Another state court, Washington this time, has upheld their state’s ban on gay marriage. This ruling was long awaited, to the tune of 17 months since the case was actually heard. I haven’t read the ruling yet, and probably won’t get to until tomorrow, but Dale Carpenter has his usual thorough and evenhanded analysis at Volokh. I’m interested to read it because of what Carpenter says about the suspect class analysis in the ruling, which I’ll post below the fold because it’s so long:
Unlike the New York Court of Appeals, the Washington court dealt substantively with the question of suspect-class status for gays under equal protection principles. It also avoided the bizarre contextualized analysis of the issue the New York court gave us, and instead dealt with the question whether gays generally constitute a suspect class.
The Andersen court is more confident about the elements of the suspect-class analysis (history of discrimination, immutable and usually irrelevant trait, and political powerlessness) than I think is justified, but its rejection of heightened scrutiny is certainly defensible under the precedents. It acknowledges, as every court addressing the issue has, a history of discrimination against gays. But it says the trait defining the class is not immutable, and seems to hold that immutability is essential to heightened scrutiny. Both halves of this holding are questionable. The Andersen court isn’t clear what it thinks the “defining trait” of this class is – homosexual acts or homosexual orientation – and this ambiguity muddies things a bit. If homosexuals acts are the “defining trait,” it’s not immutable; if homosexual orientation, the best evidence is that it is immutable or very close to immutable. It’s also not clear that immutability is even required, as opposed to one factor among many to be weighed, in the analysis of which groups get heightened scrutiny.
The Andersen opinion also shows how legislative advances for gays are a double-edged sword in litigation over marriage. Some courts upholding gay-marriage or civil unions claims have cited legislative progress – eliminating sodomy laws, making adoptions more widely available, passing employment non-discrimination laws – as evidence that times and attitudes are changing and as support for the idea that the legislature has no very good reason to withhold this last bit of progress from them.
In Andersen, by contrast, the court cites legislative progress as a reason to deny gays suspect-class status, on the dubious theory that a truly powerless group wouldn’t have made such democratic progress. This part of the analysis is questionable, since historical work by William Eskridge and others has shown that groups tend to get heightened scrutiny only after they’ve made legislative progress. And once they’ve gotten suspect class status, they don’t lose it simply because the legislature begins to take their concerns seriously.
I have always thought there was room for a good suspect-classification argument, but there’s no doubt the weight of precedent is on the side of the Andersen court.
I think the weight of precedent is only on the side of denying suspect class status in the sense that no court has yet applied such status to gays. But I think the inexorable logic of the suspect class criteria set out in precedents clearly applies to gays, defined the only way it should be defined (as an orientation, not an act). If we’re going to treat religion as a suspect class for purposes of anti-discrimination laws (and we do), then surely no rational person would argue that immutability is a necessary trait in order to qualify for suspect class status. Religion is infinitely more mutable than sexual orientation.
Of course, I would prefer that we simply eliminate the need for suspect class status in constitutional law by getting rid of the different standards by which we determine whether a law is constitutional. Such laws are either constitutional or they are not; to say that the same policy would be constitutional if applied to gays but not if applied to blacks or Jews is to destroy the notion of equality before the law. It sets up second class citizenship, two different levels of constitutional protection, and should be done away with. All legislative acts should be subjected to strict scrutiny when applying constitutional law. If the act is not the least restrictive means of achieving a legitimate governmental interest, it should be done struck down and the legislature should have to start over and write a bill that meets that criteria.