Last night, Stephen Colbert thought he took aim at Paul Clement and his defense of the Defense of Marriage Act. In reality, he took aim at the constitutional doctrine surrounding suspect classification. As Colbert reports, Clement’s argument is that the gay rights movement has been so successful it loses. And, this is the rub with strict scrutiny. In order to receive preferential status under the equal protection clause, a group must prove more than the presence of discrimination based upon an irrational criterion. The classes of citizens elevated to either suspect or semi-suspect classes have more than an inherent characteristic in common. These classes have experienced well-documented discrimination and these classes were considered politically powerless.
The difficulty of proving that a group fits all of these characteristics is readily apparent. The Court has not elevated any new classes of citizens to suspect or semi-suspect class since the 1970’s. How likely is it that the Roberts Court will break with this trend? How would the Roberts Court determine that the GLBT community is politically powerless? Are all the successes of the GLBT movement now making the courts the least likely ally in the fight for equal protection and treatment? How much success is too much success?
This reasoning is what has lead to Clement’s seemingly illogical argument. The GLBT community has managed to fight against DOMA all the way to the Supreme Court, has received the backing of the White House in its fight, and several states are allowing gay marriage. These victories reveal a strong and dedicated national movement that is not powerless. Therefore, this class of citizens does not warrant the increased protection that comes with suspect or semi-suspect classification.
On the flip side, many more states still ban gay marriage. DOMA did pass with majority support in Congress and members of Congress are still fighting for its survival. Young men and women are still harassed and bullied because of their sexual orientation or the failure to fit in with sexual stereotypes. And as Colbert notes, 29 states allow dismissal from a job based upon your sexual orientation.
Will the Supreme Court oral argument be based upon whether the GLBT community is or isn’t powerful? And if the constitutionality of DOMA comes down to the type of question two year olds fight over (is too versus is not), is it time to reconsider the criteria for suspect classification?