The Return of Noncongruent Equal Protection

Contemporary equal protection doctrine touts the principle of congruence: the notion that equal protection means the same thing whether applied to state or to federal laws. The federalism-tinged equal protection analysis at the heart of Justice Kennedy’s opinion in United States v. Windsor, however, necessarily violates the congruence principle. Commentators and courts—especially those deciding how Windsor’s federalism should affect the ever-growing number of state same-sex marriage cases—have so far failed to account for Windsor’s noncongruent equal protection, much less ask whether noncongruence is generally desirable, and if so, what form it should take. This Article draws answers to those questions from the Supreme Court’s alienage discrimination cases, which offer three distinct models of noncongruence, each of which is reflected in Windsor. The alienage cases show that instead of applying different levels of scrutiny to federal and state laws, a better understanding of noncongruence would allow different levels of government to assert different interests in defending their laws. By reconstructing and evaluating the ways that structure and rights intersect in the alienage cases, this Article considers for the first time what the return of noncongruent equal protection could mean both for cases that follow Windsor and for equal protection doctrine more broadly

The Case of the Religious Gay Blood Donor

The Food and Drug Administration (FDA) prohibits sexually active gay men from donating blood. This Article envisions an original legal challenge to that rule: not the predictable equal protection suit, but a religious freedom claim brought by a gay man who wants to give blood as an act of charity. Because the FDA’s regulations substantially burden his exercise of religion—requiring a year of celibacy as its price—the FDA would be forced to show that its policy is the least restrictive means of preventing HIV transmission through the blood supply. Developments in testing technology and the experience of other countries suggest that this would be hard to prove. A lawsuit like this would either produce a major victory for gay rights or, as likely, would force courts to clarify and curtail some of the most controversial aspects of recent, mostly conservative, religious freedom efforts: their expansive view of religious burdens and their willingness to impose costs on the government or other third parties. In other words, by appropriating legal arguments from the right, a lawsuit like this presents a win-win proposition for progressive litigators. This Article considers why mainstream gay rights organizations may nonetheless shy away from bringing it

Social Group Asylum Claims: A Second Look at the New Visibility Requirement

In an article appearing in this journal in 2008, Fatma E. Marouf identified a worrisome development in asylum law: refugees persecuted because of their membership in a particular social group -one of the five grounds for asylum in the United States -must now show that their group is socially visible in the country from which they fled. For the past five years, the Board of Immigration Appeals (BIA) and the federal courts have increasingly relied on this social visibility criterion to deny asylum claims. Groups deemed insufficiently visible range from youth who resist gangs, to whistle blowers, to women who have children outside of wedlock.s Meanwhile, calls to abolish the requirement have grown louder. In the past several months, advocates have sought to challenge social visibility through legislation, executive action, and judicial intervention. This Comment argues that those attempts have been misguided; social visibility only needs to be properly understood, not discarded

The Aesthetics of Affirmative Action

Justice Thomas’s dissent in Grutter v. Bollinger — which dismissed diversity as an “aesthetic” — highlighted the Supreme Court’s least-discussed rationale for affirmative action in higher education: the claim that visible diversity in elite institutions bolsters those institutions’ “perceived legitimacy.” This Article takes seriously that claim, and Thomas’s critique, as distinctively aesthetic arguments about the role of appearances in public life. By distinguishing the perceived legitimacy argument from others made on behalf of affirmative action, the Article traces for the first time its origins, scope, and unacknowledged popularity. By identifying the aesthetic logic of the Court\u27s argument and drawing on philosophy’s long theorizing about how aesthetic objects are created and judged, this Article is able to explain one of the most heavily criticized aspects of Grutter and its companion case, Gratz: their apparent preference for obfuscation in the use of race in university admissions

Misunderstanding \u3ci\u3eMeriwether\u3c/i\u3e

Meriwether v. Hartop is widely seen as one of the most important academic freedom and transgender rights cases of recent years. Whether praising it as a victory for free speech or condemning it as a threat to educational equality, commentators across the political spectrum have agreed on one thing: the U.S. Court of Appeals for the Sixth Circuit did something big when it held that professors at public universities have a First Amendment right to misgender their students in class. But contrary to popular belief, Meriwether held no such thing. In fact, the Sixth Circuit could not have held what nearly everyone believes it did, given the case’s procedural posture. Meriwether has been misunderstood, and this Article aims to put a halt to the false narrative that has emerged around Meriwether before its consequences continue to spread. Whereas previous work has explained why Meriwether’s holding is wrong, this Article delves into the complicated intersection of civil procedure and government employee speech claims to show why Meriwether’s holding is different, and far less important, than its foes and friends alike seem to think. In doing so, the Article also shows how a false legal narrative can develop, spreading from an opinion that encourages the mistake, to advocates and press who eagerly report it, to commentators, legislators, and courts each with reasons of their own for inflating the opinion’s importance, eroding gender identity protections along the way. This Article, finally, situates the widespread misunderstanding of Meriwether alongside other precedential mistakes and offers insight into how they might be counteracted before further distorting the law and threatening important equality rights

The opposing transcriptional functions of Sin3a and c-Myc are required to maintain tissue homeostasis.

How the proto-oncogene c-Myc balances the processes of stem-cell self-renewal, proliferation and differentiation in adult tissues is largely unknown. We explored c-Myc's transcriptional roles at the epidermal differentiation complex, a locus essential for skin maturation. Binding of c-Myc can simultaneously recruit (Klf4, Ovol-1) and displace (Cebpa, Mxi1 and Sin3a) specific sets of differentiation-specific transcriptional regulators to epidermal differentiation complex genes. We found that Sin3a causes deacetylation of c-Myc protein to directly repress c-Myc activity. In the absence of Sin3a, genomic recruitment of c-Myc to the epidermal differentiation complex is enhanced, and re-activation of c-Myc-target genes drives aberrant epidermal proliferation and differentiation. Simultaneous deletion of c-Myc and Sin3a reverts the skin phenotype to normal. Our results identify how the balance of two transcriptional key regulators can maintain tissue homeostasis through a negative feedback loop