Mr. Hornstein on Equal Protection for Some

 Raymond Hornstein, one of Professor Birdsong’s brightest students, has written an interesting and provocative paper concerning the Fourteenth Amendment to the  U.S. Constitution.  Does it provide equal protection for all — or just for some?  Mr. Hornstein has given me permission to post his work on my blog. Read and enjoy.

The Fourteenth Amendment; Equal Protection for Some:

In regards to the rights of Homosexuals in the United States

Raymond H. Hornstein

I. Introduction

            Section 1 of the United States Constitution clearly states: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (Emphasis added).[1]

            The Fourteenth Amendment came as one of the Reconstruction Amendments and was adopted in June of 1868 in an attempt to guarantee certain protections for the recently emancipated slaves at the end of the Civil War. The Amendment went on to be the justification for the repeal of American segregation in the landmark decision of Brown v. Board of Education of Topeka[2] , as well as guaranteeing equal rights to women under the Equal Pay Act of 1963.[3]

            The Fourteenth Amendment has gone on to become the one of the most cited Constitutional Amendments and has been used to justify many pieces of protective legislation over the past one hundred and forty-three years, from the Civil Rights Act of 1964[4]  which placed protections in place for race, religion, color, and national origin, to the Equal Pay Act of 1963[5] which protected rights based on sex, to the Americans with Disabilities Act of 1990,[6] which safeguards those Americans suffering from disabilities.      

            The time has come for the Fourteenth Amendment once again be called forth to justify legislation guaranteeing rights for a class of Americans who are in desperate need of protection- the homosexuals.

II. A Brief History of American Discrimination

            A. Government Endorsed Discrimination

The United States of America was founded upon the lofty ideals that all men are created equal, yet realizing this ideal has been a continuous struggle spanning for over two hundred years. When the Constitution was first ratified by the young nation it could be said that all men were created equal, as long as they were white, Christian, land owning men. The African slaves were regarded as property; counted as 3/5 a person in regards to granting the states in which they were owned representation in the newly formed congress. Women were not afforded a vote and were held in only slightly higher regard than the slaves. And if someone was not or at least appeared to be of the Christian faith, they held little chance of attaining public office.

            Yet slavery and the oppression of women were not the only notorious public policies which could be found to be discriminatory. One must not look far to find official national policies which are extraordinarily discriminatory, as well as systematic. The Chinese Exclusion Act of 1882 made immigration to the United States from China practically impossible, based on little more then race.[7] This act was not repealed until 1943, while Chinese living in the country were still unable to marry white citizens until 1948. Even after the abolition of slavery, Black Americans were not afforded anything resembling equal rights until the passage of Brown v. the Board of Education of Topeka,[8] and the Civil Rights Act of 1964. Prior to the latter two changes in public policy, segregation was a nationally mandated in the United States government. Even once segregation was put to an end, Black Americans continued to face opposition from fringe elements of the populace. During World War II Japanese Americans were deemed a threat to national security and forcibly relocated to internment camps based on nothing but their nation of origin.[9]

            Race, gender, and national origin were not the only traits which have a history of being oppressed in the land of the free. In a country founded upon the freedom to believe what you wish and to express yourself as you see fit, there have still been dark spots in history where oppressors have found themselves persecuted for political or religious beliefs. From the late 1940’s until the late 1950’s those reported of having communist beliefs were often discriminated against, including being “black balled” out of their chosen industry. Even religion, a freedom granted in the First Amendment to the Constitution is not free from having the dark stain of oppression cast upon it. During the 1940’s Jehovah’s Witnesses found themselves at the whims of the majority, as the United States Supreme Court found that although their religion forbids it, they were required to recite the Pledge of Allegiance.[10] The Supreme Court did eventually hear another Pledge case in which they reversed their previous ruling,[11] but the damage was done.

B. Unsanctioned Discrimination

            Regardless of whether or not the Government officially endorsed policies which could be found to be discriminatory, the public has at times found certain groups to persecute. Directly following the Civil War, hate groups rallied to continue to keep the vote, as well as several other rights to Black Americans. Although the United States Judiciary along with the legislature has progressively repealed discriminatory regulations, private actors have continued to practice discrimination without the tacit endorsement by the government.

