The Constitutional Under Class

The Constitutional Underclass This article comes from William Duncan, Director of the Marriage Law Foundation and a member of the Ruth Institute Academic Advisory Board. Here he gives his thoughts on the book, The Constitutional Underclass : Gays, Lesbians, and the Failure of Class-Based Equal Protection. I have not read this book. I sent Bill a note asking him his opinion of the book. He wrote back this very interesting commentary on the meaning of sexual orientation as a protected class. He has kindly agreed to share these preliminary thoughts with Ruth Institute readers. –Jennifer Roback Morse, Ph.D. The question of "sexual orientation" as a classification and how it is treated by the courts is absolutely crucial. When the Massachusetts Supreme Judicial Court redefined marriage in 2003, they mostly dodged the question by assuming that the marriage law hurts gays and lesbians as a class but that, since the law was entirely irrational, there was no need to determine exactly how much judicial protection needed to be extended to the class. The subject was more central to the California and Connecticut decisions. The California Supreme Court said that sexual orientation is a "suspect class" deserving "heightened scrutiny." In practice this means

that courts will assume that any law affecting orientation is unconstitutional unless the state can show a really, really good reason for the law. This is part of what is going on with the assisted reproduction case that came along a few months after the marriage decision. In the second case, the court said that the importance of precluding any differential treatment of people based on their orientation is so important that it trumps the religious liberty concerns of a doctor (or anyone for that matter). The "heightened scrutiny" concept means that a court will look very skeptically at these laws. It also means that there's a presumption that the group will not get fair treatment in the regular lawmaking process, so the courts have to step in to protect them. That's why the California marriage decision spent time arguing about why gays are a "suspect class." If they are, then the burden of proof goes against any law affecting them and the judiciary will be the branch of government in charge of protecting their interests. Thus, the "test" for determining whether a group is a suspect class looks at things like whether a group is politically powerless, whether they've experienced discrimination historically, etc. This is one of the arguments of the groups challenging Proposition 8-that the proposition is not just a simple amendment defining marriage but a major change in the structure of government because it takes away the role of one branch of government in its role of protecting minority interests.

Dr. Jennifer Roback Morse • 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078 www.jennifer-roback-morse.com • email: [email protected] • 760/295-9278 ©2007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of the Ruth Institute.

Of course, every law constrains the courts since they are bound to apply the laws as written (although they seem to have found some wiggle room there). If the court were to overturn Prop. 8, they would be setting themselves up as a sort of superconstitutional body that says what can even be in the constitution, thus making the constitution a government of men (and women, meaning the supreme court justices) rather than of laws (the concept on which a binding constitution that trumps even a government official's will is based). The Connecticut Supreme Court went through this line of argument as well and didn't go as far as California. It held that sexual orientation was a "quasi-suspect" class (more like sex than race). The whole idea of a "quasi-suspect" class reeks of subjectivity but it is very useful for achieving legal change without going through the normal legislative process. It allows a court to determine that it, and only it, has a special role to play that can't be adequately performed by the executive or legislative branches. Then the court also gets the chance to weigh the various policies involved in a given law. In New York, we got an entirely different result because the court used the more traditional equal protection/suspect class analysis. That analysis maintains that unless a law affects a privileged status (usually only race or sex with alienage and possibly legitimacy sometimes included), then the court's role is to see whether the group challenging the law has proved (the burden

of proof is on the challenger) that the law is entirely irrational. If the government can put forward any possible justification, the law stands. New York's highest court was very deferential to the state's interest in marriage (and uncommonly careful about describing it) so the decision to uphold the state marriage law was easy for them. The Massachusetts court ignored and/or misrepresented the state's interest in marriage and so came to the conclusion it made no sense. The California and Connecticut courts spent more of their time deciding that it was the province of the court to determine the validity of the law because of their expert role in protecting minority groups. Therefore, even a reasonably fair statement of the state's interests would have had a hard time prevailing. And with those state's attorneys general not providing such a statement there was almost no chance. I incline to the view that the designation of sexual orientation as a suspect class has a number of intractable problems of logic and practice. These include: identifying who is in the relevant class (i.e. what is an orientation?, what is gay or lesbian for legal purposes, self-identification, attraction or behavior?); what does the class have to do with marriage? (i.e. if marriage has a meaning other than adult desires then it is facially neutral as to the orientation of the parties); if orientation is fluid (as some research suggests) then is a coherent formulation even possible?

My tentative view is that a special judicial role may make sense for racial Dr. Jennifer Roback Morse • 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078 www.jennifer-roback-morse.com • email: [email protected] • 760/295-9278 ©2007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of the Ruth Institute.

classifications for textual reasons (the 13th and 14th Amendments) and historical reasons (the legacy of slavery) but that it does not make sense with regards to a manufactured classification of orientation that covers a group capable of taking care of themselves in the political process. Jennifer Roback Morse, Ph.D. is an economist and the Founder and President of the Ruth Institute, a nonprofit educational organization devoted to bringing hope and encouragement for lifelong married love. She is also the author of Love and Economics: It Takes a Family to Raise a Village and Smart Sex: Finding Life-Long Love in a Hook-Up World.

Dr. Jennifer Roback Morse • 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078 www.jennifer-roback-morse.com • email: [email protected] • 760/295-9278 ©2007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of the Ruth Institute.