We wrote earlier (here and here) about Ted Cruz’s latest expression of self-loathing: a proposal to allow nationwide discrimination against LGBT Americans – or (we kid you not) their sympathizers – by private business owners acting on their toxic bigotry as long as that toxic bigotry is grounded doctrinally in the Book of Leviticus.

This proposal, were it to be adopted as an actual law, would suffer a cringe-worthy dismembering in our nation’s judicial department as it is presently staffed up – which is to say if Anthony M. Kennedy is still one of a pack of five on the Supreme Court guarding minority populations against marauding predators called ignorance, fear, and tribalism.

Kennedy has been a champion of LGBT rights. As we explained in a prior post, he has a habit of not only striking down anti-LGBT laws, but also doing violence to them:

The Equal Protection Clause is understood to be primarily a bulwark against the majority targeting powerless minorities based on immutable (unchangeable) characteristics. Kennedy (and therefore the Court) has never said that sexual orientation or identity is an immutable characteristics giving rise to any special or elevated level of equal-protection scrutiny for anti-LGBT laws. In a sense, that seems like bad news (and as we’ll discuss [below], in a sense, it is.)

But as the Chimps tell students all the time, there is a clever strategy behind Kennedy’s approach. Kennedy has emphasized that the Equal Protection Clause doesn’t just prohibit discrimination against historically powerless groups that share immutable characteristics; it also prohibits the majority from targeting any group when targeting that group is done just for sport. Applying that principle, Kennedy has developed the habit of striking down anti-LGBT laws on the lowest level of judicial review (it’s called rational-basis review) a court can apply. In this way, he not only strikes these laws down; he does violence to them.

In a typical case brought under the Equal Protection Cause of the Fourteenth Amendment, a court will uphold a law unless it targets what courts call a suspect class of people. (Courts also sometimes talk about “quasi-suspect” classes, but let’s try to keep it simple here and just refer to those as suspect classes, too.) That’s because the government discriminates against groups all the time, but most of the time, that discrimination is not of the kind the drafters of the Equal Protection Clause meant to eliminate:

The Fourteenth Amendment to the US Constitution says, among other things, that the government must guarantee to every person within its jurisdiction the equal protection of the laws. Notice that it does not identify any particular kind of person; it doesn’t say white person or African-American person or tall person or short person or citizen or non-citizen – it just says person.

Obviously, this clause – the Equal Protection Clause – cannot be read as an absolute bar on the government’s treating some people differently than other people under any and all circumstances. For example, the government treats speeders differently than non-speeders and serial killers differently than peaceful humans. We might all agree that these are reasonable species of disparate treatment. To generalize, the Equal Protection Clause does not target different treatment for an individual under any and all circumstances, but discrimination against certain groups for reasons that seem arbitrary or malicious.

To decide whether a group (or class) of persons is suspect (the kind the Equal Protection Clause was intended to protect), courts generally apply three factors:

  1. Whether the group being targeted is being targeted because of an immutable characteristic that is unique to that group. An immutable characteristic is one that reflects no conscious choice, is usually inborn or innate, and generally cannot be changed (or at least should not have to be changed against a person’s will – as, for example, is the case with gender).
  2. Whether the group has suffered through a history of political powerlessness, meaning that the group has been targeted by the majority throughout some or all of our nation’s existence. A politically powerless group is usually a minority group (though not always – women, for example, are not a minority group) that lacks the numbers or political clout to defend itself against majoritarian hostility. Courts sometimes discuss this factor as part of a conversation about “representation reinforcement” – the idea that some groups, when they lack the power to adequately represent their own interests in the political realm, will have their representation reinforced by unelected federal judges. Those judges are largely immune from political retribution when they put their thumbs on the scale to tip the balance in favor of a powerless (and often detested) minority group.
  3. Whether the challenged discriminatory law represents a legitimate concern as to a person’s ability to contribute in some way. For example, people with certain physical disabilities, like blindness, are often placed at a disadvantage by certain laws, like laws about who is permitted to drive or fly an airplane. But those laws are usually grounded in a legitimate concern about a person’s ability to contribute or perform in some way, not some kind of tribal majoritarian hostility.

