The Gay Rights Question in Contemporary American Law.

• Author: Strasser, Mark
• Position: Book Review

THE GAY RIGHTS QUESTION IN CONTEMPORARY AMERICAN LAW. By Andrew Koppelman. (1) University of Chicago Press, 2002. Pp. 210. Cloth $48.00, Paper $17.00.

Andrew Koppelman teaches both political science and law, and it is thus unsurprising that his book The Gay Rights Question in Contemporary American Law incorporates both political and constitutional theory in his analysis. This review will focus on the latter, although there is every reason to believe that his analysis is just as thought-provoking in his use of political theory.

The issues and analyses discussed in this book are hotly debated. The utter lack of consensus that exists can be explained, at least in part, by the Court's not having been sufficiently clear in what it has held and why, whether in cases involving lesbian, gay, bisexual and transgender (LGBT) rights in particular or constitutional law more generally. It thus should be unsurprising that even those who agree that same-sex marriage should be recognized may nonetheless disagree about the best constitutional analysis of the cases discussed in this book.

Romer v. Evans, (3) one of the first cases discussed by Koppelman, is a good illustration of a case which has been given numerous interpretations, both by commentators and by the Justices themselves. In Romer, the Court struck down Amendment 2, an amendment to the Colorado Constitution passed by referendum, which precluded localities from offering antidiscrimination protection on the basis of orientation. Koppelman writes,

Romer's rule [ ] may [ ] be summarized--if a law targets a narrowly defined group and then imposes upon it disabilities that are so broad and undifferentiated as to bear no discernible relationship to any legitimate governmental interest, then the court will infer that the law's purpose is simply to harm that group, and so will invalidate the law. (p. 8) Certainly, this is one possible reading of Romer, although the Court's subsequent actions have made this interpretation less plausible. For example, as Koppelman notes, (see p. 162 n.142) the electorate in Cincinnati, Ohio, passed a referendum that was quite similar in content to Amendment 2. The constitutionality of that referendum was upheld by the Sixth Circuit in Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati. (4) The Supreme Court vacated and remanded the Sixth Circuit opinion because the Court had decided Romer in the interim. (5) The Sixth Circuit upheld the constitutionality of the referendum on remand and, this time, the Court declined to grant certiorari. (6)

It is difficult to know what, if anything, to make of the Court's denial of certiorari after the Sixth Circuit's ruling on remand was appealed. (7) However, were Koppleman's reading of Romer correct, the Court presumably would have struck down the Cincinnati referendum as well. The language contained in the Cincinnati and Colorado referendum propositions was strikingly similar and it would be difficult if not impossible to distinguish the cases on the basis of the content of the propositions submitted to the voters. While Romer clearly stands for the proposition that a statute lacking any rational relationship to legitimate state interests will be struck down even on rational basis review, (8) that was uncontroversial even before the Court decided Romer. What is more controversial is Koppelman's claim about when the Court will infer that a statute is motivated by animus and, regrettably, Equality Foundation suggests that the Court is less willing to infer animus than Koppelman implies.

Koppelman suggests that were the Court to have recognized that discrimination on the basis of orientation was sex discrimination, then Romer would have been easily explainable by appealing to the Hunter v. Erickson (9) line of cases. (p. 24) Yet, notwithstanding the Romer Court's declining to adopt that tack expressly (10) and notwithstanding the Court's reluctance to recognize orientation discrimination as a form of sex discrimination, a Hunter analysis may nonetheless provide the best explanation of Romer and the failure to grant certiorari when Equality Foundation was again appealed.

First, the Hunter voting rights analysis does not only protect the rights of suspect or quasi-suspect classes and, for example, has been held by a state intermediate appellate court to protect the voting rights of individuals on the basis of sexual orientation and HIV status. (11) Second, and more relevant to why the Romer Court might have refused to grant certiorari in Equality Foundation, the Sixth Circuit distinguished Romer by appealing to considerations that might be thought important in a Hunter analysis, e.g., that the Cincinnati referendum was at the lowest political level. (12) While the Sixth Circuit's analysis in Equality Foundation is itself subject to criticism, e.g., because Hunter itself involved an invidious attempt to alter a minority's voting rights at the lowest political level, (13) the Sixth Circuit was clearly implying that Romer is best understood as a Hunter voting rights case and the Court permitted that analysis to stand.

