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How the Prop 8 Case Should Change Equal Protection Law

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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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