Equal Protection (Nov. 2005)

Because of several conversations and a very satisfying Con Law class last night, I feel better about the state of gay America than I have in a long time. What those conversations and class provided was a chance to put the plight of non-heterosexual Americans in some sort of historical perspective… and when you know where you’ve been, you can get a better idea of where you need to go.

First, some definition of terminology. Here is the Equal Protection Clause of the United States Constitution in its entirety:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.

In other words, the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances. A violation would occur, for example, if a state prohibited an individual from entering into an employment contract because he or she was a member of a particular race. The equal protection clause is not intended to provide “equality” among individuals or classes but only “equal application” of the laws.

One might wonder why we have to make additional laws to reinforce an equality that the Constitution inherently provides… I don’t have a legal answer for this, but an emotional one. When you’re feeling marginalized, it’s hard not to pass on that marginalization. The Puritans came to America and from the moment they landed on Plymouth Rock, they marginalized the people who already lived here. It is a vicious, vicious cycle. And don’t think for a moment we’ve broken it, either. Whenever you start to believe that the GLBT community is radically inclusive, think about just how long it took for the Human Rights Campaign to support transgendered persons. We all have our prejudices, and there are only a few instances that the Supreme Court has said it is acceptable to write them into law, e.g. to keep prisoners from starting race-based riots.

Laws may be found discriminatory in two different ways. De facto discrimination is a law that is facially neutral, but discriminatory when applied. A concrete example of this would be the separate but equal doctrine set up in Plessy vs. Ferguson. The law was meant to be neutral, but in fact set up even greater disparity between blacks and whites when it was enacted. De jure discrimination is a law that is specifically written to discriminate, such as the Jim Crow laws enacted in the South from the 1880’s to the 1960’s.

Laws can be struck down as discriminatory under the Equal Protection Clause if a minority is considered a suspect class. A suspect class is a group of people that has a history of being discriminated against, and a small percentage of the population so as to limit their ability to defend themselves against the majority. Therefore, they are entitled to stricter levels of scrutiny by the court. The Supreme Court has extended the suspect classification to racial minorities, but have been hesitant to do so with women… most likely because even though there has been a history of discrimination against them, population-wise they are not a minority.

Perhaps I should back up just a few steps and explain what is meant by “strict scrutiny.” With both de facto and de jure discrimination, there are two tiers of jurisprudence. The lowest level is called rational basis. Rational basis means that the government has to provide a good reason as to why it is ok to discriminate, and there are certain instances- such as the aforementioned prison scenario. The second level is called strict scrutiny, and the government’s burden of proof is much, much more complicated. Not only does the reason for discrimination have to be rational, but a compelling governmental interest… and the law must be narrowly tailored to support it. If sexual orientation is found to be a suspect class, then we would be entitled to have laws that discriminate against us looked at under the microscope of strict scrutiny, and a whole host of laws that previously kept us from having the same rights, tax advantages, etc. as heterosexual couples would be struck down.

Though I know of no specific lobbying groups for the inclusion of the GLBT community as a suspect class, I do know that the Supreme Court has protected non-heterosexual Americans under the lowest rational basis review. In Lawrence v. Texas, the Court struck down a statute prohibiting homosexual sodomy on substantive due process grounds. In Justice O’Connor’s opinion, she argued that by prohibiting only homosexual sodomy, and not heterosexual sodomy as well, Texas’s statute did not meet rational basis review under the Equal Protection Clause.

Looking at the way that laws are reviewed and knowing more about the judicial history of other groups that have historically faced discrimination has helped me to breathe a little easier… and to know that even though the work is progressing slowly, it is going forward. In fact, I just have to laugh at all the separate but equal options are being offered to the GLBT community, like civil unions. Haven’t we been there, done that, and bought the t-shirt? Can’t we just skip all that and get to the “happily ever after?” According to the Religious Right, probably not… but at least if history repeats itself, I know there’s a happy ending somewhere.

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