Following Wednesday’s Supreme Court arguments on the constitutionality of the Defense of Marriage Act, there has been a lot of discussion of whether gays and lesbians individually, and the gay-rights movement in general, have become so politically powerful as to hardly warrant the safeguards of the equal-protection clause of the Constitution.
Substantial attention focussed on an exchange during the argument between Chief Justice John Roberts and the attorney for Edith Windsor, who is challenging the law. Justice Roberts asked Roberta Kaplan, “You don’t doubt that the lobby supporting the enactment of same-sex-marriage laws in different states is politically powerful, do you?” When she disagreed with him, the Chief Justice somewhat snarkily responded, “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”
The issue is legally important—so important that it merited its own front-page story in the Times today—because in order for the court to apply what’s known as “heightened scrutiny” in an equal-protection context, it has required, in the past, a finding that the group seeking redress has historically lacked political power. Heightened scrutiny would mean, for example, that a court would look especially skeptically at a law that treated people of different races dissimilarly—the law would be suspect from the start. (One of the reasons that gay-rights groups may have been initially reluctant to take Windsor’s case for a large tax refund was that it looked like a claim for more money by an already affluent person.)
What is often lost in this discussion is that the legal test requires a finding of lack of political power historically. It has much less to do with political power, or lack thereof, in the present moment. In the DOMA context, what the court would need to look at, if it wanted to remain true to its precedents, would be the political power of gays and lesbians in 1996, when the law was enacted. Perhaps the best evidence of the lack of political power at that time is that the law—one of the most discriminatory anti-gay measure in American history—was passed by veto-proof margins in both houses of Congress and signed by a President who, even though he personally opposed the goals of the legislation, was unwilling to stand up against it in an election year out of fear that doing so would require that he defend himself against the charge that he supported the group stigmatized by the bill’s sponsors.