Vol. 9 No. 7 (July 1999) pp. 299-302.
THE CONSTITUTIONAL UNDERCLASS: GAYS, LESBIANS, AND THE FAILURE OF CLASS-BASED EQUAL PROTECTION by Evan Gerstmann. Chicago: University of Chicago Press, 1999. 196 pp.
Reviewed by Kenneth D. Wald, Department of Political Science, University of Florida.
	In this well-written and tightly reasoned book about adjudication under the 14th amendment, Evan Gerstmann launches a full-scale assault on a legal doctrine that has consigned gays and lesbians to a constitutional netherworld. The target of his critique, the class-based equal protection doctrine introduced in CAROLENE PRODUCTS and institutionalized in RODRIGUEZ, is portrayed as incoherent, dishonest and fundamentally flawed. Perceiving class-based models as beyond rehabilitation, the author calls on the judiciary to abandon that approach altogether in favor of what he calls rights-based jurisprudence. Among the book’s many merits, the author does not succumb to special pleading. Although the legal predicament of gays and lesbians best illustrates the deficiency of the reigning doctrine of equal protection, Gerstmann shows the clear relevance of his argument to many groups that have failed to win judicial imprimatur as "discrete and insular minorities" and thus to heightened constitutional protection.
	The class-based equal protection doctrine evolved from a footnote in UNITED STATES V CAROLENE PRODUCTS CO. (1938). As part of the effort to rehabilitate judicial review following the excesses of the LOCHNER era, the Court acknowledged a responsibility to defer to the will of the majority as expressed by the legislature. However, the Court reserved for itself the role of defending minorities that could not use the political process to insure fair treatment from the majority. What Tocqueville called "majority tyranny" is presumed most likely to be visited upon groups "who suffer from prejudice, are unable to form effective political coalitions, and are often singled out for especially unfavorable treatment by the hostile majority" (26). Laws that target such groups—what later became "suspect" classes—are in principle subject to especially rigorous review under "strict scrutiny" and are unlikely to pass judicial muster. In a series of post-CAROLENE decisions that developed less coherently than any summary can convey, the categories of race, national origin, and alien status were recognized as suspect classifications that would generate strict scrutiny. By contrast, laws that burden other groups are normally upheld with minimal scrutiny and maximum deference to the legislative branch. The Court subsequently created an intermediate category of "quasi-suspect" classes based on gender and legitimacy. Laws that burden such groups receive heightened scrutiny to insure there is some discernible "rational" purpose embedded in them. In practice, the contrast between suspect and quasi-suspect classes has become a distinction without a difference, producing what amounts to a two-tiered system
	Gerstmann’s book is equal parts revisionist history, case study, intellectual critique, and legal advocacy. In the first section of the book, the author dissents from the Whiggish history that perceives a triumphal expansion of liberty from BROWN V. BOARD OF EDUCATION (1954) through SAN ANTONIO INDEPENDENT SCHOOL DISTRICT V. RODRIGUEZ (1973). Indeed, he contends, the conventional story about equal protection jurisprudence is a great deal more complicated. The Warren Court, often cited retroactively as the parent of the group-based approach to equal protection, expressly avoided declaring race a suspect category in 1954. Rather, the Court offered a much more limited rationale for its decisions that emphasized instead the fundamental right of citizens to a quality education. While RODRIGUEZ did codify the group-based approach to equal protection, the case is more notable because the Court used it to limit equal protection claims. Extraordinary legal protection (strict scrutiny) was confined to those groups that had previously qualified for it and the door was effectively shut on aspirants for constitutional protection who argued that wealth, age, gender and sexual orientation should become the basis for strict scrutiny.
	Fair-sounding though it may be, Gerstman contends, the class-based system is biased against the claims of new aspirants for protected status. The implications of achieving this status are so far-reaching, he argues, that judges are extremely reluctant to invoke it. The Courts draw back from the precipice because "protecting a group as a suspect class is strong medicine, often resulting in the substitution of judicial judgment for democratic decisionmaking in all areas of law affecting the protected group" (76). Finding that gays and lesbians constituted a protected class would not only strike down anti-gay initiatives, such as Colorado’s Amendment 2, but it would also call into question a whole host of laws that maintain the legal privileges of heterosexuals. The historical analysis bolsters this argument. The Warren Court did not embrace protected class status for African-Americans in BROWN precisely because it judged the country was not ready to dismantle the entire legal edifice of racial segregation. The Court waited until the late 1960s, when segregation had been effectively undermined by a whole series of specific decisions and changes in public opinion, to finally declare race a suspect classification. The conservative Court of the Nixon era set the bar for admission to protected status so high in RODRIGUEZ for the express purpose of limiting judicial recognition of subsequent claims. In both instances, protected class status was perceived as an "atomic bomb" of jurisprudence that, once set free, could not be contained to any particular area of law or social policy.