When these three factors seem to describe a certain characteristic that is unique to a certain group (like, for example, ethnic identity), then that group is called suspect. Critically, what that means is that discrimination against that group is subject to rigid scrutiny – the kind of scrutiny that a law is very unlikely to survive. To oversimplify a bit, a law that discriminates against a suspect class will only be upheld if it provides the best and only way (or at least a very good way) to achieve some kind of compelling, exceedingly persuasive interest (like, for example, saving children). This is a far cry from the kind of scrutiny that applies to just any old law — your typical law that neither targets a suspect class nor burdens any kind of fundamental right; the kind of scrutiny that applies to just your average innocent law is called rational-basis review. Under rational-basis review, a law will be upheld unless it fails completely to achieve any conceivable legitimate interest.

It would have been easy enough for the Supreme Court to say that 1) sexual orientation and identity are immutable characteristics that are inborn and innate and should not have to be changed; 2) the LGBT community has suffered a savage history of discrimination in both the public and private spheres of our national life throughout the entire existence of the republic; and 3) sexual orientation and identity have absolutely nothing to do with a person’s ability to contribute to society in any meaningful way. Had the Court said that, then it would have established precedent for the proposition that sexual orientation and identity implicate suspect classifications, meaning that, unless the Court were to overrule itself in some future case, laws targeting LGBT Americans would henceforth be subjected to rigid judicial scrutiny.

Instead, the Court has sidestepped the three factors outlined above by saying (implicitly, not explicitly) that none of this matters because anti-LGBT laws are so irrational that they can’t even survive rational-basis review. According to Kennedy, such laws are never justified by any interest but animus – a bare desire to harm. And a bare desire to harm is not even a legitimate interest, let alone a compelling or exceedingly persuasive one.

In a sense, Kennedy’s approach is satisfying: it’s a powerful indictment against anti-LGBT laws to say that they’re so contemptible that they can’t even survive a level of review that requires little more than sanity.

But here’s the problem: Kennedy will not be on the Court forever. And it now seems more likely than not that he or one or two of his more liberal colleagues on the Court (Ruth Bader Ginsburg is 83; Kennedy is 80; Stephen Breyer is 78) will be replaced by a buffoon called Donald J. Trump, a man with no moral compass but who is beholden to the Christian Theocrats who make up much of his base.

If the Court has not ruled that the LGBT community is a suspect class by the time it shifts to the right, then LGBT Americans will be left largely unprotected. It’s one thing for the US Supreme Court to overrule itself; that takes some doing, and it requires the Court to be explicit about its reasoning, laying bare whatever intellectual dishonesty might undergird its political and ideological agenda. Were LGBT Americans a suspect class, the Court would have to go through all that and expose its intellectual underbelly before reaching the opposite result: that LGBT Americans are no longer a suspect class.

But if the Court as it is currently constituted stays on its present course, striking down anti-LGBT laws without ever making LGBT Americans a suspect class, it will be easy for a later, more right-wing, Christian Theocrat Court to say, hey, we never said gays were a suspect class, and laws that target LGBT Americans are still subject to nothing more than rational-basis review. And when the Christian Theocrats have a majority, we can bet that where the Court once saw nothing more than irrational hostility as the interest behind anti-LGBT laws, it will come to see far more benign-sounding interests, like religious freedom, moral good order, and a legitimate need to push back against the influence of a dangerous, powerful, and corrupting minority group.

There may be a case or two (Cruz’s proposal might provide one) about anti-LGBT discrimination that comes before the Court while Kennedy and the four liberals still have a chance to declare LGBT Americans a suspect class. If and when that time comes, lawyers and advocates leading the way must make it clear that the next chance will be the Court’s last, and that its failure to take that step – establishing the LGBT classification as suspect – will leave LGBT Americans (and Kennedy’s legacy) gravely vulnerable.

If you’re looking for something to do with your time that might matter in protecting a vulnerable group in Trump’s America, here’s an idea: write a letter to Anthony M. Kennedy at the US Supreme Court. Feel free to quote liberally from this post. Here’s his address (and here’s a letter you can copy and paste if you’d like):

Associate Justice Anthony M. Kennedy

Supreme Court of the United States.
1 First Street, NE.
Washington, DC 20543