Unequal Protections

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.



Liberty and Union

Four months ago, I watched with a group of my friends as the country re-elected Barack Obama to the presidency of the United States. Giddy with triumph and relief, I turned to my friends and exclaimed, “Hooray! I’m not going to lose my health insurance in ten months!” (Had Mitt Romney been elected and fulfilled his campaign pledge to repeal Obamacare, I would no longer be eligible for coverage by my parents’ health insurance upon my birthday this August.) One of my friends and former coworkers, Jason, replied with equal relief, “Hooray! I’m not going to be treated like a second-class citizen!”

Jason is gay, and under the laws of the United States, and of many states thereof, he is a second-class citizen. Although I’ve supported marriage equality since my state rejected in 2002, it had never personally hit home for me like it did in that moment. For me, the election had been about horses and bayonets, about Obamacare and death panels, and about Mitt Romney and his binders full of women. For Jason, the election could result in a glimmer of hope — or the sustenance of legal bigotry. In every state, he cannot donate blood. In twenty-eight states, he cannot adopt children with his partner. In twenty-nine states, he is not legally protected from workplace discrimination. In twenty-nine states, he is not legally protected from housing discrimination. In forty-one states, he cannot marry whom he loves. 

It used to be worse. Within the last three years alone, he has gained the right to defend his country and the right to visit whom he loves in a hospital. Now, earlier today, the Department of Justice submitted an amicus curiae brief in Hollingsworth v. Perry, on behalf of the United States of America, that urged the Supreme Court to strike down California’s Proposition 8. In the 33-page brief, the Obama administration hath loosed the fateful lightning from its terrible swift sword.

One by one, like the blows of a sledgehammer, the Department of Justice breaks down myths about gay and lesbian couples. “Sexual orientation generally bears no relation to ability to perform or contribute to society,” they state in their call for the application of heightened scrutiny — a judicial determination as to the extent of protection necessary for a minority group. Proposition 8 proponents, the petitioners in this case, argue that marriage is intended to produce a stable institution for procreation and child-rearing. Not so, says the federal government, citing among others the historic 1967 Supreme Court decision overturning miscegenation laws. Besides, what threat do same-sex couples pose to opposite-sex couples? (The correct answer is “none whatsoever,” as the brief implies.)

It’s a foolish argument by the petitioners either way since, as the federal government observes, Proposition 8 doesn’t affect child-rearing or parenting in any way. It doesn’t even prevent same-sex parenting! Not that it should, of course. “The overwhelming expert consensus is that children raised by gay and lesbian parents are as likely to be well adjusted as children raised by heterosexual parents.” That’s the federal government of the United States, declaring in writing before the highest court in the Republic that same-sex couples can raise children just as well as anyone else. “Indeed,” the federal government argues, “because a substantial number of California children are raised in households headed by same-sex couples, Proposition 8 actually disserves the goal of improving child welfare by denying families access to the added stability and social acceptance provided by marriage.”

Wait just a second here, the petitioners then argue, let’s not be too hasty with what would be a seismic change for American society. This requires thoughtful analysis and careful consideration, they plead. The federal government could not be more incredulous at this claim if it were wearing lederhosen and juggling chainsaws. Even if you think not denying gay and lesbian citizens their basic human rights deserves slow deliberation, “…Proposition 8 does not embody such an approach but rather goes to the opposite extreme. It permanently amends the California Constitution to bar any legislative change to the definition of marriage.” To twist the knife, the federal government notes that “similar calls to wait have been advanced — and properly rejected — in the context of racial integration, for example.” Congratulations, anti-equality advocates: the United States Department of Justice just compared you to segregationists in a court of law.

That’s not the only comparison to segregationists drawn in the brief. When attacking the claim that Proposition 8 defends “traditional” (i.e., mainstream Christian) marriage, the federal government notes:

Indeed, marriage has changed in certain significant ways over time — such as the demise of coverture and the elimination of racial restrictions on marital partners — that could have been characterized as traditional or fundamental to the institution. As this court has observed, “laws once thought necessary and proper” may in fact “serve only to oppress,” and, “[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Well said.

The last major argument advanced by the petitioners is that Proposition 8 “serves an interest in returning the issue of marriage to the democratic process.” That’s not the point, the federal government retorts, and in fact begs the question. LGBT Americans are a well-defined minority whose protection cannot be — and heretofore has not been — guaranteed through the democratic process. That necessary role, the federal government argues, falls to the judicial branch.

To that end, the Obama administration’s arguments for this case, and to the broader issue of marriage equality in the courts, is tactical and well-chosen. By closely tailoring their arguments to refute those of the plaintiffs’, and by proposing only that Proposition 8 be struck down, the government does not ask for more than the Court can immediately provide. Nevertheless, by refuting the democratic self-governance argument (often used by the majority to deny marriage equality nationwide) and proposing the heightened scrutiny standard for sexual orientation, the government’s argument lays the groundwork for the justices to take two steps towards universal marriage equality: first by striking down its prohibition in California, then by using the Hollingsworth precedent in a subsequent case to strike down all prohibitions nationwide.

This strategy suits the court’s current conservative tenor. The Roberts Court expanded Second Amendment rights in a similar manner: first by recognizing an individual right to bear arms in D.C. v. Heller, which only dealt with the District of Columbia, then by using that ruling as precedent to expand its decision to the states in McDonald v. Chicago two years later. Of the justices who dissented in Lawrence v. Texas, the Supreme Court’s most recent LGBT rights case, only two remain on the bench — the ever-implacable Clarence Thomas and the always-immovable Antonin Scalia. Of the remaining seven, only Justice Alito’s stance remains a mystery. The Court’s four liberal justices (for want of a better term) will almost certainly vote to strike down Proposition 8, as would Justice Kennedy, who sided with the majority in Lawrence. Chief Justice Roberts, who joined the court two years after Lawrenceworked pro bono on LGBT rights cases while in private practice in 1996. I would be shocked if he did not join the majority in striking down Proposition 8.

Make no mistake: the Obama administration and the Roberts Court are moving swiftly at last towards marriage equality. If they do not flag or falter, both Jason and the millions of other LGBT Americans won’t be second-class citizens for much longer.