A central question in the legal debate over the constitutionality of laws that discriminate against gays and lesbians (such as the federal Defense of Marriage Act) turns on the appropriate standard a court should apply in deciding whether the government's interest in treating gays and lesbians differently from other Americans is sufficiently weighty to justify the discrimination.
The Equal Protection Clause of the Fourteenth Amendment, which provides that no state shall deny any person "the equal protection of the laws," is the relevant constitutional text. But what does it mean?
A simple interpretation might suggest that the government may never treat people differently. But that is an implausible understanding of the text. All laws treat people differently. Speed limit laws treat people who drive 75 miles per hour differently than those who drive 45 miles per hour. People who have gone to medical school can practice medicine; others cannot. Citizens can vote; aliens cannot. In-state college students pay a lower tuition than out-of-state college students. People over 65 receive certain benefits that are not available to people under 65. And so on.
Surely, the Equal Protection Clause cannot mean that all such laws are unconstitutional. Recognizing this, the Supreme Court has held that most laws that treat some people differently from others are constitutional if the difference in treatment rationally furthers a legitimate government interest. As illustrated by the examples noted above, almost all laws pass this test.
But this does not exhaust the meaning of the Equal Protection Clause. The primary goal of the Clause, which was enacted in the wake of the Civil War, was to prohibit laws that discriminate against African-Americans. To effectuate that purpose, the Supreme Court has held that laws that discriminate against African Americans violate the Equal Protection Clause unless they pass "heightened scrutiny" -- that is, unless the discrimination is necessary to further an important government interest.
But is heightened scrutiny limited only to laws that discriminate against African Americans? That would be odd, because the text says nothing about limiting its core protection to African Americans. Rather, the text is open-ended, and it is therefore reasonable to assume that discrimination against African Americans was seen not as a singular problem, but as a paradigmatic one. That is, it is the paradigm of a certain type of discrimination that is especially problematic under the Equal Protection Clause.
Applying this understanding, the Supreme Court has concluded that the proper application of the Clause requires the use of heightened scrutiny to test the constitutionality of laws that discriminate against African-Americans or that discriminate against other groups in society that are similar to African Americans for purposes of the Equal Protection Clause.
What, though, does it mean to be "similar to African Americans for purposes of the Equal Protection Clause"? The Supreme Court has looked to several factors. First, it considers whether the group has been subjected to a history of discrimination. This is relevant both because such a history suggests that there may be prejudices at work in society that can taint the fairness of the political process, and because it is particularly unfair to heap additional burdens on groups that have been systematically discriminated against in the past.
Second, the Court considers whether the group can effectively protect itself in the political process. If a group does not have that ability, then it is especially vulnerable to the pernicious effects of prejudice and intolerance.
Third, the Court considers whether the group is objectively different in some meaningful way that would logically justify treating its members differently than others. For example, it is sensible to treat people born with severe learning disabilities differently in some ways than others, but it is not sensible to assume that race is relevant to an individual's capacity to function fully in society.
Finally, the Court considers whether the group's status is immutable. That is, African Americans cannot change their race. Therefore, laws that discriminate against African Americans are particularly unjust, because it is unfair to disadvantage people for characteristics that are largely beyond their control.
Considering all these factors, the Supreme Court has concluded, for example, that laws that discriminate against ethnic minorities and women are sufficiently similar to laws that discriminate against African Americans to justify testing them by heightened scrutiny.
What, though, of gays and lesbian? How do they fare under this analysis? The first three criteria seem clear. There can be no doubt that gays and lesbians have been subjected to a long and often tragic history of discrimination -- even to the point that they were declared to be criminals. They are certainly a political minority, even more so than African Americans and women, and historically they have been particularly powerless politically because they were forced into the closet and were therefore effectively unable to represent their interests in the political process. And there is no reason to believe that gays and lesbians are any less able to function well in society than anyone else -- even to the point that they are now permitted to serve openly in the military.
The only criteria on which there is any question is the fourth, but there is a general consensus today that one's sexual orientation is not a matter of choice. Although there are those who dispute this proposition, the great weight of the evidence cuts the other way. If you are a heterosexual, imagine if you suddenly had to lead your life as a homosexual. All of your instincts would cut strongly in the opposite direction. You might be able to force yourself to engage in sex with people of the same sex, but it would seem wholly unnatural and, more importantly, you would continue (secretly) to be attracted to persons of the opposite sex, even if you could no longer legally act on those attractions. This is pretty much what sexual orientation means, and in its deepest sense the orientation itself seems to be beyond one's own control. One can (perhaps) change one's conduct, but not one's orientation.
