The Constitution at a Crossroads

The Meaning of Equal: Does the Constitution Prohibit Discrimination on the Basis of Gender and Sexual Orientation? | Chapter 8

With Perry’s challenge to Proposition 8 and Gill’s challenge to the federal provisions of DOMA closer than ever to Supreme Court review, and with the Justices deeply divided about the meaning of the equal protection guarantee, the Constitution’s promise of equality for all persons is at a crossroads.


“Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”

~ Justice Antonin Scalia

“What [the framers of the 14th Amendment] were getting at, basically, and you will find this popping up again and again in the legislative record, they were against caste. They did not want the United States to have any classes or castes that would identify people by their birth status.”

~ Justice Ruth Bader Ginsburg

As these two recent statements by sitting Justices indicate, the Supreme Court is bitterly divided along ideological lines over the meaning of the Fourteenth Amendment’s guarantee to all persons of the “equal protection of the laws.” Conservatives, most notably Justice Antonin Scalia, view the Equal Protection Clause as mainly, if not exclusively, about eliminating discrimination on the basis of race; hence, they 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 or castes. This disagreement about the meaning of the Equal Protection Clause has resulted in sharply divided rulings over whether
the Equal Protection Clause limits state-sponsored discrimination on the basis of sex and sexual orientation. In these cases, Justice Anthony Kennedy has often, but not always, sided with the Court’s liberal wing, providing a viable but somewhat uncertain foundation for protection against discrimination on the basis of sex and sexual orientation.

This area of the law has been surprisingly quiet in the last decade, but is now getting very heated very quickly, as cases raising questions of marriage equality for gay men and lesbians race through the lower federal courts. This past February, Ted Olson and David Boies convinced a divided panel of the U.S. Court of Appeals for the Ninth Circuit in Perry v. Brown that Proposition 8, which amended the California Constitution to deny gay men and lesbians the right to marry the person of their choice, violated the Equal Protection Clause because it stripped them of a right based on animus and prejudice and was not rationally related to any legitimate governmental interest. “Proposition 8,” the Ninth Circuit concluded, “serves no purpose, and has no effect, other than to lessen the status and dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”

On May 31, 2012, in the companion cases of Gill v. Office of Personnel Management and Massachusetts v. United States Dep’t of Health & Human Services, the First Circuit unanimously held that the provisions of the federal Defense of Marriage Act (“DOMA”) that deny federal marriage benefits to married same-sex couples violate the “equal protection” component implied in the Due Process Clause of the Fifth Amendment. The panel’s opinion, authored by well-respected conservative jurist Michael Boudin, applied what might be called rational basis review with bite, following a long line of equal protection cases that have focused on the “case-specific nature of the discrepant treatment, the burden imposed, and the infirmity of the justification.” Rather than invoke a higher tier of judicial scrutiny, as urged by the Obama Justice Department, Judge Boudin explained that equal protection principles prohibit federal and state governments from discriminating against a “historically disadvantaged or unpopular” group for reasons that are “thin, unsupported or impermissible.”

With Perry’s challenge to Proposition 8 and Gill’s challenge to the federal provisions of DOMA closer than ever to Supreme Court review, and with the Justices deeply divided about the meaning of the equal protection guarantee, the Constitution’s promise of equality for all persons is at a crossroads.


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