The Equal Protection Clause of the Fourteenth Amendment prohibits the sort of irrational discrimination sanctioned by Proposition 8 and other state statutes and ballot initiatives that prohibit same-sex marriage. It is an inescapable truth.
For all the bromides about pausing while the country evolves on same-sex marriage, or waiting until more “sociological information” (as Justice Kennedy so helpfully put it) is available, laws banning same-sex marriage give homophobia the force of law, and treat gays and lesbians differently than everybody else based on nothing more than an “ick” factor. It is animus at its most vulgar, and it is exactly the sort of animus that the Fourteenth Amendment, which states “No State shall … deny to any person within its jurisdiction the equal protection of the laws” proscribes.
Same-sex marriage bans are not long for this world, however. Much in the way that we scoff at the notion that mixed-race couples should be prevented from marrying in order to preserve racial integrity, so, too, will we laugh at the notion that same-sex marriage somehow undermines or degrades so-called “traditional marriage.”
At the outset, “traditional marriage” is an untenable concept. The Christian historical view of the one man, one woman “traditional marriage” is a social construct based upon outdated and gendered stereotypes of the purpose of marriage, which views men as breadwinners and women as homemakers and child-rearers. Social constructs, by their very nature, are given to change. The obsession with “tradition” simply allows a majority to withhold rights from a minority simply because “that’s what we’ve always done.” But, “we’ve been doing it this way for a while” is an absurd argument for continuing to treat gay couples as if they are inferior to straight couples just because. The Ninth Circuit made this exact point in its ruling in Hollingsworth v. Perry:
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Tradition is a legitimate consideration in policymaking, of course, but it cannot be an end unto itself . . . . A preference for the way things were before same-sex couples were allowed to marry, without any identifiable good that a return to the past would produce, amounts to an impermissible preference against same-sex couples themselves, as well as their families.
Absent any legitimate purpose for Proposition 8, we are left with the ‘inevitable inference that the disadvantage imposed is born of animosity toward,’ or, as is more likely with respect to Californians who voted for the Proposition, mere disapproval of, ‘the class affected.’ Romer, 517 U.S. at 634. We do not mean to suggest that Proposition 8 is the result of ill will on the part of the voters of California . . . . Disapproval may also be the product of longstanding, sincerely held private belief.
To avoid the inescapable truth that same-sex marriage bans are borne of animus and homophobia, opponents of same-sex marriage latch on to procreation as if the inability of gay couples to reproduce “naturally” somehow immunizes same-sex marriage from proscriptions of the Equal Protection Clause. “The point of marriage is procreation!,” opponents of same-sex marriage cry. “We’re not homophobic, we’re traditionalists!,” they yell, as they sputter to explain why, then, they don’t support prohibiting marriage between elderly couples and infertile couples.
Their attempts to make sense of their own nonsense leads to ridiculous theater like that which played out during the Hollingsworth v. Perry hearing, as Justice Kagan asked Charles Cooper, the attorney tasked with defending Proposition 8, to make a case for excluding gays and lesbians from marriage but not, for example, 55-year olds. Cooper’s response was absurd:
Your Honor, even with respect to couples over the age of 55, it is very rare that both couples — both parties to the couple are infertile… society’s interest in responsible procreation isn’t just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation…
You know, because same-sex couples don’t hold the obligations of fidelity and monogamy as dearly as say, Newt Gingrich or Bill Clinton do.
Another line of questioning, this time from Justice Sotomayor, lead to similar absurd results:
“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?”
Cooper responded, “Your Honor, I cannot.” Cooper tried to undercut this stunning admission by offering platitudes about society’s interest in “responsible procreation,” but ultimately there is nothing special about marriage in California specifically (since gay couples can adopt) that makes it acceptable to discriminate against gays and lesbians when it would be unacceptable, as Cooper admitted, to discriminate in every other context. It’s a tricky thing, trying to make excuses for why gays shouldn’t be allowed to marry without coming right out and saying, “It grosses me out. Ew.”
