The United States Supreme Court has long danced around the issue of whether or not sexual orientation (and gender identity) comprise a class of individuals entitled to the application of the "strict scrutiny" standard when anti-LGBT laws are challenged. The closest the Court has ever come to a definitive answer was in the 1990's case of Romer v. Evans. Sadly, while reaching the right result, the Court dodged addressing the strict scrutiny question. Now, North Carolina's new anti-LGBT law may have set the stage for the Court to finally address the question head on. If the North Carolina statute is ultimately struck down, North Carolina Republicans may find much to their chagrin - and the rage of the Christofascists to whom they have prostituted themselves - that they set the stage for a major LGBT rights ruling. A column in the Washington Post looks at the situation and the possible outcomes. Here are excerpts:
What happened in North Carolina may have been startling for its swiftness, but it was a classic countermove in the modern conflict over gay rights. When liberal cities enact laws to protect LGBT people, conservative state governments respond by preempting them.North Carolina is now the third state in the last five years to ban local anti-discrimination ordinances after a city tried to protect LGBT people. This is a maneuver of questionable constitutionality.
“They jammed this through with virtually no notice,” says Shannon Minter, legal director of the National Center for Lesbian Rights. “Everything about this process stinks. It’s got all the hallmarks of a bill that’s based on animus.”
Arkansas lawmakers passed a similar law last year, after the city of Fayetteville sought to prohibit bosses, landlords, and shopkeepers from discriminating against LGBT people in a bill that was rescinded soon after. Tennessee’s legislature also passed a law in 2011, after Nashville and Davidson County cut ties with businesses that discriminated against LGBT workers.
Though North Carolina’s law goes the furthest — it limits what bathrooms transgender people can use — what these three measures have in common is that they were all engineered to test the limits of what the U.S. Constitution allows. The 14th Amendment promises equal protection under the law, meaning that governments can’t single out and punish groups of people for no good reason. But the Supreme Court has been consistently vague about what that promise means for LGBT people.
This latest controversy may finally clear some things up. On Monday, the ACLU, Lambda Legal, and Equality North Carolina filed a lawsuit arguing that North Carolina'snew law “violates the most basic guarantees of equal treatment and the U.S. Constitution." Legal experts say this will be a tough case to litigate, but if it proceeds, it has the potential to set a landmark precedent. It may force the Supreme Court to confront a question that for decades it has stubbornly refused to answer: What does the Constitution actually imply about gay rights?
These anti-anti-discrimination laws share a famous common ancestor. In 1992, voters in Colorado approved a constitutional amendment prohibiting any agency, school district, or local government from protecting “homosexual, lesbian or bisexual” people. This invalidated the LGBT anti-discrimination ordinances in Denver, Aspen and Boulder. Those cities promptly sued the state, arguing that the measure violated the Equal Protection clause of the 14th Amendment.
That lawsuit, known as Romer v. Evans, reached the Supreme Court in late 1995 and resulted in a landmark victory for gay rights the next year. But everything happened in a very strange way.
When laws discriminate against certain kinds of people, though, the courts become much more suspicious. Lawyers often speak of a three-tiered system. At the top are categories like race, national origin or religion. Laws that explicitly discriminate against race are practically impossible to justify and hardly ever survive judicial review. Even laws that do not mention race can be struck down if it can be proven that they were enacted with discriminatory intent.
To a lesser extent, the courts are also wary of laws that discriminate by sex. This middle tier of review is called “intermediate” or “heightened” scrutiny, and it’s a relatively recent development. In 1976, the Supreme Court struck down an Oklahoma law that allowed young women but not young men to buy certain kinds of weak beer. Oklahoma tried argue that young men were more likely to drive drunk, so they shouldn’t be allowed to buy beer until they were 21. But the court didn’t find that reason convincing enough for the law to stand.
