Rory Ni Coileain

A New Year’s question was posed in a discussion group on Facebook which I greatly enjoy – namely, how will the fight for marriage equality change things here in the States, and where will all that energy go once we’ve achieved that goal? Well, that question immediately made my lawyer hat fly out of the closet and land on my head, and rather than subject my friends in that group to a legal brief plopped down in the Comments section, I thought I’d do a blog post. *winks*

Basically, I think the next level of the fight has to move away from challenging or passing individual laws, and concentrate on driving a sea change in the way courts look at laws which discriminate against LGBT people under the Equal Protection Clause.

All discrimination isn’t unconstitutional. Laws discriminate against classes of persons all the time – for example, a 12-year-old can’t get a driver’s license, while an 18-year-old can. This is a law that classifies on the basis of age. And when a law that allegedly discriminates is challenged in court, the court applies one of three frameworks to analyze it, depending on the group that’s being discriminated against and the interest served by the law in question.

First, there’s STRICT SCRUTINY; if this standard applies, then in order for the law to be found constitutional, the government is required to show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest. In order for strict scrutiny to be applied, the law at issue has to either create a “suspect classification” (remember that one, it’s important and I’ll get back to it eventually) or place a burden on the exercise of a “fundamental right” (also important). The term “suspect classification” is carefully defined in law, and presently includes race, national origin, religion, and alienage; “fundamental rights” include the right to vote, interstate migration, access to the courts, and various other rights. Part of the struggle of the marriage cases that have come before the Supreme Court has been to get a judicial acknowledgement that marriage is one of these “fundamental rights”, such that any law purporting to restrict the right to marry has to pass the strict scrutiny test (serving a COMPELLING state interest, and being NECESSARY to serve that interest).

Second, there’s MIDDLE-TIER SCRUTINY, under which the government is required to show that the challenged classification serves an IMPORTANT state interest (an easier thing to show than a “compelling” interest) and that the classification is at least substantially related to (as opposed to “necessary” to – again, easier for the government to prove) serving that interest. Classifications that fall into this category are referred to as “quasi-suspect classifications”, and presently include gender and illegitimacy. In the marriage cases, specifically in Windsor, the U.S. Supreme Court indicated a willingness to include sexual orientation as a quasi-suspect classification, but most analysis has proceeded under the lowest tier of constitutional review, namely:

MINIMUM (OR RATIONAL BASIS) SCRUTINY. In this tier, all the government is required to show in order to defend a discriminatory law is that the challenged classification is rationally related to serving a legitimate state interest. This is where you get all the arguments about the necessity of restricting marriage to heterosexual couples because of the state’s interest in ensuring that accidentally conceived children will be raised by both parents. And when a court uses the rational basis test, it doesn’t even need to care whether the particular justification advanced by the state makes any sense – if there’s ANY rational basis for the law, even one the court comes up with itself, then under rational basis scrutiny, it’s okay.

Now, finally, to my point… there are plenty of arenas in which LGBT people have a long way to go to achieve equality. Taking as just one example, the right to work. In 29 states, you can still be fired for being gay. If you want to challenge the law which allows that in your state, right now all the state has to prove is that the law that lets your employer get away with it is rationally related, somehow, to a state interest the court is prepared to recognize as legitimate. In other words, good luck to you. If you live in a state that includes sexual orientation or gender identity/expression in its list of quasi-suspect classifications, at least the state has to prove that its interest in discriminating against you is important, and that the law is substantially related to that interest. But in order to hold the state to that highest standard, strict scrutiny, you have to either prove that the right burdened by the law is “fundamental” – which was the argument in the marriage cases – or that sexual orientation and gender identity/expression are suspect classifications. The right to work has not been, and is highly unlikely ever to be, classified as a fundamental right. Ditto the right to housing, medical care, or the vast majority of the other rights we’re fighting for. At the very least, we have to get LGBT status included on that list of quasi-suspect classifications; ideally, though, we need to push for the judicial recognition of LGT status as a suspect classification. Once that’s accomplished, once all the discriminatory laws can be held up to strict scrutiny, they’re going to start falling. That won’t be the end of the fight by any means (it certainly wasn’t for African-Americans), but it takes one of the biggest guns out of the fight against us.