The Anti-Stereotyping Principle
For the Constitution in 2020 conference on The Future of Equality.
Last month, when Attorney General Holder announced that discrimination on the basis of sexual orientation warranted “heightened scrutiny” under the Equal Protection Clause, and that §3 of the Defense of Marriage Act was unconstitutional under this standard, it was not immediately clear what level of scrutiny he was advocating. Maggie Gallagher, a leading opponent of same-sex marriage, accused Holder of “unilaterally declar[ing] that gay is like black, that orientation is now subjected to strict scrutiny.” Numerous commentators argued that, in fact, Holder was advocating an intermediate scrutiny standard. Courts that have applied heightened scrutiny to orientation-based discrimination have gone both ways. More important than the difference between strict and intermediate scrutiny, however, is the question of what mediating principle will guide courts’ application of equal protection to sexual orientation.
Holder’s letter to Congress begins to develop such a principle. He argues that §3 is unconstitutional because it was motivated by “disapproval of gays and lesbians and their intimate and family relationships—precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.” It is this “disapproval” and “stereotype-based thinking” that, in Holder’s view, triggers the need for heightened scrutiny; he emphasizes that gays and lesbians have faced a long history of discrimination based on negative stereotypes, and that these “stereotypes . . . continue to have ramifications today.” Thus, Holder suggests, orientation-based equal protection law should incorporate an anti-stereotyping principle: The state cannot act in ways that reflect or reinforce widely-held stereotypes about the capacities or intimate and family relationships of sexual minorities.
Holder borrowed this anti-stereotyping principle from sex-based equal protection law. In cases such as U.S. v. Virginia (which Holder cites), the Court has held that the state may classify on the basis of sex when doing so serves to disrupt sex-role stereotypes, but not when it reflects or reinforces such stereotypes. “Real differences” between the sexes do not trump or negate this rule. The state may take real differences into account when seeking “to promot[e] equal employment opportunity” or “advance full development of the talent and capacities of our Nation’s people,” but such differences may not be used to justify state action that reflects or reinforces traditional conceptions of men and women’s roles.
Holder’s adaptation of this anti-stereotyping principle illustrates the potential of orientation-based equal protection law. An anti-stereotyping principle would enable courts to invalidate laws restricting marriage to different-sex couples without further stigmatizing relationships outside of marriage. It would protect sexual minorities across a wide range of contexts (including parenting, work, and health) that the marriage-as-a-fundamental-right approach fails to reach. Under an anti-stereotyping approach, “real differences”—such as the fact that same-sex couples cannot conceive children on their own—could not be used to justify state action that reflects or reinforces stereotyped conceptions of gay parents and their children. This way of doing gay rights would help protect the liberty of all gays and lesbians to develop their capacities and form families free from “the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.”
Cary Franklin is Assistant Professor of Law at the University of Texas School of Law. You can reach her by e-mail at firstname.lastname@example.org