Using ‘heightened scrutiny’ for sexual-orientation discrimination
by Angela Giampolo
Jun 02, 2011 | 2440 views | 0 0 comments | 12 12 recommendations | email to a friend | print
For those who are underrepresented in the political process, there are channels and avenues available to them so they can have their voices heard and affect change. But what happens with the LGBT community, when underrepresentation is systematic and historical exclusion?

In 1980, John Hart Ely published “Democracy and Distrust,” a work that forever altered public perception of how much protection the people of the United States find in the Constitution. In his book, Ely introduced his Political Process Theory, which states that constitutional protections are procedural rather than substantive. The people elect government representatives, who in turn produce legislation that mirrors constituencies’ will. The people elect a president who, with elected officials, selects justices for the Supreme Court. The nine justices interpret the Constitution and apply it to the cases they elect to hear.

With an eye to ensuring equal protection for all citizens, the Supreme Court, in the seminal 1938 case “United States v. Carolene Products,” introduced the idea of heightened judicial scrutiny of “suspect” legislation. In doing so, it opened the door for great strides in civil rights for women and race-based minorities.

Legislation subsequent to Carolene Products provided heightened judicial protections for race-based minorities and women, making laws that made classifications based on immutable characteristics subject to either heightened or strict scrutiny. In “Loving v. Virginia,” a Virginia law banning interracial marriage was subjected to strict scrutiny. The law made a classification based on race. Under strict scrutiny, the government had to show that the proposed legislation served a compelling state interest — narrowly tailored to this objective (compare this threshold to that of rational basis above). The government was unable to satisfy the strict scrutiny inquiry, and the law was found unconstitutional.

So what do we make of laws that deny same-sex couples the right to marry? The fact that these marital statutes exist at all is evidence that gay people are underrepresented in the legal process. We are at a crossroads in American history similar to the one faced by the nine Supreme Court Justices who issued the opinion in Carolene Products. Laws such as California’s Proposition 8 have been struck down as unconstitutional, however decisions made at a state level are confined in scope to their respective states. In order to effect national, federal change, the Supreme Court must rule on a state law similar to Proposition 8.

For instance, laws that explicitly prohibit same-sex marriage are upheld as constitutional on the belief that homosexuality is not an immutable characteristic and they seek to preserve the idea of a traditional family and help work toward regeneration and population. Whether the laws in questions serve these means at all is debatable. What is not debatable is the fact that these means are not sufficiently tailored to the ends being sought, and the result is gross and widespread discrimination. It will take judicial activism for Americans to come to the same realization with respect to the LGBT community. The action has begun in more progressive states. These are the seeds of change. However, it will take federal action — a Supreme Court ruling — to cultivate those seeds and affect proper constitutional protections for everyone.

The precedent exists to heighten judicial scrutiny as it applies to discrimination based on sexual orientation, and as more states strike down laws prohibiting same-sex marriages, the impetus on the Supreme Court to act will increase. Perennial swing votes (Justice Anthony Kennedy) will be forced to align with a side, and more progressive-minded justices who have yet to impose their leanings (Justices Sonia Sotomayor, Elena Kagan) will be asked to speak up.

Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real-estate law and civil rights. Her website is www.giampololaw.com. Send your legal questions to angela@giampololaw.com.

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