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The naive reader of the U.S. Constitution might see the equal protection clause of the Fourteenth Amendment (“nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws”), and presume that these words are themselves to be applied equally to all persons, whatever their circumstances. If the modern Supreme Court is to be followed as our authoritative guide, however, that presumption would be incorrect. There are, one might say, three different equal protection clauses. And the group to which one belongs will determine which of them is put to use.

Described this way, the practice looks hard to defend. But the trouble may begin with the clause itself. The “equal protection of the laws” cannot really be taken to mean “the law shall make no distinctions among persons,” for the making of some such distinctions is unavoidable in the law. Children and adults, men and women, citizens and aliens, the healthy and the sick, the rich and the poor”all of these are treated differently in some respects (though not in all), and few will complain that some abstract “equality” norm has been traduced in every case.

And so the modern courts have muddled through by developing three different “levels of scrutiny” for equal protection analysis, from most to least stringent: strict scrutiny, intermediate (or “heightened” scrutiny), and rational basis review. The first is the hardest test for a legislature to pass, and is applied to groups identified as a “suspect class.” Race is the paradigmatic category here, and the courts have added “alienage” (foreign citizenship) and national origin to this level of scrutiny as well. To defend a law employing such distinctions, a state must bear the burden of showing a “compelling interest,” and employ means “narrowly tailored” to achieving that interest. It is, and should be, hard to defend a law that favors and disfavors persons based on race or ethnicity.

At the next level of heightened scrutiny, we find “quasi-suspect classes” like “gender” and “illegitimacy.” Here the discriminating policies must be defended as “substantially” related to an “important interest” of the state. This is still an exceedingly muddy area of equal protection law, and it is hard to say how much of the probative burden is carried by the state, and how much by the party that complains of its policy. But in recent years”as when Virginia Military Institute was forced to give up all-male education in 1995”this intermediate scrutiny has been tantamount to the most stringent test.

All other state policies are subject to rational basis review, where the burden is largely on the challenging party, and all the state need show is that its policy of favoring some over others has some rational relationship to a merely “legitimate” governmental interest.

In recent same-sex marriage cases, those who seek to overturn traditional marriage laws have tried to persuade courts to treat homosexuals as a suspect or quasi-suspect class, thus leveraging the legal analysis into one of the harder levels of scrutiny, or at least an “intensified” rational basis review, and improving their chances of victory. Two recent decisions by federal district court judges in the Ninth Circuit”one in Hawaii by Judge Alan Kay on August 8, the other in Nevada by Judge Robert Jones on November 26”have rejected this gambit, rightly holding that laws restricting marriage to one man and one woman need only be shown to have an ordinary rational basis, that this is easily shown, and that they involve no invidious discrimination.

These decisions have blocked three roads to the enjoyment of a heightened judicial solicitude. (Both cases are being appealed, and neither is ripe for Supreme Court review in the present term. But the judges’ opinions are worthy of examination by the justices in the cases they are now pondering.) The first approach claimed that a law telling people they cannot marry another of the same sex is a form of “gender discrimination” meriting intermediate scrutiny. No, said the judges in these cases: Men and women are treated equally by such laws, and the discrimination turns not on gender but (at most) on sexual orientation.

The second approach was to claim that homosexuality is an immutable and defining characteristic, such that gays and lesbians have a history of being discriminated against, sufficient to raise their stature as a suspect class in the eyes of judges. Again, not so, said the judges in Hawaii and Nevada. Under governing Ninth Circuit precedent, never yet contradicted by the Supreme Court, homosexuality has been regarded as a behavioral characteristic, not an immutable one like race. And whatever discrimination gays and lesbians have suffered diminishes day by day, obviating the need for special judicial attention to their claims.

And this overlaps with the third and final approach, in which same-sex marriage advocates claim that gays and lesbians are politically powerless, unable to make headway in the normal channels of democratic decision-making at the polls and in legislatures, thus needing the aid of the judiciary. As Judge Jones noted in the Nevada case, this claim is refuted by recent history. The president of the United States opposes the Defense of Marriage Act and favors same-sex marriage. Legislatures in some states have established same-sex marriage, and in other states, civil unions. Moreover, Jones noted, the people of four states went to the polls in November to decide this question”and we know what the result was.

Perhaps it is something of a paradox that as their political clout grows stronger , the constitutional claims of same-sex marriage advocates become weaker. But if powerlessness is a legitimate variable in judicial decision-making, it is hard to gainsay the view of Judge Jones:

The question of “powerlessness” under an equal protection analysis requires that the group’s chances of democratic success be virtually hopeless, not simply that its path to success is difficult or challenging because of democratic forces . . . . The relevant consideration is the group’s “ability to attract the attention of the lawmakers,” an ability homosexuals cannot seriously be said not to possess.

Of course the advocates of same-sex marriage will continue to press their case in courts of law. They would rather convince five justices of the Supreme Court to impose their agenda on the country than try convincing the country itself. And notwithstanding their November victories, they are still leery of democracy in much of the country, even in blue New Jersey, where they have rejected a referendum idea floated by Governor Chris Christie.

But Judge Kay and Judge Jones are quite right. It is ludicrous to call gays and lesbians an oppressed and powerless minority in the United States at the end of 2012. This fact should weigh heavily in the Supreme Court’s deliberations.

Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.


Abercrombie v. Jackson (U.S. District Court, Hawaii, August 8, 2012)

Sevcik v. Sandoval (U.S. District Court, Nevada, November 26, 2012)

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