Home > Academic Articles > Equal Protection and Prejudice, Misinformation, and Scaremongering

Equal Protection and Prejudice, Misinformation, and Scaremongering


  • A challenge to California’s Proposition 8, which took away same-sex marriage, is currently in federal court, which must decide whether and to what extent the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution protects gay men, lesbians, and bisexuals.
  • This group is currently protected from action based on animus under Romer v. Evans under the Equal Protection Clause.
  • Hopefully, the District Court, then the Ninth Circuit, and probably the U.S. Supreme Court will be willing to extend the Equal Protection Clause, providing protections from actions based on prejudice, misinformation, and scaremongering.

This article is by Keith Southam, a 2L from Chicago-Kent.

Recently, Illinois state Representative Greg Harris came to Chicago-Kent to speak about a bill he sponsors to allow civil unions in the state of Illinois. Next door, Iowa recently celebrated one year of permitting same sex marriage. And not long ago, same-sex couples in the nation’s capital started marrying. In contrast to these jurisdictions, California took a notable step in the opposite direction came in the fall 2008 election cycle when a slim majority of Californians voted to prohibit same-sex marriage. California’s ban took the form of a referendum, Proposition 8, that rolled back rights the California Supreme Court had previously granted. Currently, a challenge to that referendum is pending in the Northern District of California. This sort of back and forth is not uncommon.

For example, in Washington, D.C., prior to the same-sex marriage law taking effect, opponents of expanded marriage rights worked to prevent the change. In fact, the opponents’ last-ditch effort was to seek a stay of the law coming into effect from the U.S. Supreme Court. Chief Justice of the U.S. Supreme Court, John Roberts, denied that request. Chief Justice Roberts noted the procedural history of the law: passage by the D.C. Council (which affirmatively acted) and a period of consideration by the U.S. Congress (which declined to act). Chief Justice Roberts did not address the merits of the case, but noted that the D.C. Court of Appeals would have a chance to consider the merits like those the opponents of the law raised. Specifically, the opponents of the law argued that the D.C. Council violated District law in refusing to permit interested citizens to force a referendum vote on same-sex marriage. The D.C. Council countered that it declined to allow the referendum because the D.C. Human Rights Act bars referenda that would violate the D.C. Human Rights Act. The merits of the case, thus, turn on interpreting District law.

However, the matter highlights the same U.S. Constitutional issues at the heart of the current challenge to Proposition 8 in federal district court: whether there is a fundamental right to marriage or whether the government can permit opposite-sex marriage but deny same-sex marriage. The first question is a function of substantive due process as protected under the Fourteenth Amendment to the United States Constitution. The second question, the focus of this post, is a function of the Equal Protection Clause of the same Amendment. Under the United States Constitution, courts will scrutinize government actions that classify citizens, applying different standards based on the classification. The heart of the matter is, thus, whether the government may validly treat heterosexuals differently from homosexuals and, if so, on what grounds?

Emotional reactions on either side of the debate surely provide immediate reactions to this question. But form a legal point of view, the U.S. Supreme Court has provided some guidance. In 1992, Colorado voters approved a statewide referendum that prohibited municipalities from providing anti-discrimination protections to “homosexual, lesbian or bisexual” persons. Opponents of the amendment sued to overturn the decision, winning at the trial, on appeal, and eventually prevailing in the U.S. Supreme Court. In a 6-3 decision, the U.S. Supreme Court held that the referendum violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Romer v. Evans, 517 U.S. 620 (1996). In coming to its decision, the Court had to decide whether sexuality should be a suspect class and what level of protection should be afforded to the class. For example, the Court could have elected to treat sexuality as a suspect class, thus requiring strict scrutiny of any government action that draws lines based on sexuality. (The strict scrutiny standard applies, for example, to classifications based on race or ethnicity.) The Court also could have elected to treat sexuality as a quasi-suspect classification, thus requiring an intermediate level of scrutiny for any government action that draws lines based on sexuality. (This standard typically applies to classifications based on sex or gender). In its interesting decision, the Court declined to treat sexuality as a suspect class, and instead applied the government action (the referendum) to a rational-basis review, a standard that requires only a rational relation to a legitimate government end. But at the same time, the Court indicated that “a bare desire to harm” is irrational.

