Analysis Sexuality

Same-Sex Marriage Bans Violate the Equal Protection Clause. End of Story

Imani Gandy

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 arguments against same-sex marriage, you’re left with nothing but “because it’s gross.” And “Ewww” is not a reason to deny an entire class of citizens a fundamental right.

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 The Christian historical view of the one man, one woman “traditional marriage” is a social construct based upon outdated and gendered stereotypes of the purpose of marriage, which views men as breadwinners and women as homemakers and child-rearers.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.

Analysis Politics

Donald Trump and Mike Pence: The Anti-Immigrant Ticket

Tina Vasquez

“My greatest fear is that this ticket doesn’t seem to realize immigrants are actually an incredible resource that fuels our country," Wendy Feliz of the American Immigration Council told Rewire.

On Friday, Republican presidential candidate Donald Trump announced Indiana Gov. Mike Pence as his running mate, giving legitimacy to concerns a Trump presidency would be anti-choice and decimate LGBTQ rights. As Rewire reported last week, Pence has voted against nondiscrimination efforts, signed a so-called religious freedom bill, opposed marriage equality, and attemptednumerous times—to defund Planned Parenthood, something Trump has promised to do if elected president.

But the two Republicans also have something else in common: They are brazenly anti-immigrant.

Despite a misleading article from the Daily Beast asserting that Pence has had a “love affair with immigration reform” and has “spent his political career decrying anti-immigrant rhetoric,” the governor’s record on immigration tells a different story.

Let’s take a look at Trump’s “xenophobic” and “racist” campaign thus far, and how closely Pence’s voting aligns with that position.

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Donald Trump

For months it seemed, Donald Trump’s talking points in the media rarely drifted away from anti-immigrant rhetoric. During his kickoff speech, he referred to Mexican immigrants as “rapists” and “killers” and in the months since, has promised to build a 2,000-mile-long wall along the United States-Mexico border to keep “illegals” out, a wall the billionaire has promised that Mexico will pay for.

Despite being called “racist” by members of his own party, Trump’s immigration plan is largely consistent with what many Republicans have called for: a larger border wall, increasing the number of Immigration and Customs Enforcement (ICE) officers, requiring all U.S. companies to use E-Verify to check the immigration status of employees, increasing the use of detention for those who are undocumented and currently residing in the United States, and ending “birthright citizenship,” which would mean the U.S.-born children of undocumented parents would be denied citizenship.

Again, Trump’s proposed immigration policies align with the Republican Party’s, but it is the way that he routinely spreads false, damaging information about undocumented immigrants that is worrisome. Trump has repeatedly said that economically, undocumented immigrants are “killing us by “taking our jobs, taking our manufacturing jobs, taking our money.” 

Market Watch, a publication focusing on financial news, reported that this falsehood is something that a bulk of Trump supporters believe; two-thirds of Trump supporters surveyed in the primaries said they feel immigration is a burden on our country “because ‘they take our jobs, housing and health care.'” This, despite research that says deporting the 11 million undocumented immigrants who currently call the United States home would result in a “massive economic hit” for Trump’s home state of New York, which receives $793 million in tax revenue from undocumented immigrants. A recent report by the Institute on Taxation and Economic Policy also found that at the state and local level, undocumented immigrants nationwide collectively pay an estimated $11.6 billion each year in taxes.

Trump has also been accused by Muslim Americans and members of the media of engaging in “reckless, dangerous Islamophobia” at every opportunity, using terrorist attacks to call for a ban on all Muslim immigration, while also using terrorism in a self-aggrandizing manner. In a statement released after the Pulse nightclub shooting, Trump said, “I said this was going to happen.”

These dangerous assertions that all U.S.-based Muslims are secretly harboring terrorists or that undocumented immigrants are killing “thousands of peoplea narrative he continued to push at the Republican National Convention by having the families of three Americans killed by undocumented people speak—can be deadly and inspire hatred and violence. This was made all the more clearer when in August 2015 two white brothers cited Trump when they urinated on and beat a homeless Latino man. According to Huffington Post, the men “alegedly [sic] told police they targeted the man because of his ethnicity and added, ‘Donald Trump was right, all these illegals need to be deported.’” Trump’s response? He said that his supporters are simply “passionate” people who want America “to be great again.”

