Taking Anti-LGBT Discrimination Seriously

U.S. District Court Judge Jeffrey White's recent opinion holding a key provision of the Defense of Marriage Act unconstitutional presents an interesting contrast to Judge Stephen Reinhardt's recent opinion on California's Proposition 8. Reinhardt, trying to maximize the chances that his opinion would not be overruled and therefore create a bad Supreme Court precedent, wrote a cautious and narrow opinion closely tailored to the unique facts of the case at hand. Judge White, conversely, wrote a broad (though clearly argued) opinion that would have much wider implications. Whether White's opinion can survive further appellate review remains to be seen. But on the merits, he provides a very compelling argument that the legal subordination of people based on their sexual orientation should be considered intolerable.

Contemporary equal protection law evaluates state classifications by applying various levels of scrutiny. Racial classifications are subject to "strict" or "heightened" scrutiny and are found constitutional only if they are narrowly tailored to advance a compelling state interest. The constitutional scholar Gerald Gunther's argument that strict scrutiny is "strict in name, but fatal in practice" may not be entirely accurate, but certainly laws can very rarely survive strict scrutiny. Most classifications require merely a rational basis test that the state will almost always pass. Gender is a "quasi-suspect" category, tougher than the rational basis test but requiring less of the state than strict scrutiny.    

The most recent Supreme Court case to consider the question, Romer v. Evans, the Supreme Court held that classifications based on sexual orientation needed only to satisfy the "rational basis" standard, and Judge Reinhardt— carefully following Justice Kennedy's majority opinion—applied that test to Prop 8. Judge White, by contrast, argues that, based on standards previously applied by the Supreme Court, sexual orientation should be considered a "suspect" or at least "quasi-suspect" class subject to heightened scrutiny.

For a District Court judge to apply a higher level of scrutiny than Supreme Court precedents require seems highly problematic—the Supreme Court is allowed to revise its own precedents, but lower court judges cannot. In defense of Judge White, however, the story is a little bit more complex than I've portrayed it above. Romer, after all, struck down the classification in question, and while Colorado's Amendment 2 might have been irrational in the colloquial sense, to call it irrational in the legal sense (which, to oversimplify slightly, requires the state to provide not a good reason but any reason) was always a bit of a stretch. Some scholars have argued that Romer really represents "rational basis with teeth," another sort of intermediate category in which sexual orientation receives less scrutiny than gender classifications but more scrutiny than ordinary economic regulations. So Judge White's holding of the law is not necessarily inconsistent with what the Supreme Court has done. 

Leaving aside the question of whether Judge White's opinion is entirely consistent with Supreme Court precedent, however, his argument that sexual orientation merits heightened scrutiny is certainly persuasive. White cites four factors the Supreme Court has used to determine whether a classification should be subject to heightened scrutiny:

(1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristics are “immutable” or beyond the class members’ control; and (4) the political power of the subject class.

White argues that, with respect to all four factors, sexual orientation qualifies for heightened scrutiny, and with one quibble he's clearly correct.

To take the most controversial question first, the "immutability" criterion may help to explain some of the criticism, recently discussed by E.J. Graff, of Cynthia Nixon's declaration that her sexuality was "a choice." For better or worse, the idea that it’s harder do defend discrimination based on traits beyond a person's control is deeply embedded in American law, and so arguing that sexuality is more fluid might be seen as undermining arguments for gay and lesbian equality.  

I don't blame White for applying the existing legal standard, and also agree with him that if forced to choose from what is essentially a false dichotomy I would put sexual orientation into the "immutable" box rather than the "freely chosen" box. (In addition, White does acknowledge that sexual orientation may not be immutable for all individuals.) But, like Graff, I believe both that this is an oversimplification and that gay and lesbian equality does not depend on entirely removing agency from the equation. People who choose same-sex partners from a group of potential partners of both genders deserve the same right to marry as people who rate a "6" on the Kinsey scale

Fortunately, White's compelling opinion should make it clear that the question of "immutability" should be considered superfluous. What really matters is the first category—whether people have been subject to "invidious discrimination." As Judge White notes, there can "no dispute ... that lesbians and gay men have experienced along history of discrimination." Classifications that deny people rights based on sexual orientation act to stigmatize and subordinate, and this should be the crucial inquiry for equal protection law. Whether sexual orientation is entirely "immutable" is beside the point; based on an extensive history of oppression, sexual orientation clearly merits heightened scrutiny.

The Defense of Marriage Act denies some individuals the benefits of a fundamental right, based on classifications that have historically been used to subordinate individuals who have done nothing wrong but love people of the same gender. As the Obama administration's refusal to defend the law reflects, it should clearly be held unconstitutional. The best outcome is for Judge White's courageous opinion to have the influence it deserves, contributing to a future in which discrimination based on sexual orientation is taken as seriously by the courts as it should be.

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