Unnatural Groups: A Reacton to Owen Fiss's "Groups and the Equal Protection Clause"

Abstract

This article suggests that Owen Fiss's idea of an equal protection principle undergirded by a prohibition of actions that disadvantage certain "natural groups" contributed to a much more expansive idea of group difference in contemporary identity conscious legal scholarship. The expanded natural groups idea seeks to protect groups against disadvantageous actions by protecting cultural practices or traits thought to "belong" to the groups. This approach to civil rights (equal protection doctrine and statutory anti-discrimination law) is troubling because it requires a legally articulated account of group difference. Such an account of group difference may be factually inaccurate or incomplete, may reinforce dangerous stereotypes and at the same time may become a self fulfilling prophesy as members of the group in question come to internalize the account of group difference that receives the judicial imprimatur. We should reject this approach to civil rights in favor of an expanded conception of an anti-discrimination norm and perhaps group indifferent rights to specific practices or characteristics.