- March 20, 2013
In a postsubmittedto the American Constitution Society blog symposium on Hollingsworth v. Perry and U.S. v. Windsor, HRC Legal Director Brian Moulton evaluates the broader ramifications of the two cases: whether laws that discriminate based on sexual orientation should be subject to some form of heightened judicial scrutiny.
"Alongside the core due process and equal protection considerations about marriage equality before the Supreme Court in Windsor v. United States and Hollingsworth v. Perry is a question that could have broader ramifications in the movement for lesbian, gay, bisexual and transgender equality – whether laws that discriminate based on sexual orientation should be subject to some form of heightened judicial scrutiny.
To date, the Supreme Court has not directly addressed the question of whether heightened scrutiny should apply to laws that discriminate against gays and lesbians. While many of the U.S. Courts of Appeal have done so, and answered in the negative, those precedents were almost universally dependent on the Court’s decision in Bowers v. Hardwick upholding the constitutionality of sodomy laws, a decision that was repudiated nearly a decade ago in Lawrence v. Texas, leaving those precedents standing on the shakiest of ground. It is no wonder then that, in one of the first post-Lawrence cases to consider the issue, the Second Circuit in Windsor concluded that heightened scrutiny should indeed apply to sexual orientation-based classifications.
In its heightened scrutiny analysis, the Court has typically looked at whether the group defined by the classification in question has experienced a history of discrimination and whether that classifying characteristic is relevant to an individual’s ability to contribute to society. The Court has sometimes considered two additional factors: whether that defining characteristic is immutable, and whether the group is politically vulnerable.
The plaintiffs in both Windsor and Perry have asserted that heightened scrutiny should indeed apply, and numerous amici – including my organization, Human Rights Campaign– have supported the argument, citing the ample evidence that gays and lesbians clearly meet all the criteria the Court has historically considered. Unsurprisingly, those defending discrimination against committed same-sex couples disagree. In its brief before the Supreme Court in Windsor, the House Bipartisan Legal Advisory Group (BLAG) argues that none of the factors identified above supports heightened scrutiny for sexual orientation and that one factor, “perhaps the most important – the political power to participate in the democratic progress – tips decisively against making sexual orientation the first new suspect or quasi-suspect class in forty years.” BLAG goes on to cite increased public support for the equality of gays and lesbians and recent successes at the ballot box and on Capitol Hill as proof of political power that obviates a need for greater judicial scrutiny of discriminatory laws. "