Who gets the equal protection of the laws in the United States?
Since the passage of the 14th Amendment to the Constitution in 1868, this has been a critical question in American jurisprudence. Do black people? The Supreme Court did not say so until 1954 in Brown v. Board of Education. Do women? Only since 1976, when the court declared that sex-based discriminations deserved a heightened level of judicial scrutiny in Craig v. Boren.
Do gays? We will know in 2013.
Last week, Justice Ruth Bader Ginsburg said in a question-and-answer session that the constitutionality of same-sex marriage bans would “most likely” be examined by the Court toward the end of the current term. There are two such bans currently awaiting review: Proposition Eight, which prohibits same-sex marriage in California, and the Defense of Marriage Act, which prevents the federal government from recognizing same-sex marriage in states where it is legal.
Reviewing DOMA presents a small risk for a moderate reward; if it is overturned, the federal government would acknowledge same-sex marriages only in states where they are legal. If upheld, the status quo would remain.
The challenge to Proposition Eight presents the bigger risk — and the greater potential for change. If the Court overturns it, it will declare every ban on same-sex marriage unconstitutional. But if the Court upholds it, it will set back the gay rights movement for a generation.
Many progressive commentators are calling for the Court to take on DOMA, not Prop Eight, to avoid the bigger risks that the proposition presents. The call for caution is understandable but hugely misguided. The Court should take on Prop Eight and overturn it. The Constitution does not grant equal protection by the law to some; it grants equal protection to all. Our Supreme Court must embrace that fact entirely, and it does no one any good to hedge on justice.
Constitutionally, both of these cases should be quite simple to resolve. The Court has recognized several “suspect classes” of citizens, like blacks and religious minorities, and proclaimed that laws discriminating against them are presumptively invalid. A state, in other words, must prove why such prejudiced laws further a compelling government interest. But the Court has refused to say whether gays deserve a heightened level of scrutiny. In Romer v. Evans, the Court ruled 6-3 that Colorado could not prevent its municipalities from passing anti-discrimination laws to protect gay people but vacillated on what level of scrutiny was applicable. In Lawrence v. Texas, Justice Kennedy proclaimed that Texas could not outlaw gay sex — but again wavered on scrutiny for gays.
In truth, however, it does not matter what level of scrutiny should be applied to laws discriminating against gay people. Any given law that targets a specific class of people — whether they’re considered a “suspect class” or not — must have a rational basis in furthering a legitimate government interest. And what rational basis could possibly exist in preventing gay couples from having their marriages recognized by the state? What is the government interest in discriminating against a class of people based exclusively on their identity?
The only justification for banning same-sex marriage is hatred with a touch of fear and misunderstanding. Should the Supreme Court uphold marriage bans, it will be endorsing a view of the law wholly antithetical to the foundations of the United States. We are not a country built on contempt for minorities, but a country based in tolerance for all. The 14th Amendment was designed to recognize that — to heal the grave wound of slavery and to bring the United States into a new era of equality. No longer, its framers declared, can different classes of Americans be treated unfairly under the law. No longer shall our Constitution discriminate between citizens on the basis of their identity.
Yet the Court waited nearly a century to strike down racial segregation on the basis of the 14th Amendment and did not extend a similar assurance of equality to women until decades after that. Equality comes slowly in America. But it does come.
No matter what judicial conservatives assert, it is clear that the Constitution gains meaning with societal growth. In theory, the guarantee “equal protection of the laws” is unambiguous. In practice, it has been ignored, twisted and willfully misconstrued in an effort to deny the promise of equality to all Americans. Now is the moment to right that wrong. The Supreme Court will, within the next nine months, have the opportunity to strike down the hateful, homophobic laws passed in 32 states and in Congress. Our Constitution demands nothing less.
The stakes may be high, but the reward is inestimable. Until same-sex marriage is affirmed, equal protection of the laws will remain an empty promise.
Mark Joseph Stern is a senior in the College. LETTERS OF THE LAW appears every other Tuesday.
