An Equal Protection Primer For Supreme Court Justices Who May Be Confused
Speaking of marriage, my poor, long suffering wife had to endure yet another middle-aged-lawyer diatribe last night when a local news broadcast ran a brief report on yesterday’s Supreme Court arguments in Hollingsworth v. Perry, the case challenging California’s Proposition 8. I’ll spare you the gratuitous swears (of which there were many), but it was this question by Justice Scalia that set me off (via the Los Angeles Times):
Scalia: I’m curious. When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted? When did the law become this?
If you’re looking for an excellent, analytical response to Justice Scalia’s question, see Elizabeth Wydra’s piece on Huffington Post in which she explains:
The simple answer to Justice Scalia is that laws banning same-sex couples from marrying were unconstitutional the moment when the American people, in 1868, wrote the guarantee of equality for all persons into the Constitution. As the exchange this morning demonstrates, Justice Scalia seems to accept this proposition with respect to laws prohibiting couples from different races from marrying one another, which the Supreme Court found unconstitutional in the late 1960s. He should acknowledge the same constitutional truth in the Prop. 8 case. The text of the Equal Protection Clause of the Fourteenth Amendment makes clear that the freedom to marry should be equally available to all, whether black or white, heterosexual or gay, rich or poor.
In fact, though, there’s an even simpler answer to Justice Scalia’s question, which is this: The Equal Protection Clause of the Fourteenth Amendment prohibits the government from engaging in any form of irrational discrimination against similarly situated people, including irrational forms of discrimination against gay and lesbian people. So, the threshold question isn’t whether there’s something in the Constitution that affirmatively grants gays and lesbians the right to marry; the threshold question is whether the laws prohibiting gays and lesbians from marrying amount to the kind of irrational discrimination that violates equal protection.
Let’s back up a bit, because a lot of people – including, apparently, Justice Scalia – seem to labor under the misconception that the Equal Protection Clause only prohibits government discrimination on the basis of “suspect” classifications like race or gender, and, as yet, the Court hasn’t declared sexual orientation to be a suspect classification. In fact, though, the Equal Protection Clause makes no reference to race, gender, or any other classification at all. What is says is:
No State shall … deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const., Amend. XIV, § 1. If Congress had wanted to prohibit only discrimination on the basis of suspect classifications like race and gender, it knew how to say so. Indeed, in the very next Amendment, adopted, like the Fourteenth, in the aftermath of the Civil War, Congress said:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
U.S. Const., Amend. XV, § 1 (emphasis supplied).
So the Equal Protection Clause, on its face, is a more general prohibition against the government engaging in discriminatory treatment of similarly situated people or groups of people. The Supreme Court has traditionally subjected government discrimination on the basis of, say, race or gender, to a higher level of judicial scrutiny than other forms of discrimination, but that does not mean that discrimination on bases other than race, gender and the like will necessarily pass equal protection muster.
As the Court explained in City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976):
Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest.
More directly, in Roemer v. Evans, 517 U.S. 620 (1996), the court said, “By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” In other words, a form of discrimination that’s not “rationally related to a legitimate state interest” will violate Equal Protection, even if it’s not based upon a suspect classification.
So, for example, your town can’t tax or regulate people who live in even-numbered houses differently than people who live in odd-numbered houses; it can’t tax or regulate short people differently than tall people; it can’t subject you to one set of building codes and your neighbor to another, and so forth. The permutations of irrationality are endless.
All of which means that the answer to Justice Scalia’s question – “When did it become unconstitutional to exclude homosexual couples from marriage?” – really turns on whether you believe there’s any rational basis for treating gay and straight couples differently in the first place. Because if not, then the Equal Protection Clause always prohibited that form of discrimination, whether or not the Court eventually decides that sexual orientation is a suspect classification.
While the Supreme Court has never addressed same sex marriage in the context of an equal protection challenge, it has, in fact, considered whether discrimination against gays and lesbians offends equal protection. In Roemer v. Evans, cited above, the Court found that Colorado’s Amendment 2, which prohibited local governments from passing anti-discrimination laws in favor of gay and lesbian people, failed even to meet the so-called “rational basis” test under the Fourteenth Amendment:
[E]ven in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority. In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. …
Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; “[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.” Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928).
Meaning that even though the Court has yet to determine that sexual orientation is a suspect classification in an of itself, the Court has held that the Equal Protection Clause prohibits irrational discrimination against gays and lesbians. And Justice Scalia knows that.
The appropriate question, then, is not “When did it become unconstitutional to exclude homosexual couples from marriage?” but this question, asked by Justice Sonia Sotomayor:
“Outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the government could make? Denying them a job, not granting them benefits of some sort, any other decision?”
To which Chuck Cooper, the lawyer tasked with defending Proposition 8 in the Supreme Court responded:
Your honor, I can not. I do not have anything to offer you in that regard.
That, Mr. Justice Scalia, is the threshold question. And you should know that.
For what it’s worth, I believe, as does the Obama Administration, that sexual orientation should be treated as a suspect classification for equal protection purposes. But if there isn’t even a rational basis for denying gay and lesbian couples marriage rights on the same terms as straight couples (spoiler alert: there’s not), then, a priori, laws denying those rights to gay and lesbian couples violate equal protection.