Mike Pence

Wendy Feliz, a spokesperson with the American Immigration Council, succinctly summarized Pence’s immigration approach to Rewire, saying on Monday that he “basically falls into a camp of being more restrictive on immigration, someone who looks for more punitive ways to punish immigrants, rather than looking for the positive ways our country can benefit from immigrants.”

After Trump’s announcement that Pence would be his running mate, Immigration Impact, a project of the American Immigration Council, outlined what voters should know about Pence’s immigration record:

Pence’s record shows he used his time in Congress and as the Governor of Indiana to pursue extreme and punitive immigration policies earning him a 100 percent approval rating by the anti-immigration group, Federation for American Immigration Reform.

In 2004 when Pence was a senator, he voted for the “Undocumented Alien Emergency Medical Assistance Amendments.” The bill failed, but it would have required hospitals to gather and report information on undocumented patients before hospitals could be reimbursed for treating them. Even worse, the bill wouldn’t have required hospitals to provide care to undocumented patients if they could be deported to their country of origin without a “significant chance” of their condition getting worse.

Though it’s true that in 2006 Pence championed comprehensive immigration reform, as the Daily Beast reported, the reform came with two caveats: a tightening of border security and undocumented immigrants would have to “self-deport” and come back as guest workers. While calling for undocumented immigrants to self-deport may seem like the more egregious demand, it’s important to contextualize Pence’s call for an increase in border security.

This tactic of calling for more Border Patrol agents is commonly used by politicians to pacify those opposed to any form of immigration reform. President Obama, who has utilized more border security than any other president, announced deferred action for the undocumented in June 2012, while also promising to increase border security. But in 2006 when Pence was calling for an increase in border security, the border enforcement policy known as “Operation Gatekeeper” was still in full swing. According to the American Civil Liberties Union (ACLU), Operation Gatekeeper “concentrated border agents and resources along populated areas, intentionally forcing undocumented immigrants to extreme environments and natural barriers that the government anticipated would increase the likelihood of injury and death.” Pence called for more of this, although the undocumented population expanded significantly even when border enforcement resources escalated. The long-term results, the ACLU reported, were that migrants’ reliance on smugglers to transport them increased and migrant deaths multiplied.

There are more direct ways Pence has illustrated a xenophobic agenda, including co-sponsoring a congressional bill that would have made English the official language of the United States and as governor, blocking Syrian refugees en route to Indiana, saying he would not accept any more Syrian refugees out of fear they were “terrorists.” The governor also added Indiana to the Texas lawsuit challenging expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). And he praised the inaction by the Supreme Court last month to expand DACA and DAPA, which leaves millions of undocumented immigrants living in fear of deportation.

According to the Office of Refugee Resettlement, “when a child who is not accompanied by a parent or legal guardian is apprehended by immigration authorities, the child is transferred to the care and custody of the Office of Refugee Resettlement (ORR). Federal law requires that ORR feed, shelter, and provide medical care for unaccompanied children until it is able to release them to safe settings with sponsors (usually family members), while they await immigration proceedings.”

The ORR added that these sponsors “live in many states,” including Indiana, which received 245 unaccompanied minors between January and July 2014. Pence was reportedly unaware that unaccompanied minors were being placed in his state by the federal government, something he said he was made aware of by media reports. These are asylum seeking children, often girls under the age of 10, escaping violence in their countries of origin who arrive at the United States-Mexico border without an adult. Many, including advocacy organizations and the Obama administration, have contended that the circumstances surrounding unaccompanied minors is not simply an immigration issue, but a humanitarian crisis. Not Pence. In a letter to President Obama, the Indiana governor wrote:

While we feel deep compassion for these children, our country must secure its borders and provide for a legal and orderly immigration process …. Failure to expedite the return of unaccompanied children thwarts the rule of law and will only continue to send a distorted message that illegally crossing into America is without consequence.

