Are only the 'discrete and insular' subject to prejudice?: An analysis of the Bipartisan Legal Advisory Group's brief in Windsor v United States

by | Jan 27, 2013

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In the wake of the introduction of the Marriage (Same Sex Couples) Bill in the UK last week, Karl Laird continues to update OxHRH Blog readers on the progress of same sex relationship rights on the other side of the Atlantic.  In this piece Karl analyses the respondent’s brief in Windsor v United States.

The Supreme Court has announced that it will hear oral argument in Windsor v United States on 27th March 2013.  While there will be much speculation as to what the Bipartisan Legal Advisory Group’s (BLAG) counsel of record, Paul Clement, will say to the justices on that Wednesday morning, a preview of his argument can be gleaned from analysing the brief that BLAG filed on 22nd January.  What follows will scrutinise BLAG’s contention that the Court of Appeals for the Second Circuit was wrong to expand the list of quasi-suspect classes to include sexual orientation.

The brief notes that one of the criteria that the Supreme Court utilises in order to determine if a group is a quasi – suspect one is whether the group is politically powerless or otherwise suffers from an inability to attract the attention of lawmakers.  The brief cites a number of recent examples to demonstrate that gays and lesbians have made significant political advances in the past two decades so that it can now be said that gays and lesbians have become one of the most influential, best-connected, best-funded and best organized interest groups in modern U.S. politics.  Particular focus is placed upon the fact that the federal government itself has abandoned defence of the Defence of Marriage Act (‘DOMA’) and that three states recently voted to legalize same sex marriage.  Cumulatively these gains are cited to reinforce the point that gays and lesbians do not need the protection afforded by quasi-suspect status, but should seek to achieve their goals via the political process.

The brief seems to argue that because gays and lesbians are not politically disenfranchised, they cannot claim the protection afforded by quasi-suspect classification.  This mirrors Justice Stone’s justification for heightened scrutiny in the famous footnote 4 in United States v Carolene Products.  As is well known, Justice Stone stated that the judicial branch should only rigorously scrutinise a determination made by the elected branches when that determination adversely impacts on the interests of ‘discrete and insular minorities’.  The role of the courts should be confined to ensuring that minorities are not excluded from the political process by majorities who are eager to perpetuate their dominance.  If a minority’s participation is not so inhibited, then the judiciary has no right to engage in rigorous scrutiny of a legislative provision.

However, the problem with this conceptualisation of how to determine which groups ought to be able to claim suspect classification is that it makes an assumption about political effectiveness that has been heavily criticised by Bruce Ackerman.  Ackerman states that the problem with the Carolene formulation stems from its under inclusive conception of the impact of prejudice in American society.  Just because a group is not discrete and insular and does have the ability to participate effectively in the political process, does not mean that it is not the victim of prejudice that fetters the channels of democracy.  The Supreme Court itself stated in Romer v Evans that the primary reason for Colorado’s Amendment 2 was animus towards gays and lesbians.   More recently, the Court of Appeals for the Ninth Circuit held that the sole rationale for the enactment of Proposition 8 was disapproval of gays and lesbians as a class.

Although the brief is correct to argue that the goal of gay and lesbian equality has been advanced politically in the past decade at a rate that was unthinkable in the early 1990s, that is not to say that gays and lesbians do not suffer from prejudice that entitles them to the protection afforded by quasi – suspect classification.  We will have to wait until June to find out if the justices agree.

Karl is a Lecturer at Pembroke College, Oxford and is a regular contributor to the OxHRH Blog. 

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