Rhetoric and Reality: Gay Rights Law Haunted by Rhetoric, Part 2

Michigan Messenger has begun an ongoing series examining major issues and the political rhetoric surrounding those issues. In Part One we looked at what the federal Employment Non-Discrimination Act, pending in Congress would and wouldn’t do. Today in Part Two we’ll begin to look at the rhetoric being used against the bill. Gary Glenn, president of the Michigan chapter of the American Family Association, gave the Michigan Messenger several reasons why his group objects to the bill. The first is that gays don’t deserve Federal protection against discrimination:

Under federal court rulings the justification for “protected class” status under U.S. civil rights laws have historically met three tests:

* Distinguishable by immutable characteristics.
* A history of economic disadvantage.
* A history of political powerlessness.

The class of individuals distinguished by engaging in homosexual behavior fails all three:

* Homosexual behavior is not an immutable characteristic. (Ask Ann Heche.)
* As a class, individuals who engage in homosexual behavior, according to homosexual publications themselves, are economically privileged, not disadvantaged (higher college graduation rates, higher incomes, more likely to hold management positions, more likely to travel abroad, etc.).
* The tiny minority of individuals who engage in homosexual behavior has proven to be anything but politically powerless.

There are several arguments here, so let’s unpack them one at a time. Let’s begin by noting that the criteria Glenn cites, even if they were accurate, really have nothing to do with the criteria that Congress could or should apply in deciding what types of discrimination to forbid. The court rulings Glenn refers to only use such criteria to determine the level of scrutiny or standard of review the Supreme Court applies in evaluating the constitutionality of legislation that might itself be discriminatory.

One of the first things the Federal courts do when considering certain types of cases is to decide how closely they’re going to scrutinize the law under consideration. In some cases the courts decide to apply strict scrutiny, which means the government has to meet a very difficult standard to show that the law is constitutional. In other cases they apply a much looser standard called the rational basis test. When they apply strict scrutiny, the chances are slim that a law will pass constitutional muster. When they apply the rational basis test the chances are very good that the law will be upheld.

One of the things that will trigger strict scrutiny is if the law is aimed at a suspect (protected) class. If a law has a strong effect on racial minorities, for example, the Court will apply strict scrutiny. So the question of what is and is not a suspect class is important for how the courts view such laws. But does Glenn accurately describe the standards the Court uses to determine which classes should be protected and which should not? No. In fact the three criteria traditionally have been:

1. A history of discrimination.
2. A history of political powerlessness.
3. A distinguishing commonality that set them apart.

There has never been a requirement that a trait be immutable in order to be protected, either by the courts or the Congress. One need only note that religion is among the protected categories in the federal anti-discrimination laws currently and religion is certainly not an immutable trait. People change religions every day, all over the world. Nor is a history of economic disadvantage a relevant criteria. Again, one notes that religion has nothing to do with economic disadvantage but is already a protected category. The key factors are a history of discrimination and a history of political powerlessness.

No one could seriously argue that there is no history of discrimination against gays in this country. One need not have a particularly sensitive irony meter to notice the dissonance inherent in Glenn arguing simultaneously that there is no history of discrimination against gays and that religious people have an inherent right to engage in such discrimination. The Religious Right typically argues that gays have political power far out of proportion to their percentage of the population, but this is a red herring. Remember that only four years ago the Supreme Court finally declared that people could not be thrown in prison merely for being gay in Lawrence v Texas, and that decision was greeted with immense outrage from the same people now telling us that gays have too much political power.

It is also important to note that the courts have not applied these criteria, even accurately stated, as the only ones under which a group should be protected. In addition to the “suspect classes” the Court has identified in particular cases, they  have also recognized what legal scholars call “quasi-suspect classes.” Because conferring suspect class status is viewed as a sort of legal nuclear bomb that no legislation could survive, the courts are generally reluctant to confer such status. But that has not prevented them from striking down much legislation that disproportionately affects gays, conferring a de facto quasi-suspect class designation.

The most obvious example of this is Romer v Evans, a 1996 case that struck down a Colorado law that did exactly what Glenn and the religious right want: prohibited any law that used sexual orientation as a protected class in any anti-discrimination statute or ordinance. The Court did not go as far as to name sexual orientation as a suspect class and it thus applied only the rational-basis test in evaluating the constitutionality of the law. But even under that lenient standard the Colorado law could not pass the test. Justice Kennedy’s ruling notes:

A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. “[I]f the constitutional conception of `equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

In short, Glenn’s representation of the Court’s criteria is incorrect.  Even if it was accurate it would only determine what level of scrutiny it would apply in reviewing a law that harmed gays, not what kinds of policies Congress could or should pass to protect gays. In Part Three, we’ll look at the next major argument against this bill.