For everyone else, courts use the extremely lenient “rational basis” standard. Practically speaking, nearly any law can clear this low bar. In the words of New York University constitutional law professor Kenji Yoshino, essentially “a free pass for legislation.”
Laws that discriminate against sexual orientation tend to be judged at this lowest level of scrutiny. Courts generally don’t believe that gays and lesbians are a class of people who deserve special protection under the Constitution. For these reasons, it’s extremely hard to win a case just by saying that a law is unfair to LGBT people.
Except that’s exactly what happened in 1996, when the Supreme Court struck down Colorado’s anti-LGBT law in Romer v. Evans.
Civil rights groups had been hoping the court would recognize that sexual minorities, like racial or religious minorities, deserved extra protection under the Constitution beyond rational basis review. But the Supreme Court refused to elevate LGBT people. Instead, Justice Anthony Kennedy said that Colorado’s law failed even the flimsy rational basis standard.
Recent legal victories for gay rights have danced around this issue. In Lawrence v. Texas, the Supreme Court struck down anti-sodomy laws not because they discriminated against gay people, but because these laws intruded on the “realm of personal liberty.”
“The petitioners are entitled to respect for their private lives,” Kennedy wrote in the majority opinion. “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”
In the gay marriage cases, United States v. Windsor and Obergefell v. Hodges, the court used hybrid reasoning that blended a number of concepts in the Constitution, among them the rights to liberty and equal protection under the law. But again, the opinions fell short of recognizing sexual orientation as a suspect class. Obergefell in particular has been criticized by legal scholars for being muddy and confusing.
In Romer v. Evans, the Supreme Court made a big deal over how Colorado had singled out gay people, by name, in a piece of legislation. But the language of the Tennessee law is completely neutral — essentially, it freezes discrimination law until the state says otherwise. In practice, of course, the law closes the door on LGBT people, who were starting to win anti-discrimination protections in some liberal Tennessee cities.
Civil rights groups hoped that courts would see through the subterfuge in the Tennessee law. They argued that the measure was clearly motivated by anti-gay animus, violating the Constitution’s Equal Protection clause. But a lawsuit against Tennessee failed; in 2014, an appeal court dismissed it on a technicality, ruling that the plaintiffs couldn’t prove they suffered any harm from the new law.
The big question remained unanswered. Would the Supreme Court finish what it started in Romer v. Evans?
The lawsuit in North Carolina urges courts to finally treat gender identity and sexual orientation as suspect or quasi-suspect classifications under the Equal Protection clause. This has long been a goal in the gay rights community. It would mean that politicians could no longer pass laws that target LGBT people without some serious explaining.
There are other claims in the lawsuit as well. The transgender bathroom provisions in North Carolina’s law may run afoul of Title IX, the federal law that prohibits sex discrimination in schools. According to the Department of Education’s interpretation of the law, Title IX also bans transgender discrimination, which the DOE considers a form of sex discrimination.
North Carolina’s new law is an evolved cousin of Colorado’s law. Both were created to stymie local LGBT protections, but Colorado’s law singled out gay people by name, while North Carolina’s is more coy. So if the Supreme Court wants to strike down North Carolina’s law for disadvantaging gay people, it will have to use more firepower than it did in Romer v. Evans. It may finally have to come out and say what it has been hinting at for years.
If gender identity and sexual orientation became recognized as a protected classes, deserving of heightened judicial scrutiny, the repercussions would be enormous. Not only would it inflame the struggle between religious rights and gay rights, but it would call into question many of the anti-LGBT bills being considered around the nation.
The North Carolina lawsuit has a long road ahead of it. But it has the makings of a milestone case. If it ever reaches the Supreme Court, it will force the justices to tackle an issue that they have repeatedly hemmed and hawed over.
The court has ruled that bans on sodomy are unconstitutional. It has ruled that bans on same-sex marriage are unconstitutional, too. But is it constitutional for a law to discriminate against LGBT people? The Supreme Court has been mysterious on that subject for a very long time.