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The Gay Rights Question in Contemporary American Law
By Andrew Koppelman
University of Chicago PressCopyright © 2002 Andrew Koppelman
All right reserved.
CHAPTER ONE - EQUAL PROTECTION AND INVIDIOUS INTENT
Laws that discriminate against gays will always be demonstrably rational, because such laws will always further the state's legitimate moral objection to homosexual sodomy. Thus teaches Bowers v. Hard-wick. Laws that discriminate against gays will always be constitutionally doubtful, however, because they will always arouse suspicion that they rest on a bare desire to harm a politically unpopular group. Thus teaches Romer v. Evans. Both of these teachings are coherent, and neither of them is necessarily inconsistent with the other. They leave the courts, however, with a doctrinal dilemma that has no obvious solution.
In order to sustain this claim, I must defend the reading of Romer just stated. This puts me into a thicket of constitutional argument. The scholarly reaction to Romer was remarkable. The Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment was violated by an amendment to the Colorado constitution that prohibited antidiscrimination protection of gays, because "the amendment seems inexplicable by anything but animus toward the class that it affects." The Court's inference of unconstitutional animus was central to its holding, butalmost no scholar who read the opinion was willing to believe that this was what really was going on.
In this chapter, I will argue that Romer is defensible in the terms in which it was decided. The opinion is concededly puzzling. There are, as Lynn Bakerhas observed, "missing pages." I will try to supply those pages, and to explain why they were absent from the opinion, without throwing away any of the pages that are there. I will offer a parsimonious defense of the decision, discarding as little as possible of the reasoning actually set forth by the Court and adding as little as possible that the Court did not say.
Romer is a case about impermissible purpose. It fits quite comfortably into a body of doctrine that has made purpose fundamental to the adjudication of equal protection claims. The missing pages can easily be filled in by the reader, who need only take note of the hatred and stereotyping of gays that has been ubiquitous in American culture for a long time. Once this obvious cultural fact is recognized as part of the context in which the Colorado amendment was enacted, then the Court's attribution of invidious purpose to the law makes eminent sense.
The filling of this ellipsis has implications that go well beyond Romer. The Court's opinion implicitly invokes a defect in the political process that contaminates, at least to some extent, all laws that discriminate against gays. But that contamination implies that laws discriminating against gays should be presumptively unconstitutional. The principal doctrinal obstacle to this conclusion is Bowers v. Hardwick, which held that a state can have a legitimate moral interest in prohibiting homosexual conduct. Hardwick established that a state will always have an innocent explanation for a law that discriminates against gays. Romer implicitly recognized that the widespread animus against gays (which is not the same thing as moral objection to homosexual conduct) undermines, to an extent that is hard to determine, the credibility of such explanations. The constitutional status of laws that discriminate against gays, therefore, is uncertain after Romer.
Begin by looking at the bare bones of what the Court said. Romer involved an amendment to the Colorado constitution (referred to on the ballot as "Amendment 2"), which provided that neither the state nor any of its subdivisions could prohibit discrimination on the basis of "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." In his opinion for the court, Justice Kennedy observed that the Amendment "has the peculiar property of imposing a broad and undifferentiated disability on a single named group." This was unusual, and called for "'careful consideration to determine whether [this law was] obnoxious to the constitutional provision.'" The state defended the law by citing "respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religions objections to homosexuality." The amendment, however, was "[n]ot confined to the private sphere." The state also cited "its interest in conserving resources to fight discrimination against other groups." The amendment, however, seemed to "deprive[ ] gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings." Such a universal license to discriminate against gays "would compound the constitutional difficulties the law creates." "The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them." The Court thus felt compelled to "conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else." The broad disability imposed on a targeted group "raise[d] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. '[I]f the constitutional concept 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.'" Romer's rule of decision may thus be summarized: if a law targets a narrowly defined group and then imposes upon it disabilities that are so broad and undifferentiated as to bear no discernible relationship to any legitimate governmental interest, then the court will infer that the law's purpose is simply to harm that group, and so will invalidate the law.
How defensible is this inference? Justice Scalia thought that, so far from manifesting a bare desire to harm gays, the amendment was "rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws." "The Court's portrayal of Coloradans as a society fallen victim to pointless, hate-filled 'gay-bashing' is so false as to be comical."
Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible--murder, for example, or polygamy, or cruelty to animals--and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct.. . .The inference of impermissible motive, he thought, was therefore uncalled for. The Court's opinion "disparaging as bigotry adherence to traditional attitudes," Scalia concluded, was "nothing short of insulting."
Whether the Court correctly decided Romer (at least, according to the rationale on which the Court relied) would seem to depend on whether the Court's inference of animus was justified. As Scalia's response shows, however, any answer to that question is likely to rest on an unspoken response to other, and more fundamental, questions: why does motive matter, and what sort of motivation renders a law unconstitutional under the Equal Protection Clause of the Fourteenth Amendment? Only after we have determined just what "animus" is prohibited, and why it is prohibited, can we even begin to determine whether such animus underlay Colorado's Amendment 2.
Part I of this chapter, then, examines the way in which the Court has understood the Fourteenth Amendment. I shall show that the Fourteenth Amendment analysis that now prevails can be understood as a means of pursuing unconstitutional intent. I then consider the reasons for so understanding the Equal Protection Clause and how these reasons, in light of certain institutional constraints, justify the present doctrinal structure, which rarely focuses on intent directly.
Part II then examines the way in which the Court decided Romer. I will claim that the Court was wrong to say that no innocent explanation could be offered for the Amendment. The logic that led to the inference of animus was incomplete; there was a gap in the reasoning. Nonetheless, in the context of the widespread hatred and stereotyping that constitutes, in significant part, the stigmatization of gays in contemporary American society, it would have been inappropriate for the Court to apply only minimal scrutiny to a law that on its face singled out gays for special disadvantage.
Part III addresses the problem of reconciling Romer and Hardwick. I conclude that Romer is a hard case because the court was presented with an unsolvable tangle of permissible and impermissible motives. This difficulty, moreover, is not confined to Romer, but is likely to be present whenever a court must adjudicate an equal protection challenge to a law that facially puts gays at a disadvantage. Given this tangle, it is unsurprising that the Court did not even suggest in its opinion that, as a general matter, laws discriminating against gays would be subjected to heightened scrutiny. After Romer, however, it is clear that minimal scrutiny cannot be the answer, either.
HOW AND WHY THE COURT FOCUSES ON INVIDIOUS INTENT
The Court's Equal Protection Analysis
The Equal Protection Clause of the Fourteenth Amendment states that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." The Supreme Court has interpreted this provision as prohibiting arbitrary discrimination, or treating similar things dissimilarly. Without more, this produces a very deferential standard of judicial review. "The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Because this stress on mere rationality threatens to transform the clause into a minor protection against legislative carelessness, the clause has been given teeth in cases where the challenged classification is based on race: "all legal restrictions which challenge the civil rights of a single racial group are immediately suspect." When legislation employs such classifications, classifications, "these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest." This higher level of scrutiny has been justified with the explanation that race is "so seldom relevant to the achievement of any legitimate interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy--a view that those in the burdened class are not as worthy and deserving as others." Almost no legislation has been able to satisfy that test, whereas almost any legislation can meet "minimal scrutiny," which asks whether the statute is rationally related to a legitimate state interest. In the 1970s, the Court devised a third, intermediate, level of scrutiny: classifications based on sex or illegitimacy are what has been infelicitously called "quasisuspect"; they "will survive equal protection scrutiny to the extent they are substantially related to a legitimate state interest." The Court has not, however, explained how it is determined whether a given type of classification is suspect or quasi-suspect. Moreover, it has been noted that the insistence on close fit between means and end, varying in strictness with the level of scrutiny, has only an indirect relation to the evils of racial oppression against which the clause was originally enacted.
The prevailing understanding of equal protection builds on the famous footnote 4 in United States v. Carolene Products Co., which declared that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." The settled doctrine today is that "the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose." This view draws its power from the fact that the idea of equality does not entail that any specific, substantive right should be guaranteed. John Hart Ely, the leading scholarly exponent of the theory that the Fourteenth Amendment is concerned primarily with prejudice infecting the legislative process, explains that "unconstitutionality in the distribution of benefits that are not themselves constitutionally required can intelligibly inhere only in the way the distribution was arrived at."