Thus, like laws that discriminate against African Americans, ethnic minorities and women, laws that discriminate against gays and lesbians must be tested by heightened scrutiny under the Equal Protection Clause. And, as a practical matter, tested by that standard, it is difficult to think of any interest furthered by the Defense of Marriage Act that would enable that misguided law to pass constitutional muster.
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But now as it is, both state and federal governments have considered the individual right of the parents to divorce as being more important than the rights of the child. No surprise then, that the government now no longer sees the need to keep marriage 'marriage'.
Thank you.
you wrote: " In my opinion you aren’t harming Christians in their personal lives but you’re harming the fabric of overall society."If i am not hurting anyone, how am i harming society? Please be specific. You don't just get to say it. Let's have some proof. how does my living my life, with the same legal rights, protections, and responsibilities as heterosexuals, harm ANYONE? Yet denying me legal marriage does a great deal of demonstrable harm to me, my partner, and our families.
The homophobia of the world has done incalcuble harms to gay people for centuries, people who have done nothing to deserve it, except to be different. Do you want to talk about immorality, about crimes against nature? Let's talk about THAT immorality, the crimes against OUR natures.
A good argument couldbe made that homobigotry has hurt our society greatly,if, among many other things, it led to the disaster known as Bush II,
It's a sin not to believe in Jesus, according to numerous Christians. Shall we legally disadvantage Jews and Hindus the way you are willing to disadvantage gay people? Did not the immorality of the Jews in refusing to recognize Jesus lead to 2000 years of virulent anti-semitism,justified by religion?
and if you quote leviticus, don';t leave out the deathpenalty part. Unless, of course, you don't REALLY believe the word of god.
you're entitled to believe homosexuality is immoral, I actually have no problem, though I think it's silly, misinterpretation of scripture, wrongheaded, and ultimately very destructive to people you don't know, know nothing about, and who have done you no harm except to exist..
I am a tax paying, law abiding, productive, contributing member of society, well thought of by friends, colleagues, family, neighbors, and my pastor. I am in a stable long term relationship. We have seen each other through illness, crisis. My marriage benefits society in exactly the same way as any heterosexual's. Exactly how have i harmed society?
Homosexuality an assault on nature? Pure ignorance at best, unmitigated bias at worse. It has existed in every society for all time, been observed in thousands of species. It is normal and natural.
how does homophobia harm society? How many children were fed/educated for the $80Million spent on prop. 8? How many kids have been bullied into suicide? How many gay people have been attacked for the crime of walking down the street? The reality of childmolestation-- primarily in the family-- has been hidden by the belief that gay men are the abusers. How many soldiers died becuase of DADT and no arabic translators?
"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."
There is little doubt why loving was decided 9-0.
The REAL reason is that it was just too obvious to all the justices, that the RIGHT to marriage was the right for any man to marry any woman, and has nothing to do with the race of either man or woman. But it is undeniable (though you deny it), that the justices really did base their argument on the fact that they were man and woman. Otherwise ALL their passages about marriage being such a fundamental right would have been legally groundless.
That, too, would be baloney because of the sample size and the potential confusion of correlation and causation. However, in this debate there's enough cold cuts floating around to feed Somalia for a decade at least. Not to mention hyperbole ;-)
The purpose of DOMA is to destroy "full faith and credit" without appearing to destroy full faith and credit and to do so explicitly and solely as it applies to gay people. Thus all marriages consummated in Massachusetts are valid in Mississippi except the ones that Mississippi doesn't like. - the gay ones. It is odious and discriminatory per se.
Yep, you got it. None.
Clinton did what he HAD to do, otherwise the congress back then would have amended the U.S. Constitution to ban marriage from gay people. If that had happened, then even the U.S. Supreme Court would not be able to strike it down, and there would be absolutely NO marriage equality in ANY state until a later congress repealed it with 2/3 majority in both houses and 3/4 of the state legislatures. So DOMA was the lesser of two evils, because with a constitutional amendment in place the first gay people to get married would probably not have even been born yet.
Christians have always been in the legal and political arena. Perhaps you've heard of the Scopes Monkey trial, for example? Prohibition? The idea that they are only entering it now is simply, again, completely ahistorical.
"Whatsoever you do to the least of my brothers, that you do unto me."
Just sayin'.
He may actually be onto something. I know that the only reason my partner of 30 years and I wish to get married is to cause anarchy.
Now, where's that "sarcasm" button?