This Post is part of the Symposium on Unconstitutional Animus
The Supreme Court’s equal protection jurisprudence places people of color and LGBT people on segregated doctrinal paths heading in divergent directions. While equality is expanding for LGBT people, it is evaporating for people of color. Nearly 20 years ago, the Supreme Court decided Romer v. Evans, the first of a string of groundbreaking gay rights cases. Justice Kennedy, writing for the majority, announced at the outset: “the Constitution ‘neither knows nor tolerates classes among citizens.” (quoting Harlan, J., dissenting, in Plessy v. Ferguson). Yet the Court’s equality jurisprudence has long been intensely identity-conscious. And even champions of equality in famous cases have validated other forms of inequality. Justice Kennedy’s reliance on Justice Harlan’s dissent thus was prescient. Justice Harlan voted to dismantle the segregated railway cars at issue in Plessy, but he simultaneously praised the supremacy of the “white race.” Justice Kennedy has been described as the foremost judicial champion of gay rights, yet he consistently votes to roll back basic protections for people of color and women, as signified recently by Shelby County v. Holder.
In general, the measure of equality
that the Court currently affords turns heavily on what “class” the law
burdens. The Court has long used the
concept of a suspect class to identify a handful of groups that require special
vigilance from the Court, while consigning most other classes to rational basis
review. Although this might seem to be
in tension with the notion that the Constitution does not know classes, the
suspect class model was based on an evaluation of social and political factors
that rendered certain classes particularly vulnerable. Thus, the “special “ scrutiny was designed to
bring such classes up to a baseline of equal treatment , which other groups
took for granted. With Romer, however, the balance
shifted. The Court continues to apply
the traditional model to virtually all classifications, including race and sex,
but it has invented other ways of undermining this analysis—such as equating
classifications that burdens whites with those burdening blacks and Latinos and
diluting intermediate scrutiny in gender cases.
The one area in equal protection jurisprudence where the Court discards the
traditional model and expands equality is gay rights. Yet the Court has said absolutely nothing to
explain this departure. The central
principle of animus does not justify these doctrinal distinctions because many
groups face hostility of varying degrees in society, including people with
disabilities, Muslims, and of course women and people of color (not to mention
deeply reviled groups such as sex offenders and drug users). But the Court generally refuses to see such
bias and invokes the traditional model to turn away claims brought by these
groups.
Too often scholars (including some of
my colleagues who are writing in this symposium) seemingly accept the Court’s
existing doctrine as fair and struggle to produce rationales and frameworks to
fill in the gaps and elisions that riddle the gay rights opinion. Such scholars apparently assume that the
Court—really, Justice Kennedy, the swing vote in equality cases—is guided by
neutral principles, and if legal scholars just keep poring over his opinions
and trying really hard, we will discover the key that unlocks the animus
principle. This effort usually entails
linking the modern gay rights cases to Moreno
and Cleburne, which also opined on
the illegitimacy of laws based on a “bare desire to harm” in very different
contexts. The problem is that those
equally ambiguous opinions are roughly 40 and 30 years old, respectively. They were decided by very different configurations
of Justices during very different eras. The modern Court has refused to extend those
precedents in every context except gay rights.
In contrast to these efforts to explain the current doctrine, which may
have the unintended effect of legitimizing it, I want to suggest that the
doctrine is unprincipled and idiosyncratic.
It reflects one man’s intuition that people of color and women have obtained
enough justice in the courts, and the focus of modern equal protection doctrine
should be gay rights cases, which are typically fronted by white, affluent
plaintiffs, such as Edith Windsor, and so-called “reverse discrimination”
claims brought by whites in cases like Ricci
and Parents Involved. As laudable as I find the long-overdue
holdings in favor of gay rights, which hold special meaning to me as a gay man,
I cannot ignore the divergence that tramples doctrinal consistency and denies
equality to most minority groups.
I will highlight two examples of
doctrinal inconsistency. Interested
readers can learn more by consulting my forthcoming article, Unequal Protection. First, in race and sex cases, the Court has
rigidly used the concept of a “classification” as a gate-keeping device, but it
has ignored this requirement in sexual orientation cases. In theory, people of color and women enjoy suspect
or quasi-suspect class status and thus can invoke heightened scrutiny. The Court has avoided applying heightened
scrutiny, however, by imposing the additional hurdle of a
“classification.” Thus, in Feeney and Geduldig, the fact that a veterans’ preference law and a benefits
program that excluded pregnancy severely impacted women was deemed irrelevant
because the Court perceived no gender classification. In McCleskey,
the Court applied similar reasoning to a racial challenge to Georgia’s biased
capital sentencing scheme. By contrast,
the Court has never mentioned the requirement of a classification in gay rights
cases. The laws in Windsor and Lawrence did
not mention sexual orientation on their face, just as the law in Feeney did not mention sex, and the law
in McCleskey did not mention race. Second, LGBT people can invoke animus, a
standard that emerged from cases brought by people of color, poor people, and
people with disabilities, but that the Court no longer recognizes in such
cases. In place of the contextual,
intuitive and rather subjective animus test, the Court requires people of color
and women to demonstrate malice—“smoking-gun” evidence that the legislature
wanted to harm the group. No Supreme
Court litigant has been able to meet this standard. LGBT plaintiffs have twice prevailed under
the animus standard.
Unequal
Protection calls on constitutional law scholars
and teachers to think critically about the Court’s equal protection
distinctions and consider whether the doctrine itself may perpetuate
inequality.
Russell K. Robinson is a Professor at Berkeley Law. He can be reached at: robinson at law.berkeley.edu.