Last week's Sixth Circuit federal appellate court decision permitting Michigan, Ohio, Kentucky, and Tennessee to continue to discriminate against loving, committed LGBT couples in marriage makes clear that the time has come for the United States Supreme Court not only to rule in favor of nationwide marriage equality, but also to recognize that any discrimination based on sexual orientation or gender identity should be subject to heightened review under the federal Constitution.
According to the Sixth Circuit: "So long as judges can conceive of some 'plausible' reason for the law--any plausible reason, even one that did not motivate the legislators who enacted it--the law must stand, no matter how unfair, unjust, or unwise the judges may consider it..." This erroneous position would seem to permit legislatures and electorates to discriminate almost carte blanche against LGBT people.
The Second and Ninth Circuits and many lower courts have reached contrary conclusions. The Sixth Circuit's opinion cries out for the United States Supreme Court finally to address the issue of sexual orientation discrimination head on, something the Court has never done.
The Supreme Court has identified four factors to assess whether a law discriminating against a particular group of people should be subject to heightened scrutiny, and thus nearly always found to be unconstitutional. Those factors are: (1) whether the group has suffered a history of discrimination; (2) whether immutable or distinguishing characteristics clearly define the group; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy goals or to an individual's ability to perform or contribute to society. Sexual orientation discrimination clearly meets these criteria.
LGBT people have unquestionably suffered a long history of discrimination in American life. Indeed, until recently, half the states demeaned the very existence of lesbian and gay people by making our private sexual conduct a crime. Scientific consensus accepts that sexual orientation is a characteristic that is immutable, and it is unfair to ask people to hide their sexual orientation in order to be free from discrimination.
LGBT people are clearly a minority of the American population. Decades' worth of statewide initiatives restricting the rights of lesbian and gay people, federal laws such as DOMA, and Congress' failure to pass ENDA demonstrate our political vulnerability. And being LGBT bears no relationship to a person's ability to perform in society--be it as a doctor, nurse, construction worker-- or a married spouse. Gender identity discrimination also easily satisfies these factors, but unfortunately nearly all observers believe that the Court will not address gender identity discrimination directly in these cases.
Heightened judicial review of governmental discrimination against LGBT people would establish constitutional protections for LGBT Americans with respect not just to marriage, but also to any way in which the government discriminated against us based on sexual orientation or gender identity. The time for the Supreme Court to act is now.
Stuart Gaffney and John Lewis, together for almost three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. They are leaders in the nationwide grassroots organization Marriage Equality USA. This piece was originally published in the San Francisco Bay Times.