Gayffirmative action: the constitutionality of sexual orientation-based affirmative action policies.

• Author: Nicolas, Peter
• Position: Abstract through II. Affirmative Action and Tiered Scrutiny A. Race-Based Affirmative Action and Strict Scrutiny, p. 733-765

ABSTRACT

Twenty-five years ago, the U.S. Supreme Court established a consistency principle in its race-based equal protection cases. That principle requires courts to apply the same strict scrutiny to racial classifications designed to benefit racial minorities--such as affirmative action policies--as they do to laws invidiously discriminating against them.

The new consistency principle, under which discrimination against whites is subject to strict scrutiny, conflicted with the Court's established criteria for declaring a group to be a suspect or quasi-suspect class entitled to heightened scrutiny, which focused on such considerations as the history of discrimination against the group and its political powerlessness.

As a result of this tension, the Court's line of precedents for identifying new suspect and quasi-suspect classes has gone dormant, and the Court has not since considered whether any additional such classes exist. Instead, when confronted with plausible candidates for heightened scrutiny, such as gays and lesbians, the Court has engaged in sporadic application of stealth rational basis review.

In this Article, I use a hypothetical equal protection challenge to a sexual orientation-based affirmative action policy as a vehicle for proposing a roadmap for harmonizing these competing lines of precedent. I demonstrate that, in light of the consistency principle, an aggrieved heterosexual can bring a challenge to such a policy and seek heightened equal protection scrutiny even though the Court has yet to establish heightened scrutiny for laws discriminating against gays and lesbians.

I conclude that such a harmonization of the Court's equal protection precedents will reinvigorate the Court's moribund precedents for identifying new suspect and quasi-suspect classes. Moreover, I conclude that announcing heightened scrutiny in such a case would present a particularly appealing vehicle to the Court's center, represented by Justice Kennedy, whose jurisprudence demonstrates both support for gay rights and hostility toward affirmative action policies.

INTRODUCTION

For much of American history, knowledge that a current or prospective student or employee was gay, lesbian, bisexual, or transgender was likely to result in the person losing their employment (1) or being expelled from their college or university. (2) Yet, as developments in both the judicial and legislative spheres have simultaneously resulted in the invalidation of laws criminalizing same-sex sexual activity (3) and the validation of same-sex relationships, (4) many employers and institutions of higher education have stopped treating one's status as a sexual minority as a negative consideration and have instead come to view it as irrelevant to employment and admissions decisions.

Still, what if--just as with racial minorities and women--public universities and employers decided not merely to react to the history of discrimination against sexual minorities by treating such status as irrelevant, but instead treated it as a positive consideration in making employment and admissions decisions? In other words, could a public employer or university decide that it would henceforth treat a prospective student's or employee's status as a sexual minority as a "plus" factor, or even establish specific hiring and admissions quotas? To justify doing so, would they have to point to their own specific history of discriminating against sexual minorities, or could they rely instead on general societal discrimination against that group? Could they instead justify such a policy on the grounds that it contributes to the diversity of the workplace or classroom, as a way to increase the provision of services to the LGBT community, or as a means of providing role models for LGBT youth? Moreover, if a heterosexual individual aggrieved by such a policy brought an equal protection (5) challenge against it, what level of judicial scrutiny would a court apply to such a claim? Would the policy be subject only to the highly deferential rational basis review, or could the petitioner argue for intermediate, strict, or the "more searching form" (6) of rational basis review? What impact would the level of scrutiny have on the constitutionality of such a policy?

Although such affirmative action policies are yet to be established--at least as a formal matter--the foundation necessary for developing them in the future is being laid, as public entities begin to collect data on the sexual orientation of prospective applicants. For example, in December 2012, the University of Iowa became the first public university to include questions about their applicants' sexual orientation and gender identity on their admission applications. (7) Subsequently, several public law schools began to include such a question on their admission applications. (8) In addition, in 2013, Scholastica (9)--a website that facilitates the submission of manuscripts to law reviews--created controversy amongst legal academics by asking authors to indicate their sexual orientation and gender identity in their profiles and forwarding that information to law review editors, including those at public universities. (10) This led to claims that law reviews housed at public universities that made selection decisions based on such criteria were open to a constitutional challenge on equal protection grounds.

The constitutionality of affirmative action policies targeted at sexual minorities--herein dubbed "gayffirmative action"--stands at the intersection of three distinct lines of equal protection precedents. The first, culminating in the Court's 2013 opinion Fisher v. University of Texas at Austin (11) and hereinafter referred to as the Adarand (12) line of precedent, has made it increasingly more difficult for public entities to implement affirmative action policies targeted at racial minorities. It has done so by applying a principle of "consistency" that requires such policies to be subject to the same "strict scrutiny" that the Court applies to state action discriminating against racial minorities. (13) As a result, the Court has held that justifications for race-based affirmative action policies, such as creating role models for minority children, (14) increasing the provision of services to minority communities, (15) and as a remedy for general past societal discrimination, are constitutionally insufficient. (16) Instead, only a handful of rationales that the Court has deemed to be "compelling"--such as the interests in remedying the government entity's own past discrimination against that group (as contrasted with general past societal discrimination) (17) and the interest in creating a diverse student body (18)--are constitutionally sufficient to justify such policies. Moreover, applying strict scrutiny, the Court has held that even when invoking this narrow set of constitutionally sufficient justifications for such policies, the means of accomplishing those rationales must be very finely tuned and individualized and thus cannot be accomplished through such means as setting quotas. (19)

The second line of equal protection precedent, culminating in the Court's 2013 opinion in United States v. Windsor (20) and hereinafter referred to as the Moreno (21) line of precedent, has made it increasingly difficult for governmental entities to discriminate against sexual minorities by declaring unconstitutional laws that discriminate on that basis. (22) In this line of cases, the Court has side-stepped the question whether laws discriminating on the basis of sexual orientation should be subject to heightened judicial scrutiny. Rather, in each of the cases in this line of precedents, the Court invoked its earlier holding in United States Department of Agriculture v. Moreno (23) that "a bare ... desire to harm a politically unpopular group" is not a legitimate governmental interest even under rational basis review. (24)

The third line of equal protection precedent--which has sat dormant since the Court announced its principle of "consistency" and hereinafter referred to as the Frontiero (25) line of precedent--sets forth the criteria for deciding whether or not to accord heightened scrutiny to a given classification when challenged on equal protection grounds. Because this line of precedent predates the "consistency" line of precedent, many of the factors focus on the specific class against whom state action is directed (such as African Americans or women) rather than the classification employed (such as race or sex). Included among the factors are (1) whether the group against whom the classification is directed has suffered from a history of discrimination; (2) whether the group is politically powerless; (3) whether the characteristic at issue is obvious or visible; (4) whether the characteristic at issue bears any relationship to ability to perform or contribute to society; and (5) whether the characteristic at issue is immutable. (26)

A gayffirmative action policy that fell short of the standards imposed by the Court for race-based affirmative action policies would effect a merger of these three lines of equal protection cases and would require the Court to resolve a number of difficult questions that have been percolating in the background of equal protection jurisprudence ever since the Court switched its focus--at least so far as race and sex are concerned--from suspect classes to suspect classifications.

Consider, for example, a public medical school that establishes an affirmative action policy designed to increase the number of gay and transgender medical students, and, ultimately, doctors. Suppose that the school cites two rationales for the policy: a desire to provide LGBT youth with positive role models, and a desire to increase the provision of medical services to members of the LGBT community, which the school believes have special medical needs that are often overlooked by heterosexual doctors...