Yes Josh Barro, the Constitution Does Protect Heterosexuals (the California Constitution anyway)
West Hollywood makes the right decision on its Universal Basic Income Pilot Program to advance LGBTQIA civil rights
In December 2021,1 noted pundit Josh Barro tweeted at me that “the Constitution is not a suicide pact” in response to my claim that the Equal Protection Clause of the Constitution protected the rights of heterosexuals.2 In mid 2022, this Twitter debate became a real life issue in the City of West Hollywood.
The City of West Hollywood voted to implement a universal basic income pilot program for seniors in need. The city decided to drop a proposed requirement of the universal basic income program that recipients identify as LGBT in order to receive benefits.3
As a gay man and a constitutional lawyer, I applaud this move.4
The California Constitution does indeed protect cisgender heterosexuals. Had West Hollywood implemented a universal basic income program that excluded potential recipients solely based upon their sexual orientation or gender identity, the city of have violated the Equal Protection Clause and the Equal Rights Amendment of the California Constitution.
I. The Equal Protection Clause of the California Constitution
The Equal Protection Clause of the California Constitution, Article I, Section 7, provides, “A person may not be . . . denied equal protection of the laws.”5 It also provides that “A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.”6 “The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.”7
Most are familiar with the Fourteenth Amendment Equal Protection Clause and the Fifth Amendment Due Process Clause of the United States Constitution, which generally prohibit racial and ethnic discrimination by the government.8 Racial discrimination by the government is inherently suspect and presumptively unconstitutional.9 Race and ethnicity are considered suspect classifications for which laws are analyzed under the strictest judicial scrutiny.10
California’s Equal Protection Clause provides far greater protection than the Fourteenth Amendment.11 Even though they are textually similar, California’s Equal Protection Clause has not been interpreted in the same way as the federal courts have interpreted the Fourteenth Amendment Equal Protection Clause.12 Under the California Constitution, sexual orientation and gender identity are suspect classifications and governmental discrimination these on bases receive absolute strict scrutiny.13
Under California law, the same judicial analysis of racial and national origin discrimination applies with equal force to discrimination on the basis of gender, alienage, legitimacy, religion, sexual orientation, and gender identity.14 Thus, whenever the government discriminates on the basis of sexual orientation and gender identity, its decision is presumptively unconstitutional and faces the strictest scrutiny of the courts.15
Thus, “[d]istinctions between citizens solely because of their [sexual orientation or gender identity] are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.”16 And “legislative classification or discrimination based on [sexual orientation or gender identity] alone” almost always violates equal protection on its face.17
Can the government ever discriminate on the basis of sexual orientation or gender identity?
Only if the government proves that it (1) has a compelling governmental interest, (2) uses sexual orientation or gender identity in a way narrowly tailored to that interest, and (3) has no other alternatives available to it, may the government discriminate on the basis of sexual orientation or gender identity.18 “Unlike instances in which the rational basis test applies, the state does not meet its burden of justification under the strict scrutiny standard merely by showing that the classification established by the statute is rationally or reasonably related to such a compelling state interest.”19 “Instead, the state must demonstrate that the distinctions drawn by the statute (or statutory scheme) are necessary to further that interest.”20
Does this apply even if the government is discriminating against straight or cisgendered individuals?
Yes. The level of judicial scrutiny does not change simply because the law discriminates against straight and cisgender individuals.21 Whatever the sexual orientation or gender identity discrimination, it is evaluated by the same level of constitutional scrutiny regardless of the sexual orientation or gender identity of the individual being discriminated against.22
A general amorphous claim of past sexual orientation discrimination or gender identity discrimination does not justify the use of sexual orientation or gender identity discrimination to discriminate prospectively.23 Moreover, sexual orientation and gender identity discrimination that occurred in one jurisdiction cannot be extrapolated to other jurisdictions as a reason for imposing sexual orientation and gender identity discrimination in another jurisdiction.24
Had West Hollywood restricted straight and cisgender individuals from participation in the universal basic income program, it would have failed under strict scrutiny in a court challenge.25 No reason exists as to why a straight and cisgender individual should be denied the benefits from a universal basic income program because of their sexual orientation and gender identity alone.26 Favoring LGBT individuals for no other basis than their sexual orientation and gender identity is considered discrimination for its own sake, and is unconstitutional.27
Some might wonder if this program would become constitutional if the City of West Hollywood simply delegates the management of this program to a private charitable organization. The answer is no.
It should first be noted that any private organization that attempted to implement a universal basic income program for the public that excluded potential recipients on the basis of sexual orientation or gender identity would violate the Unruh Civil Rights Act.28
This broad and powerful civil rights law, which prohibits public accommodations discrimination on the basis of gender identity and sexual orientation, applies to non-profit organizations.29 Under the Unruh Civil Rights Act, discrimination against straight and cisgender individuals is just as unlawful as discrimination against LGBTQIA individuals.30
Here though, the government’s involvement would subject the private entity to the restraints of the Constitution.
