’s publication of The Satanic Verses. See Abel, supra note 38, at 11-22. Many Muslims–both in Great Britain and around the world–felt that the book was blasphemous and an insult to the honor and dignity of Islam. The most extreme form of disapproval, however, was the Iranian Ayatollah Khomeni’s fatwa against Rushdie, calling upon the faithful to execute the author. See id. at 15. The fatwa helped precipitate an equally indignant reaction in Western Europe and the United States over the intolerance of Islamic fundamentalism, coupled with a demand that Rushdie’s opponents recognize and respect his artistic freedom. See id. at 15-18. The controversy over The Satanic Verses concerned both the comparative status of Muslims and Christians in Great Britain (where Rushdie lived), and the comparative honor of Islam and the non-Islamic West.

68. See Gordon S. Wood, The Radicalism of the American Revolution 41-42 (1991).

69. See 3 Oxford English Dictionary 682 (2d ed. 1989) (listing earlier, more positive definition as “affability to one’s inferiors, with courteous disregard of difference of rank or position”).

70. See Wood, supra note 68, at 271-86.

71. Abel, supra note 38, at 24.

72. As discussed supra text accompanying notes 58-61, the loss of status may be most keenly felt by members of high status groups who in other respects have low social status. Such people have the most to lose from a decline in prestige in the one aspect of their identity that bestows higher status. Therefore their opposition may be the keenest.

73. A wonderful example of status nostalgia is captured in the lyrics to the theme song for Norman Lear’s All in the Family, sung by Archie Bunker and his wife Edith at the beginning of each episode:

Boy the way Glenn Miller played,

Songs that made the hit parade,

Guys like us we had it made,

Those were the days.

And you knew where you were then,

Girls were girls and men were men.

Mister we could use a man like Herbert Hoover again.

Didn’t need no welfare state,

Everybody pulled his weight,

Gee our old LaSalle ran great,

Those were the days!

All in the Family (CBS television broadcast, 1971-79).

74. See, e.g., Bradwell v. Illinois, 83 U.S. 130, 141 (1872) (justifying subordinate status of women as “law of the Creator”). These hierarchies have also been defended by appeals to scientific rationality. See Stephen Jay Gould, The Mismeasure of Man 30-145 (1981).

75. See, e.g., David Foster, In Gay Rights Debate, Concern About Children Is Never Far Away, L.A. Times, June 6, 1993, at B3 (noting concerns among parents that teaching that homosexuality is normal will lead more children to become homosexual).

76. See, e.g., Kimberle Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1359, 1368 (1988) (discussing role of civil rights movement in remaking image of blacks in eyes of whites and undermining white views about justice of status quo).

77. See, e.g., Mary L. Dudziak, Desegregation as a Cold War Imperative, 41 Stan. L. Rev. 61, 62 (1988).

78. 391 U.S. 430 (1968).

79. On the strategy of northern elites in remaking the South, see L.A. Powe, Jr., Does Footnote Four Describe?, 11 Const. Commentary 197, 212-14 (1994).

80. Christian conservatives are not a monolithic entity, and it is unclear whether the label constitutes an independent status group, but it surely contains many status groups, including fundamentalist Christians, evangelical Protestants, and conservative Catholics. The latter groups have often been stereotyped and made the butt of jokes. Nevertheless, they are by no means held in the same degree of contempt as homosexuals. It is not illegal for Christian conservatives to practice their religion, and they are protected from discrimination by federal and state law. Few people in the United States regard being an evangelical Christian as an immoral lifestyle choice. By contrast, homosexuals are still often condemned morally by many segments of society and they are still subject to de jure discrimination in many areas of life.

