By Christopher R. Leslie. Full text here.
This Article examines the geographic dimension of equal protection analysis. Whether a law violates the Equal Protection Clause generally depends on what level of scrutiny a court applies in reviewing that law. Laws that employ suspect classifications are subjected to heightened scrutiny. Whether a classification is suspect depends in part on whether the group targeted by the challenged law is politically powerless. Many judges refuse to treat sexual orientation as a suspect classification by asserting that gay men and lesbians are not politically powerless. It is puzzling that judges claim that gay men and lesbians have so much political power given that the federal government, most state governments, and hundreds of local governments have enacted and maintained laws to discriminate against gay people. Using the debate over whether anti-gay laws should be subject to heightened scrutiny, this Article shows how courts generally have mishandled the geographic aspect of the political power inquiry.
States vary wildly in their treatment of gay people, with some states including sexual orientation in their nondiscrimination laws and other states maintaining a litany of explicitly anti-gay laws. This indicates that gay people may have political power to protect their interests in some parts of the country but not in others. Courts fail to appreciate these regional variations in political power when determining for equal protection purposes whether gays have political power. Indeed, many courts deciding the constitutionality of anti-gay laws have relied on evidence of political power in faraway geographic areas that are irrelevant to the political process that produced the particular anti-gay law being challenged. For example, when evaluating equal protection challenges to anti-gay state laws, courts often find that gays have political power—and thus do not qualify for heightened scrutiny—by pointing to gay-protective laws in other states. This makes little sense. The fact that the California legislature does a relatively good job of protecting gay rights should not mean that anti-gay legislation in Oklahoma gets substantial judicial deference. This approach essentially punishes gay Oklahomans for the political victories achieved by Californians.
The Article concludes by considering the legal implications of these geographic issues for equal protection analysis. Given the need for uniform application of equal protection analysis across the nation, the most prudent approach is to eliminate the political power inquiry altogether. Several scholars have criticized courts for applying the political powerlessness factor in equal protection analysis inconsistently and without a proper measurement tool. Ultimately, this Article adds an additional reason to abandon the political power factor.