What Level of Legal Scrutiny Should Sexual Orientation-Based Classifications Receive?

This term, the Supreme Court is highly likely to decide the constitutionality of same-sex marriage bans. Such bans still stand in the way of same-sex unions in 14 states, and have aroused passionate opposition. However, the fate of these laws might not rest on moral arguments for equality. Instead, their constitutionality may be determined by a relatively dry legal issue: the level of scrutiny that laws which differentiate on the basis of sexual orientation should receive under the 14th Amendment.

What is legal scrutiny, and why does it matter?

The Equal Protection Clause (EPC) of the 14th Amendment declares that “No State… shall deny to any person within its jurisdiction the equal protection of the laws.” This guarantee of equal protection is one of the most profound and important statements in the American Constitution. Groups frequently dispute laws on basis of the EPC, arguing that a particular statute which explicitly treats two groups differently is unconstitutional. The success or failure of such attempts, though, often rests on certain judicial rules regarding the implementation of the EPC.

One set of these rules regards the level of judicial “scrutiny” laws receive when they are challenged as discriminatory on the basis of the EPC. “Scrutiny” here refers to how a particular law is approached by a Court. Courts can apply one of three different types of scrutiny to a law accused of violating equal protection: strict, intermediate, and rational-basis. A law that receives “strict scrutiny” is presumed to be unconstitutional unless it can meet certain strict conditions; a law that receives “intermediate scrutiny” is assumed to have serious questions about its constitutionality and must meet a slightly more flexible set of restrictions; and a law analyzed under “rational-basis” scrutiny is presumed constitutional, and must only meet very basic conditions.

The level of scrutiny a law receives depends on the “classifications” a law has made, i.e, the groups into which the law has divided people. Classifications may include divisions by race (like Jim Crow laws in the segregated South), gender (like the statute specifying that only males must sign up for the Selective Service), or even age (see Social Security and Medicare). Courts presume some classifications, such as race, to be illegitimate. These classifications are called “suspect classifications” and trigger strict scrutiny. Others are thought to be generally problematic, like gender, and are titled “quasi-suspect” classifications. Quasi-suspect classifications receive intermediate scrutiny. Finally, there are groupings courts usually consider to be legitimate. These groupings can be among other things, age-based, criminal record-based, or class-based, and receive “rational basis” scrutiny.

As previously mentioned, the level of scrutiny determines what conditions a law must meet to be constitutional. A law that receives strict scrutiny must comply with the following three restrictions:

• It must be justified by a compelling state interest. This means the law is needed to protect something essential to the health of the state. National security is generally considered a compelling state interest.
• It must be narrowly tailored. This means that the law must be carefully written so that it only employs the “suspect classification” when absolutely necessary to meet the compelling state interest. This condition becomes significant when considering affirmative action laws. Such laws are currently considered legal because they meet the compelling state interest of creating diversity on college campuses. However, they would be illegal if they created diversity by, for example, admitting a freshman class exclusively made up of African Americans. That remedy would not be considered to be a “narrowly tailored” means of achieving diversity.
• It must be the least restrictive means of meeting that state interest.This requires that there cannot exist a viable alternative method for achieving the state interest that does not employ the suspect classification. This, once again, is important when considering affirmative action: the Supreme Court has said affirmative action would be unconstitutional if there were some other way to achieve real diversity on college campuses without using it.

For a statute to trigger intermediate scrutiny, it must meet these slightly less restrictive conditions:

• It must serve an important government interest. This means that the interest must be more than simply legitimate, such as an interest in increasing administrative efficiency. Pursuing the government interest must also have a significant impact of societal welfare. An example of an important government interest is traffic safety.
• It must be substantially related to that interest. The classification cannot just further the interest; it must be closely related to it. For instance, in Craig v. Boren, the Supreme Court found that a law which allowed sale of a certain kind of alcohol to women between 18–21 and not men of that age violated the 14th Amendment, because it was not substantially related to the stated government interest of traffic safety.

Finally, a provision receiving “rational-basis scrutiny” need meet only these conditions:

• It must serve a legitimate state interest. This can be just about anything — controlling the mosquito population would probably be considered a legitimate state interest.
• It must be rationally related to that interest. All this rule requires is that the classification the provision makes has something to do with furthering the legitimate interest.

Laws which receive Strict Scrutiny are rarely ruled constitutional, due to the difficulty in meeting the above restrictions. Those judged under Intermediate Scrutiny survive slightly more often, while those getting Rational-basis scrutiny are most likely to be upheld. Thus, one who seeks to strike down a law on the basis of the EPC is likely to prevail if the statute is subject to Strict Scrutiny. This is why the type of class a group is labeled as is so significant. Those trying to strike down same-sex marriage bans using the equal protection clause are therefore keenly interested in whether sexual-orientation is judged as a suspect class, a quasi-suspect class, or a non-suspect class.

