The Supreme Court today is sharply divided along ideological lines over the meaning of the Fourteenth Amendment’s guarantee to all persons of the “equal protection of the laws” when it comes to discrimination on the basis of sex and sexual orientation.   Conservatives – most notably Justice Antonin Scalia – view the Equal Protection Clause as mainly, if not exclusively, about eliminating discrimination on the basis of race and often vote to permit other forms of discrimination. The Court’s liberal Justices, frequently led by Justice Ruth Bader Ginsburg, view the Clause as more broadly prohibiting all forms of invidious discrimination that has the effect of creating favored or disfavored classes and typically vote to strike down such discrimination.  In these cases, Justice Anthony Kennedy has often, but not always, sided with the Court’s liberal wing, providing a viable but uncertain foundation for protection against discrimination on the basis of sex and sexual orientation.

Read the latest Crossroads chapter on the Equal Protection Clause 

CAC is releasing this new Crossroads chapter in the midst of a flurry of activity in cases involving marriage equality.  Later today, we expect an order from the Ninth Circuit on the question of whether the full court will re-hear Perry v. Brown, in which a panel of the court struck down Proposition 8, an amendment to the California Constitution that denies gay men and lesbians the right to marry the person of their choice.  Last week, the First Circuit struck down a key part of the federal Defense of Marriage Act. In these two cases, leading federal appellate judges from different ideological perspectives — one from the left, another from the right — considered the constitutionality of marriage laws that discriminate against gay men and lesbians, and both came to generally the same conclusion: such laws violate the Equal Protection Clause.

These rulings set up a likely, and momentous, Supreme Court showdown. In equal protection cases decided over the last 60 years, the Supreme Court has held that the Constitution broadly guarantees equality to all persons and prohibits government actors from treating anyone as inferior persons. The question now, with these marriage cases getting closer to the Supreme Court, is whether the Justices will follow these basic equal protection principles or make an exception to them.