In Gay Law Students Association v. Pacific Telephone and Telegraph Company31, a privately owned public utility attempted to argue that its policy of discriminating against gay and lesbian employees was beyond the reach of the California Equal Protection Clause.32 The California Supreme Court rejected this argument, noting that the government granted the utility special powers.33 Ultimately, the Court held that the utility violated the California Equal Protection Clause by discriminating against gay and lesbian job applicants.34
As a fundamental proposition of both California and federal law, the government cannot evade a constitutional restraint by simply ordering private citizens to do what it cannot do itself.35 Accordingly, the United States Supreme Court has held that “that actions of private entities can sometimes be regarded as governmental action for constitutional purposes.”36 When the government creates or uses a private entity to further governmental objectives, that entity becomes part of the government for purposes of the Constitution.37
Thus, a “challenged activity may be state action when it results from the State’s exercise of ‘coercive power,’ when the State provides ‘significant encouragement, either overt or covert,’ or when a private actor operates as a ‘willful participant in joint activity with the State or its agents’.”38 When the state is involved in the operation of a private actor, private actors are no longer shielded from the requirements of the Constitution.39
When the “the state, recognizing that it could not perform a direct act of discrimination, nevertheless has taken affirmative action of a legislative nature designed to make possible private discriminatory practices,” the state violates the principles of equal protection.40
This is especially true when the state orders that private conduct for the purpose of evading the Equal Protection Clause.41 Thus, “when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.”42
The City of West Hollywood cannot evade the prohibition against sexual orientation and gender identity discrimination of Article I, Section 7, simply by handing off its activities to a private organization. The private organization operates its activity, a universal basic income program, at the behest of West Hollywood. The Constitution of California applies with full force.
II. The Equal Rights Amendment of the California Constitution
The Equal Rights Amendment of the California Constitution, Article I, Section 31, also likely prohibits the City of West Hollywood from excluding straight and cisgender applicants from its universal basic income program. This provision provides that “The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of . . . sex . . . in the operation of . . . public contracting.”43 Under Article I, Section 31, the “state” includes, among other things “any city” within California.44
Under Article I, Section 31, the government does not have the ability to prove a compelling interest as discrimination is categorically banned in all cases.45 Therefore, it does not matter whether the government can prove a compelling governmental interest like it can under Article I, Section 7, a prohibited classification made by the government is automatically unconstitutional.46
Although the Equal Rights Amendment does not include the terms “sexual orientation” or “gender identity”, it likely prohibits both as the provision is modeled on the language of the Civil Rights Act of 1964.47 In the landmark decision of Bostock v. Clayton County48, the United States Supreme Court held that Title VII prohibits discrimination on the basis of sexual orientation and gender identity.49
The Court acknowledged that prohibiting sexual orientation and gender identity discrimination in the workplace was probably an unintended consequence of the 1964 Civil Rights Act.50 However, as the Court noted, “Ours is a society of written laws”.51 And “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.”52
As held by the Supreme Court, Title VII prohibits employers from discriminating “because of sex”, which is interpreted as “by reason of” or “on account of” sex.53 The Court reasoned that one cannot discriminate on the basis of sexual orientation or gender identity without taking one’s sex into account.54 Therefore, the Court concluded that one who intentionally discriminates on the basis of sexual orientation and gender identity must intentionally discriminate on the basis of that individual’s sex.55
Article I, Section 31 includes the language “on the basis of” as Title VII provides the language of “because of”.56 As the United States Supreme Court has explained, the term “because of” means the same thing as the term “by reason of”, “on account of”, or “based on”.57 There is no reason for the California courts to interpret our Constitutional provision differently and provide a lesser amount of protection from discrimination.58 Accordingly, the Equal Rights Amendment of the California Constitution prohibits sexual orientation and gender identity discrimination.
Under California law, “A contract is an agreement to do or not to do a certain thing.”59 A contract must have (1) parties capable of contracting, (2) the parties’ consent, (3) a lawful object, and (4) consideration.60 “The object of a contract is the thing which it is agreed, on the part of the party receiving the consideration, to do or not to do.”61 It is longstanding law that a grant from the state in exchange for some act by the recipient is considered a public contract.62 “A unilateral contract is one that is accepted by performance.”63
A universal basic income program between the City of West Hollywood and residents of the city is a contract with individuals who are selected to be members of the payment program. The city offers them money in exchange for these residents agreeing to live within the city. They give up the right to live elsewhere in exchange for the money. The city gives up money from its treasury that it would not otherwise give up.
III. Why This Matters
The gay rights movement, and more broadly the LGBTQIA movement, has fought for equal treatment under the law. For far too long, the government has been given free reign to oppress us. For decades, we were second class citizens under the law, unequal Americans. Only recently have we started to make progress towards the chief goal of equality under the law.
In California, we have been fortunate to be at the forefront of legal equality for LGBTQIA Americans. Having made that advance, we should not turn our backs on it for the sake of convenience. By proposing a program that would discriminate on these bases, the city ran the risk of engaging in the very same discrimination that the LGBTQIA community considers wrong.
Sexual orientation and gender identity discrimination against cisgender straight individuals does not help LGBTQIA Americans become equal citizens.64 It only perpetuates existing systems of sexual orientation and gender identity discrimination. There is no reason for courts to allow the government to discriminate against people because of their sexual orientation or gender identity any more than it allows the government to discriminate on the basis of race or gender. This is the law in California. It should be the law of the United States.
The City of West Hollywood wisely changed its program to include cisgender and heterosexual individuals. It adhered to an important precedent that mandates equality under the law regardless of sexual orientation and gender identity.
LGBTQIA Americans demand that we be treated equally. We cannot accept anything less.
This article reflects the views of the author only and does not constitute any opinion on the part of the City of West Hollywood or the West Hollywood Ethics Task Force Reform Committee.
The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.
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