Assimilationist bias in equal protection: the visibility presumption and the case of 'don't ask, don't tell'.

• Author: Yoshino, Kenji

1. INTRODUCTION

   Equal protection heightened scrutiny jurisprudence currently privileges the talismanic classifications of race and, to a lesser extent, sex. In considering arguments that other classifications be accorded heightened scrutiny, the courts have required claimants to demonstrate the similarities these classifications share with race and sex. Commonalities between the two paradigm classifications thus play a powerful gatekeeping role.

   Two commonalities emphasized by the courts are that race and sex ostensibly mark individuals with immutable and visible traits. A classification will therefore be less likely to receive heightened scrutiny if its defining traits can be altered or concealed. By withholding protection from these classifications, the judiciary is subtly encouraging groups comprised by such classifications to assimilate by changing or hiding their defining characteristic. This is an assimilationist bias in equal protection,(1) which I will critique in this Article.

   Under current equal protection doctrine, the question of whether a classification deserves heightened scrutiny precedes the question of whether the legislation is sufficiently related to its objective. Indeed, the answer to the first question determines the force with which the second is asked. Thus, if a classification is deemed to merit "strict" scrutiny, the state must meet the exceedingly high standard of showing that its classification is necessary to promote a "compelling governmental interest."(2) If the classification garners "intermediate" scrutiny, the state must show that the classification "serves important governmental objectives and is ... substantially related to ... those objectives."(3) Finally, if the classification is merely accorded "rational review," the government need only show that the classification bears "a rational relationship [to] ... some legitimate governmental purpose."(4) As a practical matter, "strict scrutiny" almost invariably leads to the invalidation of legislation, while "rational review" almost invariably leads to the upholding of legislation.(5) The determination of the level of scrutiny is therefore a crucial threshold step in the analysis of whether legislation will survive.(6)

   To date, the Supreme Court has extended some form of heightened scrutiny to classifications based on race,(7) sex,(8) national origin,(9) alienage,(10) and illegitimacy.(11) The Court has not, however, provided a clear overarching rationale for why these five classifications, and not others, are particularly deserving of judicial solicitude.(12) It has instead deployed, again without much explanation, a set of factors to determine whether a group is worthy of heightened scrutiny. These factors, which are not requirements, include the history of discrimination suffered by the group, the group's political powerlessness, and the immutability and visibility of the characteristic defining the group.(13)

   An assimilationist bias in equal protection jurisprudence manifests itself in the immutability and visibility factors. These factors make courts more likely to withhold heightened scrutiny from groups that can change or conceal their defining trait. (I will call such groups indistinct, in contrast to distinct groups that cannot assimilate in either of these ways.) Through these factors, the jurisprudence creates an incentive for indistinct groups to assimilate into the political mainstream when faced with burdensome legislation. The primary normative argument of this Article is that the assimilationist bias embodied in the immutability and visibility factors is pernicious and that these factors should both be retired.

   Although I want to consider both factors, I place most of my emphasis on visibility. This emphasis should be uncontroversial, as the immutability factor has already been subjected to extensive criticism. Academics have made eloquent substantive arguments against it.(14) And the courts have variously cast doubt on immutability by citing academic critiques of it,(15) by interpreting it expansively,(16) by emphasizing that it is a factor rather than a requirement,(17) and by simply omitting it from their formulations of the heightened scrutiny test.(18) Indeed, the question more likely to arise is why I discuss the immutability factor at all, as such a discussion seems tantamount to cataloguing new ways to flog a dying horse. My purpose here, however, is not to hasten the factor's imminent demise but to enable a comparison between immutability and visibility.(19) By making that comparison, I seek to show that the visibility factor also should be retired.

   In Part II, I briefly describe how the courts define immutability and visibility. Although the courts appear to begin with the ordinary definitions of immutability as an inability to change(20) and of visibility as an ability to be seen,(21) they then add two definitional restrictions to each term. First, the courts do not interpret either immutability or visibility to mean that the characteristic must be strictly incapable of being changed or hidden. Second, the courts tend to think of immutability and visibility as corporeal traits, rather than as social ones. These restrictions are only two of the many ways in which the terms are conceptually intertwined. It is therefore unsurprising that while the courts distinguish between these two terms as a formal matter, they constantly conflate them as a practical matter.

   In Part III, I turn to the ways in which the immutability and visibility factors might be justified, noting that the factors can be defended on either substantive or processual grounds. The substantive defense rests on the fact that the immutability and visibility factors isolate classifications defined by traits largely outside an individual's control. Treating individuals unequally based on qualities they cannot influence, it is argued, violates a norm of equality. This defense is easily defeated on the grounds that it is both over- and underinclusive.

   The processual defense, however, presents a more difficult case. It asserts that the courts must direct their solicitude solely towards those who are disadvantaged in the political process. It then maintains that distinct groups are relatively disadvantaged because they do not have the option of assimilation. When faced with state discrimination, indistinct groups may simply disappear--temporarily or permanently--into the mainstream. Judicial protection is thus withheld from these groups because they have the capacity to engage in self-help.

   The next three Parts seek to respond to this processual defense, which is no less misguided for requiring a more elaborate rebuttal. That rebuttal does not maintain that indistinct groups are more powerless than distinct groups, but rather that no generalizations can be made either way. It thus seeks to dissolve, rather than to invert, the hierarchy between distinct and indistinct groups posited by current doctrine. In attempting to do so, the rebuttal disaggregates the assumption that distinct groups are more vulnerable than indistinct groups into its two components: (1) the tenet that immutable groups are more vulnerable than mutable groups; and (2) the tenet that visible groups are more vulnerable than invisible groups.

   In Part IV, I consider the claim that immutable groups are more disabled than mutable groups in the political process. That claim rests on two rationales: (1) the rationale that immutable groups are less able to evade discrimination; and (2) the rationale that immutable groups are less able to alter discriminatory attitudes about them. Close examination reveals that both rationales are deeply flawed. It is thus unsurprising that equal protection jurisprudence has begun to retire the immutability factor. Though the visibility factor has not been subjected to serious criticism, it is similarly untenable.

   In Part V, I turn to the claim that visible groups are uniquely vulnerable in the political process. The rationales for that claim parallel those adduced in the immutability context. Thus, visible groups are said to have less power to evade prejudices than invisible groups. They are also said to have less power to alter those prejudices. While these arguments are stronger for visibility than the analogous arguments are for immutability, they still are ultimately unpersuasive. Whether a group's visibility (or invisibility) empowers or disempowers it in the political process is a deeply contextual inquiry. It is therefore impossible to generalize about the effects of visibility (or invisibility) across those contexts.

   Because the visibility factor has not yet been seriously criticized, I provide in Part VI a concrete example of how visibility distorts the heightened scrutiny inquiry. Although the courts do not recognize that the net effects of invisibility can be debilitating in some contexts, the state clearly does. When the state has animus against an invisible group, it can manipulate the context in which the group functions to ensure that the net effects of its invisibility are disempowering. The most egregious injustice of the visibility bias manifests itself in these scenarios, in which courts defer to such-state action because they assume that invisibility is empowering, even as the state is banking on the opposite presumption.

   This dynamic is illustrated by the case of gays in the military. By using the framework laid out in Part V, I make a detailed showing that the military's "don't ask, don't tell" policy manipulates the context in which gays operate, amplifying the disempowering aspects (and dampening the empowering aspects) of their invisibility. I then point out the untenable nature of the judicial assumption that invisibility is always empowering to gays by highlighting the military's investment in precisely the opposite dynamic.

   By Part VII, the need for doctrinal reconstruction should be evident. I begin with the...