81. See Romer v. Evans, 116 S. Ct. 1620, 1629 (1996) (Scalia, J., dissenting).

82. See, e.g., Michael Barone, Hell No, They Shouldn’t Go: For Republican Pat Buchanan, Bosnia Is a Target of Opportunity, U.S. News & World Rep., Dec. 11, 1995, at 50-51 (reporting Buchanan calls for “building a national coalition that will defy the corporate and political elites and put our own people and our own country first for a change”); Rita Beamish, Buchanan Accuses Republican Rivals of Stealing His Agenda’s Thunder, Star-Ledger (Newark), Sept. 18, 1995 (noting Republican presidential candidates’ appropriation of Buchanan’s anti-elitist message); Robert J. Dole, Text of the Republican Response, Wash. Post, Jan. 24, 1996, at A15 (responding to President Clinton’s State of the Union Address by accusing Clinton of “shar[ing] a view of America held by our country’s elites”). Attacks on elites are important parts of the current culture wars, not only in the cases of gay rights, abortion, and school prayer, but also federal funding for the arts. Ironically, members of political elites–for example, Pat Buchanan, Jesse Helms, and George Wallace–usually represent lower status groups in public discourse. Even if they retain relatively high individual status as a result of their privileged positions, they gain political power by representing the status concerns and status resentment of others.

83. See Bowen v. Gilliard, 483 U.S. 587, 602 (1987); Lyng v. Castillo, 477 U.S. 635, 638 (1986); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 445 (1985); Frontiero v. Richardson, 411 U.S. 677, 686 n.17 (1973).

84. This phenomenon is related to the paradox of status hierarchy noted earlier. Robust status hierarchies are less likely to be challenged and therefore have a greater appearance of stability. Only when hierarchies begin to weaken are mass social movements able to form and gain strength. Indeed, social movements are both cause and symptom, for as they grow they may accelerate the process of social transformation.

85. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 368-69 (1886) (applying Fourteenth Amendment to Chinese resident alien); Slaughter-House Cases, 83 U.S. 36, 71-72 (1872) (recognizing Reconstruction Amendments not limited to blacks).

86. See Romer, 116 S. Ct. at 1629 (Scalia, J., dissenting).

87. In some ways, the relation of Romer to Bowers is a perfect example of this phenomenon. Several years ago, Cass Sunstein tried to deal with Bowers by suggesting that while the Due Process Clause properly looks to history and tradition, the Equal Protection Clause need not. See Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U. Chi. L. Rev. 1161, 1163 (1988). This is a wonderful example of lawyers’ continual belief in the ability of legal categories to understand the social world: Like the test of “political powerlessness,” it is an attempt–through doctrine–to articulate a social phenomenon that shapes the lawyer’s very understanding of what doctrine means!

The result in Bowers is best explained not by the differing legal functions of the two Clauses, but at what point in the history of a declining status hierarchy each Clause is most likely to get invoked. When a status hierarchy is still relatively unproblematic, when it appears natural and normal, defenders of the hierarchy can make more or less unproblematic appeals to the moral values that support the hierarchy. As a result, the conflict is more likely to be understood as one between morality and claims of individual liberty. One looks to “tradition” to settle the issue because tradition is the crystallization of those moral views that reflect and support those status hierarchies that are still relatively unproblematized. Any liberty claim must somehow be made consistent with an interpretation of this tradition. One way to do this is to argue that law should not attempt to enforce “morality”; a second is to claim that the tradition is flexible, or indeterminate; a third is to claim that there are differing views about morality and the law should not impose a particular version.

Hence, at the beginnings of the contemporary (post-1960s) women’s movement, abortion rights were more likely to be understood and accepted (by most men if not by most women) as questions of individual liberty than as questions of the equality of status groups. This conceptualization is reflected in the structure of Roe v. Wade, 410 U.S. 113 (1973). It also helps that the Court that wrote this opinion consisted of middle- to older-aged men. An equality-based interpretation of abortion rights surely existed in 1972 when Roe was argued, but it was not sufficiently mainstream to appeal to the members of the Supreme Court.

However, when a status hierarchy increasingly begins to decline, the struggle between social groups emerges more clearly, and all sides see the conflict more clearly as one of equality. Tradition can no longer play the same role as it did before. It has become problematized in the minds of increasing numbers of legal elites, and hence it must be selectively invoked if it is invoked at all.