This assertion, that a desire to harm (animus) is not rational, is both obvious and powerful. This prevents government action from targeting any group of individuals out of hatred. In historical practice, though, rational basis review tended to allow virtually any government action to go forward. Thus, the U.S. Supreme Court, without explicitly saying so, moved sexuality up a rung on the ladder of protection, placing it above non-suspect but below quasi-suspect. Under this level of review, one that eschews animus, was the referendum in California proper?

The Northern District of California has proceeded in the Proposition 8 case not just on questions of law, but also questions of fact relevant to the case. This type of fact finding seeks to determine, among other things: 1) whether sexuality should be afforded suspect classification because homosexuals and bisexuals lack sufficient power within the political sphere, and 2) whether mere animus motivated the voters of California. For example, Stanford political scientist and professor Gary Segura indicated that gay men and lesbians have been the targets of the most restrictive ballot measures in America, even more restrictive than undocumented aliens. Additionally, San Diego Republican mayor Jerry Sanders explained why he changed his mind and came to favor same-sex marriage (where he had previously advocated domestic partnerships): “[w]hat hit me was that I had been prejudiced.” On cross-examination, Sanders clarified that he did not feel his previous opposition to same-sex marriage came from animus or moral disapproval but added: “it doesn’t mean that I don’t believe it was grounded in prejudice.”

Sanders’ statement might show that, under the Romer animus test, the California referendum did not impermissibly discriminate on the basis of sexuality. But Sanders (as one citizen of California) indicated that his motivation was not animus but rather prejudice. The step from animus to prejudice is a semantic game, and the District Court could conclude that the two motivations are one in the same. But the facts in Romer do not mirror the facts in the Proposition 8 trial, and thus might necessitate a different outcome. Last year, Professor William Eskridge gave a guest lecture that touched on this subject. In the presentation he showed examples of advertising that Colorado voters encountered when voting in that referendum. That advertising directly indicated that homosexuals were mentally ill, sexually abused children, etc. In short, the advertising often consisted of hate-filled lies. In California, the advertising for the Proposition 8 vote was different. One of the bigger criticisms of advertising in the Proposition 8 campaign was its use of misinformation and scaremongering tactics. For example, this video warns that “acceptance of gay marriage is now mandatory,” suggests that “people [have been] sued over personal beliefs,” worries that “churches could lose their tax-exemption,” and opines that “gay marriage [will be] taught in public schools.” That video is misleading, but it lacks the hate directed at homosexuals that was present in the Colorado campaign. On one hand, this factual difference suggests that, under Romer, Proposition 8 will stand, but on the other hand, perhaps prejudice, misinformation, and scaremongering will suffice to overturn Proposition 8.

Looking back at Romer, Justice Kennedy wrote the majority opinion, and Justices Stevens, O’Connor, Souter, Ginsburg, and Breyer joined. Justices Scalia, Rehnquist, and Thomas dissented. If the Proposition 8 trial winds up before the U.S. Supreme Court, Justices Scalia and Thomas would likely vote as they did in Romer, thus upholding the California referendum, and Justices Alito and Roberts would probably join them. Justices Ginsburg and Breyer might be willing to overturn a referendum based on prejudice, misinformation, and scaremongering, and Justice Sotomayor and Justice Stevens’s replacement would probably join them. In fact, two of the possible nominees to replace Stevens, Elena Kagan and Judge Diane Wood, have already indicated some willingness to advance LGBT rights. Ms. Kagan has called LGBT discrimination “a moral injustice of the first order,” and Judge Wood has suggested a “right not to have the state prescribe a set of acceptable spouses.” Perhaps Ms. Kagan or Judge Wood could help convince the certain swing vote: Justice Kennedy. Justice Kennedy did, after all, write the opinion in Romer, so he must truly believe its logic. The real question is whether he believes that the Equal Protection Clause protects homosexuals against more than just hatred but also against prejudice, misinformation, and scaremongering. That is, the true test will be whether Justice Kennedy is prepared to move sexuality up a notch on the ladder of protected classes?

