Gay Rights, Discrete and Insular Minorities, and Footnote Four

February 23rd, 2012

A judge on the Northern District of California found that the Defense of Marriage Act was unconstitutional. Part of his analysis to determine whether heightened constitutional applied considered whether a minority was “politically powerless.” There were no citations to Carolene Products FN4, but Cleburne was relied on:

There is no dispute in the record that gay men and lesbians are a minority of the 13 population in the United States. (See Dugan Decl., Ex. A at 13:12-14, Ex. B at 19:2-7.) The 14 only issue is whether the minority is politically vulnerable or lacking in power. The Court has 15 reviewed the evidence submitted by the parties for consideration on this factor.

So do gays and lesbians have political power?

First, the supporters of DOMA contend that HRC put pressure on POTUS to back off. Judge ain’t buying it.

BLAG argues that the current Administration’s reversal of position with regard to 17 defending DOMA in various courts nationwide is evidence that gay and lesbian individuals 18 have achieved political power. BLAG contends that the decision followed President Obama’s 19 receipt of a letter from the Human Rights Campaign seeking to change the Administration’s 20 position. (BLAG Opp. Br. at 12.) However, this contention is not supported by the evidence in the record. First, this letter was sent nearly two years prior to the announcement of the 2 Administration’s current opinion. (Lin Reply Decl., Ex. H at 166:16-167:13.) Second, the 3 Department of Justice functions under an independent obligation to assess the constitutionality 4 of a statute it has been tasked to defend. By its own terms, the announcement by the 5 Department of Justice was based not on a political calculation, but rather was an independent 6 assessment of the constitutionality of DOMA. (See NSA, Ex. 1 at 1-2.) The contention that a 7 two-year-old letter from a gay rights advocacy group was the pivotal consideration in the 8 Administration’s reassessment of the law or that it demonstrates that gay men and lesbians have 9 political power is speculative at best.

Next, the supporters cite the fact that Gay rights advocate are making great strides—there are gay judges, states legalizing gay marriage (add Washington and Maryland to the list), etc:

BLAG also argues that a “spate of recent news stories only confirms the conclusion that 11 homosexuals are far from politically powerless.” (BLAG Opp. Br. at 12.) BLAG lists the 12 nomination of four openly-gay judges, the laws in several states legalizing gay marriage, and 13 the campaign against Proposition 8 in California which garnered significant funding from 14 proponents of same-sex marriage. (Id. at 12-15.)

The court rejects this argument, saying these are outliers:

The recent articles BLAG cites are exceptions and not the rule. While President Obama 16 nominated four openly-gay judges, there are literally hundreds of federal judges nationwide. 17 Only a handful of states have successfully passed legislation legalizing same-sex marriage, and 18 only a few more have been required to afford equal marital rights to gay and lesbian individuals 19 through judicial decisions. Thirty states have passed constitutional amendments banning same- 20 sex marriage. (See OPM Opp. Br. at 15, citing National Conference of State Legislatures, 21 Same-Sex Marriage, Civil Unions and Domestic Partnerships, available 22 at (last updated February 13, 2012)). In contrast, 23 when the Supreme Court ruled in Loving, interracial marriage was legal in thirty-four states. 24 See Loving, 388 U.S. at 6. Moreover, there is no federal anti-discrimination legislation and no 25 protection in most states from sexual orientation discrimination. (See OPM Opp. Br. at 6-12.) 26 Finally, while the campaign against Proposition 8 may have raised significant funds, the 27 majority of Californians still voted to alter the state constitution to strip gay and lesbian individuals of their rights. Placed in context, BLAG’s evidence does not create a question of 2 fact.

Thus, the court finds gays and lesbians are politically powerless:

Despite the modest successes in remediating existing discrimination, the record 4 demonstrates that gay men and lesbians continue to suffer discrimination “unlikely to be 5 rectified by legislative means.” City of Cleburne, 473 U.S. at 440. Even BLAG, in similar 6 litigation, has admitted that “gay men and lesbians often must rely on judicial decisions to 7 secure equal rights.” (Lin Reply Decl., Exs. C and D at ¶ 32.) Ms. Golinski proffers the 8 undisputed and extensive expert testimony of Gary Segura for the proposition that gay men and 9 lesbians lack a meaningful degree of political power. (See Segura Decl. at ¶¶ 9-85.) In sum, the 10 basic inability to bring about an end to discrimination and pervasive prejudice, to secure desired 11 policy outcomes and to prevent undesirable outcomes on fundamental matters that directly 12 impact their lives, is evidence of the relative political powerlessness of gay and lesbian 13 individuals. (Id. at ¶ 28.)

