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
As I have discussed in previous posts (here and here), the Obama administration takes the position (and will argue in the Second Circuit) that classifications based on sexual orientation should be subject to heightened or intermediate scrutiny, under which the government must establish that the classification is substantially related to an important government objective. The administration does not, then, take the position that strict scrutiny should apply, under which the government would have to establish that the classification is narrowly tailored to a compelling government interest. Why does the administration endorse intermediate but not strict scrutiny?
In his letter to Speaker Boehner explaining the administration's new position, Attorney General Holder discussed the history of prejudice against gays and lesbians, the immutability of sexual orientation, the irrelevance of sexual orientation to an individual's ability to contribute to society, and the relative powerless of gays and lesbians in the political arena. In putting forth these justifications for intermediate scrutiny, Holder drew upon Supreme Court decisions that "set forth the criteria that should inform . . . any . . . judgment as to whether heightened scrutiny applies." Holder cited in this respect two case. The first is Bowen v. Gillard (1987). Bowen, however, involved a discussion of factors relevant to both strict scrutiny and heightened scrutiny and the case on which Bowen itself relied in articulating the relevant considerations, Massachusetts Board of Retirement v. Murgia (1976), involved a question of strict scrutiny. Holder also cited in his letter City of Cleburne v. Cleburne Living Center (1985) but the Court's discussion in that case of at least two of the factors upon which Holder relies to justify intermediate scrutiny (prejudice and the failure of the political process) came in the context of the Court's explaining the reasons for adopting in certain circumstances strict (not intermediate) scrutiny. Despite Holder's discussion of these precedents, they do not provide clear guideposts for choosing between intermediate or strict scrutiny as the appropriate level of review with respect to sexual orientation.
Perhaps the administration concluded that it would be easier to persuade a court to go with intermediate rather than strict scrutiny for sexual orientation. That might be a reasonable guess. But it requires, inevitably, thinking about how sexual orientation classifications relate to gender classifications (the only status besides illegitimacy that is subject to intermediate scrutiny). Holder's letter does not address that issue.
And thus another explanation for the administration's choice seems unavoidable: the administration picked the level of scrutiny least likely to alienate Black voters. Numerous polls demonstrate that Blacks constitute the ethnic group least likely to support same-sex marriage and by a significant margin (though perhaps as Obama's thinking "evolves" on same-sex marriage, other Black voters might change their minds as well). For many years, (certain) Black commentators have expressed offense at any comparison between racial prejudice and discrimination on the basis of sexual orientation. In particular, comparisons between bans on same-sex marriage and anti-miscegenation laws have drawn sharp criticisms. It follows that Blacks will be the least likely group to accept the administration's argument for special constitutional protections for gays and lesbians--especially when it comes to same-sex marriage.
So the administration is playing to both sides: recognizing the need for stronger protections for gays and lesbians while leaving race as a special category that deserves the strongest judicial protections. In this way, the administration can avoid (or try to avoid) any need to argue that the prejudice underlying the historical bans on interracial marriage has a contemporary manifestation.