Book Review: The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection
| Author | Mark Bell |
| DOI | 10.1177/096466390000900412 |
| Date | 01 December 2000 |
| Published date | 01 December 2000 |
| Subject Matter | Articles |
that this really is the author’s view when he comments later that Outsiders are becom-
ing insiders in the university community, and that the anti-Empire views of CLS are
being sustained through an influx of ‘youthful Tenured Radicals’ (p. 192). Overall,
too, the first part of the book is much better written than the second part – one cannot
help speculating that a looming deadline prevented production of further drafts of
some chapters, which sometimes degenerate into ‘stream of consciousness’ mode.
Austin’s overall conclusion is profoundly depressing. His thesis is that faced with
decreasing financial resources, law schools will retrench; in the long term, those at the
margins (the Outsiders) will be hardest hit. Deans anxious to cultivate law firms and
alumni as sources of finance will eschew non-traditional scholarship, and Empire will
triumph once more. Of course, it is not necessary to buy into this scenario; an alterna-
tive view would see the days of Empire’s hegemony finished, with further bloody
skirmishes yet to come.
Despite its occasional weaknesses, however, this is in the main a scholarly and
stimulating book, which brings vividly alive the battle over legal education in the US
and provides specialist and non-specialist alike with a comprehensive introduction to
the subject.
FIONA COWNIE
Faculty of Law, University of Leicester, UK
EVAN GERSTMANN,The Constitutional Underclass: Gays, Lesbians, and the Failure of
Class-Based Equal Protection. Chicago: University of Chicago Press, 1999, 208 pp.,
$35 (hbk), $15 (pbk).
With characteristic clarity, Evan Gerstmann commences by highlighting the three
basic issues his text addresses: the development of equal protection jurisprudence in
the United States Supreme Court; its impact, especially on gays and lesbians; and
finally, how the law may be reformed to combat the weaknesses identified in the fore-
going analysis.
Along the way, the reader is given an overview of the judicial origins of equal pro-
tection law, and the persistent disinclination of the Supreme Court to extend its pro-
tection beyond the recognized ‘suspect classifications’ of race, national origin, gender
and illegitimacy. This general analysis is then applied with specific regard to its
impact on lesbians and gays. Interestingly, Gerstmann does not fall back on the argu-
ment that the Court is inherently prejudiced or cautious on issues of sexual orien-
tation discrimination, but rather contends that the barriers to protecting gays and
lesbians are the same as those faced by all groups outside the inner circles of exist-
ing equal protection law. In particular, Gerstmann illustrates his critique with refer-
ence to the Court’s 1996 decision to strike down Colorado’s Amendment 2, which
aimed to prevent and invalidate all state and local statutes forbidding sexual orien-
tation discrimination (Romer vEvans 517 US 620). The decision was ostensibly a
victory for the lesbian and gay lobby, but Gerstmann highlights its weak foundation
and the difficulties involved in building from it to further successful equality litiga-
tion.
Finally, the author sets forth his proposed vision for a new system of equal pro-
tection law in the United States, where the Supreme Court would apply a different
standard of judicial scrutiny according to the nature of the right infringed, as
opposed to the group thereby affected. Therefore, distinctions made on grounds of,
inter alia, gender, race, disability or sexual orientation would receive an equal level
of scrutiny, but the intensity of this scrutiny would vary depending on whether the
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