There’s a great scene in Lincoln where Thaddeus Stevens, the Radical Republican leader and lifelong proponent of racial equality, is forced to claim that the proposed Thirteenth Amendment is not about giving rights to “Negroes”, as some whites feared. After castigating a member of the opposition, Stevens states that he “doesn’t believe in equality in all things, only in equality before the law.”
The Fourteenth Amendment, ratified three years after the Thirteenth, enshrines this principle within the Constitution. Its framers, including Stevens, sought to protect African-Americans from the depredations of discriminatory state laws passed by white Southerners during the resistance to Reconstruction. By the mid-20th century, the Supreme Court wielded the amendment’s clauses like a hammer to strike down laws discriminating on the basis of race, national origin, religion, and other suspect and quasi-suspect classes.
Unfortunately, the Supreme Court has heretofore dithered and dawdled on applying the Equal Protection Clause’s guarantees to sexual orientation. Justice Kennedy wrote the majority opinion in both Roper v. Evans and Lawrence v. Texas, but implicitly refused to classify sexual orientation as a suspect or quasi-suspect class both times. The Obama administration’s Hollingsworth amicus nevertheless laid out the need for heightened scrutiny:
Each of the four relevant considerations identified by this Court supports that conclusion: (1) gay and lesbian people have suffered a significant history of discrimination in this country; (2) sexual orientation generally bears no relation to ability to perform or contribute to society; (3) discrimination against gay and lesbian people is based on an immutable or distinguishing characteristic that defines them as a group; and (4) notwithstanding certain progress, gay and lesbian people—as Proposition 8 itself underscores—are a minority group with limited power to protect themselves from adverse outcomes in the political process.
Has Kennedy’s mind changed in the decade that’s passed since he dodged the Equal Protection Clause in Lawrence? He’s certainly considering the possibility, as he noted in Tuesday’s oral arguments on Proposition 8:
JUSTICE KENNEDY: Do you believe this can be
treated as a gender-based classification?
MR. COOPER: Your Honor, I -
JUSTICE KENNEDY: It’s a difficult question
that I’ve been trying to wrestle with it.
If the Supreme Court’s decision this summer in either Windsor or Hollingsworth applies heightened scrutiny, to which Kennedy obliquely referred above, it would be an unmitigated victory for LGBT rights activists with ramifications beyond striking down Proposition 8 or the Defense of Marriage Act. The decision would open the path for lawsuits against prohibitions on same-sex adoptions and and other anti-gay statutes across the Union. Most significantly, it would all but ensure that the Court would find state prohibitions on same-sex marriage unconstitutional in a subsequent ruling. Justice Kennedy’s shift would have profound implications for the future of American society and politics.
Yet Kennedy, undoubtedly aware of the effects his decision will bring, may have sought yet another way to avoid the equal protection question by focusing on federalism in today’s oral arguments on the Defense of Marriage Act. Pressing the Solicitor General, Kennedy said that Verrilli was “insisting that we get to a very fundamental question about equal protection, but we don’t do that unless we assume the law is valid otherwise to begin with.” It would seem that he might be searching for a way to protect LGBT rights without admitting those rights exist.
Roberts, whom I had earlier hoped might be a sixth vote on marriage equality, instead undercut the equal protection argument during today’s oral arguments. The Chief Justice called the marriage equality movement “politically powerful” and noting that “political figures on both sides are falling over themselves to endorse [the pro-marriage equality] side of the case,” thereby implying that they were not without recourse through the normal democratic channels. Scalia concurred, asking how many states had legalized same-sex marriage since the Defense of Marriage Act’s passage in 1996. Roberta Kaplan, representing Edith Windsor, told him nine states had done so. “Nine,” Scalia replied. “So there has been this sea change between 1996 and now.” (Scalia failed to note that during the same time span, 31 states amended their constitutions to ban same-sex marriage.)
The risk of Kennedy reversing his prior support for gay rights is minimal, but conservatives on the court could persuade him to punt on standing in Hollingsworth and invoke a federalism argument in Windsor. Although the substantive effect would eliminate both Proposition 8 and the Defense of Marriage Act, those victories would be hollow as long as states hostile to LGBT rights remain free to shape laws and constitutions towards discriminatory ends. Maintenance of that status quo is unacceptable.
Abraham Lincoln once said that the United States cannot exist “half-slave and half-free”. He spoke of the unsustainable tension between Northern abolitionists and free-soilers and the Southern slaver-aristocracy. That choice between competing visions of what it means to live in America is before the Supreme Court once again. If he chooses the seductive and wholly-fictional “middle ground”, Justice Kennedy will reduce the Fourteenth Amendment to an empty promise and the equal protection of the laws to an idle dream. The Union will remain divided, half-tolerant and half-bigoted. And instead of preserving a sacred institution, every marriage in the United States will be diminished by his refusal to protect that fundamental right for all people, in all places, for all time.
Let us hope he chooses well.