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 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 —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_ , 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 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 and Joe Sestak .) 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 ). Almost all—85 percent—of the Fortune 500 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 . 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 . Openly gay people are purged from the nation’s military at a rate of hundreds per year, a trend that continued 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 —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 , while the Gay and Lesbian Victory Fund (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?
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I enjoy your posts, but disagree with your point about power.
Capture is not really about whether or not politicians will compete for votes, but much more about whether they deliver policy.
It strikes me that gays’ power is not measured by the degree to which their vote is courted, but by the degree to which their policy preferences are advocated and achieved.
By these measures, evidence of their power is much more mixed.
(correction) My apologies, I accidentally deleted the last part of my last sentence, which was to read:
“…is much more mixed (as you note).”
Does having commensurate power necessarily mean policy victories?
At 3-4% of the population, wouldn’t a group with commensurate power often not get what they want, if it somehow differs from what the other 96% want? Now, in this case, that’s not true, in that there are others in society who share their goals.
I’m only superficially familiar with San Antonio v Rodriguez. What does it say about what such powerlessness would look like? Using descriptive representation as the metric, women, Latinos, and Asians all have an easy case to say they lack power; however, this, of course, assumes descriptive reprsentation is a useful metric. I’m not ready to say that it is.
Of course, I’m not sure San Antonio’s logic is what I would call “good” (meant normatively). That is, I’m not sure that power should be the only reason to protect a minority opinion. I could also see an argument about the normative benefits of the majority policy being the determining factor. That, of course, then requires some kind of super-judge to figure out whether policies are good or bad and REALLY runs afoul of majority rule and moves us down the road towards a rather more autocratic “judiciocracy.” (Or whatever “rule by judges” would be). I’m pretty uncomfortable with that. But I’ve not yet found a nice definition of “power” to use with San Antonio to get “fair” outcomes.
(At the risk of being accused of talking to myself)
It also occurs to me that Tony Smith at UC Irvine has an interesting piece addressing the electoral capture of gays and lesbians (Law, Politics and Society, 2007).
Hi there – Ben’s point is an interesting one…and I would respond with the claim that that evangelical Christians haven’t won much more from the Republicans in terms of policy victories than gay people have from the Democrats… – Pat
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