Koppelman suggests that Bowers v. Hardwick may be a stumbling block to the recognition that orientation is a quasi-suspect classification. (p. 30) Certainly, the anti-gay tone of Bowers is hard to mistake, (14) and Bowers is open to a variety of interpretations. Yet, much of the analysis in Bowers established that sodomy was not protected by the right to privacy rather than that only same-sex sodomy was not protected. On a charitable interpretation of the Bowers opinion, the Court was addressing same-sex sodomy because that was the issue before the Court. It is for this very reason that, as Koppelman points out, states may be constitutionally permitted to prohibit sodomy generally but nonetheless be precluded by equal protection constraints from solely prohibiting same-sex sodomy. (p. 32)

The Bowers stumbling block seems more attitudinal than constitutional. Thus, if the fight to privacy protected by the Federal Constitution does not include the right to engage in sodomy with a same-sex or different sex partner outside the confines of marriage, (15) Bowers does not provide the constitutional stumbling block to the recognition of orientation as a suspect or quasi-suspect classification that has sometimes been suggested. (16) A separate question is whether the case nonetheless symbolizes the reluctance of some members of the Court to permit the LGBT community to have more than second-class status, (17) but that will not be discussed here.

Koppelman writes, "Reasonable people disagree about whether hatred and stereotyping of gays is sufficiently pervasive in our society to warrant judicial suspicion of laws that discriminate on the basis of sexual orientation." (p. 28) Yet, he had previously made a convincing case that such hatred and stereotyping were pervasive. (pp. 21-22) What seems to be in dispute is not whether the hatred is pervasive but whether it is wrong. For example, in his Romer dissent, Justice Scalia did not attempt to deny but, rather, to justify the existence of animus on the basis of orientation. (18)

Koppelman believes that those seeking to advance the LGBT legal cause are likely to be unsuccessful if their legal focus is on the right to privacy protected by the Federal Constitution. Although suggesting that the right to privacy is pretty firmly entrenched in American jurisprudence, (p. 39) he seems wary of relying on that right, in part because it is not expressly included in the constitutional text (p. 36) and in part because the Court has not offered clear guidelines to help the lower courts determine what it protects and what it does not. (p. 44) While the Court has sometimes suggested that a "liberty. must be 'deeply rooted in this Nation's history and tradition'" (19) to qualify as protected by the right to privacy, (p. 43) Koppelman rightly suggests that this test is too indeterminate.

The difficulty with the history and tradition test, however, is not merely that it is too indeterminate but that it is unable to account for those interests that have been recognized as protected by the right to privacy. Contraception and abortion, for example, had been proscribed for at least 80 years when the Court struck down laws prohibiting them, (20) and it is difficult to see how practices proscribed for several decades could be described as deeply rooted within the nation's history and traditions. Thus, the history and tradition test is simply the wrong test to determine what is protected by the right to privacy and what is not. The point here of course is not that Koppleman made an error when referring to that test but, rather, that the Court cannot in good faith claim that such a test accounts for what the right to privacy protects, implicit or explicit claims to the contrary notwithstanding.

Koppelman rightly suggests that society can impose incest restrictions to protect the dynamics between parent and child (p. 48). He then suggests that it seems difficult to draw any abstract limit on government's power to regulate sexual behavior if, indeed, society has a legitimate interest in regulating incest. Yet, it is not at all clear why that is so. Certainly, there is no need to maintain an incest-like taboo on same-sex relations to preserve the monogamous family. There need be no poisoning of the parent-child relation when the parent has sexual relations with her same-sex or, for that matter, different-sex, adult partner, and the category of "monogamous families" should include same-sex parents who are raising their children just as it includes different-sex parents (whether or not married) who are raising their children.

Koppelman suggests that a close reading of the right to privacy cases makes clear that they "are less concerned with promoting sexual liberty than they are with promoting social cohesion and deference to traditional institutions." (p...