Later this month the Supreme Court will hear argument in two cases involving the issue of equal marriage rights for same-sex couples. A central question in these cases is whether laws denying gays and lesbians the right to marry violates the Equal Protection Clause of the Fourteenth Amendment. That clause commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws."
What does that mean? Almost all laws treat different people differently. Only doctors can practice medicine. Only veterans are eligible for veterans' benefits. Only people over a certain age receive Social Security. Rich people are taxed at a higher rate than poor people. Not everyone is admitted to the state university.
In general, the Supreme Court has interpreted the Equal Protection Clause to mean that laws that treat people differently do not deny "the equal protection of the laws" if the differential treatment is rationally related to a legitimate government interest. This is a very low standard of justification. As a result, the vast majority of laws that treat some people differently from others are presumed to be constitutional. This makes sense, because most laws of this sort do not threaten the underlying purposes and values that the Equal Protection Clause was meant to protect.
But what are those purposes and values? The central meaning of the Equal Protection Clause can be found in the context in which it was added to the Constitution -- after the Civil War in an effort to protect the newly freed slaves against prejudice and discrimination. Note, however, that the text of the Equal Protect Clause is not limited to newly freed slaves or to African-Americans. It does not say, for example, that no state "shall deny to any newly free slave [or any African-American] the equal protection of the laws." What, then, are we to make of this combination of the text and the underlying history of the clause?
Over time, the Supreme Court has held that the general presumption of constitutionality under the Equal Protection Clause does not apply when the law in question treats individuals in a manner reminiscent of racial discrimination after the Civil War. That is, the Court has held that the primary concern of the Equal Protection Clause is with laws that disadvantage individuals based on factors that "reflect prejudice and antipathy -- a view that those in the burdened class are not as worthy or deserving as others." Legislation "predicated on such prejudice," the Court has explained, is "incompatible with the constitutional understanding that each person is ... entitled to equal justice under the law."
Accordingly, the Supreme Court has held that any law that classifies on the basis of such a characteristic that reflects "prejudice and antipathy" and on the view that "those in the burdened class are not as worthy or deserving as others" must be tested not by asking whether the law rationally furthers a legitimate government interest, but by "heightened judicial scrutiny." That is, laws that discriminate against individuals on the basis of "suspect" criteria are presumed to be unconstitutional unless, at the very least, they substantially further important government interests. This higher standard of justification is meant to enable the Court to ferret out the effects of prejudice and to ensure that groups that have been historically discriminated against are no longer denied the "equal protection of the laws."
In determining whether laws discriminating against any particular group are "suspect" and therefore whether "heightened scrutiny is appropriate," the Supreme Court generally considers four factors (1) whether the group being disadvantaged has experienced a history of invidious discrimination; (2) whether the discrimination is based "on stereotyped characteristics" that do not reflect the group's true abilities; (3) whether members of the group have "obvious, immutable, or distinguishing characteristics that define them as a discrete group"; and (4) whether the group lacks the capacity adequately to protect itself in the political process.
Consideration of these four factors clearly establishes that laws that discriminate against gays and lesbians must be subjected to heightened judicial scrutiny.
(1) Homosexuals in our society have historically been the target of purposeful and often grievously harmful discrimination. For centuries, the prevailing attitude toward gay persons has been condemnation, ostracism, social and legal discrimination, and at times even ferocious punishment. Gay men and lesbians have been denied employment, prevented from entering the nation, castrated and sterilized, targeted for violence, publicly humiliated, and treated as perverts, sinners and criminals.
In such circumstances, it is hardly surprising that individuals who suspected themselves of harboring homosexual tendencies were made to feel deformed, inferior and reviled. Throughout American history, almost all gay men and lesbians attempted, often desperately, to hide their secret shame from family, friends, neighbors, and associates. The fear of discovery kept the very existence of most gay men and lesbians invisible -- even to one another, thereby rendering them politically powerless. As every court to have considered this question has concluded, gay men and lesbians in the United States have endured severe, longstanding and unwarranted discrimination.
