Sexual orientation as a classification
From William C. Duncan
William C. Duncan is the Director of the Marriage Law Foundation and member
of the Academic Advisory Board for the Ruth Institute.
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. 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 super-constitutional 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, so 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).
There’s a need to have some thinking in place as to why sexual orientation should not be given special
judicial protection (thus leaving it in the normal lawmaking process). The designation of sexual orientation
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 the class has 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 possible; are the couples suing to
redefine marriage representative of the class affected (i.e. the Unitarian minister in a long-term committed
relationship with a neurosurgeon is not necessarily representative of every same-sex couple who will
decide to marry), etc. The basic point is that a special judicial role may make sense for racial classifications
for textual reasons (the 13th and 14th Amendments) and historical reasons (the legacy of slavery) but
that is 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.
