Fascinating exchange from yesterday’s DOMA argument, relevant to the question whether gays and lesbians are discrete and insular minorities who may be entitled to have laws passed which discriminate against them subject to a heightened standard of review:
CHIEF JUSTICE ROBERTS: I suppose the sea change has a lot to do with the political force and effectiveness of people representing, supporting your side of the case?MS. KAPLAN: I disagree with that, Mr. Chief Justice, I think the sea change has to do, just as discussed was Bowers and Lawrence, was an understanding that there is no difference — there was fundamental difference that could justify this kind of categorical discrimination between gay couples and straight couples.CHIEF JUSTICE ROBERTS: You don’t doubt that the lobby supporting the enactment of same sex-marriage laws in different States is politically powerful, do you?MS. KAPLAN: With respect to that category, that categorization of the term for purposes of heightened scrutiny, I would, Your Honor. I don’t -CHIEF JUSTICE ROBERTS: Really?MS. KAPLAN: Yes.CHIEF JUSTICE ROBERTS: As far as I can tell, political figures are falling over themselves to endorse your side of the case.MS. KAPLAN: The fact of the matter is, Mr. Chief Justice, is that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have. And only two of those referenda have ever lost. One was in Arizona; it then passed a couple years later. One was in Minnesota where they already have a statute on the books that prohibits marriages between gay people. So I don’t think — and until 1990 gay people were not allowed to enter this country. So I don’t think that the political power of gay people today could possibly be seen within that framework, andcertainly is analogous — I think gay people are far weaker than the women were at the time of Frontiero.CHIEF JUSTICE ROBERTS: Well, but you just referred to a sea change in people’s understandings and values from 1996, when DOMA was enacted, and I’m just trying to see where that comes from, if not from the political effectiveness of — of groups on your side of the case.
\MS. KAPLAN: To flip the language of the House Report, Mr. Chief Justice, I think it comes from a moral understanding today that gay people are no different, and that gay married couples’ relationships are not significantly different from the relationships of straight married people. I don’t think -CHIEF JUSTICE ROBERTS: I understand that. I am just trying to see how — where that that moral understanding came from, if not the political effectiveness of a particular group.MS. KAPLAN: I — I think it came — is, again is very similar to the, what you saw between Bowers and Lawrence. I think it came to a societal understanding. I don’t believe that societal understanding came strictly through political power; and I don’t think that gay people today have political power as that -this Court has used that term with — in connection with the heightened scrutiny analysis.CHIEF JUSTICE ROBERTS: Thank you, Ms. Kaplan.