The Supreme Court And Equal Protection:
Why This Term's Momentous Affirmative Action and Same-Sex Sodomy Cases Have Put the Doctrine To the Test

By EDWARD LAZARUS

Thursday, Jun. 26, 2003

On June 23, in an already-famous decision, the Supreme Court upheld the University of Michigan Law School's affirmative action program, in the face of a challenge based on the Constitution's equal protection clause. In doing so, the Court ostensibly subjected that program to "strict scrutiny," the most rigorous standard of judicial review.

I predict that, in Lawrence, the Court will claim that it has subjected Texas' law to only so-called "rational basis" review - the Court's least rigorous standard for assessing the constitutionality of a challenged law or governmental practice. (Applying a higher standard would mean the Court was offering heightened protection to either homosexuals or sodomy, and it is not fond of either.)

I also predict that in Lawrence, applying this supposedly lax standard, the Court will strike down the same-sex sodomy law as a violation of the equal protection clause.

If I am right, the conjunction of these two cases - and of toothless "strict scrutiny" and a sharp-fanged "rational basis" test - will be more than just an odd turn of events. It will mark the collapse of a whole structure of equal protection clause analysis. And it will raise yet more troubling questions about the integrity of the Court's decisionmaking.

And even if I am wrong, it is well worth reflecting on the way the different standards applied in these two important equal protect cases have evolved, in opposite ways, over time - with the strict standard becoming laxer, and the lax standard becoming more strict.

The Original, Three-Tier Method of Deciding Equal Protection Cases

Once upon a time, not so very long ago, the Court evaluated cases invoking the Constitution's equal protection clause in a fairly rigid, predictable way. When it confronted such a case, it applied a three-tier process of categorization and analysis.

On the bottom tier were most laws or governmental practices, such as run of the mill economic regulations. They were subject merely to rational basis review - the same extremely lax standard I believe the Court will at least purport to apply in Lawrence.

Under this standard, the Court would ask itself whether it could conceive of any rational justification for the classifications created by a challenged rule. Not surprisingly, the Court always managed to find one. As a result, virtually all laws subjected to the test - however ridiculous - were upheld.

To cite the classic example, in Williamson v. Lee Optical Co., the Court upheld a law granting optometrists but not opticians the right to replace eyeglass lenses, even though opticians were perfectly capable of doing so. Still, the Court upheld the law because it believed a non-insane legislature might have believed that overall, the more highly-trained optometrists might perform this simple function better.

"Suspect" classifications were those that discriminated against "discrete and insular minorities" - including racial minorities. (The minorities had to be "discrete" and "insular" for special protection to be justified; otherwise, the idea was, they could fight for their rights in the legislatures like everyone else.)

"Strict scrutiny" required that the challenged law or practice be "narrowly tailored" to serve a "compelling governmental interest." The Court struck down so many laws under the doctrine that it began to be known as "strict in theory but fatal in fact." Sometimes the Court held that the governmental interest involved was not sufficiently compelling. Sometimes it held that the law was not well enough tailored to serve that interest.

Finally, the Court recognized a category of "quasi-suspect" classifications, such as those based on gender - to which it applied a somewhat less rigorous test.

That test required only that the classification significantly further an important governmental interest. The interest need not be compelling; the tailoring need not be ideally narrow, as long as the law in fact significantly (not necessarily perfectly) served the goal.

Still, unlike the rational basis standard, this standard had some real rigor. Most laws failed it, though some did not.

Modern Equal Protection: Evolving Away from the Original Three-Tier Structure

Over time, it became plain that these three tiers of analysis were outcome-determinative: The tier a law was placed in, pretty much determined whether or not it would be upheld.

In part for this very reason, I believe, this three-tier structure has been under considerable pressure for some time now. Opposing ideological factions on the Court have sought to control the definition of the tiers, because they know the tiers control the results.

Some think this has been going on from the beginning. Indeed, Justice John Paul Stevens has often stated his view that the three-tiers of equal protection analysis were always an illusion. In truth, he has written, the Court's approach reflects not three distinct tiers of analysis, but "a continuum of judgmental responses to differing classifications." But regardless of when the attempted breakdown of tiers began, it's clear that, even now, it is continuing.

Moreover, at the same time, conservatives have been adamant that all racial classifications, even those that advantage racial minorities, receive strict scrutiny. That's the reason that strict scrutiny was applied in the affirmative action cases the Court just decided.

The suspect and quasi-suspect categories, then, have stayed the same - except that the Court has now suggested that they reach benign racial classifications as well as malign ones. That leaves a whole host of laws that are subject only to rational basis analysis. Some of these laws, however, have nevertheless been very troubling from the perspective of individual rights.