In the four days since Pence was named Trump’s running mate, he’s also taken a much harsher stance on Muslim immigration. Back in December when Trump called for a “total and complete shutdown of Muslims entering the United States,” Pence tweeted that banning Muslims from entering the United States was “offensive and unconstitutional.” However, on Friday when Pence was officially named Trump’s VP pick, he told Fox News’ Sean Hannity, “I am very supportive of Donald Trump’s call to temporarily suspend immigration from countries where terrorist influence and impact represents a threat to the United States.”

Wendy Feliz of the American Immigration Council told Rewire that while Pence’s rhetoric may not be as inflammatory as Trump’s, it’s important to look at his record in relation to Trump’s to get a better understanding of what the Republican ticket intends to focus on moving into a possible presidency. Immigration, she said, is one of the most pressing issues of our time and has become a primary focus of the election.

“In a few days, we’ll have a better sense of the particular policies the Republican ticket will be pursuing on immigration. It all appears to point to more of the same, which is punitive, the punishing of immigrants,” Feliz said. “My greatest fear is that this ticket doesn’t seem to realize immigrants are actually an incredible resource that fuels our country. I don’t think Trump and Pence is a ticket that values that. An administration that doesn’t value immigrants, that doesn’t value what’s fueled our country for the past several hundred years, hurts all of us. Not just immigrants themselves, but every single American.”

Culture & Conversation Abortion

With Buffer Zones and Decline of ‘Rescues’ Came Anti-Choice Legal Boom, Book Argues

Eleanor J. Bader

University of Denver's Joshua Wilson argues that prosecutions of abortion-clinic protesters and the decline of "rescue" groups in the 1980s and 1990s boosted conservative anti-abortion legal activism nationwide.

There is nothing startling or even new in University of Denver Professor Joshua C. Wilson’s The New States of Abortion Politics (Stanford University Press). But the concise volume—just 99 pages of text—pulls together several recent trends among abortion opponents and offers a clear assessment of where that movement is going.

As Wilson sees it, anti-choice activists have moved from the streets, sidewalks, and driveways surrounding clinics to the courts. This, he argues, represents not only a change of agitational location but also a strategic shift. Like many other scholars and advocates, Wilson interprets this as a move away from pushing for the complete reversal of Roe v. Wade and toward a more incremental, state-by-state winnowing of access to reproductive health care. Furthermore, he points out that it is no coincidence that this maneuver took root in the country’s most socially conservative regions—the South and Midwest—before expanding outward.

Wilson credits two factors with provoking this metamorphosis. The first was congressional passage of the Freedom of Access to Clinic Entrances (FACE) Act in 1994, legislation that imposed penalties on protesters who blocked patients and staff from entering or leaving reproductive health facilities. FACE led to the establishment of protest-free buffer zones at freestanding clinics, something anti-choicers saw as an infringement on their right to speak freely.

Not surprisingly, reproductive rights activists—especially those who became active in the 1980s and early 1990s as a response to blockades, butyric acid attacks, and various forms of property damage at abortion clinics—saw the zones as imperative. In their experiences, buffer zones were the only way to ensure that patients and staff could enter or leave a facility without being harassed or menaced.

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The second factor, Wilson writes, involved the reduced ranks of the so-called “rescue” movement, a fundamentalist effort led by the Lambs of Christ, Operation Rescue, Operation Save America, and Priests for Life. While these groups are former shadows of themselves, the end of the rescue era did not end anti-choice activism. Clinics continue to be picketed, and clinicians are still menaced. In fact, local protesters and groups such as 40 Days for Life and the Center for Medical Progress (which has exclusively targeted Planned Parenthood) negatively affect access to care. Unfortunately, Wilson does not tackle these updated forms of harassment and intimidation—or mention that some of the same players are involved, albeit in different roles.

Instead, he argues the two threads—FACE and the demise of most large-scale clinic protests—are thoroughly intertwined. Wilson accurately reports that the rescue movement of the late 1980s and early 1990s resulted in hundreds of arrests as well as fines and jail sentences for clinic blockaders. This, he writes, opened the door to right-wing Christian attorneys eager to make a name for themselves by representing arrested and incarcerated activists.

