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

• Author: Nicolas, Peter
• Position: II. Affirmative Action and Tiered Scrutiny B. Sex-Based Affirmative Action and Intermediate Scrutiny through Conclusion, with footnotes, p. 766-792

2. Sex-Based Affirmative Action and Intermediate Scrutiny

   In the post-Croson/Adarand era, some courts misinterpreted the decisions as requiring that all affirmative action policies, without regard to their nature, were subject to strict scrutiny, or at least viewed the issue as unresolved. For example, although Craig held that sex discrimination is subject only to intermediate scrutiny, some courts held or suggested that Croson and Adarand, which were decided subsequent to Craig, effectively modified Craig's holding, at least so far as affirmative action was concerned. (184) In still other cases--involving a mix of race-based and sex-based affirmative action--courts did not apply a lower level of scrutiny to the sex-based portions of the policies because both aspects satisfied the higher strict scrutiny standard. (185)

   Yet with the passage of time, the overwhelming majority of federal courts have held that it is not the nature of the government conduct at issue--i. e., the fact that they are enacting an affirmative action policy--but rather the nature of the classification employed therein that determines the level of scrutiny to be applied. (186) Several such courts have noted that, although it seems odd that it is thus easier to enact affirmative action policies benefiting women than racial minorities, such a result follows logically from Croson. (187) Indeed, in his dissent in Adarand in which he criticized the Court's principle of consistency, Justice Stevens explained why he considered the holding to be such an anomaly when considered in tandem with the Court's tiered levels of equal protection scrutiny:

   [T]he Court may find that its new "consistency" approach to race-based classifications is difficult to square with its insistence upon rigidly separate categories for discrimination against different classes of individuals. For example, as the law currently stands, the Court will apply "intermediate scrutiny" to cases of invidious gender discrimination and "strict scrutiny" to cases of invidious race discrimination, while applying the same standard for benign classifications as for invidious ones. If this remains the law, then today's lecture about "consistency" will produce the anomalous result that the Government can more easily enact affirmative-action programs to remedy discrimination against women than it can enact affirmative-action programs to remedy discrimination against African-Americans--even though the primary purpose of the Equal Protection Clause was to end discrimination against the former slaves. (188) The consequences of subjecting sex-based affirmative action policies only to intermediate scrutiny are significant. Because intermediate scrutiny is less demanding, both in terms of the ends identified by the government and the means employed for achieving those ends, governmental entities have much greater flexibility in implementing such policies.

   First, with respect to ends, lower courts have identified a number of governmental interests that, while insufficient to justify race-based affirmative action policies, suffice to justify sex-based ones. For example, lower courts have held that general societal discrimination in the relevant economic sector can suffice to justify such policies. (189) Moreover, proof of the prior discrimination need not satisfy the "strong basis in evidence" standard, but instead need only be supported by evidence "'sufficient to show that the preference rests on evidence-informed analysis rather than on stereotypical generalizations.'" (190) In addition, the evidence need not be tied to the percentage of qualified women, but instead can be tied to demographics. (191) Finally, although racial balancing is not considered to be a compelling governmental interest, sex balancing might be a sufficiently important governmental interest strong enough to withstand intermediate scrutiny. (192)

   With respect to means, although not explicit in the decisions, given that the courts permit reference to the percentage of women in the population rather than the percentage of qualified women and are willing to consider general societal discrimination, "goals" that are somewhat more "quota-like" in nature--in that they are tied more directly to the percentage of women in the general population--seem to be more likely to pass muster than similar race-based goals. In other respects, courts have held governmental entities to some similar requirements with respect to means, including a requirement that the remedies be time-limited in nature. (193) Indeed, in the brief period of time in which the Supreme Court itself applied intermediate scrutiny to race-based affirmative action policies, it subjected them to two of the requirements associated with strict scrutiny: that they be time-limited in nature and that the impact on non-minorities be taken into account. (194)

