Sexual orientation and heightened scrutiny in the California marriage decision:

While the politics are complicated and uncertain five months out, a thrilling but narrow win for gay marriage in the California Supreme Court last week could become a narrow and heartbreaking loss at the polls in November. But the court's equal protection holding will outlast a state constitutional amendment banning gay marriage and will have potential to challenge anti-gay discrimination well beyond the issue of marriage. If gay marriage loses in California in November, the equal-protection holding will be the lasting legacy of the opinion.

For the first time in the nation's history, an appeals court of last resort has held that discrimination on the basis of sexual orientation, like discrimination based on race, should be subjected to strict judicial scrutiny under equal protection principles. Under this scrutiny, the discrimination is almost always unconstitutional, requiring the government to show that its classification is necessarily related (or narrowly tailored) to a compelling interest. While this part of the California Supreme Court holding may have little practical effect in a state like California, where it seems almost all public and much private discrimination has already been eliminated by the state legislature, the court's reasoning may influence other courts at the state and federal levels that have been very reluctant to go down this road.

For decades, legal scholars have been urging courts to treat sexual-orientation discrimination as suspect under equal-protection principles. In fact, it's difficult to find law review articles that offer extended analysis of why such discrimination should not be subject to some heightened scrutiny. (Whether some anti-gay discrimination could be subject to strict or intermediate scrutiny because it impinges on a fundamental right guaranteed by the due process clause, as the Ninth Circuit held yesterday in a case involving "Don't Ask, Don't Tell," is a different doctrinal question.)

Despite the academic consensus, and aside from some notable exceptions, like a vacated Ninth Circuit opinion more than a decade ago and a dissent from denial of certiorari by Justice Brennan in a case from the mid-1980s, federal and state judges have uniformly rejected heightened scrutiny for sexual orientation discrimination under equal protection principles. They have offered various reasons for this, discussed more below, but the unarticulated fear may be that strict scrutiny would call into question lots of state and federal laws that discriminate against gays. Courts overturning anti-gay discrimination have found other ways to do so by, for example, saying that sodomy laws violate substantive due process (e.g., Lawrence v. Texas) or by holding that some forms of anti-gay discrimination are simply irrational because based on "animus" (e.g., Romer v. Evans). Even courts finding constitutional protection for gay marriage or civil unions have avoided heightened scrutiny (e.g., the high courts in New Jersey, Vermont, and Massachusetts)

The California court's discussion of heightened scrutiny is at pp. 93-100 of the opinion. It will be required reading in courses on sexual-orientation law.

I. Is the limitation of marriage to one man and one woman "sexual orientation" discrimination?

The first step in the argument is to show that limiting marriage to one man and one woman is a form of sexual-orientation discrimination. Some opponents have argued that this is not sexual-orientation discrimination because such laws do not forbid "homosexuals" from marrying. Homosexuals can marry persons of the opposite sex. At most, they say, prohibiting same-sex marriages has a disparate impact on gays and thus does not constitute objectionable discrimination unless the purpose of the law is to discriminate against gays.

But this argument elevates form over substance, understating the special way in which foreclosing marriage to another person based on the sex of that other person (whether same- or opposite-sex) strikes at an individual's sexual orientation. It's akin to saying that a ban on the wearing of yarmulkes isn't anti-Jewish discrimination because Jews and non-Jews alike are forbidden to wear them.

The argument probably has some traction among a few gay-rights opponents who doubt there really is such a thing as homosexual orientation and thus imagine that requiring gay persons to marry members of the opposite sex is no big imposition on them. But I think even most opponents of gay marriage would recognize that there is sexual orientation discrimination, albeit justified discrimination, in forbidding a gay person to marry another person of the same sex. The court quickly dispensed with the argument: "In our view, it is sophistic to suggest that this conclusion [that limiting marriage to one man and one woman is sexual orientation discrimination] is avoidable by reason of the circumstance that the marriage statutes permit a gay man or a lesbian to marry someone of the opposite sex, because making such a choice would require the negation of the person's sexual orientation." Op. at 94. Unlike race, sexual orientation is closely linked to a behavior, in this case the intimate relationships that a person forms with others, just as the behavior of yarmulke-wearing is closely linked to Jewish identity for many observant Jews.

This is not to say that marriage as it exists in most places today is just another form of bigotry, like separate water fountains for blacks and whites in the pre-civil-rights era. That would be a reductionist and just dumb way to describe marriage. Marriage has many noble purposes and effects, quite aside from the way in which it excludes one or another group of people. An institution like marriage or the military can be important and indeed essential to a society and at the same time operate in discrete ways that invidiously discriminate. The California Supreme Court did not say that marriage as a whole is bigotry, as some critics of the decision have charged; it said that one limitation in the state's marriage law could not be justified.

II. Should sexual-orientation discrimination be subjected to heightened judicial scrutiny?

The more important and far more controversial step in the court's equal-protection holding is the second one, applying strict scrutiny to sexual-orientation discrimination. As a matter of federal constitutional law, which often influences state constitutional law in this area, the U.S. Supreme Court has never explicitly required any particular test for suspect-class status. It has only suggested some relevant considerations in a few scattered opinions.

