University of Washington School of Law UW Law Digital Commons Articles Faculty Publications 2015 Gayffirmative Action: The Constitutionality of Sexual Orientation-Based Affirmative Action Policies Peter Nicolas University of Washington School of Law Follow this and additional works at: https://digitalcommons.edu/faculty-articles Part of the Fourteenth Amendment Commons, and the Sexuality and the Law Commons Recommended Citation Peter Nicolas, Gayffirmative Action: The Constitutionality of Sexual Orientation-Based Affirmative Action Policies, 92 Wash. Rev 733 (2015), https://digitalcommons.edu/faculty-articles/285 This Article is brought to you for free and open access by the Faculty Publications at UW Law Digital Commons. It has been accepted for inclusion in Articles by an authorized administrator of UW Law Digital Commons. For more information, please contact cnyberg@uw.
GAYFFIRMATIVE ACTION: THE CONSTITUTIONALITY OF SEXUAL ORIENTATION-BASED AFFIRMATIVE ACTION POLICIES PETER NICOLAS* ABSTRACT Twenty-five years ago, the U. Supreme Court established a consistency principle in its race-based equal protection cases. That principle requires courts to apply the same strict scrutiny to racial classifications designed to benefit racial minorities-such as affirmative action policies-as they do to laws invidiously discriminating against them. The new consistency principle, under which discrimination against whites is subject to strict scrutiny, conflicted with the Court's established criteria for declaring a group to be a suspect or quasi-suspect class entitled to heightened scrutiny, which focused on such considerations as the history of discrimination against the group and its political powerlessness.
As a result of this tension, the Court's line ofprecedentsfor identifying new suspect and quasi-suspect classes has gone dormant, and the Court has not since considered whether any additional such classes exist. Instead, when confronted with plausible candidates for heightened scrutiny, such as gays and lesbians, the Court has engaged in sporadic applicationofstealth rationalbasis review. In this Article, I use a hypothetical equal protection challenge to a sexual orientation-based affirmative action policy as a vehicle for proposing a roadmapfor harmonizing these competing lines ofprecedent. I demonstrate that, in light of the consistency principle, an aggrieved heterosexual can bring a challenge to such a policy and seek heightened equal protection scrutiny even though the Court has yet to establish heightened scrutinyfor laws discriminatingagainstgays and lesbians.
I conclude that such a harmonization of the Court's equal protection precedents will reinvigorate the Court's moribund precedents for identifying new suspect and quasi-suspect classes. Moreover, I conclude that announcing heightened scrutiny in such a case would present a * Jeffrey & Susan Brotman Professor of Law and Adjunct Professor of Gender, Women & Sexuality Studies, University of Washington. I wish to thank Josh Blackman, Luke Boso, Michael Boucai, Benjamin G. Davis, and Suzanne B.
Goldberg for their valuable feedback on earlier drafts of this Article. 733 734 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 92:733 particularly appealing vehicle to the Court's center, represented by Justice Kennedy, whose jurisprudence demonstrates both supportfor gay rights and hostility toward affirmative actionpolicies. INTRODUCTION For much of American history, knowledge that a current or prospective student or employee was gay, lesbian, bisexual, or transgender was likely to result in the person losing their employment' or being expelled from their college or university.2 Yet, as developments in both the judicial and legislative spheres have simultaneously resulted in the invalidation of laws criminalizing same-sex sexual activity3 and the validation of same-sex relationships, many employers and institutions of higher education have stopped treating one's status as a sexual minority as a negative consideration and have instead come to view it as irrelevant to employment and admissions decisions.
