Strange Bedfellows #5: One-Off Decisions (or, Thoughts on Plyler, Windsor, and Shelley v. Kraemer)

Whatever the outcome later this month of Obergefell v. Hodges (state-level bans on same-sex marriage), the decision is certain to refer heavily to US v. Windsor (2013) (federal ban on same-sex marriage).  For its part, however, Windsor struck me as a descendent of a precedent it nowhere cited or discussed:  Plyler v. Doe (1982).

Plyler invalidated a Texas statute denying public education to non-citizen children residing in the US unlawfully.  The statute’s classification was sort of, but not really, based on alienage, which made it sort of, but not really, suspect.  Free public education for youth was sort of, but not really, a fundamental right.  The law threatened to create an economic underclass, which is sort of, but not really, wealth discrimination (which is sort of, but not really, a suspect classification in any event).  There was no explicit finding of legislative animus against a disfavored class, although it seemed to be in the mix.  Adding all of these not-quite factors together, the majority concluded that the statute violated equal protection, because “the discrimination contained in [the statute] can hardly be considered rational unless it furthers some substantial goal of the State.”  The dissent complained that “by patching together bits and pieces of what might be termed quasi-suspect-class and quasi-fundamental-rights analysis, the [majority] spins out a theory custom-tailored to the facts of these cases.”

When teaching Plyler, I present it as a glimpse into an alternate universe where the sliding-scale approach favored by Justices Marshall and Stevens had taken hold, so that without regard to rigid categories, the more important the right or the more questionable the classification, the stricter the scrutiny.  But it’s only a glimpse. Plyler has had little impact outside its factual setting: it remains a controlling precedent for laws that target undocumented aliens, but has not had any broader influence on equal protection or fundamental rights methodologies.  Yet upon reading Windsor, I felt as if I was reading Plyler 2.0.

The majority in Windsor portrayed federal DOMA as a statute that sort of, but not really, shifted control over marriage policy from states to the federal government.  Marriage was spoken of in grand terms, but its role as a fundamental right was not really the basis of the opinion.  The opinion implied that discrimination on the basis of sexual orientation was objectionable, but not really suspect.  These various sort-of considerations allowed the majority to conclude that the statute was motivated by animus, obviating the need to undertake the usual examination of legislative means and ends.  The dissenters decried the result and also criticized the majority for offering “rootless and shifting” justifications: for coloring outside the lines.

Time will tell if Windsor heralds a revival of Plyler’s approach to equal protection.  If it is not, then Plyler remains one of the one-offs among the canonical Con Law cases—good teaching decisions whose results are in no real danger of being overruled, but whose reasoning never shaped the mainstream. 

The most prominent of the one-off decisions is Shelley v. Kraemer, which held that judicial enforcement of racially restrictive real estate covenants violates equal protection.  Almost all instruction on Shelley includes discussion of why its approach to state action didn’t ultimately carry the day; not every instance of contract enforcement is treated as state action subject to the Equal Protection Clause. For what it’s worth, Shelley makes more sense to me if viewed less as a state action decision but as a precursor to Brown v. Board of Education (if formally neutral law like “courts should enforce contracts” may violate the Equal Protection Clause, then so may a formally neutral segregation law) and Palmore v. Sidoti (1984) (the child custody case most often quoted for the notion that “private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect”).  Viewed in that frame, Shelley is not the one-off that its reputation suggests.

I’d be interested to hear other nominees for one-off decisions, whose reasoning we are unlikely to see again, but that are nonetheless part of the current Con Law canon.  My other suggestion is the Spending Clause holding from NFIB v. Sebelius.