What do veterans, drug users, children, and suspected terrorists have in common?  They all have specialized courts to deal with them and their legal issues.  Illinois has become the latest state to set up a special “veterans’ court” to handle veterans charged with nonviolent crimes.  (New York has had a similar program in place since early last year.)  The court will not only adjudicate offenses but connect veterans to a range of services and programs that are meant to prevent them from becoming repeat offenders.  The judge organizing this court has even selected veterans to serve as prosecutors and defense attorneys.

The first family courts date from the 1960’s and Great Society-like initiatives meant to address “root causes” of dysfunctional behavior.  Their origins, however, stretch back a century or more to the orphans’ courts and reform houses established by the community organizers of the Gilded Age.  Rather than simply punish, their advocates thought, courts should rehabilitate those offenders who were thought to be reformable.

The existence of such specialized courts raises some interesting questions for American law.  Equality before the law is supposed to be a protection against the assertion of arbitrary power.  At its most banal, there is the enforced frustration of waiting around in a courthouse all day while being considered for jury duty.  Everyone there is at the same level, and 12 (in the classic formulation) will be randomly selected to judge whatever is on the docket.  But specialized courts explicitly assign people a forum based on who they are, a forum denied other people because of who they are.  A nonveteran, in other words, is out of luck, at least with regard to the attention the law will give him.  In a world of increasingly straitened resources, favored status may come to mean better treatment by the legal system.

The old common-law system was comfortable with different laws for different folks.  The British common law, for example, had long made room for ecclesiastical courts, which dealt with a range of offenses and controversies.  The defense known as “benefit of the clergy,” for example, lasted in the United Kingdom until the early 19th century.  Although eventually available to anyone who could read, this defense was originally meant to keep clergy from the harsher penalties of the secular courts.  It was, in other words, a classic type of status-based court.  In the Middle Ages conflicts between feudal tribunals were presided over by the local noble, with a king’s justice seeking to impose uniformity over the nation.

The common characteristics of these courts are secrecy, a lack of what we would usually consider due process, and a wide scope within which the judge can act.  The Foreign Intelligence Surveillance Court, known as FISC, conducts its proceedings, like the Star Chamber, in secrecy.  Generally, only the government gets to present its case before the FISC.  While these courts do not fit with our culture’s current hyperegalitarian rhetoric, as they are quite clearly institutions that promise unequal treatment based on either variable (veteran) or temporarily invariable (child) status, they do square nicely with our obsession with identity politics.  If the government can pull you over for being of a certain “type,” then maybe you should be able to demand your own court to see if the action was justified.

A libertarian might scoff at this and note that, so long as entry into one of these specialized courts is voluntary—as some of them are, at least for now—all is well.  Why not allow every identity its own court?  This is essentially what happens with private systems of resolving disputes, such as arbitration, which has its status-based variations.  Rabbinical courts, called battei din, are not uncommon in certain parts of the country.  And the archbishop of Canterbury has suggested that sharia be introduced into England for those Muslims who wish to be bound by it, although it may be impolitic to ask whether Muslim women have much of a choice in the matter.

Universal rights and top-down legalism have never been conservative causes, and the classic knock on traditionalist conservatives is that they prefer a hierarchical society.  On this view, establishing a range of courts might provide a step back to a premodern set of arrangements and reinforce a stratified society.  Indeed, the archbishop’s suggestion of “overlapping jurisdictions” sounds quaintly old-fashioned, as if he were an apologist for the polyglot Austro-Hungarian Empire rather than a vanguard of the post-multicultural society of modern Britain.  These objections miss the point.  The world is different, and those conceptions of the self that accompanied the complex relationships in premodern worlds (described with great skill in Charles Taylor’s A Secular Age, for example) are no longer possible.

In the older system, the existence of Church courts was at base a recognition that the state was not the only power, and that it did not have exclusive dominion over justice (much less mercy).  The Church had Her own ends and jurisdiction, and the state was bound to recognize Her autonomy, at least in some areas.  A cleric could assert his status against the power of the state; that claim might be rejected by the state, but such an action would at least be recognized as a transgression of its boundaries.

Now, it is the state itself that sets the boundaries.  Today’s specialized courts might have advantages in terms of efficiency, by doing away with the protections of the typical common-law court, but these mechanisms not only reinforce the importance of status but place enormous powers in the hands of the judge and, by derivation, those of the state.  And we have a developing jurisprudence that focuses exactly on what happens when the state determines status.  In a number of recent cases, religious groups have been forced to accept laws that make them act contrary to their beliefs, such as forcing pharmacists with religious objections to dispense the “morning-after” pill or requiring Catholic Charities to place foster children with same-sex couples.  In such cases, the state has denied rights based on these parties’ status and has ruled instead that other groups’ status (as consumer or nonbeliever) should be vindicated.  The example of religious groups or individuals is important because religious identity is the only status recognized in the Constitution as deserving of special consideration.

Your status now promises (or threatens) to become one more weapon in the identity-politics arsenal.  There is no easily recognizable way to divvy up one’s status, and it is a postmodern trope (not completely true, but true enough) that one’s identity is forever malleable.  An individual could conceivably claim a different identity every day.  The malleable rhetoric of the law could easily accommodate these identities, and clever lawyers could make a case for special access or treatment.  If veterans get their own court, one of these talented lawyers might say, why not others?  One does not have to think very hard to come up with other groups in contemporary America who might enjoy courts that are sensitive to their special needs and circumstances.