For those who are underrepresented or misrepresented in their political process, there are channels and avenues available to them through which they can have their voice heard and affect change. But what happens, as is the case with the LGBT community, when misrepresentation is a systematic and historical exclusion from the political process?
In 1980, John Hart Ely published Democracy and Distrust, a work that forever altered public perception of how much protection the people of the United States find in their Constitution. In his book, Ely introduced his Political Process Theory, which states that constitutional protections are procedural rather than substantive[1]. The people elect government representatives, who in turn produce legislation that mirror the sentiments of their constituencies. The people elect a president who, with the help of elected officials, select justices for the Supreme Court. These nine justices of the Supreme Court are trusted to interpret the Constitution and apply it to those cases that they elect to hear.
With an eye towards ensuring equal protection for all citizens of the United States, the Supreme Court 1938 in the seminal case, United States v. Carolene Products, introduced the idea of heightened judicial scrutiny of certain “suspect” legislation. In doing so, it opened the door for great strides in civil rights for women and race-based minorities.
Legislation subsequent to Carolene Products provided heightened judicial protections for two classes: race-based minorities and women. These protections were realized by making laws that made classifications based on immutable characteristics subject to either heightened or strict scrutiny. For example, in Loving v. Virginia, a Virginia law that banned interracial marriage was subjected to strict scrutiny. The law made a classification based on race- those of one ethnicity were not free to marry those of another. Under strict scrutiny, the government had to show that the proposed legislation served a compelling state interest, and that the means being adopted were narrowly tailored to this objective (compare this threshold to that of rational basis above). The government was unable to satisfy the strict scrutiny inquiry, and the law was found unconstitutional. In Craig v. Boren, an Oklahoma statute sought to implement a higher drinking age for men than women in an effort to curb auto accidents. Again, a proposed law was making a classification based on an immutable characteristic. The law was gender-based and therefore subject to heightened scrutiny. It was subsequently held to be unconstitutional and a violation of the 14th Amendment.
So what do we make of laws that deny same-sex couples the right to marry; just one of many among the list of excluded rights? The fact that these marital statutes exist at all is evidence that gay people are underrepresented in the legal process. We are at a crossroads in American History similar to the one faced by the nine Supreme Court Justices who issued the opinion in Carolene Products. Laws like California’s Proposition 8 have been struck down as unconstitutional, however decisions made at a state level are confined in scope to their respective states. In order to effect national, federal change, the Supreme Court must reach down and rule on a state law similar to Proposition 8.
For instance, laws that explicitly prohibit same-sex marriage are upheld as constitutional on the belief that homosexuality is not an immutable characteristic and the idea they seek to preserve the idea of a traditional family and help work towards regeneration and population. Whether the laws in questions serve these means at all is debatable. What is not debatable is the fact that these means are not sufficiently tailored to the end being sought, and the result is gross and widespread discrimination. It will take judicial activism for Americans to come to the same realization with respect to the LGBT community. The action has begun in the more progressive states. These are the seeds of change. However it will take federal action; a Supreme Court ruling to cultivate those seeds and affects proper constitutional protections for everyone.
The precedent exists to heighten judicial scrutiny as it applies to discrimination based on sexual orientation, and as more and more states strike down laws prohibiting same-sex marriages, the impetus on the Supreme Court to act will become stronger and stronger. Perennial flip-floppers on the bench (Kennedy) will be forced to align with a side, and those more progressive-minded justices who have yet to impose their leanings on the bench (Sotomayor, Kagan) will be asked to speak up.
[1] J.H. Ely, Democracy and Distrust, 1980