...If all citizens have a constitutional right to marry, if state laws that withdraw legal protections of gays and lesbians as a class are unconstitutional, and if private, intimate sexual conduct between persons of the same sex is protected by the Constitution, there is very little left on which opponents of same-sex marriage can rely. As Justice Antonin Scalia, who dissented in the Lawrence case, pointed out, "[W]hat [remaining] justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution'?" He is right, of course. One might agree or not with these decisions, but even Justice Scalia has acknowledged that they lead in only one direction.
I've been confused about what seemed like a basic legal point in my mind for a really long time - the 14th amendment of the Constitution, our equal protection guarantee, seems really straight forward to me (granted, I'm no legal scholar...at all). It has refreshingly simple language for a powerful and necessary idea: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." To my simple and easily confused mind, that says, pretty clearly, that if something is going to be a law that affects people, it needs to affect everyone more or less the same way, and those laws cannot arbitrarily remove rights from individuals. This is basic. This is already in place. This exact law has already been used to rule in favor of homosexual couples' sexual freedoms. So why has the LGBTQI movement, and the democrats who ostensibly support that movement, worked in so many other directions and angles to promote this particular victory. Instead of waiting for the "right time" or for the Supreme Court to be more liberal, we should have pushed for more powerful, 14th-amendment based challenges to anti-gay laws.
Using equal protection is a strong position from which to argue gay rights and gay marriage. Mr. Olson's op-ed is well thought-out and written. What democratic messaging has taken place to promote this idea? In the mainstream public discourse, why is so much energy and attention paid to whether gay marriage affects our kids or destroys families? I understand the social reasons for doing so, in terms of moving culture gradually towards a more open and tolerant place, but legally? We've had the tools necessary to move this issue forward with the court, but we haven't done it.
I think that progressives have been shy about beating the 14th amendment drum for reasons that go deeper than the right of marriage, per se. You can only argue that gay couples are being denied marriage if you presuppose that homosexuality is an innate trait. Many conservatives continue to believe that homosexuality is a choice, despite significant scientific evidence to the contrary. Such a person would argue that just as a felon gives up his right to vote because of the actions he committed, a homosexual gives up his right to marry for the same reason.
ReplyDeleteSo really, under a purely 14th amendment-based line of attack, you'd face a courtroom debate on the nature of homosexuality. Scientific testimony tends to fare poorly in court, so this line of reasoning would probably end badly. In contrast, Olsen and Boies are building their case mainly by negating the "marriage is for procreation" and "gay marriage is bad for kids and straight marriage" arguments. Equal Protection is in there, of course, but it's not the main prong of their attack.