The Constitutional Underclass; Gays, Lesbians, and the Failure of Class-Based Equal Protection
When the Supreme Court struck down Colorado's Amendment 2—which would have nullified all state and local laws protecting gays and lesbians from discrimination—it was widely regarded as a victory for gay rights. Yet many gays and lesbians still risk losing their jobs, custody of their children, and even their liberty under the law. Using the Colorado initiative as his focus, Gerstmann untangles the complex standards and subtle rhetoric the Supreme Court uses to apply the equal protection...
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When the Supreme Court struck down Colorado's Amendment 2—which would have nullified all state and local laws protecting gays and lesbians from discrimination—it was widely regarded as a victory for gay rights. Yet many gays and lesbians still risk losing their jobs, custody of their children, and even their liberty under the law. Using the Colorado initiative as his focus, Gerstmann untangles the complex standards and subtle rhetoric the Supreme Court uses to apply the equal protection clause. The Court divides people into legal classes that receive varying levels of protection; gays and lesbians and other groups, such as the elderly and the poor, receive the least. Gerstmann reveals how these standards are used to favor certain groups over others, and also how Amendment 2 advocates used the Court's doctrine to convince voters that gays and lesbians were seeking "special rights" in Colorado.Concluding with a call for wholesale reform of equal-protection jurisprudence, this book is essential reading for anyone interested in fair, coherent, and truly equal protection under the law. Law and Politics Book Review - Kenneth D. Wald I found Gerstmann's Constitutional Underclass a keen indictment of current judicial doctrine about equal protection. The volume lays bare the legal obstacles to gay-lesbian equality in the United States. I join the author in the modest hope that this book will shift the conversation about equal protection to a more fruitful plane.
AcknowledgmentsPt. IThe Conundrum of Class-Based Equal Protection1The Failure of Equal Protection32Equal Protection and the Development of the Tiered Framework of Judicial Scrutiny193The Three-Tiered Framework as a System of Exclusion40Pt. IIThe Impact of Class-Based Equal Protection on Gays and Lesbians4Class-Based Analysis and the Courts595Class-Based Analysis and the Public Debate over Amendment 2916The Judicial Response to Amendment 2115Pt. IIIMoving Forward: A New Direction for Equal Protection7Moving Away from Class-Based Analysis143Bibliography183Index191
\ Kenneth D. WaldI found Gerstmann's Constitutional Underclass a keen indictment of current judicial doctrine about equal protection. The volume lays bare the legal obstacles to gay-lesbian equality in the United States. I join the author in the modest hope that this book will shift the conversation about equal protection to a more fruitful plane.\ — Law and Politics Book Review\ \
