Reversal of Fortune: the Inapposite Standards Applied to Remedial Race-, Gender-, and Orientation-based Classifications

• Publication year: 2021

92 Nebraska L. Rev. 1. Reversal of Fortune: The Inapposite Standards Applied to Remedial Race-, Gender-, and Orientation-Based Classifications

Reversal of Fortune: The Inapposite Standards Applied to Remedial Race-, Gender-, and Orientation-Based Classifications

Angelo Guisado(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 2

II. Background ........................................... 5
A. A Discussion of the Injustices Remedial Legislation Is Meant to Combat ............................... 5
1. Race .......................................... 5
2. Gender ........................................ 7
3. Sexual Orientation ............................ 7
B. An Introduction to Remedial Legislation ........... 8
1. The Freedman's Bureau ....................... 9
2. The Fourteenth Amendment ................... 10
C. An Examination of the Tiered Framework thatApplies in Reviewing Both Invidious and RemedialLegislation ........................................ 13
1. Scrutiny for Race-Based Classifications:Developing Strict Scrutiny ..................... 13
2. Scrutiny for Gender-Based Classifications:Quasi-Suspect Classification ................... 18
3. Scrutiny for Sexual Orientation-BasedClassifications: A Three-Way Split ............. 20
a. Federal Law ............................... 20
i. Rational Basis ......................... 20
ii. Intermediate Scrutiny .................. 22
b. State Law ................................. 23

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i. Rational Basis ......................... 23
ii. Intermediate Scrutiny .................. 24
iii. Strict Scrutiny ......................... 25
D. Justice Marshall: A Sliding Scale .................. 27

III. Argument ............................................. 29
A. Conflict: Critiques and Censure for the CurrentFramework ....................................... 29
1. Race .......................................... 30
2. Gender ........................................ 33
3. Sexual Orientation ............................ 35
B. Anomalies ......................................... 37
C. Strict Scrutiny Cannot Work for Race-BasedRemedial Legislation .............................. 40
D. Justice Marshall's Flexible and Searching Sliding-Scale Standard Should Replace the TraditionalThree-Tiered Review .............................. 42

IV. Conclusion ............................................ 45

I. INTRODUCTION

The Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. The criterion is the relevancy of color to a legitimate governmental purpose.(fn1)

"The majority's concept of 'consistency' ignores a difference, fundamental to the idea of equal protection, between oppression and assistance."(fn2)

In the famed In re Marriage Cases, former chief justice of the California Supreme Court Ronald George had to address whether "the failure to designate the official relationship of same-sex couples as marriage violate[d] the California Constitution."(fn3) Central to his determination was whether to apply rational basis review, the traditional standard applied in sexual orientation-based discrimination cases,(fn4) or a heightened, more exacting form of scrutiny. The level of scrutiny was important because, as Judge Dolores Sloviter opined, "it is often how the question is framed that determines [how] the answer . . . is received."(fn5)

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Justice George's decision to apply strict scrutiny to sexual orientation-based classifications(fn6) left a temporary though certainly indelible mark on equal protection challenges going forward. The decision has lasting and readily apparent consequences. While the lesbian, gay, bisexual, and transgender (LGBT) community can temporarily rejoice at its new-found status as an inherently suspect class within the confines of the Equal Protection Clause (and its attendant protections), as the law stands, this community is now at a serious disadvantage should California seek to implement any sort of remedial legislation to rectify past discrimination, to further integrate the community into historically off-limits positions, or to consider a prospective student's LGBT status as a positive factor in the university admissions process.

This is because courts almost uniformly apply the same level of scrutiny to legislation that makes racial, gender, or sexual orientation-based classifications regardless of the legislation's benign or invidious purpose.(fn7) Thus, the same court scrutinizing odious legislation (blacks may not gain admittance to state universities) would be equally as skeptical toward legislation that sought to rectify that discrimination (schools may consider race as a positive factor in university admissions on the basis of, inter alia, historical disadvantage, obtaining a critical mass, diversity, etc.). The level of the scrutiny- rational basis, intermediate scrutiny, or strict scrutiny-would apply based on the type of classification and would apply consistently in spite of the legislation's purpose.

The import of the jurisprudential consistency is a system through which it is theoretically easier to pass affirmative action policies for the LGBT community and women than for ethnic minorities under the Fourteenth Amendment. This oddity is particularly striking in light of the Fourteenth Amendment's stated purpose to "ameliorat[e] . . . the condition of the freedmen," the ethnic minorities the Fourteenth Amendment sought to protect.(fn8) While this author takes the position that the LGBT community and women deserve full protection under the Equal Protection Clause-including as the beneficiaries of remedial legislation-it is wholly unsuitable that the current framework discriminates against the class of people the Amendment originally intended to protect.

Thus, should most states (notably, excluding California) seek to implement legislation aimed at increasing educational or employment opportunities for the LGBT community, legislators should find repose in the current framework, which applies rational basis review. However, should California seek to implement an employment or educational affirmative action plan, under the current and historically fatal

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strict scrutiny standard, legislators would face a near-impossiblebattle.(fn9)

Part II of this Article will canvass the societal ills, injustices, and discriminatory policies that remedial legislation is meant to combat. This country's long-standing inequities against racial minorities, women, and gays and lesbians are well-documented and have frequently served as the basis for upholding a compelling or substantial governmental interest in remedying the injustices or striking down invidious legislation.(fn10) As most challenges to remedial legislation are grounded in the Equal Protection Clause, Part II will also briefly canvass the Fourteenth Amendment's history, giving specific credence to its role as a Reconstruction-era remunerative measure and Section Five's affirmative grant of power. Part II will then scan both federal and state law as applied to remedial legislation for race, gender, and sexual orientation-based classifications, respectively. Circuit splits and state-federal splits will be addressed. Lastly, in Part II, Justice Thurgood Marshall's "sliding-scale" alternative to the three-tiered level of scrutiny will be explored.

Next, Part III will offer substantial critiques of the levels of scrutiny applied in those cases, noting the vehement and passionate dissents by, among others, Justices Marshall and Stevens. Section III.B will highlight the current framework's logical inconsistencies. To illustrate this inconsistency, the Article explores the anomaly that under federal law the current framework makes it easier for Congress to enact affirmative action policies for gays and lesbians and women than for ethnic minorities. The Article goes on to criticize the use of strict scrutiny in remedial contexts. As one scholar noted, "[T]his framework has evolved to a point where suspect classification analysis has become the Court's 'chief instrument' for invalidating measures intended to remedy rather than perpetuate past race discrimina-tion."(fn11) Indeed, Justice Marshall found that "it is more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible."(fn12)

The Article argues that applying near-fatal scrutiny to race-based remedial legislation while applying lesser scrutiny to gender and sexual orientation-based remedial legislation is incongruent to the proposition that the level of scrutiny is designed to comport with the level

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of protection the class deserves. Section III.C will dispel the notion that strict scrutiny is needed to "smoke out" illegitimate uses of race, gender, or sexual orientation-based measures, pointing out that strict scrutiny provides no search function, but rather rings a near-automatic death knell. Finally, the Article concludes that Justice Marshall's sliding-scale scrutiny...