Still, what if-just as with racial minorities and women-public universities and employers decided not merely to react to the history of discrimination against sexual minorities by treating such status as irrelevant, but instead treated it as a positive consideration in making employment and admissions decisions? In other words, could a public employer or university decide that it would henceforth treat a prospective student's or employee's status as a sexual minority as a "plus" factor, or even establish specific hiring and admissions quotas? To justify doing so, would they have to point to their own specific history of discriminating against sexual minorities, or could they rely instead on general societal discrimination against that group? Could they instead justify such a policy on the grounds that it contributes to the diversity of the workplace or classroom, as a way to increase the provision of services to the LGBT community, or as a means of providing role models for LGBT youth? Moreover, if a heterosexual individual aggrieved by such a policy brought an equal protection5 challenge against it, what level of judicial scrutiny 1. Comm'r of Pub., WILLIAM WRIGHT, HARVARD'S SECRET COURT: THE SAVAGE 1920 PURGE OF CAMPUS HOMOSEXUALS (2005); William N., Privacy Jurisprudenceand the Apartheid of the Closet, 1946-1961, 24 FLA. See PETER NICOLAS & MIKE STRONG, THE GEOGRAPHY OF LOVE: SAME-SEX MARRIAGE & RELATIONSHIP RECOGNITION IN AMERICA (THE STORY IN MAPS) 3-10 (5th ed. This Article refers to "equal protection" generally as opposed to the Equal Protection Clause of the Fourteenth Amendment to encompass not only the latter-which is applicable only to the 2015] GAYFFIRMATIVE ACTION 735 would a court apply to such a claim? Would the policy be subject only to the highly deferential rational basis review, or could the petitioner argue for intermediate, strict, or the "more searching form" 6 of rational basis review? What impact would the level of scrutiny have on the constitutionality of such a policy? Although such affirmative action policies are yet to be established-at least as a formal matter-the foundation necessary for developing them in the future is being laid, as public entities begin to collect data on the sexual orientation of prospective applicants.
For example, in December 2012, the University of Iowa became the first public university to include questions about their applicants' sexual orientation and gender identity on their admission applications.7 Subsequently, several public law schools began to include such a question on their admission applications.8 In addition, in 2013, Scholastica 9-a website that facilitates the submission of manuscripts to law reviews-created controversy amongst legal academics by asking authors to indicate their sexual orientation and gender identity in their profiles and forwarding that information to law review editors, including those at public universities.o This led to claims that law reviews housed at public universities that made selection decisions based states-but also to the "equal protection" component of the Due Process Clause of the Fifth Amendment, which applies to the federal government and is identical in scope. See Adarand Constructors, Inc., concurring); City of Cleburne v. Cleburne Living Ctr. Dep't of Agric.
See University of Iowa Becomes First School to Add Sexual Orientation Question to Application, Fox NEWS (Dec.com/us/2012/12/12/university-iowa- becomes-first-school-to-add-sexual-orientation-question-to/, archived at http://perma.cc/8LNW- 6VW8. Although the University of Iowa was the first public university to do so, it was preceded by Elmhurst College, a private college. See Eric Hoover, Elmhurt College Will Ask Applicants About Sexual Orientation, CHRONICLE OF HIGHER EDUC.comlblogs/ headcount/elmhurst-college-will-ask-applicants-about-sexual-orientation/28553?sid=at&utm source= at&utm medium-=en, archivedat http://perma.cc/KKJ2-QMN2. See Mary Sette, New Question Consideredfor LGBT Law Applicants, GW HATCHET (Feb.com/2013/02/04/a-new-question-for-lgbt-law-applicants/, archived at http://perma.cc/J4LW-YWWS.
For more a more detailed description of Scholastica, browse the website at https://scholasticahq., Josh Blackman, Journalson Scholastica "Ask Authors to Submit Demographic Information" for "Diversity Initiatives," JOSH BLACKMAN'S BLOG (Feb. 11, 2013), http://josh blackman.com/blog/2013/02/I l/joumals-on-scholastica-ask-authors-to-submit-demographic-information- for-diversity-initiatives/, archived at http://perma.cc/M5L9-HNT4; Scholastica's Diversity Question, PRAWFsBLAWG (Feb.com/prawfsblawg/2013/ 02/scholasticas- diversity-question.html, archived at http://perma.cc/G9EH-62CL; Dave Hoffman, Scholastica & Law Review Selection, CONCURRING OPINIONS (Feb.com/ archives/2013/02/scholastica-law-review-selection.html, archived at http://perma.cc/WJT3-GA96. 736 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 92:733 on such criteria were open to a constitutional challenge on equal protection grounds.