Intent, then, obviously plays an important role in at least one part of the Court's equal protection doctrine--the part that deals with facially neutral classifications. Ely has argued, moreover, that even the formalistic, levels-of-scrutiny approach that applies to suspect or quasi-suspect classifications is best understood as "a handmaiden of motivation analysis." "Racial classifications that disadvantage minorities are 'suspect' because we suspect that they are the product of racially prejudiced thinking of a sort we understand the Fourteenth Amendment to have been centrally concerned with eradicating." Even if a challenger cannot prove the discriminatory intent behind a statute, the demands of strict scrutiny will flush out that intent, since no goal will fit the statute perfectly except the unconstitutional one that the statute actually serves.
Why should the judiciary think that it is entitled to police the motives of legislative decision-makers in this way? The best explanation is Ely's. Ely is troubled by Alexander Bickel's claim that "judicial review is a counter-majoritarian force in our system," and that "when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of the representatives of the actual people of the here and now...." Since Bickel, many constitutional theorists have seen their task as reconciling unpopular judicial decisions, such as Brown v. Board of Education, with Bickel's "counter-majoritarian difficulty."
Ely aspires to develop a constitutional theory in which "the selection and accommodation of substantive values is left almost entirely to the political process," and judicial review is concerned solely with "what might capaciously be designated process writ large--with ensuring broad participation in the processes and distributions of government." Ely's answer to Bickel's counter-majoritarian difficulty is to assign to the judiciary only that task with which the legislature cannot be trusted: "to keep the machinery of government running as it should." The basis of this concern about process is the theory of representative government, which requires that a representative actually represent all of his constituents. In order for legislation to be legitimate, even unpopular minorities must "be represented in the sense that their interests are not to be left out of account or valued negatively in the lawmaking process." A law that is generated by a process tainted by prejudice, in which the legislators are biased against or hold stereotyped views of some of their constituents, is unconstitutional.
Ely's foundational commitment to "equal concern and respect" as a basis for lawmaking relies on the work of Ronald Dworkin, who has made this commitment the centerpiece of his political theory. Dworkin, however, has never undertaken to demonstrate why government is obligated to endorse this conception of equality. Nonetheless, the idea has widespread appeal.
Walter Murphy has developed the most elegant demonstration that a constitution necessarily embodies certain substantive commitments that demand equal concern and respect for all citizens. Murphy observes that constitutional democracy is a hybrid of two political theories, constitutionalism and democracy. Constitutionalism holds that there are some fundamental rights that cannot be violated, even with the consent of the majority. Democratic theory holds that, in order for the people to have an obligation to obey the law, they must be in some sense its authors.
Both constitutionalism and democracy imply limits to the scope of legitimate decisionmaking. "When such a polity consciously, seriously, and systematically violates its fundamental principles, it destroys its justification for existence, and public officials lose their authority to speak as agents of the people." According to constitutionalism, "[a]ny change that would transform the polity into a political system that was totalitarian, or even so authoritarian as not to allow a wide space for human freedom, would be illegitimate. . ." According to democratic theory, "a people could not legitimately use democratic processes to destroy the essence of democracy--the right of others, either of a current majority or minority or of a minority or majority of future generations, to meaningful participation in self-government." Both theories presuppose some notion of human worth. That constitutionalism does so is self-evident, but democracy shares the same commitment. "A system that denies human worth cannot claim consent as the foundation of its legitimacy, for what is worthless can confer nothing."
Any constitutional democracy, therefore, is committed to "acknowledging the right of each member to exist as a full human being." This implies certain process rights that are relevant here. Specifically, every citizen has a right to "treatment as being equal in worth to every other person, whether private individual or public official."
If Murphy is right, then, so long as there are cultural tendencies that devalue certain groups of people and so long as those tendencies are strong enough politically to contaminate the process of political decisionmaking, any coherent constitution logically must include at least some rights against discrimination. It does not necessarily follow, however, that these antidiscrimination rights must be judicially enforceable. As Jeremy Waldron has observed, moral realism does not entail the legitimacy of judicial review unless it can be shown that judges have greater expertise in moral matters than legislatures. Nonetheless, as it happened, the decision to embody this kind of antidiscrimination right in the Fourteenth Amendment did entail a commitment to federal oversight of state decisions, and it is easy to see why it should. "The Equal Protection Clause reflects an unmistakable determination that state legislatures are not to be trusted to refrain from engaging in racial discrimination." The basis of judicial review under the Fourteenth Amendment is not the special expertise of federal judges but rather the inability of legislatures to judge themselves impartially.
Excerpted from The Gay Rights Question in Contemporary American Law by Andrew Koppelman Copyright © 2002 by Andrew Koppelman. Excerpted by permission.
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