Finally, a protracted exchange between Ted Olson, the attorney for the parties challenging Proposition 8 and Justice Scalia further illustrated the absurdity underlying the argument for maintaining discrimination against gay couples simply because we’ve always discriminated against gay couples. After making the incredible claim that Petitioners—who brought suit based upon California policy— were asking the Court to adjudicate the constitutionality of same-sex marriage nationwide (a notion of which Justice Ginsburg quickly disabused Scalia), Scalia argued, nonsensically, that he couldn’t decide the case unless Olson first explained when banning gay marriage became unconstitutional:
“When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?”
Olson answered Scalia’s rhetorical question with a rhetorical question of his own:
“When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?”
When pressed further, Olson responded that sexual orientation became unconstitutional when we, as a culture, said so.
And that’s precisely the point. As society evolved and began to view homosexuality not as a disease, but as an immutable characteristic (like race or sex) so, too, did calls for equal protection for gays and lesbians under the law. As societal views on groups against which discrimination is acceptable evolves and changes, the Equal Protection Clause evolves and changes, too. We cannot continue to discriminate against a class of citizens simply because we’ve always discriminated against that class of citizens, nor does the Equal Protection Clause contemplate clinging to such discrimination.
For example, the framers did not intend for the Equal Protection Clause as drafted to sanction interracial marriage, but by 1967, when Loving v. Virginia landed in the Supreme Court, the Court, applying strict scrutiny, found that prohibiting interracial marriage was invidious discrimination and unconstitutional. Should the Court decide to apply some standard more heightened than rational review (intermediate scrutiny, which is applied to gender classifications, for example) in Hollingsworth v. Perry, then Proposition 8 fails, and all same sex marriage bans likely do as well. I cannot fathom any “exceedingly persuasive justification” for prohibiting gay couples from marrying. Should the Court decide, however, that rational review applies, Proposition 8 should still fail because in California, the stated interest (procreation) becomes moot since gay couples in California are permitted to adopt. (Other state bans may pass muster under a rational review test, depending upon a particular state’s existing practices with respect to same-sex couples and adoption.)
Irrespective of the standard of scrutiny applied, however, I doubt that anti-equality proponents will be able to argue their way around Loving v. Virginia. During oral arguments, Cooper tried. He valiantly attempted to distinguish between interracial marriage and same-sex marriage, but his arguments failed. He claimed that unlike interracial couples and same-race couples, same-sex couples and opposite-sex couples are not indistinguishable “for every legitimate purpose of marriage,” because same-sex couples can’t reproduce naturally. (Notably, the standard for marriage seems to be biological reproductive capability, and not the more general “desire to form a family unit.” Such a narrow standard disparages single mothers and fathers, parents who choose to adopt, and married couples who choose not to have children, whether because they don’t want to or because they can’t.)
Cooper’s claims aside, the threshold question remains unanswered: Is a state’s interest in “responsible procreation” a legitimate purpose such that any couples that cannot meet their “procreative responsibilities” can rightfully be excluded from marriage? Where is the harm in allowing gay couples to marry? Or, as Justice Kagan put it, “Is there any reason you have for excluding them?” (Cooper, again, valiantly tried to answer that question, fretting about unforeseen adverse consequences of gay marriage, but those arguments fail, too. After all, same-sex marriage has been legal in the Netherlands for more than a decade, and Dutch civilization hasn’t collapsed under the weight of original sin.)
Quite simply, just as the court in Loving found “patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification,” so too, I hope, will the Supreme Court find that there is no legitimate overriding purpose for subjecting gays and lesbians to invidious discrimination based on sexual orientation, because, ultimately, once you chip away at marriage equality opponents’ arguments against same-sex marriage, you’re left with nothing but “because it’s gross.” And at the end of the day, “Ewww” is not a reason to deny an entire class of citizens a fundamental right.