The constitutionality of affirmative action policies targeted at sexual minorities-herein dubbed "gayffirmative action"-stands at the intersection of three distinct lines of equal protection precedents. The first, culminating in the Court's 2013 opinion Fisher v. University of Texas at Austin"' and hereinafter referred to as the Adarandl2 line of precedent, has made it increasingly more difficult for public entities to implement affirmative action policies targeted at racial minorities. It has done so by applying a principle of "consistency" that requires such policies to be subject to the same "strict scrutiny" that the Court applies to state action discriminating against racial minorities.1 3 As a result, the Court has held that justifications for race-based affirmative action policies, such as creating role models for minority children,1 4 increasing the provision of services to minority communities, 5 and as a remedy for general past societal discrimination, are constitutionally insufficient.' 6 Instead, only a handful of rationales that the Court has deemed to be "compelling"-such as the interests in remedying the government entity's own past discrimination against that group (as contrasted with general past societal discrimination)' 7 and the interest in creating a diverse student body' 8-are constitutionally sufficient to justify such policies.
Moreover, applying strict scrutiny, the Court has held that even when invoking this narrow set of constitutionally sufficient justifications for such policies, the means of accomplishing those rationales must be very finely tuned and individualized and thus cannot be accomplished through such means as setting quotas. See Adarand Constructors, Inc. See City of Richmond v. See Regents of Univ.
The opinion is somewhat unclear on whether the Court did not find this interest to be sufficiently compelling, or if instead the policy was not sufficiently narrowly tailored to achieving that goal, or both. See Parents Involved in Cmty. See supra note 16. 2015] GAYFFIRMATIVE ACTION 737 The second line of equal protection precedent, culminating in the Court's 2013 opinion in United States v.
Windsor2 0 and hereinafter referred to as the Moreno21 line of precedent, has made it increasingly difficult for governmental entities to discriminate against sexual minorities by declaring unconstitutional laws that discriminate on that basis. 22 In this line of cases, the Court has side-stepped the question whether laws discriminating on the basis of sexual orientation should be subject to heightened judicial scrutiny. Rather, in each of the cases in this line of precedents, the Court invoked its earlier holding in United States Department of Agriculture v. Moreno2 3 that "a bare.
desire to harm a politically unpopular group" is not a legitimate governmental interest even under rational basis review.24 The third line of equal protection precedent-which has sat dormant since the Court announced its principle of "consistency" and hereinafter 25 referred to as the Frontiero line of precedent-sets forth the criteria for deciding whether or not to accord heightened scrutiny to a given classification when challenged on equal protection grounds. Because this line of precedent predates the "consistency" line of precedent, many of the factors focus on the specific class against whom state action is directed (such as African Americans or women) rather than the classification employed (such as race or sex). Included among the factors are (1) whether the group against whom the classification is directed has suffered from a history of discrimination; (2) whether the group is politically powerless; (3) whether the characteristic at issue is obvious or visible; (4) whether the characteristic at issue bears any relationship to ability to perform or contribute to society; and (5) whether the characteristic at issue is immutable. 635, 638 (1986); City of Clebume v.
Cleburne Living Ctr., 738 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 92:733 A gayffirmative action policy that fell short of the standards imposed by the Court for race-based affirmative action policies would effect a merger of these three lines of equal protection cases and would require the Court to resolve a number of difficult questions that have been percolating in the background of equal protection jurisprudence ever since the Court switched its focus-at least so far as race and sex are concerned-from suspect classes to suspect classifications. Consider, for example, a public medical school that establishes an affirmative action policy designed to increase the number of gay and transgender medical students, and, ultimately, doctors. Suppose that the school cites two rationales for the policy: a desire to provide LGBT youth with positive role models, and a desire to increase the provision of medical services to members of the LGBT community, which the school believes have special medical needs that are often overlooked by heterosexual doctors.