In last week's marriage case, the California Supreme Court reviewed four factors most often considered in deciding that discrimination aimed at a class of persons is constitutionally suspect and thus places a heavy burden of persuasion on the government to justify it. They are:

(1) Whether the characteristic has subjected the group to a history of social and legal discrimination;

(2) Whether the characteristic of the group is generally related to the person's ability to perform or contribute to society;

(3) Whether the characteristic of the group is immutable; and

(4) Whether the group is so politically weak that it needs the protection of courts from overweening legislative majorities.

The California Attorney General did not contest the first three factors.

The first two factors are uncontroversially met; indeed, I can think of no court that has rejected suspect-class designation for gays on the ground that these conditions were absent. The U.S. Supreme Court once used the second factor -- ability to perform -- as a reason to deny suspect-class status to the mentally retarded. No such performance limitation is present for gays. And there is no doubt that there has been long history of social stigma and legal discrimination against homosexuals.

The third factor has long been a sticking point, with courts usually concluding that there is insufficient scientific proof that homosexual orientation is immutable. The California Supreme Court sidestepped the scientific dispute about sexual orientation by noting that strict immutability is not invariably required for suspect-class status. First, discrimination based on religion is subject to strict scrutiny under equal protection principles, even though people freely change religious views and affiliations. Similarly, alienage is often treated under federal constitutional law as a suspect classification even though a foreigner can become a citizen. Id. at 97-98. Second, immutability does not mean absolute immutability; it includes any characteristic that is "an integral aspect of one's identity." Sexual orientation is "either unchangeable or changeable only at unacceptable personal costs.'" Id. at 98. Asking a gay person to change his sexual orientation to avoid discrimination would be like asking a heterosexual to become a homosexual to avoid that cost. Perhaps it could be done, perhaps not, but even the effort would come at a very high personal cost.

The fourth factor -- whether the group is so politically powerless that it needs special judicial protection -- was the only one contested by the California AG, who pointed to the many ways in which the state legislature has protected gays from public and private discrimination. The state's broad domestic partnership law and the legislature's passage of a gay-marriage law themselves are examples of gays' ability to score successes and gain allies in the state's political process. Leaving aside the observation that gays are still subject to much homophobia even in otherwise friendly states like California, despite the existence of some anti-discrimination protection, why do they need the special protection of courts?

The court answered this very good question by saying that suspect-class status obviously can't be limited to groups that currently lack political power. Otherwise, there would be no heightened scrutiny for classifications based on race, sex, or religion. These classifications are no longer acceptable in the political process and much has been done to advance the interests of blacks, women, and religious minorities. According to the California Supreme Court, the only things that matter are whether the group has historically been subject to invidious discrimination and whether society now recognizes the group's trait is unrelated to merit.

Purely as a way to read the state of current equal-protection doctrine, the court's conclusion seems right. The U.S. Supreme Court is not about to end heightened scrutiny for race- and sex-based classifications just because blacks and women are no longer subject to state-sponsored discrimination.

Justice Baxter's dissent agrees that special judicial scrutiny for race and sex classifications should not be eliminated. So why deny gays alone special judicial protection on the grounds that they've made considerable political progress? Justice Baxter answers this by arguing that it's one thing to extend such protection when a group actually needs it but then with draw it when they longer do, but quite another to extend such protection as a matter of first impression at a time when they do not need it. Baxter dissent at pp. 24-25.

But there's a problem with Baxter's response. Is he saying that he would have voted for heightened scrutiny of sexual orientation discrimination in 1970, when gays really, really needed it but when it would have been unthinkable to give them special judicial protection? Is he, at the same time, saying that if a claim for heightened scrutiny for race were to come before the court as a matter of first impression now he would reject it because racism is currently disfavored in the legislature? Both of these conclusions seem very unlikely, but they are an implication of his logic. So the California Supreme Court's conclusion that current widespread discrimination against a group is not invariably required for heightened scrutiny seems justified under equal-protection doctrine.

But what this conclusion effectively means is that the fourth factor has been collapsed into the first and second factors. If a group can fend for itself tolerably well in the political process because society now sees the trait as irrelevant to merit, why not wait as the political process continues to purge itself of any lingering discrimination? That is what California was doing on the question of marriage itself, with the legislature having twice passed gay-marriage bills. The next governor might well have signed such a law, which (as we now know from the court's decision) would then have had to go to the voters for approval.

The truth is that the "political powerlessness" prong of equal-protection doctrine is more decorative than substantive. It has never had much independent force. As William Eskridge has argued, heightened judicial scrutiny of a classification usually comes only after the suspect class has organized itself as a political and judicial force and after its equality claims have gained a measure of social acceptance. That was true of the civil rights movements for blacks and women; judicial victories often followed political and social successes for the struggles of these groups. After these successes, judges stepped in tentatively, at first, to hasten further progress and finally to eliminate the remaining vestiges of discrimination.

So courts have usually been far more cautious about protecting minority rights than those who continually complain about judicial "activism" and "tyranny" suppose. There's a good reason we won't see heightened protection for gays in the state court systems in places like Mississippi or Texas, where there's truly a practical current need for it. Courts, and especially elected courts, wait until it's safe to be brave.

Something like that is what happened in California, and may happen elsewhere in the nation in the coming decades. Long before the California Supreme Court issued its bold opinion last Thursday, gay Californians organized themselves into a political movement, got openly gay officials elected, rid the state of sodomy laws, passed civil-rights protections, worked tirelessly but incrementally for recognition of their relationships, and pressed for judicial solicitude. The judicial declaration they got last week that discrimination against them is no longer tolerable was not the beginning of something new so much as it was the recognition of something already achieved.

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