Gay Americans simply have too much political power to be afforded equal rights under the Constitution, according to a brief filed by the state of Ohio asking the Supreme Court to permit that state to continue to practice marriage discrimination. Ohio’s claim comes as part of a greater effort to convince the justices that laws which discriminate again gay men, lesbians and bisexuals should not be treated with skepticism by courts applying the Constitution’s guarantee that everyone shall be afforded “the equal protection of the laws.”
Under this provision of the Constitution, most forms of discrimination are entirely permissible. It is acceptable, for example, for the government to discriminate against unqualified job applicants when making hiring decisions, or to discriminate against people who commit serious crimes in deciding who to incarcerate.
When the government discriminates against groups that have historically been subject to unequal treatment that has little basis in their ability to “perform or contribute to society,” however, the Court applies what is known as “heightened scrutiny” to such discrimination. This is why discrimination on the basis of race or gender is typically not allowed, because racial minorities and women have historically been subject to the kind of irrational discrimination that triggers heightened scrutiny. A major question in the marriage equality litigation now pending before the Supreme Court is whether the nation’s long history of irrational discrimination against gay people also justifies applying such scrutiny to laws that discriminate on the basis of sexual orientation.
Though the answer to this question is not dispositive of whether a group should be afforded heightened protection under the Constitution, the Supreme Court has, at times, asked whether that group has been “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process” when determining which groups should receive this protection. Ohio argues that such protection is unwarranted because, in recent years, gay people have started to win battles in the political arena:
At the federal level, the executive branch filed an amicus brief, as did some 167 Representatives and 44 Senators. Not only that, with respect to DOMA, the executive branch’s strong support led it to the “unusual position” of failing “to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions” and that was rejected by four Justices. At the state level, 19 States filed four amicus briefs in these cases challenging the laws of their sister sovereigns. Further, several state officers have, like the federal government, “refused to defend” their own laws. At the local level, some 226 Mayors and many of the largest cities expressed support.
It is true that a minority of states and a minority of both houses of Congress filed briefs supporting marriage equality, as did an executive branch led by the only president in American history to openly support marriage equality while in office. But if that were sufficient reason to prevent same-sex couples from seeking relief in court, then the Constitution would also cease affording heightened protection to racial minorities and to women.
As I explain in my new book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, the Supreme Court barely enforced the Constitution’s protections against race discrimination for decades after the Fourteenth Amendment was ratified. The Court mostly stood silent as Southern states embraced apartheid through Jim Crow laws, eventually upholding segregation itself in Plessy v. Ferguson. Chinese residents faced similar discrimination in California. Japanese Americans were rounded up and placed in interment camps during World War II — with the blessing of the Supreme Court.
The justices did not really begin to enforce the Constitution’s bar on racial apartheid until Brown v. Board of Education. And, as I lay out in Injustices, the Court did not enforce Brown itself with any real vigor until 1964 — the same year that civil rights leaders exerted enough political clout to pass a major anti-discrimination bill through Congress.
The implication of Ohio’s argument is that groups seeking to invoke the Constitution’s guarantee of equality must bring a lawsuit during a kind of Goldilocks period — when the group simultaneously has amassed enough clout to earn the justices’ sympathies, but without amassing so much clout that they are only permitted to appeal to the political branches. But the Court’s civil rights cases have never insisted on this kind of Goldilocks rule.
Indeed, Ohio’s suggestion that courts should not extend marriage equality to groups that have achieved a degree of political power is repudiated by the Supreme Court’s first marriage equality decision, Loving v. Virginia. Loving, which barred racial marriage discrimination, was decided in 1967 — three years after the Civil Rights Act of 1964 barred race discrimination in employment and in public accommodations such as restaurants. As recent events in Indiana remind us, gay Americans do not yet enjoy these same rights to work and to patronize businesses free from discrimination. But the fact that racial minorities had already achieved significant legislative victories by 1967 did not strip them of the protections they also enjoy under the Constitution.
The same can be said about women. The Civil Rights Act of 1964 also prohibits many forms of gender discrimination, but the Supreme Court did not hand down its first decision recognizing that the Constitution also protects against gender discrimination until its 1971 decision in Reed v. Reed. Again, the Civil Rights Act grants women and racial minorities legal protections that gay people still do not enjoy to this very day, at least at the federal level. So if gay Americans have somehow acquired so much power that they should no longer be able to seek refuge in the Constitution, Loving and Reed were both wrongly decided.
Two years ago, House Republicans made a similar gay-people-are-too-powerful argument in their brief supporting the anti-gay Defense of Marriage Act (DOMA). That brief claimed that “gays and lesbians are one of the most influential, best-connected, best-funded, and best organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history.” This argument did not carry the day in United States v. Windsor, the decision striking down DOMA (though it is worth noting that Windsor also did not establish that anti-gay discrimination is subject to heightened scrutiny). If the Court follows its own decisions, the argument that gay people have amassed too much political clout to have equal rights will not carry the day in Ohio’s case either.