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 – whether 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.
The plaintiffs in both Windsor and Perry have asserted that heightened scrutiny should indeed apply, and numerous amici – including my organization, Human Rights Campaign – have supported the argument, citing the ample evidence that gays and lesbians clearly meet all the criteria the Court has historically considered. Unsurprisingly, those defending discrimination against committed same-sex couples disagree. In its brief before the Supreme Court in Windsor, the House Bipartisan Legal Advisory Group (BLAG) argues that none of the factors identified above supports heightened scrutiny for sexual orientation and that one factor, “perhaps the most important – the political power to participate in the democratic progress – tips decisively against making sexual orientation the first new suspect or quasi-suspect class in forty years.” BLAG goes on to cite increased public support for the equality of gays and lesbians and recent successes at the ballot box and on Capitol Hill as proof of political power that obviates a need for greater judicial scrutiny of discriminatory laws.
First of all, BLAG is groundless in suggesting that political power is a more important factor, and ignores the Court’s own precedents in suggesting that some political advancement for gays and lesbians militates against heightened scrutiny. In applying heightened scrutiny to a law that discriminated against female service members in Frontiero v. Richardson, the Court noted that, “[i]t is true, of course, that the position of women in America has improved markedly in recent decades. Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic,women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena.” Frontiero was decided in 1976, after women had already obtained significant legal protections, yet the Court recognized that some success through the political processes does not discount decades of discriminatory treatment and societal disadvantage. The Court further noted that, despite constituting a majority of the American people, “in part because of past discrimination, women are vastly underrepresented in this Nation's decisionmaking councils.”
Of course, the Court in Frontiero looked at all of the heightened scrutiny factors, not simply access to political power, and concluded that a law disadvantaging women merited more strenuous review. Today’s Justices must engage in that same review and not simply focus on the one factor that BLAG has deigned to be most important. But even if they did, viewed through the lens of Frontiero, they would see that the assertion that gays and lesbians possess political power so great as to disqualify them from heightened scrutiny is simply ludicrous.
Like women in 1976, gays and lesbians are dramatically underrepresented in “decisionmaking councils” at all levels. Our best estimate is that gays and lesbians make up about 5 percent of the U.S. population. The current Congress has the largest-ever class of openly gay, lesbian and bisexual lawmakers: seven, or a little over one percent of the total body. The presence of gays and lesbians in state legislatures and on city councils is even less representative of the size of our community.
As a result, gays and lesbians still have not been able to obtain many safeguards under law. In 1976, women had secured a federal law protecting them from workplace discrimination. In 2013, gays and lesbians still have not obtained such a basic protection, despite nearly 30 years of effort on Capitol Hill. While there have certainly been some victories across the country and here in Washington, the rights of gays and lesbians continue to be imperiled. Perhaps the starkest example is that our community has been unable to prevent legislatures and voters from erecting statutory and constitutional barriers to the basic recognition of their families – the very reason we are before the Court this term.