            Of the many private groups which have been founded to continue discriminatory practices following the United States Government has revoked its seal of approval, the most infamous of them has been the Klu Klux Klan. The Klu Klux Klan was originally founded in the 1866 in response to the Reconstruction Acts. It can be argued that there has been three different Klans throughout the Nation’s history, but the goals have remained similar; to promote and preserve the power of the white race.[12]

            Not all discrimination found in the history of the United States has been as well organized, or as completely private as the Klu Klux Klan. Juries made up of private citizens have sent a disproportionate amount of African Americans to death row prior to, and following the Supreme Court Case Furman v. Georgia, 408 U.S. 238 (1972),[13] which temporarily placed a moratorium on capital punishment.[14]  

            Furthermore, not all discrimination has been insidious as those which have been statistically shown to occur through juries in capital murder cases. One must not look far to find blatant examples of American hate. The lynching murders which occurred in the Southern United States between 1882 and 1968,[15] the treatment of suspected Communists during the Hollywood Blacklist of the 1950’s,[16] and the murder of Matthew Shepard in 1998,[17] are all examples highlighting the discrimination found in the United States throughout its young history.

            This is not an all inclusive list of atrocities committed for racist, xenophobic, or homophobic motives. This is a brief history highlighting the fact that discrimination in one form or another has been systematically carried out against one group or another since the founding of the American Nation. The government has throughout history progressively moved to protect those whom discrimination has caused injury, and it is time once again for the government to protect a minority group which is oppressed under the wrath of the majority.

III. History of Discrimination against Homosexuals in the United States

            Discrimination against the homosexuals of America has been expressed in many ways, some have been State Sanctioned, and others carried out by private citizens or groups of citizens. Some forms of discrimination have been blatant, violent, and horrific such as the murder of Mathew Shepard, while others have been insidious, such as the Mormon Church using political clout to pass Proposition 8 in California which outlawed gay marriage.[18]

            Discrimination against the homosexuals is not a new occurrence in the United States, and to provide an exhaustive list of discrimination would take volumes. One would have to look to national or state policy, discrimination by private citizens or organization, to even suggestive lyrics in music found in popular culture. For the purposes of this argument I ask that the reader allow the stipulation that discrimination against the homosexual exists.

IV. Current Discrimination against the Homosexual in the United States

            Current discrimination against the homosexual citizens of the United States can predominately be separated into two groups; discrimination perpetrated by private citizens or organizations, and the lack of legal protections afforded homosexuals as a group. Discrimination perpetrated by the private citizen takes many shapes, from acts of murder,[19] to anti-homosexual rallies[20] which promote hated for the group. Prominent anti-gay group the Westboro Baptist Church stated on its website:

“WBC engages in daily peaceful sidewalk demonstrations opposing the homosexual lifestyle of soul-damning, nation-destroying filth. We display large, colorful signs containing Bible words and sentiments, including: GOD HATES FAGS, FAGS HATE GOD, AIDS CURES FAGS, THANK GOD FOR AIDS, FAGS BURN IN HELL, NO NOT MOCKED, FAGS ARE NATURE FREAKS, GOD GAVE FAGS UP, NO SPECIAL LAWS FOR FAGS, etc…WBC has conducted some 20,000 such demonstrations during the last nine years at homosexual parades and other events (including funerals of impenitent sodomites, like Matthew Shepard). WBC teams have picketed major fag parades in San Francisco, New York, Washington D.C., Miami, San Diego, Dallas, Orlando, Kansas City, etc. The unique picketing ministry of Westboro Baptist Church has received national attention, and WBC believes this gospel message to be America’s last hope.”[21] 

            This public and hateful discrimination is nothing new in our nation, yet the advent of mass media communication has made it possible for even fringe groups to spread their hate. The Westboro Baptist Church has made many other public statements such as:

WBC picketed the funeral of Matthew Shepard, to inject a little truth and sanity into the irrational orgy of lies consuming this world. WBC does not support the murder of Matthew Shepard…However, the truth about Matthew Shepard needs to be known. He lived a Satanic lifestyle. He got himself killed trolling for anonymous homosexual sex in a bar at midnight. Unless he repented in the final hours of his life, he is in hell. He will be in hell for all eternity, ‘where their worm dieth not, and the fire is not quenched.’ Mark 9:44. For each day that passes, he has only eternity to look forward to. All the candlelight vigils, all the tributes, all the acts of Congress, all the rulings by the Supreme Court of the United States, will not shorten his sentence by so much as one day. And all the riches of the world will not buy him one drop of water to cool his tongue.[22]

            How the Church could make such statements that they do not support the murder of Shepard, yet condone the condemnation of his life?