What Determines a Suspect Class?

Determining whether a group constitutes a suspect class is an imprecise task. The criteria used by federal courts can shift, and some judges put more emphasis on some traits than others. Nonetheless, Justice John Paul Stevens did identify some hallmarks of a suspect class is his majority opinion in Lyng v. Castillo. Addressing the class of “close relatives,” he wrote,

Close relatives are not a “suspect” or “quasisuspect” class. As a historical matter, they have not been subjected to discrimination; they do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and they are not a minority or politically powerless.

This passage suggests that members of a suspect or quasi-suspect class will often have suffered discrimination, may be easily recognized by some characteristic, and frequently lack political power.

Perhaps the most important factor in deciding whether a group is a suspect class, though, is whether there are legitimate reasons to treat that group differently. In the case of senior citizens, for instance, there are often real reasons to treat the group separately. Seniors need greater medical attention than other citizens, and they are often less able to maintain a job. However, there are few, if any, acceptable reasons to treat African-Americans differently from other Americans. Aside from affirmative action programs and possibly some reparations-related legislation, laws treating these people differently than others would generally be legally unacceptable. As such, race is considered to be a suspect classification, while age is not.

Is Sexual Orientation a Suspect or Quasi-Suspect Class?

There is currently no legal consensus as to whether sexual-orientation is a suspect classification, a quasi-suspect classification, or a non-suspect classification. The Supreme Court has not issued a definitive statement on the matter, and different courts have substituted varying judgements of their own. I believe, though, that sexual-orientation should be considered a suspect class, and that laws that differentiate on the basis of sexual orientation should be subject to strict scrutiny.

Gays and lesbians clearly fulfill the first criterion put forth by Justice Stevens: they have suffered obvious and painful discrimination. The discrimination they’ve faced has been both de facto and de jure. The de facto variety includes numerous grisly hate crimes and deplorable employment injustices. However, the de facto discrimination doesn’t compare to the insidiousness of the de jure. While de facto prejudice reflects the narrow-mindedness of a hateful few, de jure discrimination carries the veneer of legitimacy conveyed by our political process. The harm wrought by bans on gays openly serving in the military, engaging in fulfilling sexual relationships, and claiming the benefits of formal recognition of their relationships has been all the more pernicious because of this democratic sanction.

Whether gays and lesbians have some “obvious, immutable, or distinguishing characteristic,” to use Justice Stevens’ framing, is a more difficult question to evaluate. They certainly are not visually obvious in the way members of particular races are. One can easily know a person a long period of time without being aware of their sexual orientation. On the other hand, they do have a distinguishing characteristic if we interpret that word literally: they are sexually attracted to those who identify as their gender. Our inquiry thus becomes how to interpret the word “distinguishing.”

According to Chief Judge Robert Katzmann of the U.S Court of Appeals for the Second Circuit, sound judicial reasoning takes the meaning of a word in a list to be limited by the meaning of the other words in the list. Here, the word “distinguishing” appears in a list with “obvious” and “immutable,” so we might be able to narrow the definition of “distinguishing” by the meaning of the other adjectives. The words “obvious” and “immutable” don’t necessarily refer to visible traits; they might mean characteristics that are an essential part of one’s life. We must therefore look at the larger context of the sentence to limit “distinguished.” Luckily, this approach does provide some help. Justice Stevens wrote that “Close relatives… do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group.” By adding the clause “that define them as a discrete group,” Stevens seems to indicate that what he is really concerned about is not that a suspect class have some visible characteristic, but that the group possess some trait that reasonably narrows its members from society as a whole. “Close relatives” when taken as a class could define nearly all of society, as most everyone is the close relative of someone. Moreover, aside from a categorizing title, close relatives have nothing meaningful in common. Since it seems to me that sexual orientation would define a discrete group, I would consider it to an “obvious, immutable, or distinguishing characteristic” for EPC purposes.

Whether gays constitute a politically powerless minority is a similarly tricky question. The LGBTQ community certainly has energetic and effective advocates in the Human Rights Campaign, the National Gay and Lesbian Task force, and Lambda Legal, among other organizations. This would seem to suggest that gays and lesbians do have political influence. However, it is not clear that this power had developed by the time of the adoption of the same-sex marriage bans in question. Between 1998 and 2012, 31 constitutional amendments banning same-sex marriages passed at the state level; only two such amendments were defeated. The gay rights movement of that period had nowhere near the political potency it has today.

