In most circumstances, advocates for a group like to at least pretend that their group has a lot of political power. But these expectations were turned on their head when two expert witnesses took the stand in the “Perry v. Schwarzenegger (U.S. District Court website)”:https://ecf.cand.uscourts.gov/cand/09cv2292/ trial on the constitutionality of California’s ban on same-sex marriage, the evidentiary portion of which concluded last week. Each side had an unusual goal. The plaintiffs seeking to overturn the ban–with their expert, Stanford’s “Gary Segura (Gary Segura website)”:http://politicalscience.stanford.edu/faculty/segura.html –were trying to show that, as a group, gays are “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process” (“_San Antonio Indep. Sch. Dist. v. Rodriguez_ (San Antonio Indep. Sch. Dist. v. Rodriguez, 1973)”:http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=411&invol=1 , 1973) and are therefore deserving of “suspect class” status. In equal-protection law lingo, such status would require heightened scrutiny of any law–including California’s same-sex marriage ban–that targets gays as a group. The defendants (and their expert, “Kenneth Miller (Kenneth Miller website)”:http://www.claremontmckenna.edu/academic/faculty/profile.asp?Fac=406 of Claremont McKenna College and like me, a somewhat-recent Berkeley Ph.D.) needed to do just the opposite and demonstrate that gay people actually possess a fair amount of political power and thus need no particular protection.
So are gays “politically powerless?” Hardly. Gay people’s votes (and their campaign contributions) are courted about as avidly by the Democrats as are those of another “captured” group in American politics–evangelical Christians–by the Republicans. (Exhibits A and B: would-be Democratic Senators, and recent converts to the cause of same-sex marriage, “Harold Ford (NY Post story about Harold Ford’s support for gay marriage)”:http://www.nypost.com/p/news/local/now_ford_comes_out_for_gay_nups_VASWuxve4ht5Y4aZM8K5dJ and “Joe Sestak (Philadelphia Gay News story about Joe Sestak’s support for gay marriage)”:http://epgn.com/pages/full_story/push?article-Sestak+backs+gay+marriage%20&id=5554187&instance=top_story.) More important, acceptance of gay people and the notion of gay rights is now _de rigeur_ among our nation’s elites. Nearly two-thirds of those with a graduate degree (64%) told the GSS in 2008 that they agreed with the statement that sexual relations between two men or two women is “not wrong at all.” No leading U.S. university worth its salt discriminates against gay people or denies them domestic partnership benefits (with the notable exception of religious-affilated institutions, and even “they are changing (Georgetown University domestic partnership benefits info)”:http://www8.georgetown.edu/benefits/2009/resources/faqs/13829.html#LDA). Almost all–85 percent–of the “Fortune 500 (statistics compiled by the Human Rights Campaign)”:http://www.hrc.org/issues/fortune500.htm have policies prohibiting discrimination on the basis of sexual orientation.
But the plaintiffs argue that gays and lesbians “indisputably” have less political power than other groups designated as suspect under equal protection law, including racial minorities and women. And by just about any measure, they are correct. Victories in the political process for gay people have “lagged far behind change in public opinion (Jeffrey Lax and Justin Phillips, “Gay Rights in the States: Public Opinion and Policy Responsiveness,” APSR)”:http://www.columbia.edu/~jrl2124/Lax_Phillips_Gay_Policy_Responsiveness_2009.pdf. There is no national law forbidding discrimination on the basis of sexual orientation, meaning that “it is perfectly legal for an employer to fire someone for being gay in 29 states (map of state discrimination laws)”:http://www.thetaskforce.org/downloads/reports/issue_maps/non_discrimination_7_09_color.pdf. Openly gay people are purged from the nation’s military at a rate of hundreds per year, a trend that “continued (Boston Globe article on ‘Don’t Ask, Don’t Tell’)”:http://www.boston.com/news/nation/washington/articles/2009/05/20/continued_discharges_anger_dont_ask_dont_tell_critics/ even after President Obama took office last January. And gay and lesbian couples have essentially no partnership rights–not even “the right to claim a deceased loved one’s body from the coroner (RI passes law to permit same-sex partners to plan funerals)”:http://www.foxnews.com/politics/2010/01/05/rhode-island-lawmakers-sex-couples-rights-plan-funerals/ –in most states. By sheer numbers, representation by openly gay or lesbian officeholders is low. A group that makes up three to four percent of the population can count among its numbers only one-half of one percent of all federal legislators (Representatives Tammy Baldwin, Barney Frank, and Jared Polis). The Census estimates “there are 2,904 cities with population of 10,000 or more (Census data)”:http://www.census.gov/compendia/statab/2010/tables/10s0028.pdf, while the “Gay and Lesbian Victory Fund (search for openly gay elected officials)”:http://www.glli.org/out_officials (which presumably could be counted upon to develop an exhaustive list) identifies only 28 openly-gay mayors in the entire U.S.–less than one percent of the total.
So gay political power lies somewhere between absolute “powerlessness” and the political power (or at least the legal protections) accorded to other groups designated as suspect classes by equal-protection jurisprudence. Where the courts come down on this question is beyond my purview. But a question raised by the facts presented here is the following: courts have continued to consider race and gender worthy of some protections despite the successes of racial minorities and women in the political process. How can they not do the same with regard to gay people?