            Public discrimination against homosexuals has evolved from regulations prohibiting homosexual acts which are now repealed,[23] into a lack of protections under the law. The eminent example of a lack of protection under the laws is the right to marry, which can be argued is also prohibitive of the right to contract. The right has been found by the judiciary to be a fundamental right,[24] and the denial of this contract right to homosexuals denies homosexuals equal protection under the law. The current denial of this fundamental right to homosexuals is eerily reminiscent to the anti-miscegenation laws which were in effect in the United States until the case of Loving v. Virginia.[25] 

V. History of the 14th Amendment

            The Fourteenth Amendment to the United States Constitution was adopted in on the ninth of July, 1868 as one of the Reconstruction Amendments.[26] The Amendment was enacted in order to address several issues, including but not limited to the Overturning of the Dread Scott decision,[27] the addition of the Due Process Clause, which provides that State or Federal Governments cannot deprive a citizen of life, liberty or property with out certain steps being taken to ensure fairness, and also added the Equal Protection Clause which guarantees all citizens that the law will be applied fairly and equally within all of its jurisdictions.[28]  The Fourteenth Amendment has also been used to apply many of the rights found in the first ten amendments of the United States Constitution to the States.[29] The Equal Protection Clause of the Fourteenth Amendment was the basis for the decision in Brown v. Board of Education of Topeka,[30] which found that segregation was unconstitutional as it did not provide for equal protections under the law. 

The Fourteenth Amendment was originally added to the Constitution in response to the Black Codes[31] which Southern States enacted after the passage of the Thirteenth Amendment.[32] The Black Codes were enforced in an attempt to keep blacks in the previous circumstances by restricting their movements, forcing blacks into year long labor contracts, and preventing blacks from suing or testifying in court.[33] Since that time it has been expanded to provide protection for many other classes of individual than just newly freed slaves.

Starting with Allgeyer v. Louisiana, the courts have found that the Fourteenth Amendment has provided substantive protection of the freedom to contract,[34] which was found to be an economic liberty. This was affirmed in both Lochner v. New York,[35] as well as Adkins v. Children’s Hospital.[36]  This would logically lead one to believe that freedom to contract is a fundamental right extended to all under the Fourteenth Amendment’s equal protection clause, yet I shall breach this subject at a later time.

The Fourteenth Amendment went further than just protecting the rights and liberties of Black Americans,[37] as it was used to also protect the liberties and interests of Chinese Americans.[38] But after these cases the Fourteenth Amendment became eclipsed to the point it was as Justice Oliver Wendell Holmes Jr. dismissed it as “the usual last resort of Constitutional arguments.”[39] This was seen in the decisions of Plessy v. Ferguson[40] in which the Supreme Court found separate but equal in regards to segregation to not be in violation of the Fourteenth Amendment, and in Berea College v. Kentucky[41] which upheld the right of states to force private colleges to bar admittance of both blacks and whites. Over fifty years passed before the court once again strengthened the Fourteenth Amendment in Brown v. Board of Education of Topeka[42] which found that in regards to segregation, “separate educational facilities are inherently unequal.[43] ” The trend towards strengthening the Fourteenth Amendment’s protection was furthered in Hernandez v. Texas[44] when the court held that the Fourteenth Amendment granted protection to all racial groups in the United States, not just Black Americans.

Further historically disadvantaged groups have had protections extended by the courts, such as illegitimate children[45] and women.[46] The courts have decided which level of scrutiny is applicable to certain suspect classes and quasi-suspect classes throughout the years. In order for strict scrutiny to apply the Supreme Court has outlined a variety of traits which may qualify a group as a suspect class. The first of the criteria is that the group has historically been discriminated against and been subject to prejudice and hostility. The second criterion is that the group must possess an immutable[47] trait. The third of the criterion is that the group is powerless to protect themselves via the political process, and is classified as an insular minority. And finally, the traits inherent to the group must not inhibit them from contributing meaningfully to society. In Perry v. Schwarzenegger[48] the U.S. District Court for the Northern District of California commented that sexual orientation could be considered a suspect class. The United States District Court for the District of Nebraska followed along the same lines, applying strict scrutiny in regards to sexual orientation[49] although this case was reversed on appeal.[50]

Homosexuality if not found to be a suspect class, could none the less be found to be a quasi-suspect class which would receive intermediate scrutiny. Intermediate scrutiny has been found to apply to gender based discrimination,[51] as well as the legitimacy of children.[52] Courts although have been reticent to apply intermediate scrutiny to cases of sexual orientation.[53] The difference between strict scrutiny and intermediate scrutiny is under intermediate scrutiny the government body must prove that the law or policy under review furthers a legitimate government interest in a way which is substantially related to the interest, while under strict scrutiny there must be a substantial governmental interest, while being narrowly tailored to use the least restrictive means to meet that interest.[54] Currently California regards sexual orientation as a suspect class, while Iowa and Connecticut view sexual orientation as a quasi-suspect class.[55]

