Abstract
In a 1999 assessment, New York Times journalists Dudley Clendinen and Adam Nagourney stated that “it seems likely that the movement for gay identity and gay rights has come further and faster, in terms of change, than any other that has gone before it in this nation.” The evidence supports their claim. The Encyclopedia of Associations, for instance, shows that the number of organizations devoted to gay causes has skyrocketed in recent decades. In 1970, there were no gay or lesbian associations listed; in 1980, there were 14; in 1990, there were 234; and in 2000, there were 327. A “gay tipping point” occurred in the United States in the latter decades of the twentieth century.
The gay tipping point raises the question of whether gay individuals are still a politically powerless minority deserving of judicial protection in this country. Under its equal protection jurisprudence, the United States Supreme Court has extended judicial solicitude to five classifications—race, national origin, alienage, sex, and nonmarital parentage. In both granting and withholding such protection, the Court has often fixated on political powerlessness as a precondition for heightened scrutiny. Although the Court has articulated more than one test for such political powerlessness, the canonical one lies in Footnote 4 of United States v. Carolene Products Co.
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