	In the middle section of CONSTITUTIONAL UNDERCLASS, Gerstmann makes a strong case for the inherent incoherence of the class-based equal protection doctrine. The three criteria for protected class status, a history of discrimination, political powerlessness, and some distinguishing commonality, have been wielded in an arbitrary manner to exclude gays from strict scrutiny. The ambiguity of the criteria virtually compels arbitrariness in application. Perhaps the most telling argument of this section involves the way courts shift between discussing suspect classes and suspect classifications. Courts have usually held that classifying people by race is inherently suspect. This has the peculiar impact of conferring protected class status upon white males in affirmative action cases that challenge racial classifications. But when gays and lesbians challenge laws that invoke classification based on sexual orientation, they are required to "earn" strict scrutiny by meeting the more rigorous three-part definition of discrimination, powerlessness and commonality—a test that while males could not remotely satisfy. In Colorado’s referendum on Amendment 2, legislation that enjoined the state from extending constitutional protection based on sexual orientation, the advocates could use the class-based legal doctrine to portray gays and lesbians as unjustified seekers of "special rights" that belonged to truly oppressed groups, "real" minorities such as African-Americans. As long as it remained committed to the tiered system, Gerstmann argues, the Supreme Court could strike down Amendment 2 only with convoluted reasoning that unconvincingly portrayed the law as "irrational" (ROMER V. EVANS, 1996). Though producing a welcome outcome, that decision (as Justice Scalia acerbically noted) rested more on the majority’s social values than on any considered legal principle. The prevalence of homophobia in American society, including the judiciary, makes such a strategy a thin reed for advocates of gay rights.
	In the final portion of the book, the author urges courts to drop the class-based system of legal protection. It provides no clear basis to decide when groups do deserve strict or heightened scrutiny and is, in fact, a sham rather than a serious system for judging equal protection claims. Ironically, it is the actual (as opposed to the mythical) rationale in BROWN that Gerstmann advocates. The Court premised its attack on segregated schooling by stressing the essential role of education in opportunities for advancement. In like manner, he argues, courts would do better by "varying the level of review according to the type of RIGHT (as opposed to the type of class) affected by the law at issue" (155, emphasis in original). The highest scrutiny should be reserved for laws affecting "equal competitive opportunity" in the domains of education and employment. In deciding such cases, he calls for a balancing test. Judges should weigh the harm done to a plaintiff’s access to equal opportunity against whatever social purposes are served by the law. Where competitive opportunities are not invoked or constrained, the courts should be reluctant to intrude on the will of the legislature.
	A short review cannot do justice to the subtlety or complexity of Gerstmann’s argument. He makes his case clearly and persuasively. Although I was generally in agreement, there were two points where I demurred. In section II, he contends that the class-based system for achieving protected class status has made its way into the popular discourse of opponents of gay rights. What moved most Coloradoans to approve Amendment 2, he claims, was not homophobia but rather fear that gays and lesbians would eventually capitalize on protected class status to gain affirmative action and other benefits. Thus the current doctrine of equal protection cases hands the opponents of gay rights a potent tool in public campaigns. In reaching this conclusion, I think he underestimates both the extent of homophobia, cleverly disguised to take account of social desirability, and the degree to which Americans feel that gays can avoid discrimination simply by "passing," concealing their sexual orientation through discretion. Even absent class-based jurisprudence, these factors and the powerful cultural individualism in American culture would supply enough ammunition to torpedo efforts to bring gays and lesbians under antidiscrimination laws. I also have less confidence than the author does in the concept of "sound" legal doctrine. He seems to believe that a doctrine of rights-based protection based on a balancing test would provide more judicial coherence than group-based protection. I think the culprit in equal protection jurisprudence is not the specific doctrine but the inherent weakness of any rule-based system of adjudication. I’ve read precisely the same kind of complaints about incoherence and arbitrariness in commentaries on church-state law even though such rights are clearly recognized as fundamental by the Supreme Court. In operationalizing the Establishment Clause to decide when laws cross this forbidden line, the vague rules about purpose, effect and intent generate confusing decisions that sometimes seem to leave behind any semblance of common sense. Thus I am unpersuaded that the balancing test required for rights-based protection would yield a more consistent body of decisions.
	Despite these disagreements, I found Gerstmann’s CONSTITUTIONAL UNDERCLASS a keen indictment of current judicial doctrine about equal protection. The volume lays bare the legal obstacles to gay-lesbian equality in the United States. I join the author in the modest hope that this book will shift the conversation about equal protection to a more fruitful plane.
REFERENCES
BROWN V. BOARD OF EDUCATION. 347 U.S. 483, 493 (1954).
ROMER V. EVANS. 517 U.S. 620 (1996).
SAN ANTONIO INDEPENDENT SCHOOL DISTRICT V. RODRIGUEZ. 411 U.S. 1,28 (1973).
UNITED STATES V. CAROLENE PRODUCTS CO. 304 U.S.144 (1938).