But the lawyers’ efforts did not stop there. Instead, they set their sights on FACE and challenged the statute on First Amendment grounds. As Wilson reports, for almost two decades, a loosely connected group of litigators and activists worked diligently to challenge the buffer zones’ legitimacy. Their efforts finally paid off in 2014, when the U.S. Supreme Court found that “protection against unwelcome speech cannot justify restrictions on the use of public streets and sidewalks.” In short, the decision in McCullen v. Coakley found that clinics could no longer ask the courts for blanket prohibitions on picketing outside their doors—even when they anticipated prayer vigils, demonstrations, or other disruptions. They had to wait until something happened.

This, of course, was bad news for people in need of abortions and other reproductive health services, and good news for the anti-choice activists and the lawyers who represented them. Indeed, the McCullen case was an enormous win for the conservative Christian legal community, which by the early 2000s had developed into a network united by opposition to abortion and LGBTQ rights.

The New States of Abortion Politics zeroes in on one of these legal groups: the well-heeled and virulently anti-choice Alliance Defending Freedom, previously known as the Alliance Defense Fund. It’s a chilling portrait.

According to Wilson, ADF’s budget was $40 million in 2012, a quarter of which came from the National Christian Foundation, an Alpharetta, Georgia, entity that claims to have distributed $6 billion in grants to right-wing Christian organizing efforts since 1982.

By any measure, ADF has been effective in promoting its multipronged agenda: “religious liberty, the sanctity of life, and marriage and the family.” In practical terms, this means opposing LGBTQ inclusion, abortion, marriage equality, and the right to determine one’s gender identity for oneself.

The group’s tentacles run deep. In addition to a staff of 51 full-time lawyers and hundreds of volunteers, a network of approximately 3,000 “allied attorneys” work in all 50 states to boost ADF’s agenda. Allies are required to sign a statement affirming their commitment to the Trinitarian Statement of Faith, a hallmark of fundamentalist Christianity that rests on a literal interpretation of biblical scripture. They also have to commit to providing 450 hours of pro bono legal work over three years to promote ADF’s interests—no matter their day job or other obligations. Unlike the American Bar Association, which encourages lawyers to provide free legal representation to poor clients, ADF’s allied attorneys steer clear of the indigent and instead focus exclusively on sexuality, reproduction, and social conservatism.

What’s more, by collaborating with other like-minded outfits—among them, Liberty Counsel and the American Center for Law and Justice—ADF provides conservative Christian lawyers with an opportunity to team up on both local and national cases. Periodic trainings—online as well as in-person ones—offer additional chances for skill development and schmoozing. Lastly, thanks to Americans United for Life, model legislation and sample legal briefs give ADF’s other allies an easy way to plug in and introduce ready-made bills to slowly but surely chip away at abortion, contraceptive access, and LGBTQ equality.

The upshot has been dramatic. Despite the recent Supreme Court win in Whole Woman’s Health v. Hellerstedt, the number of anti-choice measures passed by statehouses across the country has ramped up since 2011. Restrictions—ranging from parental consent provisions to mandatory ultrasound bills and expanded waiting periods for people seeking abortions—have been imposed. Needless to say, the situation is unlikely to improve appreciably for the foreseeable future. What’s more, the same people who oppose abortion have unleashed a backlash to marriage equality as well as anti-discrimination protections for the trans community, and their howls of disapproval have hit a fever pitch.

The end result, Wilson notes, is that the United States now has “an inconstant localized patchwork of rules” governing abortion; some counties persist in denying marriage licenses to LGBTQ couples, making homophobic public servants martyrs in some quarters. As for reproductive health care, it all depends on where one lives: By virtue of location, some people have relatively easy access to medical providers while others have to travel hundreds of miles and take multiple days off from work to end an unwanted pregnancy. Needless to say, this is highly pleasing to ADF’s attorneys and has served to bolster their fundraising efforts. After all, nothing brings in money faster than demonstrable success.

The New States of Abortion Politics is a sobering reminder of the gains won by the anti-choice movement. And while Wilson does not tip his hand to indicate his reaction to this or other conservative victories—he is merely the reporter—it is hard to read the volume as anything short of a call for renewed activism in support of reproductive rights, both in the courts and in the streets.