Unequal protection.

• Author: Robinson, Russell K.
• Position: Introduction through III. LGBT Exceptionalism, p. 151-198

Table of Contents Introduction I. Windsor and Obergefell II. The Traditional Equal Protection Model III. LGBT Exceptionalism A. Diverging Doctrinal Rules 1. The suspect classification requirement 2. Selective application of the "animus" test 3. Remedying discrimination B. What Exactly Is Animus? IV. Diverging Votes V. The Limits of LGBT Exceptionalism A. The Inevitable Intersection of Sex and Sexual Orientation B. Warning Signs VI. Obergefell and Schuette Conclusion Appendix Introduction

The last week of the Supreme Court Term in June 2013 offered a dramatic juxtaposition of the trajectories of race- and sexual-orientation-based equal protection claims. The Court struck down a key provision of the Voting Rights Act (1)--a cornerstone of the African American civil rights movement--and tightened the screws of strict scrutiny in the affirmative action context. (2) At the same time, the Court gave the LGBT community two victories, a major (3) and a minor (4) note in the chorus of support for same-sex marriage. Fast-forward two years to June 2015, and the string of liberal victories might make it seem as if the Court realigned sexual orientation and race. While the Court announced that same-sex couples enjoy a fundamental right to marry, (5) it surprised many commentators by holding that the Fair Housing Act (6) forbids housing practices that disparately impact racial minorities (7) and granting liberals victories in other race-related cases. (8) It would be premature to see parity, I argue, because the Court simultaneously demonstrated a keen interest in closely monitoring race-based affirmative action by granting certiorari a second time in Fisher v. University of Texas at Austin. (9) And while racial justice advocates are clinging to past victories that hang by a thread, sexual orientation doctrine is sprinting past racial precedent in striking ways. For example, I argue below that Obergefell v. Hodges (10) seems to break new ground in welcoming evidence of implicit bias in sexual orientation cases, even as the Court has often ignored such evidence in race equal protection cases. (11) How do we make sense of all this? As LGBT people approach full citizenship, are black civil rights activists marching backward? These developments trouble the traditional equal protection framework--which perceives race at the top, triggering the most protective scrutiny--sex in the middle, and most other traits--including sexual orientation--subject to a relatively toothless standard.

This Article puts these discordant developments in context. During the last thirty years, the Supreme Court has steadily diminished the vigor of the Equal Protection Clause in most respects. It has turned away people of color who protest systems such as racialized mass incarceration because their oppression does not take the form of a "racial classification." (12) It has diluted the protections of intermediate scrutiny in gender discrimination (13) and abortion cases. (14) And it has turned its back on groups that once benefitted from "animus" review, namely people with disabilities and poor people. (15) Meanwhile, the only site of vitality in equal protection jurisprudence is LGBT rights. Yet the Court, writing opinions that are rarely in conversation with one another, has made no effort to justify this growing divide. I call attention to this reordered equal protection landscape, which contrasts sharply with the conventional understanding of equal protection tiers of scrutiny.

I identify three manifestations of LGBT exceptionalism--the Court has afforded LGBT claimants (usually gays and lesbians) specific doctrinal advantages that do not apply to other people invoking equal protection. Specifically, (1) the Court has rigidly used the concept of a "classification" as a gatekeeping device, but it has ignored this requirement in sexual orientation cases, including Obergefell and United States v. Windsor; (16) (2) LGBT people can invoke animus, or, as Ian Haney-Lopez describes it, "contextual intent," (17) a standard that emerged from cases brought by people of color, poor people, and people with disabilities, but that the Court no longer recognizes in such cases. Moreover, the variant of animus that the Court seemed to apply in Obergefell is novel in its generosity to plaintiffs asserting equality claims--which widens the disparity between sexual orientation and race and gender precedents; and (3) LGBT precedents leave open important questions, including the legal standard that would apply to remedial policies based on sexual orientation--quite unlike the Court's adverse resolution of these questions in race cases. These findings suggest that law professors and legal scholars should reconsider how they teach and write about equal protection. Finally, I suggest that the explanation for the Court's differential treatment of various claimants may turn on how their groups are represented in the broader culture and the perceived costs of granting them equality.