(2) The second factor in the Court's heightened scrutiny analysis is whether the group in question is distinctively different from other groups in a way that impairs their ability to function reasonably in society. It may be reasonable, for example, to treat children, the aged, and people with physical or mental disabilities differently from others, at least in some respects. But as courts, scholars, the American Psychiatric Association, and pretty much everyone with any common sense now recognizes, an individual's homosexual orientation implies no impairment in judgment, reliability, or general social or vocational capacity. Indeed, when allowed to do so, gay men and lesbians perform perfectly well as contributing members of society as lawyers, doctors, plumbers, soldiers, athletes, professors, judges, and parents.
(3) Because of past and continuing discrimination, gay men and lesbians have had only a limited ability to protect themselves in the political process. Historically, for reasons already noted, homosexuals -- as homosexuals -- had effectively no capacity to participate effectively in democratic decisionmaking. Even today, gay men and lesbians remain wildly under-represented in the nation's decisionmaking councils. Although approximately 3.8 percent of Americans are gay, lesbian or bisexual, there are only seven openly gay members of Congress, no openly gay person has ever served in the United States Cabinet, and no openly gay person has ever served on any federal court of appeals. Indeed, gay men and lesbians today have only about one-fiftieth the representation they would have in the halls of government if it were not for the past and present discrimination against them.
While gays and lesbians have had some successes in recent years in securing antidiscrimination legislation (and even marriage equality) in some parts of the nation, those patchwork results do not alter the fact that as a group gay men and lesbians lack sufficient political clout effectively to protect themselves in the rough-and-tumble of the political process. Moreover, as the Supreme Court has long recognized, a modicum of political success does not in any way establish that a historically oppressed and subordinated group can adequately protect itself in the political process.
Just as the repeal of anti-miscegenation laws in some states was insufficient to prevent the Court from invoking heightened scrutiny to invalidate laws prohibiting interracial marriage in its 1967 decision in Loving v. Virginia, and just as the existence of federal and state laws prohibiting discrimination against women was insufficient to prevent the Court from invoking heightened scrutiny to invalidate laws discriminating against women in the 1970s, so too are scattered victories in a handful of states an insufficient basis on which to reject heightened scrutiny for laws that discriminate against gay and lesbians today.
The plain and simple fact is that the barriers to achieving equal respect, equal dignity and equal rights for gays and lesbians through the political process remain daunting, and this is especially true at the state level, where a substantial majority of jurisdictions still fervently oppose equal rights for gay and lesbian Americans and where private discrimination against gays and lesbians is still widespread and fierce.
(4) Finally, in deciding whether heightened scrutiny is appropriate under the Equal Protection Clause, the Court has looked with particular suspicion upon laws that discriminate on the basis of "immutable ... or distinguishing characteristics that define [persons] as a discrete group." This consideration derives from the "basic concept of our system that legal burdens should bear some relationship to individual responsibility." Accordingly, a law is more likely to receive heightened scrutiny if it discriminates against individuals based on a characteristic that they either cannot change or should not be compelled to change because it is fundamental to their individual identity.
Sexual orientation clearly falls within this category of defining personal characteristics. As the Supreme Court has itself acknowledged, sexual orientation is so fundamental to a person's identity that one ought not be forced to choose between one's sexual orientation and one's rights as an individual. Even beyond that, though, there is now a broad medical and scientific consensus that sexual orientation is, for all practical purposes, an immutable characteristic. People may to some extent be able to change their behavior, but one's sexual orientation cannot be "cured." Nor should it be.
In the end, it is the responsibility of the Supreme Court to protect the fundamental rights guaranteed to all individuals by the Equal Protection Clause of the Fourteenth Amendment. It is the Court's responsibility to protect discrete and insular minorities from majoritarian prejudice, hostility and indifference. Laws that discriminate against gays and lesbians, like laws that discriminate against African-Americans, Hispanics, Asian-Americans and women, are presumptively unconstitutional and therefore must be tested by heightened judicial scrutiny. Under such a standard, laws denying gay men and women the right to marry are clearly unconstitutional. And so the Court should hold.
This post is drawn from a Friend of the Court brief I wrote with Lori Alvino McGill, a partner in the law firm of Latham & Watkins, on behalf of a group of constitutional law professors from such institutions as Harvard, Yale, Columbia, Chicago, Stanford, Cornell and NYU.
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