Don’t get me wrong. I am extremely happy that Don’t Ask Don’t Tell was repealed. The law was a disgrace 17 years ago, and it still is. It was also extremely hypocritical: you could be gay and in the military, just not openly so.
The repeal of DADT is a sign of the growing power and visibility of the LGBT community, although apparently only when there is a vast Democratic majority. President Obama has been far more supportive of the LGBT community than any previous President, particularly through Executive Orders and administrative action. The Health and Human Services Department declared that all hospitals that get federal funding (most of them) may not discriminate against same-sex partners. This is huge and hugely undervalued, especially by those who focus only on legislative (and judicially-imposed) change.
However, therein lies the conundrum. Because the LGBT community made some impressive gains on the legislative and executive levels of government, I fear that this may adversely affect the way that the judiciary deals with LGBT civil rights claims. The LGBT community still needs a judicial safeguard. Legislative majorities change. Presidents come from different parties. It may be difficult to undo the gains that the LGBT community has made over the past two years, but it is not impossible, particularly at the executive level. When the judiciary declares that a group is protected by the Constitution, that ruling is, for all intents and purposes, set in stone. Without the protections of the courts, I worry about the future of gay rights, especially in the immediate future. The repeal of DADT and the Matthew Shepard Hate Crimes bill from last year were important because there had never been significant federal level victories before. On the other hand, in the grand scheme of things, these victories are fairly limited.
Courts have been historically slow to get in front of social trends. However, starting in New Deal era the courts, particularly the Supreme Court started to change its position with regard to civil liberties. This culminated in the Warren Court’s revolution of civil rights, of criminal rights, and of the role of the judiciary itself. For once the courts were out in front of the other branches of the government. This was however, hugely controversial, and the fallout (particularly post-Roe v. Wade) is still being dealt with.
II. A Very Brief History of Civil Rights Law
To understand why the courts are important, one must first understand the source of the courts’ civil rights law authority: the 14th Amendment of the United States Constitution. After the Civil War, Congress amended the Constitution to end slavery and bring about a measure of racial equality. The 13th Amendment ended slavery. The 15th Amendment guaranteed to black men the right to vote (the amendment that brought about women’s suffrage only passed in 1920.) The 14th Amendment was something different though, a mini-constitution unto itself. It is a very long amendment in five parts, but the most important section is the first which reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The three clauses of second sentence are the wellspring of all civil rights law.
The 14th Amendment was adopted in 1868. Almost immediately afterwards the Supreme Court tried to nullify the protections of the 14h Amendment in a consolidated group of cases called The Slaughter-House Cases. The legal analysis of The Slaughter-House Cases is very complicated, and you do not need to worry about it unless you are taking a Constitutional Law class. The important takeaway is that for all intents and purposes, the first clause the “Privileges and Immunities Clause” was interpreted into virtual non-existence. The Slaughter-House Cases was a disaster of an opinion, but in the ensuing decades, the Court continued to make a mess of both doctrine and plain English. The Privileges and Immunities Clause was intended to be a panacea against oppressive state laws designed to strip former slaves of nebulous rights that the Framers of the Amendment could not envision. Eventually, the Supreme Court was forced to reinvent the Privileges and Immunities Clause by reading its protections into the second clause of the 14th Amendment, the “Due Process Clause.”
Due process of law is exactly what you think it is: fair judicial proceedings. You cannot lose your life or your liberty (freedom from imprisonment) in a criminal case or your property in a criminal or civil case without first going through a fair trial. In the context of the 14th Amendment, the Due Process Clause was a direct repudiation of the South’s treatment of blacks.
Now you have to understand that before the 14th Amendment, the Bill of Rights limited only the federal government because of the fear of a central authority. It turned out that the states could be even more brutal, so the 14th Amendment applied only to the states. It gave a new avenue for federal oversight. Before the 14th Amendment, a state criminal conviction could not be appealed to federal court because it did not touch federal law. The Due Process Clause of the 14th Amendment theoretically invited the federal courts in as watchmen over the Southern judicial system (for decades this was more theory than fact.)
The Due Process clause specifically protects from an impermissible deprivation of life, liberty, and property. Liberty however, is a tricky word, because it can mean so many things. In the context of the Amendment, it meant freedom from imprisonment. However, the Supreme Court decided it meant more than that; it meant fundamental fairness. Now the Supreme Court gave itself the power to examine more than judicial proceedings. It could examine every law that every state enacted and overrule the law if fundamental fairness was impermissibly abridged. This is called “substantive due process,” and it is very controversial, because it is a power that the Supreme Court created for itself.
The Supreme Court created substantive due process well before the Civil War, but the 14th Amendment gave it a perceived legitimacy and a wider reach. Starting at the end of the 1800’s and going through the New Deal, the Supreme Court decided that the most important part of substantive due process was to prevent government from interfering with private parties’ freedom to make contracts. As a result, the Supreme Court struck down a wide variety of economic regulations, most infamously a series of worker protection laws. This is called Lochner era jurisprudence after the most infamous case of that time, Lochner v. New York. The Court only allowed a handful of laws to pass through, and only in the most extreme circumstances. What the court disgracefully ignored was that “freedom to contract” was freedom for the employer only. The workers had almost no power, and the poorer they were, the harder it was to find a job. Employers took advantage of their strength and forced their employees to work long hours for little pay in often dangerous conditions (if this sounds familiar it is because undocumented workers are still dealing with this.)