3. Non-Suspect Affirmative Action and Rational Basis Review

   In litigation over gay rights on such issues as same-sex marriage, the constitutionality of sodomy laws, and same-sex parenting, opponents of gay rights have maintained a litigation stance that discrimination on the basis of sexual orientation is subject to nothing more than traditional rational basis review. In some instances, lower courts have agreed, and have accepted rather fanciful rationales for such laws that, at best, are "rationally related" to achieving those goals in the Carolene Products-Lee Optical sense. (195) If that indeed is the appropriate level of review for sexual orientation discrimination, what sort of flexibility would governmental entities have in establishing gayffirmative action policies? Although the issue has not specifically come up in any reported cases, the bulk of authority would suggest that governmental entities would have an extraordinary amount of flexibility, both with respect to the justifications for establishing such policies and the means employed for accomplishing those goals.

   As an initial matter, just as courts have held that sex-based affirmative action policies are subject only to intermediate scrutiny, so too courts have held, and commentators have noted, that affirmative action policies based on non-suspect classifications--such as disability, veteran status, marital status, tribal status, language ability, and the like--are only subject to rational basis review. (196) Moreover, commentators such as Ruthann Robson and David Strauss have noted that, under existing precedent, gayffirmative action policies would only be subject to rational basis review. (197) This is also consistent with the Supreme Court's Batson (198) line of cases--holding that peremptory challenges based on race or sex will, respectively, fail strict and intermediate scrutiny--while those based on non-suspect grounds are subject to only rational basis review and are generally permissible. (199)

   What, then, would such review allow for? Recall that rational basis review is far more deferential than both strict and intermediate scrutiny, requiring only "legitimate" government interests and means to accomplish those interests that are "rationally related" to those interests. Moreover, they need not even be the real motivations behind the law; hypothetical rationales created post hoc suffice to uphold the constitutionality of such laws. In addition, because the fit requirement is quite loose, such laws can paint with a broad brush and thus can be overinclusive, underinclusive, or both.

   Consider the hypothetical medical school discussed in the introduction that seeks to establish a quota-based system for increasing the number of gay and transgender students at its school, with the stated goals of creating role models for LGBT youth and improving the delivery of health services to LGBT persons. Surely, both of those are "legitimate" governmental interests, even if they are not "compelling" under strict scrutiny. After all, youth of all stripes benefit from seeing people in positions of authority that look like them, and surely members of the gay and transgender community have unique medical concerns that are no doubt sometimes overlooked by heterosexual practitioners (consider, as examples, such things as sexual disease transmission and the need for hormone treatment and sex-reassignment surgery).

   Indeed, three different lines of precedent provide support for the conclusion that a "role model" rationale for a gayffirmative action policy would pass rational basis review. First, there is case law holding that a law which allows more senior non-Indian tenured teachers to be laid off before laying off less senior Indian ones survives the rational basis review applied to tribal status (200) on the theory that doing so ensures the existence of role models for Indian youth. (201) Second, the Seventh Circuit has upheld a city law granting benefits to cohabiting partners of same-sex but not opposite-sex partners of school employees, on the theory that the school district has an interest in providing LGBT youth with adult LGBT role models and such a scheme helps to attract such individuals to work in the school system. (202) Finally, support for such a "role model" theory can be found in the many lower court decisions upholding laws banning same-sex marriage and same-sex parenting on the theory that the children of such relationships will statistically be heterosexual and thus be in need of heterosexual role models. (203) Surely if that is so, then an affirmative action policy based on a theory that LGBT youth need LGBT adult role models should similarly satisfy rational basis review.

   Moreover, a quota-based system that reserves a certain percentage of the seats in the class for LGBT students should satisfy the fit prong of the rational basis test, since it need only be rationally related to the goal. (204) If a governmental entity thinks that providing LGBT youth with LGBT role models and increasing medical services to the LGBT community are worthwhile...