Unconstitutional Sexual-Orientation Set-Asides in Massachusetts

Government contracts should go to the lowest bidder, not be set aside for a particular group. So it is unfortunate that Massachusetts’s governor is now imposing set-asides in state contracts for LGBT businesses that appear to be unconstitutional. 

Set-asides are unfair, discriminatory, and costly to taxpayers. They are also generally unconstitutional when they are not being used to remedy the present effects of the government’s own past discrimination. 

These set-asides were apparently imposed in the name of “diversity.” But that is not a valid justification here. A federal appeals court struck down sexual set-asides in broadcast licenses in Lamprecht v. FCC , 958 F.2d 382 (D.C. Cir. 1992). It ruled that outside the educational setting, “diversity” is not a reason for preferences or discrimination under the Constitution’s “intermediate scrutiny” standard. Accordingly, it declared unconstitutional governmental “diversity” preferences based on sex. (For a later court ruling confirming this principle, see Lutheran Church—Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998).)

Recent court rulings such as Smithkline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014) have applied this same heightened scrutiny standard to sexual-orientation discrimination. That means that sexual-orientation classifications, like gender-based classifications, are presumptively unconstitutional since under intermediate scrutiny, “the burden of justification is demanding and it rests entirely on the State.” (See United States v. Virginia (1996).) As a result, set-asides based on sexual orientation are generally invalid.

Nor does there appear to be any other valid reason for sexual-orientation-based set-asides in Massachusetts, since a bona fide remedial (or civil-rights) justification appears to be absent. Courts will sometimes uphold affirmative action when it is needed to remedy the economic consequences of the government’s past wrongs against a minority group—even under the strict scrutiny that applies to racial classifications (as opposed to the intermediate scrutiny that applies to gender and sexual orientation).

But even under intermediate scrutiny, courts have tended to strike down affirmative action measures when they were not needed to remedy the present effects of the government’s own past discrimination.  See, e.g., Builders Association v. County of Cook, 256 F.3d 642, 644 (7th Cir. 2001) (appeals court ruled that gender-based preference in government contracts was invalid); Brunet v. City of Columbus, 1 F.3d 390 (6th Cir. 1993) (gender-based hiring preference was invalid, for failure to show "intentional discrimination" against women by the government); Milliken v. Michigan Road Builders, 489 U.S. 1061 (1989) (Supreme Court summarily affirmed the Sixth Circuit's invalidation of both race and gender-based affirmative-action programs in contracting, which the appeals court had struck down since the race and gender preferences were not designed to remedy the government's own discrimination against minorities and women), summarily affirming, 834 F.2d 583, 593, 595 (6th Cir. 1987) (invalidating racial preferences due to failure to show it was necessary to remedy the government's own "intentional discrimination" against minorities, and invalidating gender preference aimed only at "societal discrimination" rather than governmental discrimination). There is no sign of such discrimination here.

A few courts have indicated that such measures can be valid under intermediate scrutiny to offset widespread societal discrimination in the relevant economic sector (even if the government itself has not discriminated), but it is unlikely that such discrimination is widespread in Massachusetts, since the Massachusetts Civil Rights Act has banned sexual-orientation discrimination in society (not just state government) since 1989. Moreover, affirmative-action preferences are not supposed to be used merely because discrimination occurred in the distant past. See, e.g., Brunet v. Columbus, 1 F.3d 390 (6th Cir. 1993) (governmental discrimination that occurred 17 years ago does not support affirmative-action today in hiring); Hammon v. Barry, 813 F.2d 412 (D.C. Cir. 1987) (discrimination that occurred 14 years ago was inadequate basis for affirmative-action hiring preference).