During the early New Deal days, the Court’s willingness to strike down economic and labor regulation laws led to a showdown between the Court and President Roosevelt. Roosevelt attempted to “pack the Court” by adding so many of his hand-picked judges to the Supreme Court that they would outnumber the conservative majority. Roosevelt lost that battle, but won the war. First, the Court ‘s swing Justice (Owen J. Roberts) began siding with the Court’s liberal wing to uphold the New Deal laws. Following that, the old Justices began retiring (or dying), and Roosevelt appointed his favorites to the Court. By the time Roosevelt died, he had appointed the Chief Justice and seven of the eight Associate Justices.
In 1938, as the Court approved the New Deal legislation, an undistinguished case about a federal milk law called United States v. Carolene Products Co. came before the Court. The facts of the case are completely unimportant, but the Justice who wrote the opinion (Harlan Fiske Stone) added the most significant footnote in constitutional law. The fourth footnote of the opinion stated that the Court would presume an economic regulation was constitutional and the opposing party had to prove otherwise. However, when certain rights were affected, such as those listed in the Bill of Rights, then the Court would not be that lenient. And when the law in question prejudiced against “discrete and insular minorities” who cannot turn to the political process for justice, well the Court was not going to say at that time. In this footnote (known universally as “Footnote Four”) the Supreme Court sent out a very strong signal to the federal and state governments: “We’ll give you the benefit of the doubt for your economic laws, but when personal and civil rights are impinged, particularly with historically oppressed minorities, you better have a damn good reason for doing so.”
At this point, I need to stop the story to introduce the third clause of the 14th Amendment, the “Equal Protection Clause.” From reading the text, it seems pretty self-explanatory. And you would think the Supreme Court would get it right. But the Court had a pretty mixed record. Once in a blue moon they got it right (striking down laws that prohibited blacks from sitting on juries or that discriminated against Chinese laundrymen in San Francisco.) However, as with the Privileges and Immunities Clause, the Court did enough damage early on so as to negate the the Equal Protection Clause–most infamously in Plessy v. Ferguson, the railway car segregation case that established the insidious doctrine of “separate but equal” that would eventually be overturned by Brown v. Board of Education.
Footnote Four signaled that the Court was finally willing rethink the horrific damage it had done to the 14th Amendment. Footnote Four also sowed the seeds of what would become strict scrutiny, the jaundiced eye that the Court uses when confronted with a law that either discriminates against a group or impinges upon a fundamental right. But this being the Supreme Court, it took some time before they finally got it right. The first time the Court actually used strict scrutiny, they got it completely wrong–in the Japanese internment case Korematsu v. United States. When given the chance, the Court, by this time almost entirely made up of Roosevelt appointees, did not challenge the President’s authority and allowed the government to proceed with horrible, horrible racism under the guise of national security. Korematsu is one of the Court’s worst decisions–an equal of Dred Scott and Plessy.
The Court effected the promise of Footnote Four with the desegregation cases that led to and included Brown v. Board of Education. Following the success of Brown, other disenfranchised groups took their cases to the Supreme Court but with mixed results as the post-Warren Court became more conservative. Race and national origin were classes that the Court protected with strict scrutiny. Gender was also protected but not to the same extent. Sexual orientation? That is an ongoing question. The Supreme Court has managed to dodge the question. Rather than repeat myself, I would refer you to my earlier post about gay rights and the Supreme Court.
III. Putting This Together
So why am I worried that DADT repeal has harmed the LGBT community in federal court? It goes back to Footnote Four which outlined who gets protected. The text in question is as follows:
Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities …: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
What is a discrete and insular minority? The Supreme Court seems to imply that there are certain characteristics: race, nationality, and religion are specifically mentioned. With the exception of religion (protected by the 1st Amendment, and therefore not germane to a 14th Amendment discussion) the distinguishing characteristics are immutable from birth. Immutability is not enough though; the group in question also needs to be shut out of the political process.
And there is the problem. Are gays and lesbians a discrete and insular minority? Are they shut out of the political process?
With regard to the first part, the answer hinges on whether sexual orientation (and gender identity) is immutable. While any LGBT person will tell you that he or she was born that way, there is a sizable group who refuse to believe that, science be damned (the Prop 8 lawyers brought in scientific evidence to their case specifically to address the immutability issue.) More relevant though is whether a majority of Justices on the Supreme Court believe that sexual orientation is innate. Reading judicial tea leaves is not an exact science, but last term one Justice appeared to give an answer, and it is not the one you think.