The idea that sexuality, as a protected class, might slowly move up through the levels of protections parallels the history of sex as a protected class. For example, in the early part of the century, laws drawn on the basis of sex received only rational basis review. But by 1971, the U.S. Supreme Court rejected classification based on sex where that classification was merely an “arbitrary legislative choice.” Reed v. Reed, 404 U.S. 71 (1971) (rejecting a probate law that gave automatic preference to men over women). Later jurisprudence moved classifications based on sex to an intermediate level of scrutiny, typically allowing only true biological differences as justifications. For example, in Rostker v. Goldberg, the U.S. Supreme Court found mandatory draft registration for men but not for women to be constitutional, ostensibly because of the belief (however well- or ill-founded) that the typical greater physical strength of men makes them better soldiers. 453 U.S. 57 (1981). Most recently, the U.S. Supreme Court applied an even stricter standard to classifications based on sex, requiring an “exceedingly persuasive justification.” United States v. Virginia, 518 U.S. 515 (1996) (rejecting the Virginia Military Institute’s all-men admissions policy). This path shows that sex as a protected class has evolved from a lack of scrutiny, into a class where mere arbitrariness was insufficient, into a class in which only true biological differences could suffice, and finally into a class for which any legal distinctions require an “exceedingly persuasive justification.” Meanwhile, sexuality as a class has moved from a lack of scrutiny to a class where animus or hatred cannot justify action. The U.S. Supreme Court might, with the Proposition 8 case, have chance to move sexuality upward, disallowing classifications based on prejudice, scaremongering, and misinformation.

Furthermore, since the decision in Romer, societal and legal changes have shown a greater understanding of LGBT issues and a willingness to accept the idea that sexuality should be a protected class. Since the 1996 Romer decision, the U.S. Supreme Court has struck down anti-sodomy laws, effectively giving private same-sex sexual conduct constitutional protections. Lawrence v. Texas, 539 U.S. 558 (2003). In 1996, no state provided marriage or marriage-like rights to same-sex couples. Today, Connecticut, the District of Columbia, Iowa, Massachusetts, New Hampshire, and Vermont provide for same-sex marriage; California, New Jersey, Nevada, Oregon, and Washington provide marriage-like rights. In 2009, Congress passed the Matthew Shepard Act that expands the federal definition of a hate crime to cover crimes motivated by a victim’s actual or perceived gender, sexuality, or gender identity. P.L. No. 111-84. Mostly recently, on April 16, 2010, Arkansas Judge Christopher C. Piazza overturned a referendum that prohibited adoption by cohabitating, unmarried couples (effectively precluding all same-sex couples since Arkansas does not recognize same-sex marriage). Judge Piazza lamented that it was “especially troubling that one politically unpopular group has been exclusively targeted for exclusion.” Judge Piazza overturned the ban on state constitutional grounds, but tellingly quoted the decision in Romer when doing so (though, interestingly, he did not cite Romer after the quotation).

These developments show that society, including the bench, recognizes the importance of protecting lesbian, gay, and bisexual individuals and the importance of elevating sexuality as a protected class. The Northern District of California, the Ninth Circuit and, quite possibly, the U.S. Supreme Court will have the opportunity to recognize sexuality as a protected class under the Equal Protection Clause. These courts will, hopefully and logically, overturn Proposition 8, and conclude that government actions that classify on account of sexuality cannot be based on prejudice, scaremongering, or misinformation.

Categories: Academic Articles
  1. April 26, 2010 at 10:36 am

    No doubt Scalia will vote to uphold Prop 8, although I will be very interested in reading his opinion, as it is going to require much greater leaps of logic than he’s had to make before. When I first read his dissenting opinion in Lawrence v. Texas, what I saw was his (very unhappy) belief that Lawrence undermines the most basic arguments against marriage equality (IIRC, I believe he wrote that it puts all matters of “moral” judgment “on shaky ground”), for which he singled out Justice O’Connor, and scolded her for thinking it doesn’t. So, while we will never be able to count on Scalia to stand on the side of equality, it will be interesting to see how he justifies maintaining his anti-“homosexual agenda” stance in light of his opinion on Lawrence. IANAL, btw.

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