Furthermore, as Darren Lenard Hutchinson wrote for the Alabama Law Review, regardless of the influence that the LGBTQ community has now, the fact remains that “to the extent that gays and lesbians have political power, they can only use this power to persuade courts and legislatures to recognize basic rights that others take for granted.” Gays aren’t politically influential in the way oil tycoons and multinational corporations are; their struggle is not for special tax exemptions, but rather for simple human dignity. When even the wildest success of a political advocacy campaign would constitute only bare equality for the affected group, the group is still politically weak in the sense Justice Stevens meant.

The suspect classness of sexual orientation is further reinforced when we consider whether there exists any legitimate societal reason to treat gays and lesbians differently than others. Opponents of gay rights often put forth society’s interest in procreation as a reason homosexual relationships should be discouraged. However, as both Justices Breyer and Kagan noted during the oral arguments in Perry v. Hollingsworth, if this were a legitimate interest of society, then society also would have rational reason to discriminate against infertile individuals and postmenopausal women. Since our government clearly cannot treat these groups differently for this reason, societies interest in procreation cannot be an acceptable reason to treat homosexuals adversely.

The other reason for disparate treatment typically offered by anti-gay advocates is usually some claim about the immorality of homosexuality and the right of society to express ethical outrage. I find this sort of assertion as offensive as it is absurd, but this argument fails even if one were to (incorrectly) accept homosexuality as immoral. Society does not have absolute power to regulate morality; most believe a life of cheating on one’s non-marital partner to be unethical, but few would assert a government’s right to criminalize such behavior, or deny that individual fundamental rights. This is because spousal betrayal does not threaten societal order, or endanger the guaranteed rights of others. Similarly, being gay cannot destabilize society, or cause impermissible harm to others. As such, society cannot legitimately treat gay and lesbian individuals differently from others based on the conclusion that they are inherently immoral.

Since sexual-orientation bears all of the hallmarks of a suspect class, I conclude that it is indeed a suspect class, and that legal classifications made on that basis should be subject to strict scrutiny. However, that does not mean that gay rights advocates should seek a suspect class classification. In light of the Supreme Court’s affirmative action jurisprudence, they might actually prefer a quasi-suspect class designation.

What Class Designation Would Be Most Advantageous for the Cause of Gay Rights?

When considering what class designation to pursue, gay-rights activists should consider the legal fate of race-based classifications. Such classifications have received strict scrutiny ever since Korematsu, but that scrutiny has not always been helpful for ethnic minorities. Strict Scrutiny, as employed in Loving and other race cases, led to the demise of segregation. More recently, however, the Supreme Court has used strict scrutiny as a pretext to strike down laws benefiting minorities, specifically certain types of affirmative action statutes. The Court has said that since race is presumed to be an impermissible class, strict scrutiny must be applied to any statute which classifies by race, even if the law is designed to promote greater equality. Furthermore, the Court held in Grutter (incorrectly, in my opinion) that remedying past discrimination is not a compelling state interest.

These precedents suggest that if sexual orientation is held to be a suspect class, gays and lesbians could be precluded from receiving reparations for the wrongs they have borne. Any law enacted to compensate for their sufferings might be struck down for failing to provide equal protection to heterosexuals. This would clearly be an undesirable result for those seeking to promote equality. The Supreme Court has not held, though, that remedying past discrimination is not an important state interest. This means that an affirmative action law benefiting homosexuals might be upheld on that basis if subjected to intermediate scrutiny.

The drawback of seeking intermediate, rather than strict scrutiny, is that it may be more difficult to see anti-gay laws struck down under the EPC. However, I think that intermediate scrutiny would be more than enough to take down modern discriminatory statutes. When it comes to banning same-sex marriage, I cannot see how the state could successfully claim to be protecting any legitimate interest, let alone an important one. Indeed, most federal courts have thus far held that same-sex marriage bans fail even when subjected to rational-basis scrutiny, and none has found that such bans could survive intermediate scrutiny. Given this, I think that sexual-orientation equality would be best served if its advocates sought a quasi-suspect class designation at the Supreme Court.

Final Thoughts

It is tragic that gay and lesbian individuals have so long labored under the yoke of discrimination. However, if there is one advantage to this oppression, it is that gay-rights activists can benefit from the collective wisdom of the rights movements that came before them. They can study the legal precedents regarding race and gender based discrimination, and employ only the most successful strategies. In doing so, I believe they will find that seeking intermediate scrutiny is the best path to achieving equality.

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Brett Parker, a sophomore studying political science, is a staff writer at Stanford Political Journal.