Friday, October 10, 2008

Connecticut Justices struggle with "political powerlessness"

As with previous marriage litigation, the Connecticut Justices struggled with the question of whether gay and lesbian people are "politically powerless." In fact, this was a primary point of disagreement for two of the dissenters. I've previously opined that in deciding whether a classification in law merits heightened scrutiny, courts should not try to decide whether an affected group is "politically powerless." I argued that this test is illogical, leads to absurd results, and is not required by Supreme Court precedent.

The majority on the Connecticut court held that meeting the "politically powerless" prong is not necessary where a group is clearly a discrete minority of the population. In other words, a group has to be either a discrete minority or politically powerless. Which is how I read the case law.

The majority nevertheless went on to discuss the "powerlessness" prong at length, because it represented the State's main argument on the question of "quasi-suspect class" status, and because other courts had relied on this prong even though they recognized that gay and lesbian people are a discrete minority. Having (unnecessarily) taken up this prong, the majority struggles to make sense of it in light of the history of race and gender cases. It ends up with this:
We apply this facet of the suspectness inquiry not to ascertain whether a group that has suffered invidious discrimination borne of prejudice or bigotry is devoid of political power but, rather, for the purpose of determining whether the group lacks sufficient political strength to bring a prompt end to the prejudice and discrimination through traditional political means. Consequently, a group satisfies the political powerlessness factor if it demonstrates that, because of the pervasive and sustained nature of the discrimination that its members have suffered, there is a risk that that discrimination will not be rectified, sooner rather than later, merely by resort to the democratic process. Applying this standard, we have little difficulty in concluding that gay persons are entitled to heightened constitutional protection despite some recent political progress.
In other words, a group doesn't have to be totally powerless, it just has to be powerless enough. At the risk of sounding like Justice Scalia, this is a mushy, contentless test if there ever was one. It comes down to, "we don't think political progress is occurring fast enough in the appropriate direction." This sort of call isn't necessary and courts can and should avoid it.

As the majority notes, "no other court has undertaken a thorough analysis of this factor." Happily, this court recognizes that its discussion of "powerlessness" is pure dicta, and one may hope that its earnest but messy attempt to make sense of this test encourages other courts to avoid basing their decisions on it.

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