an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In my first-year constitutional law course, we do an exercise involving footnote 4 of Carolene Products. Tracking the language of that footnote, I ask my students to identify the "discrete and insular minorities" against whom there is "prejudice" that "curtails the operation of . . . political processes" that "ordinarily . . . protect minorities" so that a "more searching judicial inquiry" is warranted when the government draws classifications involving members of those minority groups. The discrete and insular minorities my students identify vary from year to year but we always end up with a long list (and a lively debate about which groups should receive special protection from the courts).
My students are often surprised that after we work our way through the equal protection cases, the Supreme Court's own list of suspect classes is very short. Students sometimes ask if we just didn't cover a whole set of cases. No, I tell them, this is all there is. Students also suggest the Court is simply slower in identifying all of the groups who merit special judicial protection and there are surely more cases to come. My response is that there is in fact very little likelihood that the Court will hold that a classification involving any additional group triggers a heightened form of scrutiny.
Accordingly, I teach my students that in arguing cases (or, of more immediate concern to them, answering an exam question), they are unlikely to prevail if they argue for recognition of a new suspect class in accordance with footnote 4's framework. (As somebody who also teaches criminal procedure, where the Court hardly ever talks about levels of scrutiny, I also tell my constitutional law students not to obsess over whether or not courts use buzz words like "suspect classification" and "strict scrutiny" but to pay attention to the nature of the judicial review being conducted.)
In light of all of this, I am less moved than are other observers by Attorney General Holder's announcement yesterday concerning DOMA.
As I noted in an earlier post, the DOJ has concluded that classifications based on sexual orientation merit heightened scrutiny and under that standard, section 3 of DOMA is unconstitutional. In explaining in his letter to Speaker Boehner why sexual orientation is a suspect class, Holder cites past discrimination against gays and lesbians, the immutability of sexual orientation, and the limited political power gays and lesbians possess to protect themselves against adverse governmental action. These are reasons my own students offer up for counting gays and lesbians as discrete and insular minorities for purposes of footnote 4 of Carolene Products.
I think the argument for heightened scrutiny will fail. I do not see five votes at the Supreme Court for deeming all classifications based on sexual orientation to trigger heightened review.
In good part, this is because the tiers-of-scrutiny approach itself is a bit outdated. As Romer v. Evans and other cases demonstrate, the Court doesn't need to be able to slot laws into specified boxes in order to assess whether they satisfy equal protection. While, I predict, the Court will continue to give a nod to the tiers-framework, I don't sense much enthusiasm for extending that framework by designating any other group a suspect class.
I also doubt that the Court will place much weight on the conclusion of the President and the Attorney General that gays and lesbians merit designation as a suspect class. This is because the tiers-of-scrutiny approach is entirely a creation of the Court itself. It isn't required by the Constitution. It does not involve an interpretation of the Constitution. Instead, it exists to provide a framework for the Court to analyze classifications (and explain its conclusions about them) and to provide government with notice of which kinds of classifications presumptively raise constitutional concerns. The DOJ has no obvious role in shaping or applying the judicially-created tiers framework.
Holder's approach therefore represents a real gamble. Conceding that section 3 of DOMA survives rational review, the Administration is counting on the courts (and ultimately the Supreme Court) taking the unlikely step of deeming gays and lesbians a suspect class--and invalidating section 3 on that basis.
Rather than hew to the tiers-of-scrutiny framework and ask the courts to find a new suspect class, it is likely more fruitful to engage in an analysis of the government's interest in classifications based on sexual orientations and the burdens that result. As Judge Vaughn Walker's equal protection analysis in Perry v. Schwarzenegger (invalidating Prop 8) demonstrates, that sort of approach, basic to most constitutional litigation, can test the reasons for laws and governmental programs and shine light on prejudice that may have motivated them.
By putting its hope in heightened scrutiny, the Obama administration has aimed for the stars--but overlooked the beauty of the pebbles on the beach.