Finding LGBTs a Suspect Class: Assessing the Political Power of LGBTs as a Basis for the Court's Application of Heightened Scrutiny

Article excerpt

ABSTRACT

In this Article I argue the U.S. Supreme Court should find lesbian, gay, bisexual, and transgender persons ("LGBTs") to be a politically powerless minority group and apply heightened scrutiny to statutes treating LGBTs differently as a result. This argument buttresses the already strong reasoning by which the Court should find LGBTs a suspect class and could perhaps serve as the tipping point in the Court's equal protection analysis.

LGBTs are a politically powerless minority group because they are grossly underrepresented in our nation's legislative bodies. As a result, the ability of these institutions to respect and consider the needs of LGBTs is compromised. Direct and proportional representation of LGBTs is necessary to ensure the interests of LGBTs are taken into account. LGBT legislators are more likely than non-LGBT legislators to understand the needs of the LGBT community, champion those needs, identify the impact of facially neutral legislation on LGBTs, and serve as allies for each other in efforts to pass legislation addressing the needs of LGBTs. Because the number of LGBTs currently serving in our nation's legislative bodies is far short of proportional, Americans have reason to doubt the constitutionality of statutes enacted by these bodies that treat LGBTs differently. Applying heightened review to statutes treating LGBTs differently is necessary to remedy this flaw in our nation's lawmaking process and ensure equal protection.

I. INTRODUCTION

In recent years our nation has begun to engage in a legal, political, social, and moral debate concerning the liberties of lesbian, gay, bisexual, and transgender persons ("LGBTs"), including the right to marry and adopt children. It is likely that the United States Supreme Court will weigh in on one or more of these issues in the coming years, particularly given the current constitutional challenge to California's Proposition 8--the voter-approved constitutional amendment banning same-sex marriage--pending in federal court. (1)

In this Article I argue the Court should find LGBTs a suspect class, and apply heightened scrutiny to statutes treating LGBTs differently, on the basis that LGBTs are a politically powerless minority group. Such review by the Court would make it difficult for discriminatory laws like those limiting marriage to unions between a man and a woman to survive constitutional muster. (2) Although the Supreme Courts in California, (3) Connecticut, (4) and Iowa (5) have recently employed heightened scrutiny in striking laws limiting marriage to opposite-sex couples, the U.S. Supreme Court has never done so.

This Article argues LGBTs are a politically powerless minority because they are grossly underrepresented in our nation's legislative bodies. As a result, the ability of these institutions to respect and consider the needs of LGBTs is compromised. Americans have reason to doubt the constitutionality of statutes enacted by these bodies that treat LGBTs differently. Close scrutiny by the courts is necessary to remedy this flaw in the legislative process and to ensure such statutes afford equal protection under the law. This argument buttresses the already strong reasoning by which the Court could find LGBTs a suspect class and could perhaps serve as the tipping point in the Court's analysis.

II. EQUAL PROTECTION ANALYSIS

The 14th amendment to the U.S. Constitution states that no state shall "deny to any person within its jurisdiction the equal protection of the laws." (6) This equal protection clause requires that similarly situated people be treated similarly. (7) A statute which treats similarly situated people differently is subject to challenge under the equal protection clause. (8)

Lawmakers have the initial discretion to ensure the laws they pass afford equal protection. (9) Hence, statutes which draw classifications between groups of people withstand constitutional muster if there is a legitimate justification for the classification, and the classification is rationally or fairly related to that goal. …