The question of sexual orientation as a suspect classification.

-- By StevenRaphan - 16 Apr 2024

The Supreme Court's jurisprudence acknowledges that the Constitution encompasses unenumerated rights and emphasizes the importance of safeguarding these fundamental rights to ensure the full protection of those expressly stated in the Amendments. Under the Due Process Clause, accordingly, the court has established a two-part analysis for determining the existence of a fundamental right. Then, it has been recognized that the Due Process Clause safeguards fundamental rights that are objectively deeply rooted in U.S. history and tradition and “implicit in the concept of ordered liberty such that neither liberty nor justice would exist if the right is sacrificed”. There necessarily must be a careful description of the asserted fundamental liberty interest. Washington v. Glucksberg, 521 U.S. 702 (1997).

The limitations of substantive due process.

In this regard, substantive due process has been used by the Supreme Court to protect rights related to sexual orientation. Lawrence v. Texas, 539 U.S. 558 (2003), Obergefell v. Hodges, 576 U.S. 644 (2015). The particularity of these decisions is that the majority opinion rightfully emphasizes the limitations of the test established by Glucksberg, noting that the identification of fundamental rights under the Due Process Clause should be guided by, but not restricted to, history and tradition. Indeed, changes in society must necessarily be taken into consideration and the strict application of the Glucksberg test would result in freezing the law in a bygone era. The law, it seems to me, has the characteristic of being dynamic and adapting to society in order to regulate it according to the customs of our time. Limiting oneself to this test tends to do the opposite of what the law should achieve. This idea has also been highlighted in Lawrence regarding the need to consider the gradual acceptance of gay rights in modern society, even if historical prohibitions of homosexual sodomy could be found.

Substantive due process also faces challenges in protecting sexual orientation, as it requires recognizing rights one by one, as was done in Obergefell and Lawrence, which slows down protection and puts certain rights related to sexual orientation at risk of not being safeguarded. Moreover, this creates uncertainty about what the law might be on certain points involving sexual orientation that are not yet covered by rights recognized by the Supreme Court. In this sense, as will be discussed later, it might be beneficial to consider possibilities that would generally guarantee equal protection of the law for individuals of any sexual orientation. This would add legal certainty and also generally stabilize the position of individuals of all sexual orientations.

However, despite pointing out the flaws of this test in various Supreme Court decisions, it was still decided to base these decisions on substantive due process without overruling Glucksberg. This is questionable and undermines the foundations of these decisions. At least if the different majority opinions aimed to protect those rights related to sexual orientation under the Due Process Clause, it would have been necessary to draw the consequences of the criticisms raised against the Glucksberg test and overrule the decision. Instead, the Supreme Court perpetuated a series of outlier decisions that deviates from the court's jurisprudence without explicitly overruling it. This leaves the door open for future challenges of these decisions through a strict application of the Glucksberg test, as seen in Dobbs v. Jackson Women's Health Organization, 597 U.S. _ (2022).

The suspect classification path.

An alternative approach to protecting sexual orientation lies in the recognition of a suspect class under the Equal Protection Clause of the Fourteenth Amendment. By applying heightened scrutiny to laws that discriminate based on sexual orientation, the courts could consistently ensure that individuals of any sexual orientation receive equal treatment under the law.

The Supreme Court has already established that a law prohibiting anti-discrimination protections for the gay, lesbian, and bisexual community violates the Equal Protection Clause of the Fourteenth Amendment, as demonstrated in Romer v. Evans, 517 U.S. 620 (1996). Building upon the precedent set by this decision, the rights of individuals of any sexual orientation should be protected under the Equal Protection Clause. More specifically, the court should recognize sexual orientation as a suspect classification, so that any sexual orientation conscious policy would trigger strict scrutiny.

In order to classify a new class as suspect, three characteristics must be considered. The group must have a history of discrimination, and share some immutable characteristics, which means that they could not or should not have to change these characteristics, and that the shared feature does not have any relevance to the pursued goal and is only arbitrary. Frontiero v. Richardson, 411 U.S. 677 (1973). In this regard, the gay, lesbian, and bisexual community has effectively faced a history of discrimination and shares an immutable characteristic.

One of the arguments that opponents to this idea put forward is that the LGBTQ+ community is no longer a minority requiring special protection. However, I believe that the coming together of a group to generate more equal rights should not result in no longer considering them as a minority in need of special protection only due to the fact that the group has acquired influence. Furthermore, this protection would only serve to make things equal. Under no circumstances would protection under the Equal Protection Clause result in making the LGBTQ+ community stronger, but would only act as an additional protection if needed. If the argument is that the LGBTQ+ community is powerful enough not to need protection, it means that there are no laws that would diminish their rights, making the status of suspect classification neutral. However, if it were to exist laws conscious of sexual orientation, then they would be deeply scrutinized to ensure their legitimacy. Therefore, this protection would simply play the role of safeguard that should be put in place.

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