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How the Prop 8 Case Should Change Equal Protection Law

[ 11 ] February 27, 2012 |

I have a piece for the Prospect that, among other things, argues that making “immutability” a major factor in whether a classification should be subject to heightened scrutiny is anachronistic:

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.

Another aspect of White’s opinion worth noting, as a commenter here also caught, is footnote 5:

The question of whether DOMA impacts a fundamental right is addressed briefly by the parties but it is not at issue here as it is undisputed that Ms. Golinski is already married under state law. The failure of the federal government to recognize Ms. Golinski’s marriage and to provide benefits does not alter the fact that she is married under state law.

While White doesn’t consider it applicable to this specific set of facts, he seems to be signalling that he would be open to the argument made persuasively by Evan Gerstmann that bans on same-sex marriage are constitutionally defective because marriage is a fundamental right. It’s a compelling argument that would help move us away from the “class based” equal protection models that aren’t really working.

Incidentally, I also agree with Gerstmann that the valiant attempts to claim that bans on same-sex marriage should be subject to strict scrutiny because they constitute gender discrimination won’t really fly. Bans on same-sex marriage treat people of both genders the same, and while this formal equality obviously entails subordination and stigmatization, the invidious discrimination is directed at people based on their sexual orientation, not their gender per se. To argue that  bans on SSM are unconstitutional, you either have to argue that 1)sexual orientation should be subject to heightened scrutiny, or 2)same-sex marriage burdens the fundamental right of marriage and hence should be subject to heightened scrutiny. Fortunately, I think both of these alternatives are good arguments, one of which is likely to prevail eventually (although probably not as a result of this case.)

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  1. joe from Lowell says:

    Wouldn’t making a history of discrimination against the plaintiff’s group have the unwanted effect of removing some quite plainly discriminatory acts?

    What if some wingnut business owner decided that no Episcopalians could work for his company because they aren’t born-agains?

    • joe from Lowell says:

      Should be: Wouldn’t making a history of discrimination against the plaintiff’s group the standard have the unwanted effect of removing some quite plainly discriminatory acts?

      • rea says:

        No, because the issue is strict scrutiny, not any scrutiny. And also because the business owner in your hypothetical is not engaged in state action, so the issue with him is whether he violated the civil rights acts, not whether his actions violate the equal protection clause of the 14th Amendment.

  2. chris says:

    Anachronistic, hell; it’s just plain inconsistent. There’s hardly any characteristic as mutable as religion — changing not just once but even several times is so common as to be scarcely remarkable — yet it’s been subjected to strict scrutiny as long as the term has existed.

    On the other hand, if you think the test is a balancing one rather than strictly conjunctive, then mutability is disposable anyway. There’s no serious dispute that sexual orientation hits the other three points.

    Heightened scrutiny, ISTM, is fundamentally a question of whether there’s good reason to suspect that a law/practice is motivated by bigotry rather than by legitimate reasons. Obviously, a history of bigotry is highly relevant; I don’t see how mutability is particularly relevant at all.

    P.S. I don’t think that a position in the middle of the Kinsey scale constitutes “mutability”, anyway; changing your position over your life might, but every position on the scale is an orientation in its own right.

  3. Harold says:

    “Incidentally, I also agree with Gerstmann that the valiant attempts to claim that bans on same-sex marriage should be subject to strict scrutiny because they constitute gender discrimination won’t really fly. Bans on same-sex marriage treat people of both genders the same…”

    By that logic interracial marriage are not race discrimination as they ban whites from marrying blacks and blacks from marrying whites. [Yes there are more races than white and non-white, but Loving will hold up even in the face of more carefully written legislation.]

    If an employee is fired for being in a relationship with someone of another race, it is race discrimination. (At least for the circuits that have considered the issue.) I cannot see a claim otherwise holding up in court in 2012 when the issue is race.

    If we don’t care about immutability, what value is “orientation” at all? It seems more a legacy of insisting that the ERA wouldn’t lead to same sex marriage than a consistent understanding of what “race” and “sex” discrimination mean.

    • Scott Lemieux says:

      By that logic interracial marriage are not race discrimination as they ban whites from marrying blacks and blacks from marrying whites

      You’re missing the next sentence. In this case, the stigmatization and subordination concealed by the neutral surface was race discrimination.

      • Harold says:

        We both agree that discrimination against an interracial couple is invidious race discrimination and I think that we both agree that to argue that it isn’t “race” would not be logical. We also both agree that discrimination against same sex couples is invidious discrimination. We part company on the belief that this discrimination is not “sex” discrimination

        I don’t believe sexism and homophobia are unrelated things and my concern is the claim that sexual orientation is a different invidious category leads to illogical and problematic results.

        For example, in an employment situation a women fired for being butch and not wearing make up shouldn’t face a winning affirmative defense of “We didn’t discriminate against her for being a women, we thought she might be a lesbian.” This isn’t just a policy matter that gays and lesbians should be covered under current Federal employment law too, but that protection on the basis of sex is hollowed out when an “orientation” exception (or perceived orientation) is written into the law.

        A second example of how sex discrimination protection is narrowed is the contortion Scalia did when the Supreme Court addressed same-sex sexual harassment in Oncale v. Sundowner Offshore Services. This has created a lot of headaches for lower courts because of the implied orientation exception.

        I understand that the court (and especially a trial court) is not eager to make new law re: sex discrimination on such a controversial topic as this. I also understand that Romer and Loving gives the Court all it needs to strike down Prop 8. I just think that we shouldn’t glibly dismiss a broad reading of sex discrimination that would be no broader and fully consistent with how race discrimination is read in the law.

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