As usually stated, the test (such as it is) for heightened scrutiny requires that a classification be based on (1) an immutable characteristic, (2) that has no bearing on individuals' ability to contribute to society, but (3) that has been the focus of a history of discrimination, (4) such that it defines a politically powerless group.
As to sexual orientation, there has never been any serious dispute that parts (2) and (3) of the test apply. Courts, including those in the marriage decisions so far, have focused on parts (1) and (4), concluding first that it is not conclusively established that sexual orientation is immuta ble, and second that identifiable political gains by gay, lesbian and bisexual folks demonstrate they are not politically powerless.
But it is not clear from the governing precedents whether these are truly prerequisites, let alone how strictly they should be applied. The precedents refer to “obvious, immutable, or distinguishing characteristic." See Lyng v. Castillo, 477 U.S. 635 (1986). Likewise, they speak of whether a group is "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from majoritarian political processes." See Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976).
I wish to focus here on the politically powerless prong. In the marriage cases to date, the prevailing argument has gone something like this:
1. Among other things, a "suspect class" has got to be politically powerless.This line of argument seem to me to lead to a number of quite troubling corollaries:
2. Our state has a variety of laws that specifically protect the rights of gay, lesbian and bisexual folks.
3. A group specifically protected by some laws cannot be politically powerless.
4. Therefore, gay, lesbian and bisexual folks are not politically powerless.
5. Therefore, sexual orientation discrimination doesn't get heightened scrutiny.
1) If gay, lesbian and bisexual plaintiffs had brought equal protection lawsuits decades ago, when there were no laws that protected them from any kind of discrimination, courts would (or at least should) have treated sexual orientation as a suspect classification.
2) If the politically powerless prong were freshly applied to race, sex or national origin classifications now, they would not be treated as suspect classifications, because there are a plethora of state and federal laws specifically protecting the rights of women and racial and national minorities. (Good news for affirmative action, I guess...)
3a) Following from 1 and 2 above, the application of the politically powerless prong depends upon what, if any, relevant laws are on the books at the time of the litigation. As a result, the kinds of classifications that are "suspect" can change over time. It could even change and change back again. Court will give less weight to stare decisis in this area, and must monitor current political developments in order to keep constitutional rules up to date.
3b) Following from 1 and 2 above, the application of the politically powerless prong depends upon what, if any, relevant laws are on the books when courts first consider a particular characteristic. As a result, the kind of classifications that are "suspect" depends on accidents of legal history. Groups suffering discrimination should be sure to litigate the issue before making any political progress -- not withstanding the likelihood that, in this case, courts themselves may well be too prejudiced to give them a fair hearing.
4) Once legislation is enacted that protects some rights of a group, they are thereafter presumed to be capable of fending for themselves in the political process with regard to all their rights. The possibility that some forms of invidious discrimination against a group (say, in family matters) may persist long after other forms of discrimination against that same group (say, in the marketplace) become politically unpalatable, must be rejected or ignored.
While some may be unmoved by the last of these, I think most everyone would reject the others out of hand. Yet I can't see a way around them, given the line of argument outlined above. Indeed, I think this kind of attention to the legal and/or political landscape of the moment (or at least some moment) is inescapable when one asks whether a group is "relegated to such a position of political powerlessness as to command extraordinary protection from majoritarian political processes." Political power is inherently temporal and shifting.
As I see it, the only means of escape from these strange conclusions is to abandon the "politically powerless" prong as a distinct prerequisite for heightened scrutiny. As noted above, it's not clear that this concept was originally thought of as separate from, and in addition to, the consideration of history. While history is, of course, always in progress, current events are only a part - and not a decisive one - of the historical picture.
Under this view, of course, gay, lesbian and bisexual folks are on considerably stronger legal footing. Hopefully, even folks who are displeased by that result will be comforted by avoiding doctrinal consequences that are just plain crazy.