Monday, March 28, 2011

On Gay Rights, Justice Dept. Leads; Will Courts Follow?

      The Supreme Court struck a major blow for racial justice in 1954 when it outlawed racial segregation in public schools. But Brown v. Board of Education said nothing about legally enforced racial segregation in other public services or in public facilities.
      Even so, the principle that discrimination on the basis of race violates the Equal Protection Clause was evidently just as applicable to segregation in public parks, golf courses, and swimming pools, as federal judges in the South quickly ruled. When those cases reached the Supreme Court, the justices summarily affirmed the rulings without comment.
      As the episode illustrates, a new legal principle cannot be neatly confined to the case at hand. In a rule-of-law society, precedents have consequences; rulings have legs. So it was with the Supreme Court’s first blow against racial segregation. And so it may be with the federal government’s first direct challenge to legally enforced discrimination against gays and lesbians.
      In deciding not to defend the constitutionality of the Defense of Marriage Act (DOMA), the Obama administration adopted for the first time the view that laws based on sexual orientation are constitutionally suspect and cannot be upheld without surviving some unspecified measure of “heightened scrutiny.” Attorney General Eric Holder listed four factors in his letter explaining why courts should be “suspicious” of laws based on sexual orientation.
      Holder cited first “the significant history of purposeful discrimination” against gays and lesbians. He pointed next to the “growing consensus” that sexual orientation, like race, is an immutable characteristic and the “growing acknowledgment” that sexual orientation has no bearing on an individual’s ability to contribute to society. And, despite gains in recent years, he noted that gays and lesbians generally have had “limited political power” as a minority in society.
      No court, federal or state, has yet to hold that laws based on sexual orientation are constitutionally suspect. Courts that have upheld bans on gay marriage have applied the relaxed “rational relationship” test. Courts that have struck down bans on gay marriage have hinted that a stricter test might be appropriate but have ended by saying that laws denying marriage rights to gays and lesbians have no rational basis because they serve no legitimate government purpose.
      The DOMA case is pending before the federal appeals court in New York, but even before a ruling the Justice Department’s position is being extended into other matters. In a preliminary ruling last week [March 22], an immigration judge in New York City cited the government’s position in the DOMA case in allowing an Argentine woman a chance to challenge her deportation because she and her U.S. citizen wife were legally married in Connecticut in August. And a few days earlier [March 17], the Justice Department itself applied heightened scrutiny to governmental conduct based on sexual orientation in accusing the New Orleans Police Department of “bias-based profiling” against LGBT individuals.
      In the immigration case, first reported in the Gay City News, Monica Alcota, who came to the United States 10 years ago, is claiming she is entitled to permanent residency status because of her marriage to Cristina Ojeda, a U.S. citizen — just as she would be if she were in a heterosexual marriage. Immigration judge Terry Bain allowed Alcota to petition the U.S. Citizenship and Immigration Services (USCIS) to be recognized as Ojeda’s spouse.
      The doubts about deporting foreign spouses in same-sex marriages with U.S. citizens may be shared by immigration officials. Newsweek/The Daily Beast reported last week [March 25] that the directors of the Washington and Baltimore immigration offices have put deportation proceedings in such cases on hold pending further consideration of DOMA’s validity.
      The Justice Department’s report on the New Orleans Police Department accused the force of “a pattern or practice of discriminatory policing” against, among others, African Americans, Latinos, and LGBT persons. As reporter Chris Geidner wrote last week [March 23] in the gay Washington publication Metro Weekly, the findings of discrimination against LGBT individuals were not only “notable on their own,” but also significant because of the constitutional standard used to judge the department’s treatment of LGBT individuals. Heightened scrutiny of discrimination by law enforcement on the basis of sexual orientation and gender identity was justified, the report stated, by “many factors . . . including a long history of animus and deeply-rooted stereotypes about lesbian, gay, bisexual, and transgender (“LGBT'”) individuals.”
      For now, these developments are merely embryonic. To date, no one in the LGBT community has won vindication of any legal right because of the government’s position. But the Justice Department carries a big stick in federal courts. In Brown, the government sided with the plaintiffs and against the segregated school districts. The government’s support for desegregation over the next two decades helped stiffen the court’s resolve on the issue. Conversely, President Eisenhower’s failure to immediately endorse Brown gave segregationists room to mount resistance to the ruling.
      The U.S. government did not participate in the Supreme Court’s most important gay rights ruling: Lawrence v. Texas (2005), which struck down state anti-sodomy laws. President Obama, who is reported to have been personally involved in the decision on DOMA, has for the first time put the government’s significant clout on the side of constitutionalizing gay rights. The next move is up to the courts.

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