As a result, in occasional cases, the Court has toughened up the rational basis test. In particular, this tends to occur when a Court majority finds a law fundamentally offensive, yet is disinclined to create a new suspect or quasi-suspect class.

The Court's Previous Decision On Anti-Gay Discrimination: Romer v. Evans

Consider, for instance, the especially robust rational basis test applied in Romer v. Evans. There, the Court struck down a Colorado ballot initiative that prevented any Colorado locality from adopting rules providing homosexuals with "minority status, quota preferences, protected status or claim of discrimination."

Plainly, the Court did not want to recognize homosexuals as a new "suspect" class meriting added judicial protection. Yet the initiative was abhorrent - it reflected nothing but animus toward gays - and the majority, in an opinion authored by Justice Anthony Kennedy, recognized that. Accordingly, it found it unconstitutional under the rational basis standard.

Traditionally, however, the Court has never deemed discrimination inherently irrational if it is based on animus toward particular group. Indeed, the Court invented strict scrutiny in part because it feared racially discriminatory would not necessarily always fail the rational basis test, at least in the eyes of the lower courts.

As John Hart Ely observed in his classic Democracy and Distrust, the main problem with segregation was not that it was irrational; it was, far worse, morally wrong. Similarly, animus towards gays is grounded in a despicable set of moral judgments. Yet the majority of Colorado voters who voted for the initiative weren't crazy, nor had they taken leave of their senses; instead, they were misguided and hateful.

The same kind of legislative animus against gays that blighted the Romer initiative seems to blight the Texas same-sex sodomy statute. Obviously, the statue doesn't express animus toward sodomy (it's fine for straight people), but towards gay people who practice it. As a result, it may meet the same lethal fate as the initiative that Romer struck down.

Meanwhile, just as rational basis review has been changed, strict scrutiny has been changing apace. Consider the courts decision upholding the Michigan law school affirmative action program, despite the application of strict scrutiny. One might say that the Court has now minted "strict scrutiny minus a few molars and incisors." Perhaps it implanted the missing teeth into its rational basis review.

Justice O'Connor's opinion upholding the affirmative action plan simply cannot be squared with traditional strict scrutiny. For instance, it explicitly rules that courts must "presume" that universities are acting in "good faith" when they declare diversity as a compelling interest.

But that makes little sense: It's the courts, not anyone else, who are supposed to decide if compelling interests are indeed compelling - and sincerely offered. After all, strict scrutiny is only triggered when a governmental actor has made a classification that is inherently suspect.

This kind of presumption can soften the compelling interest requirement. (It must be compelling if it's presumed to be sincerely offered, right?).

Alternatively, it can soften the narrow tailoring analysis. (We have to presume that they offered this interest sincerely; so who cares if it's not a perfect fit?) Often narrow tailoring's very rationale is to show that the government's asserted rationale was not its genuine rationale - thus the poor fit between the asserted interest and the law. But O'Connor seems to want to presume away narrow tailoring's "insincerity radar."

Either way, O'Connor's application of the standard waters strict scrutiny down.

It also fits very strangely with her - and the Court's - insistence that benign racial classifications like affirmative action must be treated exactly the same as malign Jim Crow Laws. Would the Court really presume the good faith of a university that segregates all of its dormitories "because the students want it that way?"

The Problem With Bending the Three-Tier Structure to Fit the Case At Hand

Let's face it: Justice O'Connor, in the Michigan law school case, was not really engaged in strict scrutiny. And in Romer, Justice Kennedy was not really engaged in rational basis analysis. Instead, both were engaged in a pretense. The Court's decision in Lawrence, the same-sex sodomy case, will more than likely simply continue that pretense.

Among other effects, they can undermine the correct results they produce, and render them vulnerable, by resting them on insincere or illogical foundations. Believe me, there were other ways for a conscientious Justice to get to the sensible results in Romer and the University of Michigan case. And there is a conscientious way to come out on the right side of Lawrence, too: Extend quasi-suspect class status to gays and lesbians, a far more "discrete and insular" minority than women - who already enjoy this status, and are not a minority - are.

More generally, when the Court engages in doctrinal pretenses - when it covertly bends the usual rules of decision to reach a desired result - it leaves itself open to the obvious charge that analytical principles don't matter.

On this view, consistency can be thrown to the wind; standards can be made up as judges go along. And judicial decision-making is just political decision-making dressed up in the fancy garb of precedents and legal jargon.

That charge has large implications both for the Court's recent decisions and for the institution as a whole. The Court's legitimacy depends on its preservation of a sharp distinction between judicial and political decisionmaking; after all, politicians must be elected and re-elected, while Justices (and, indeed, all federal judges) serve for life.

Why give nine unelected judges such enormous constitutional authority if they, no different from a legislature, are just playing politics? That is a question for which this Court, sadly, seems never to have an answer.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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