Aníbal Rosario Lebrón (Rutgers Law School) has posted Between the Pessimism of State Action and the Optimism of SSOGIE Equality (53 SW. L. REV. 303 (2025)) on SSRN. Here is the abstract:
This article examines how the limitations imposed by the state action doctrine in the United States curtail sex, sexual orientation, and gender identity and expression (SSOGIE) equality. It argues that the state action doctrine, which restricts constitutional claims to actions by the State, obscures the real dynamics of power and rights violations between private actors. By forcing a vertical framework that pits individuals against the State rather than addressing horizontal conflicts between private parties, the doctrine has enabled the weaponization of civil liberties, especially the First Amendment, to shield discriminatory conduct and stall progress on LGBTQ+ and reproductive rights. Through close analysis of recent precedents from the Supreme Court of the United States, such as 303 Creative v. Elenis, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and NIFLA v. Becerra, the article illustrates how the Court’s application of the state doctrine distorts judicial analysis to insulate private discrimination from judicial review. In response, the article advocates for adopting a horizontal effect of constitutional rights, which recognizes constitutional rights as actionable between private parties. Drawing on examples from jurisdictions like Colombia, Puerto Rico, and California, the article underscores the potential of a legal reform to revitalize SSOGIE equality by adopting the horizontal approach widely by the states.