And, the court cited (!) a dissent from denial of cert by Brennan and Marshall. WTF precedential value that has, I have no clue. But it’s always good to find friends in the crowd who agree with you:

The Court finds that the unequivocal evidence demonstrates that, although not 23 completely politically powerless, the gay and lesbian community lacks meaningful political 24 power. In 1985, in their dissent from [the denial of] a petition for writ of certiorari [or dissental], Justices Brennan and 25 Marshall found that “homosexuals constitute a significant and insular minority of this country’s 26 population. Because of the immediate and severe opprobrium often manifested against 27 homosexuals once so identified publicly, members of this group are particularly powerless to 28 pursue their rights openly in the political arena.” Rowland v. Mad River Local School District, 1 470 U.S. 1009, 1014 (1985). The Court agrees and finds that, as a class, gay men and lesbians 2 are a minority and have relatively limited political power to attract the favorable attention of 3 lawmakers. See City of Cleburne, 473 U.S. at 445. Although this factor is not an absolute 4 prerequisite for heightened scrutiny, the Court finds the evidence and the law support the 5 conclusion that gay men and lesbians remain a politically vulnerable minority. See Plyler, 457 6 U.S. at 216 n.14; Murgia, 427 U.S. at 321.

So let’s break this down. Would you say the state of gay rights in 1985 (the Brennan dissental) and 2012 is the same? We are talking pre-Bowards v. Hardwick here (that was in 1986). I remember some quip that Justice White told one of his clerks that he had never met a gay person (the clerk was gay).

I’d like to expand on this temporal argument.

The argument that gays lack meaningful political power–by the court’s own admission–only works for so long. Sure, today there are only 4 gay federal judges, and a handful of states that allow gay marriage (add Washington and now Maryland to that list). What about if there are 20 states that allow gay marriage. 25? 30? At what point will gays and lesbians–even if a minority of the population–be deemed to possess adequate political power. Frankly, I have been amazed by how quickly the gay rights and marriage equality movements have championed their causes in the last decade or so. Even in the year or so since Prop 8, it is amazing what they have done. Talk about popular constitutionalism!

And, this brings me to something else that has been on my mind after I read this post by Derek Black on Faculty Lounge about President Obama and Race.

Have three years with our first black president helped us move past the issue of race in presidential elections or, at least, in regard to Barrack Obama?  Prior to Obama’s bid for the presidency, many Americans were convinced that race was such a disqualifying factor that they would never live to see an African American president.  Happily, they were wrong, but many remain convinced that race will still negatively affect Obama’s reelection bid.  Perhaps I’m cynical, but I too think race will play a role in the 2012 election.  But I am no longer so sure that race will be significant; race may only play a minimal role this time around.

In an article I wrote about Village of Willowbrook v. Olech that focused on Footnote 4–written not-to-long after the 2009 election–I made this point:

While the Supreme Court has adopted footnote four to provide heightened protection based on race, in order to be truly faithful to the representation reinforcement theory, the Court should protect all those who are “discrete and insular,” regardless of a person’s inherent attributes. Although “discrete and insular” originally was treated as referring only to racial minorities, it has grown to include other groups that satisfy  appropriate criteria and lack access to the political channels.251

251. While Justice Stone accurately characterized certain racial minorities in his time as discrete and insular, the fact remains that today, President Obama holds the highest office in the land. While the ultimate goal of racial equality and color-blindness is still a dream of the hopefully not-so-distant future to which society should continually strive, such a historic accomplishment, that was once unthinkable, is a reality today.

The DOMA opinion seems to concede that there will be a temporal limitation on this political power argument. Let’s assume that in 1985, when Brennan wrote his dissental, gays and lesbians lacked this political power. Let’s assume that in 2012, they still don’t have this power (I think the case in 1985 was much stronger than today). What about–to borrow Justice O’Connor’s Grutter timeline–in 25 years (2037!)? Will the calculus be the same?

Now apply that thought-experiment to race, in light of President Obama.

Admittedly, my thoughts about race are undeveloped. My readings about cognitive bias show how they heavily impact issues of racial prejudice and the like. So I am not drawing any conclusions here. Just some things I’m thinking about.