by Brian Moulton, Legal Director, Human Rights Campaign. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.
Alongside the core due process and equal protection considerations about marriage equality before the Supreme Court in Windsor v. United States and Hollingsworth v. Perry is a question that could have broader ramifications in the movement for lesbian, gay, bisexual and transgender equality – w
hether laws that discriminate based on sexual orientation should be subject to some form of heightened judicial scrutiny.
To date, the Supreme Court has not directly addressed the question of whether heightened scrutiny should apply to laws that discriminate against gays and lesbians. While many of the U.S. Courts of Appeal have done so, and answered in the negative, those precedents were almost universally dependent on the Court’s decision in Bowers v. Hardwick upholding the constitutionality of sodomy laws, a decision that was repudiated nearly a decade ago in Lawrence v. Texas, leaving those precedents standing on the shakiest of ground. It is no wonder then that, in one of the first post-Lawrence cases to consider the issue, the Second Circuit in Windsor concluded that heightened scrutiny should indeed apply to sexual orientation-based classifications.
In its heightened scrutiny analysis, the Court has typically looked at whether the group defined by the classification in question has experienced a history of discrimination and whether that classifying characteristic is relevant to an individual’s ability to contribute to society. The Court has sometimes considered two additional factors: whether that defining characteristic is immutable, and whether the group is politically vulnerable.
And many LGBT youngsters, a new report finds, are growing up in hostile environments.
This week, the D.C. Court of Appeals - the District's highest court - heard oral arguments in the second Jackson v. District of Columbia Board of Elections and Ethics (Jackson II). After the out-of-jurisdiction marriage recognition bill passed in May 2009 and knowing the District Council was moving towards passage of the "Religious Freedom and Civil Marriage Equality Amendment Act of 2009," opponents of marriage equality filed a petition for an initiative with the Board of Elections and Ethics (BOEE) that would add a provision to the marriage code stating "only marriage between a man and a woman is valid or recognized in the District of Columbia." Following a public hearing, the BOEE rejected the initiative on the grounds that it violated the District's Human Rights Act (HRA). Opponents, led by Bishop Harry Jackson Jr., subsequently sued in D.C. Superior Court.