The fact that women constitute a political majority is part of why they do not receive the same level of scrutiny as racial minorities in the first place. But racial minorities, insofar as they are minorities, are always inherently at a political disadvantage. The idea is that the law needs to be especially protective of those who cannot protect themselves in the normal political process.
Part of the problem is that this is a bit of a chicken-and-egg problem. There is a black president now, but that is due in part to the protections provided by strict scrutiny of laws that discriminate based on race. If that scrutiny is eliminated, perhaps the political empowerment will also be lessened over time?
If the test were a sliding scale, then there probably is an argument that as minorities gain political power, less scrutiny is necessary. But it is not a sliding scale. It is basically a binary test: either you get strict scrutiny, or you don’t.* So it is doubtful that an increase in political power, given that political power is just one among several factors, would ever be enough to remove a group from strict scrutiny.
*-Gender holds an intermediate place, but gender is unique in a lot of ways (for one, there are real differences in gender that are relevant to policy–not so of race).
Was there ever a proposed law put into place when the anti-miscegenation laws were being overturned which stated that you could marry a person of color, but it would not be called a marriage? That you could “cohabitate” or gain a “union” of some sort, but it would not be recognized as marriage? Was that sort of thing ever made legal?
Because if not, precedent comes down hard against the “separate but equal” treatment for homosexuals as well.
Yes, it does. I wasn’t arguing otherwise. I was merely pointing out that the OP refers to the proper test. Since SCOTUS hasn’t decided the issue, the OP’s method of asking how SCOTUS might answer the question according to that four-part test is entirely sound, IMHO.
Could be. Hard to say what effect, if any, Lawrence would have on the EP analysis. I do think there is a genuine question of law here. The Ninth Circuit decided just one year previous to High Tech Gays–band name!–that homosexuals were a suspect class. That decision was reversed by the en banc panel on other grounds. (I think the case had Knight in the name; I’ll look it up if anyone is interested.)
The Supreme Court has not adopted it. In fact, I believe they have questioned the immutability aspect, without deciding either way. But I’m pretty sure every circuit that has considered the question has applied the test, with slight variations.
Since we are forced to predict what factors the Supreme Court would look at, I’d say these are the best guess.
It is useful to consider the fate of Equality Found. v. City of Cincinnati, 860 F. Supp. 417 (S.D. Ohio 1994). In that case, the court held:
But this was reversed by the Court of Appeals on the following reasoning:
Equality Found. v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995). [This decision was itself vacated and remanded for consideration of Romer v. Evans, but it didn’t affect the court’s discussion of suspect class status, AFAICT. But I haven’t read this line of cases very carefully]
It isn’t clear to me who gets the better of the argument, but I can see both sides. The notion that gays cannot be discriminated against because they can hide their sexual preferences seems like a pretty poor basis for the Sixth Circuit decision, to me. I mean, isn’t that true of race in some circumstances too? Or national origin?
You know, you are right here. I conflated a couple of things. Reading Scalia’s dissent in Romer (I initially thought it was his somewhat vitriolic Lawrence dissent) I realize he didn’t there say it was the media representation. He did make clear that homosexuals had political power that outweighed their numerical strength (though he ignores closet cases here); that would seem to cut heavily against an argument that EP heightened scrutiny should be applied to discrimination against homosexuals.
Note in the later quote he separates geographic concentration and disporportionate political power, indicating (to any good textualist) that the disproportionate political power comes from sources other than solely geographical concentration.
I have a memory that I have heard him talk regarding homosexual influence in the media. If I can find a cite to it, I will add it to this.
OK, let’s put it another way. A fair look at the procedural posture of these cases tells a particular lesson – the advocates on the SSM side have been very careful to not invoke federal claims. It’s pretty clear to me that they don’t believe handing this issue to the Supreme Court will result in a favorable ruling.
I doubt SCOTUS would take an SSM case even if it posed a federal question. The best conceivable majority for a federal right to SSM would be 5-4 at the moment, and I think the supporters of SSM are wise enough to reliaze that right now, such a changed based on a 5-4 verdict would lead to pretty major issues. I also think some of the potential 5 votes would realize that as well, and so would not support taking the case.
Well…statements like the following from Scalia cannot help.
Such statements do nothing to make me feel he is remotely impartial in such a case. Certainly there are more judges than Scalia but I do not think anyone feels the judicial math is favorable to bring a case such as this.
I find such utterances from a SCOTUS justice appalling. I would love to see Scalia answer how he would have ruled on Loving v. Virginia since I would bet the case for those opposed probably included, “people who simply want to protect ‘themselves and their families from a lifestyle that they believe to be immoral and destructive.’”
True. I’m only trying to argue that the OP has the correct starting point for assessing how the Supreme Court would analyze such a claim. I have no doubt that the Court might disagree with his end result. (And I have no strong opinion about whether, as a matter of law, they should disagree.)
There are also lots of other reasons to avoid sending a case to the Supreme Court. For one, even if those bringing the case thought it had a 60% chance of success, that 40% of failure might not be worth it if in fifteen years they might have an 80% chance. Also, there is a pretty big divide in the gay community over the strategic wisdom of bringing an SSM case to the Supreme Court, quite apart from whether the case would succeed.
Indeed. I just can’t see where those 4 would come from. I don’t think anyone on the right would grant cert. And I think enough of the “liberals” would run scared.
Enough cites from Scalia regarding the influence of homosexuals earlier?
It may have only been dicta in a footnote, but from that tiny footnote acorn grows the mighty oak of modern Equal Protection jurisprudence. Caroline Products footnote four has been quoted extensively in the body of a great number of subsequent opinions and carries the full weight of precedent.
San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973) .
Not exactly in that manner, because it’s not exactly a four pronged “test.” They’re the factors that the court has historically looked to in deciding whether a suspect classification exists. They’ve used a good deal of language to the effect that those are among the factors they’ve considered:
Rodriguez, 411 U.S. at 28.
Immutability as a characteristic of suspect classification comes from Frontiero v. Richardson, 411 U.S. 677, (1973). It’s another factor to be considered, but no one factor is dispositive. Marshall talks about all of these factors and their history with the Court extensively in a footnote in Cleburne: