What is scrutiny?
As far as issues like equal protection and discrimination go, the courts make decisions based on an 'appropriate' level of judicial review. On the lowest end we have rational basis, which requires the law in question to have a reason for existing other than "we hate this targeted group". Don't be fooled by the word "rational", because it doesn't mean "sensible" or "defensible" in the sense we normally use it. This is one of the reasons we haven't always had the best luck challenging laws at this level of review.
Of course one could have perfectly "rational" (in the legal sense) defenses of highly discriminatory laws; this is why the courts have higher levels of scrutiny for groups of people with a long history of bearing discriminatory policies. For example, if the government wants to pass a law that specifically and uniquely targets the black population, the courts require them to have a really compelling state interest above and beyond a mere "rational" basis, and it has to be narrowly-tailored and as unrestrictive as possible. That's Strict Scrutiny, and it's the highest level we grant.
Somewhere in between is Intermediate or Heightened Scrutiny, which splits the difference between the two. Gender (that is, male or female, but not transgender) typically falls into this standard.
At what level of scrutiny does the LGBT community currently find itself?
Ha! Well, that's exactly the sticking point of many of our major court cases. The Supreme Court has studiously avoided answering this question, even in cases where it seemed like an important issue (nothing in Lawrence, for example.) One of the reasons people are so excited about the Prop 8 challenge is that Judge Walker opened the door to a higher standard of review (without necessarily stepping through that door himself).
Rewind to February 23, 2011. In an act that infuriated the Republican leadership of the House, and gave them a much-needed distraction from having to solve real problems, the Obama administration announced it would no longer defend the Defense of Marriage Act in court. Belated as this decision may have been (activists had been asking for this for years), its legal basis was neither arbitrary nor out-of-the-blue: the administration argued that, in light of recent events (court cases + the ongoing DADT repeal process), it was becoming increasingly clear that the LGB part of the community* qualified for a higher level of scrutiny. And if that is indeed the case, then the constitutional arguments in favor of DOMA fall apart.
(* - as the brief addressed same-sex marriage as such, it did not address scrutiny toward the T part of our family, but... more on this below.)
The money quote in Holder's press release is here:
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.
In a post on Towleroad earlier this month, Ari Ezra Waldman predicted that the DOMA brief would have "ripple effects" based on application of standards elsewhere in the Executive branch. Until this week Waldman hadn't been vindicated. Now, it looks like he may have been right.
Why is the NOPD case important?
Keep in mind that however nice the Obama administration's decisions on DOMA (feel free to overrate or underrate as you prefer), it doesn't mean the federal government actually starts treating LGBs as if they are due a heightened scrutiny: in fact, the U.S. House is prepared to argue against this in court. Until the Supreme Court makes a decision on this issue, it's going to be a touch-and-go as far as application.
So here's the deal. In their investigation of the NOPD, the Civil Rights Division of the DoJ did just that: they applied heightened scrutiny as a justification for their study. And not only towards the LGBs, but towards the Ts as well. Summing up the legal standards they used to prepare their investigation, the authors conclude,
Finally, we note that a number of factors weigh in favor of applying heightened scrutiny in the context of discrimination by law enforcement on the basis of sexual orientation and gender identity, including a long history of animus and deeply-rooted stereotypes about lesbian, gay, bisexual, and transgender (''LGBT'') individuals.
Armed with this, the Civil Rights Division includes the LGBT community in its survey of discriminatory practices by the police department, alongside the categories of race and ethnicity. This allowed them to pursue the kinds of complaints that, typically, don't get tracked at all:
We also found reasonable cause to believe that NOPD practices lead to discriminatory treatment of LGBT individuals. In particular, transgender women complained that NOPD officers improperly target and arrest them for prostitution, sometimes fabricating evidence of solicitation for compensation. Moreover, transgender residents reported that officers are likelier, because of their gender identity, to charge them under the state’s “crimes against nature” statute—a statute whose history reflects anti-LGBT sentiment.
Even if this application doesn't get repeated often, this is kind of a big deal (especially for the LGBT community in New Orleans, who've been dealing with this problem for forever.)
Overrating and Underrating
I'll save everyone the trouble here.
What this means: Shannon Minter of the National Center for Lesbian Rights has called this a "historic document", due both to its being the first real application of the Obama administration's claims for heightened scrutiny and for its expansion to include gender categories.
What this doesn't mean: LGBTs still do not have heightened scrutiny by law. Ultimately the Supreme Court is going to have to address the question head-on, and that's likely to come through the marriage debate. Granted, they could make decisions on the individual cases without addressing the scrutiny question (just as they did for Lawrence), but there's no doubt that scrutiny is the big question on the docket. It's not a sure thing.
Why this is still good: going to the Supreme Court armed with a few high-powered lawyers is great, but going with the Executive Branch making an argument for heightened scrutiny and with a history of practical application of that standard makes for a much more compelling argument. If there were doubts that the Obama administration is serious about applying this level of scrutiny, they should be (partially) assuaged today.
Why this is still not enough: this is, after all, just one place in which the Administration can make this kind of application. While I'm thankful that they've taken these steps, this is hardly a rest-on-our-laurels victory, with so much left to do and so large an area under his jurisdiction where changes may still be feasible. One example: if LGBTs deserve heightened scrutiny, does the President have discretion to cut federal funding to programs that discriminate against them?
At any rate, this is good news, and a lot remains to be done. I hope we can at least agree on that.
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