A close analysis of the two most recent Supreme Court sexual orientation opinions, Windsor and Obergefell, provides a case study in the Court's quiet reinvention of equal protection analysis. The Court has developed divergent frameworks: the traditional model for race and sex claims, which typically leads to people of color and women losing the most contested Supreme Court cases; a distinct "animus"/"contextual intent" model for sexual orientation cases such as Windsor, which has proved quite protective for gays and lesbians; and minimum rational basis review for the remainder of cases, which offers virtually no protection. Moreover, the animus model, while often thought to be a second-class form of equal protection, and perhaps a placeholder until the Court deigns to grant LGBT people the real thing, (18) actually offers several advantages over the traditional model. In order to lay the foundation for this argument, I must explain the basic contours of the traditional equal protection model and chart how Obergefell, Windsor, Romer v. Evans, (19) and Lawrence v. Texas (20) depart from it. After Part I provides this background, Part II compares the current constitutional status of LGBT people to other groups that once benefitted from the animus model but now receive traditional rational basis review: people with disabilities and poor people. Part III then shifts the gaze to a comparison of the sexual orientation precedents with formal heightened scrutiny cases pertaining to race and sex claims. In this Part, I juxtapose Personnel Administrator v. Feeney (21)--a pivotal gender case--and Windsor, and question the Court detecting animus only in Windsor.

In Part IV, I focus on the jurisprudence of Justice Kennedy, the principal architect of the sexual orientation cases and the swing vote in most equality cases. This Part develops empirical support for my claim of LGBT exceptionalism. I provide the first empirical study of Justice Kennedy's votes in cases involving constitutional claims based on race, sex, (22) and sexual orientation. This novel analysis demonstrates that Justice Kennedy's skepticism of race and sex claims does not extend to sexual orientation claims. An analysis of the nonunanimous cases demonstrates that he votes against the interests of people of color and women in the majority of such cases, but he rules in favor of sexual orientation in the vast majority of cases. Part V extends the focus on gender by examining the intersection of gender and sexual orientation. Windsor and Obergefell said very little about gender roles, even though a social commitment to preserving such roles helps to explain much of the opposition to same-sex marriage. Many people find same-sex marriage disquieting because it throws into question deeply ingrained cultural expectations that men and women play distinct roles of husband and wife and transmit them to their children. (23) I explain how the Court's elision of gender could weaken LGBT rights and make them vulnerable to the erosion that beset groundbreaking decisions in the black civil rights movement. (24) The biggest losers could very well be transgender and bisexual people because--in addition to their relative absence from the leading sexual orientation cases--they are thought to problematize the gender binary more than gay and lesbian people. Finally, I close with a juxtaposition of the Court's most recent race and sexual orientation equal protection cases, Schuette v. Coalition to Defend Affirmative Action (25) and Obergefell. Despite strong parallels between the cases and the shared authorship of Justice Kennedy, their analyses diverged in dramatic and incoherent ways.

Although the sexual orientation cases have produced profound progress for gays and lesbians, these precedents simultaneously sowed seeds of doubt. A central flaw in the animus standard, at least as the Court deploys it in sexual orientation cases, is its tendency to boil down to little more than personal intuition. The Court's opaque and truncated animus analysis provides little ground for building a body of reasoned precedent consistently governing various civil rights claimants. Moreover, these defects suggest that the animus doctrine may be limited to the Justices who happen to sit on the Court in the current moment. This shifting ground may ultimately forestall the full citizenship that LGBT people seek. That said, a plausible reading of Obergefell provides an opening for courts to draw on the science of implicit bias to provide a more reliable and objective anchor for understanding bias not just in sexual orientation cases, but in equal protection cases more generally. Although this is merely implied in Obergefell, I urge future courts and scholars to build on this opportunity.

Let me begin with a few caveats. I am a black, openly gay man. I fully support LGBT rights, including the holdings in Obergefell and Windsor. However, I find it difficult to celebrate LGBT...