Many have hailed this as a great step for gay rights. While I wholeheartedly support the effort (sidebar: many American Apparel retail stores are currently giving away Legalize Gay shirts to some customers), I have to wonder about the implications of advancing this effort through legislative and policy reform, rather than concentrating on forcing the Court to make a landmark decision
In current jursiprudence, the Court must to a certain extent respect the decisions of the legislature: it cannot even consider invalidating a state law if said law is a rational means to a legitimate government end UNLESS the law concerns the treatment of "discrete and insular minorities." This precedent, stems from a completely random case, involving interstate shipping of filled milk. (Filled milk is the opposite of skimmed milk. Ew.) In a seemingly inconsequential footnote in that opinion, the Court wrote:
"Nor need we enquire 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." Carolene Products, 304 U.S. at 152 n.4.
In the case of gay rights, this means that if the Court were to rule on a case involving discrimination against homosexuals, the Justices would first have to evaluate if gay-identified Americans did in fact constitute a discreet and insular minority. Based on past decisions, it is more than reasonable to assume that if the Court did apply a high level of scrutiny, then any laws discriminating against the group would be invalidated. The central question is thus the simple matter of whether or not the Court would classify homosexual people as a discrete and insular minority. The Court has yet to consider this poignant question, but as more cases hit the docket, it is sure to come up.
In the mean time, legislating protective reforms, however slight, does to a certain extent weaken the argument that the group deserves protection. The Court has generally read the Carolene Products footnote to apply to certain groups because they are unable to gain protection in the conventional political process.
Executive orders and national laws demonstrate that groups are able to mobilize the electorate. This could lead gay-rights opponents to argue that the groups do not suffer discrimination and that laws which seem to target them are passed in fact to fulfill other (often specious) secondary purposes. (One might contend that a law limiting hospital visits to immediate family has the purpose of limiting the spread of infection. The discrimination against same-sex couples is an inadvertent consequence of this action, and is not grounds for invalidating the law if the Court determines that homosexual people are not a group that merits protection.) Thus, gay rights would not fall under the Equal Protection claus
There are pros and cons to both legislative and judicial reform. A ruling granting protected minority status to homosexuals would provide a way to shoot down any future discriminatory laws that are passed, but might be seen as judicial activism. Legislative reform must anticipate every single possible anti-gay law and prevent it. While this is slower and more difficult, it might be accepted more readily if the decision came form the representatives of the people. If legislative reform could hurt future judicial reform efforts, however, gay activists would consider their campaigning carefully.
What do you think? Is it more effective to pursue massive social reform in the legislature or by suing and forcing judicial reevaluation? Would you more easily accept a decision you did not agree with from a judge or from an elected representative?
Call me a skeptic, but I am one of the few people, while respecting the Court, do not fully trust the Court to make effective changes. I do not trust the Court because judicial opinion seem to be more political than most people would give it credit for. If one wants an example, you should look at the Citizen's United case.
ReplyDeleteBut you ask if we should use legislative initiative or judicial initiatives to bring about change, and more specifically : whether gay activist should concentrate on passing a national legislation that prohibit discrimination against gays or concentrate on finding a case that will classify gays as a class, hence giving gays the protection that groups such as African-Americans receive.
You seem to suggest by you analogy to Supreme court decisions ruling in favor of African-Americans that the judicial route might be better. If you do not suggest this, then please forgive me.
But if you do, I must warn you that judicial opinions can easily be countermanded. If you look at Ricci v. Destafano, you will see that some protections giving to African Americans are being turned back. The Court gives and the Court takes.
While I'm also skeptical of the legislative branch, it is harder for the legislator to retract a law that it passes than it is for a court to countermand its past rulings. Legislators have to fight one another and it gets intense. And they are accountable to their constituency. Judges are not. Judges write opinions and their opinions become law. Few minutes on the keyboard can turn Exxon Mobil into a real person.
Hmmm
ReplyDeleteWhen it comes to "gay rights" I would prefer that we pursue the legislative method. Courts rulings typically last for a looong time, and if for example the court rules that same-sex marriage is not a right protected by the constitution, then marriage efforts will be pushed back for decades. It's true that judicial rulings are applied nationwide, but there are great risks that one must take into account. Stare decisis usually dictates that legal precedents are honoured, but laws made by the legislature can change with different administrations. Let's see what happens with DOMA.... there may be cases headed to the supreme court to challenge that law, but the legislature might get their first. Courts never want to be moving too far ahead of public opinion, which seeks pretty evenly split when it comes to "gay rights" in America.
Your final question brings up an interesting aspect of American politics--the fact that a group of appointed officials can have such a profound effect on policy seems problematic in a democratic government.
ReplyDeleteNevertheless, I think the judicial route is the best way to go. Perhaps I'm being overly idealistic, but I feel that such questions of basic human rights should be answered by those in charge of interpreting the meaning of those rights at their constitutional origin. Any decision in favor of gay rights would thus have the gravitas of the constitution behind it--such a matter is, to me, too important for flimsy legislation.