Urging the court not to decide the constitutionality of Proposition 8 in Hollingsworth v. Perry, Mr. McConnell argues that the “Supreme Court endangers its own legitimacy and exacerbates social conflict when it seeks to resolve moral-legal questions on which the country is deeply divided without a strong basis in the text of the Constitution.” His claim ignores that the Constitution’s text guarantees equal protection of the laws to all persons, a universal guarantee of equality that secures equal rights and forbids invidious discrimination against anyone.

The breadth of the Equal Protection Clause was no accident. While the Fourteenth Amendment was written in the aftermath of the end of slavery, its framers were determined to write into the Constitution the broad principle of equality contained in the Declaration of Independence. Indeed, in Prof. McConnell’s own scholarly writings, he has recognized the force of the text and history of the Fourteenth Amendment’s universal guarantee of equality, which, in his words, “introduce[d] a constitutional prohibition on invidious discrimination” and abolished “legally sanctioned inequality.”

Going back to the Constitution’s founding, it has been the duty and obligation of the courts to protect the individual rights guaranteed by the Constitution from denial or abridgment by the government. When governments discriminate against gay men and lesbians and treat them as second-class persons, unworthy of having their loving relationships recognized, it is the duty of the courts to stand as a bulwark for the Constitution’s guarantee of personal, individual rights and ensure to gay men and lesbians equal protection of the laws.

The Supreme Court should hold that the Constitution’s text demands marriage equality and invalidate both California’s Proposition 8 and the Defense of Marriage Act as a denial of the equal protection of the laws.

David Gans

Constitutional Accountability Center

Washington

(The Constitutional Accountability Center, in conjunction with the Cato Institute, recently submitted joint briefs in the marriage cases.)