Expressive Identity: Recuperating Dissent for Equality

Constitutional law has made a mess of the relationship between expression and equality. Much of the time, the two claims exist in sharp conflict, as in recent Supreme Court cases involving hate speech\u27 and the effort by a gay and lesbian group to march in a St. Patrick\u27s Day parade. In those cases, equality claims collided head-on with defenses based on a First Amendment right to express anti-equality values. In other instances, such as debates about whether viewpoint diversity can serve as a justification for affirmative action, or whether race-conscious redistricting can serve as a proxy for political interests under the Voting Rights Act, the Court has waffled on whether associating race with viewpoint is empowering or insulting. The ensuing confusion has been felt across all major fields of antidiscrimination law, from race to sexual orientation, gender to religion. In every instance, courts have failed to grasp that these cases present their own new species of equality claims, not simply a conflict between two old doctrinal categories. This new branch of equality law arises directly out of identity politics and its legal progeny. I call these decisions expressive identity case law, and in this Article, I call for the development of a theory of expressive identity