The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection

Gays and lesbians have long been the targets of legal discrimination (think of the 1986 Supreme Court Bowers ruling upholding antisodomy laws, Colorado's Amendment 2 banning gay rights legislation, the federal Defense of Marriage Act, and so on), and all efforts to pass legislation that would give them the same protections given to other minorities such as blacks and women have failed. For the time being, says Evan Gerstmann, gays and lesbians facing discrimination "can only win by appealing to judicial sympathy and intuitions about fairness rather than by invoking any coherent legal principle." But, he continues, the struggle for class-based gay and lesbian rights should not be considered an issue unto itself, but should be looked at within the entire field of "equal protection" jurisprudence. In that context, we learn that the courts have been reluctant to expand the boundaries of class-based protection to include any new group in more than two decades. Gerstmann's legal analysis is detailed and informative, and his conclusion--that it may be more profitable in the long run for activists to focus on rights involved rather than on their own identities--is provocative. --Ron Hogan