Justice Ruth Bader Ginsburg, writing for the majority in a case called Christian Legal Society v. Martinez wrote the following: “Our decisions have declined to distinguish between status [homosexuals] and conduct [homosexual sex acts] in this context.” This one statement was a bombshell, and it did not go unnoticed.
A little background: Hastings Law School denied the Christian Legal Society (“CLS”) recognition for violating the school’s anti-discrimination policy by not allowing gays to join. CLS argued that anyone could join so long as they did not partake in certain proscribed acts (including gay sex) and therefore their rules were not discriminatory. Justice Ginsburg, writing for the majority, found for the law school. In the sentence I quoted above she is essentially saying that gay sexuality is a fundamental part of being gay, therefore proscribing gay sex as CLS did was really a form of anti-gay discrimination (and the school could permissibly take action.)
A majority of Justices joined Justice Ginsburg’s opinion including Anthony Kennedy, author of Lawrence v. Texas, and unpredictable swing vote. One Justice (John Paul Stevens) has left the Court since then and was replaced by Elena Kagan, whose record is, to this point unknown. I am not an experienced Court-watcher, but I am a lawyer. Even though this case did not touch on the constitutional rights of homosexuals, at its core it is a gay rights battle, and it gave an indication of at least one Justice’s thoughts. She sees homosexuals as a distinct group (a discrete and insular minority) rather than a subset of the larger group who are defined by their actions.
So this is good, right? Well… maybe. The fact that Justice Ginsburg commanded the majority (5-4) is a very thing good. This does not however, mean that the entire majority agrees with that statement outside of the context of the case (assuming Justice Kagan would have voted the way Justice Stevens did.) I want to believe that every Justice who signed onto the majority opinion believes in Justice Ginsburg’s statement, but there is no way to be sure until the next case comes along, and one that directly impacts LGBT rights. Again (and this is very important), this case was not about the fundamental rights or the constitutional equality of gays and lesbians. CLS brought the case against the law school. While homosexuality was at the center of the conflict, there was no federal question involving homosexuals.*
So what was the purpose of Justice Ginsburg’s statement if the case was not about LGBT rights? Maybe she thought that the sentence was essential to her reasoning, but there is another explanation that has been put forward. Sometimes a Justice will throw little “time bombs” in his or her opinion. These time bombs are statements that lay the groundwork for a future case, that the Justice sees coming before the Court in the near future. That next case will be either the DOMA case from New England or the Prop 8 case from California. What happens next is anyone’s guess. If Justice Ginsburg did set a time bomb (which she probably did), it reasons that her disposition toward the gay litigants in both cases will be favorable.
Assuming the Court finds that homosexuals are a discreet and insular minority, there is another Footnote Four obstacle. This is where DADT repeal is a potentially huge stumbling block. Footnote Four specifically lists as an essential requirement to heightened scrutiny the inability to win fundamental fairness from the political process. The only time a Supreme Court majority came close to finding that in the LGBT context was in Romer v. Evans, when the Court decided against a Colorado constitutional amendment because it effectively shut gays and lesbians out of the political process.
But now, the LGBT community is very much involved in the political process. Several states have enacted marriage laws or civil union laws without court intervention. For the first time there have been federal law victories: the Matthew Shepard Hate Crimes Bill and the repeal of DADT. This would imply to some that the LGBT community is an active part of the political process, not shut out of it.
That however, is not the whole story. DADT repeal should have been an easy piece of legislation, yet it barely passed, and only because of last minute maneuvering. The hate crimes bill was buried in a defense spending bill that, at the time, the Senate Republicans were afraid to filibuster. Both victories are also fairly limited in scope. Sweeping community-wide victories like ENDA and a repeal of DOMA are impossible for at the next two years but probably more like two decades. Marriage laws in Maine and California were overturned by popular referendum, New Hampshire’s marriage law an Wisconsin’s domestic partnership rights law may be repealed by the new legislatures, and three of the Iowa Justices who found in favor of same-sex marriage in that state were voted out of office just for that reason. Losing all those battles shows a lack of political power. The tide is still very much against LGBT people. We still need the protection of the courts.
The question is when the next big judicial case comes before the Supreme Court, how will Justices on the fence view the minority status of gay people. Thus far the Court has dodged the Equal Protection question. Rational review is not enough, despite what President Obama thinks (and his conclusions about the Supreme Court’s LGBT-related jurisprudence are shockingly incorrect.) Nevertheless, there are two definite votes (and probably four) on the Supreme Court who would say that the LGBT community does not merit 14th Amendment protections. I am sure they would point to DADT’s repeal and say that is proof that the political system works.
* The case was really about the rights of a school to set a blanket policy versus the 1st Amendment rights of CLS. While the Court found for the law school in the abstract, the actual determination of the case will depend on whether Hastings applied its blanket policy equally or singled out CLS specifically. That is Round Two, although it is no longer relevant for this post.
Music I Listened to While Writing This Post: Ella Fitzgerald “Bewitched, Bothered, and Bewildered”; Frédéric Chopin “Waltz No. 11 in G-Flat Major, Op. 70, No. 1”;