Strict scrutiny has traditionally been applied to fundamental rights. The fundamental rights which are not enumerated within the Bill of Rights have been recognized by the courts as such; 1) the right to privacy,[56] 2) the right to marriage,[57] 3) the right to procreation, and 4) the right to interstate travel.[58]

VI. Fundamental Rights Denied to Homosexuals

Out of the four fundamental rights which are not enumerated in the United States Constitution, the right to procreation and the right to interstate travel, as well as the right to privacy will not be addressed here. The right to procreation is a moot issue, and there are currently no policies restricting the travel rights of homosexuals. Privacy rights, including “forced privacy[59]” will not be addressed here as the policy at issue[60] had recently been repealed.

Here we will delve into the fundamental right to marry which is currently denied to homosexuals in an overwhelming majority of the states. In order to do so, we must first look at the benefits and privileges conferred by marriage.

            A. Benefits Conferred by Marriage

            The General Accounting Office of the United States acknowledges over 1,100 federal benefits for married couples. This does not include the roughly 400 rights conferred by states upon married couples.[61] These federal rights include but are not limited to: the right to joint parenting, the right to joint adoption, the status as next of kin for hospital visits and medical decisions when one partner is too ill to be competent, joint insurance policies, dissolution and divorce protections such as community property, immigration benefits, inheritance benefits, loss of consortium tort benefits, domestic violence protective orders, and wrongful death benefits.[62] Once again, these are not the sole rights conferred upon married couples.

             These oft taken for granted rights and privileges symbolize the bond of two people wishing to spend the rest of their lives together, and affords both parties rights and protections which allow these parties to have peace of mind in the event of future misfortune. One could find countless examples of how the denial of these rights and privileges has led to personal disasters to those denied.

            B. Denial of Rights and How they Affect Citizens

            Janice Langbenh spent eighteen years with her partner Lisa Pond and raised three children together. Yet when Pond collapsed from an aneurysm and was taken to Jackson Memorial Hospital, Langbenh and the children were not allowed bedside to see their dying family member.[63] Langbenh was allegedly told by hospital staff that the couple was now in an “anti-gay city and state” and would need to go through the process of obtaining HIPPA waivers as well as other legal documentation too see her partner.[64] If Florida had recognized same-sex couples, there would have been no need for HIPPA waivers, and no barrier between the dying Pond and her family.

            Although it has yet to reach the floor of the Supreme Court, marital privilege[65] is not afforded to same sex couples. In the United States, “except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules subscribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, state, or political subdivision thereof, shall be governed by the principles of the common law…”[66] Under the common law a spouse could not be compelled to testify against their spouse.[67] This is a benefit not afforded same-sex couples, and once again provides unequal protection under the law to couples who are homosexual.

            Argentine citizen Monica Alcota came under deportation proceedings although she is married to a United States citizen.[68] For heterosexual couples, a spouse must file form I-130 which is a petition for an alien relative.[69] For purposes of immigration, a spouse is regarded as an immediate relative as long as the marriage would be recognized in the United States.[70] As only few jurisdictions in the United States which recognize same sex marriage, and immigration is a federal issue, same-sex couples are not regarded as immediate relatives for purposes of immigration.

            Three states, Montana, South Carolina, and Louisiana[71] explicitly deny homosexuals protective orders in regards to domestic violence requiring the relationship to be with a member of the opposite sex.[72] Domestic violence by no stretch of the imagination is only found in heterosexual couples, nonetheless, homosexuals are denied equal protection under the laws put in place to protect victims of domestic violence.

            The list of rights denied to homosexual couples, and the ramifications of the denial of rights would take volumes to compile. Here are only a choice few examples of rights denied, and the effect and possible effect felt by those who are denied these rights and privileges.  

VII. The Evolution of Law in Regards to Homosexuals

            In 1778, Thomas Jefferson wrote a law in Virginia which prescribed castration as the punishment of choice for those convicted of sodomy.[73] This might seem like a harsh punishment, yet was intended as a liberalization of current sodomy laws which prescribed death as the punishment for sodomy.[74] Prior to 1962, sodomy remained a felony in every state.

            In 1948 Dr. Alfred Kinsey published Sexual Behavior in the Human Male[75] in which he identified that ten percent of males, and half that number of females identified as exclusively homosexual for at least three years of there lives.[76] This landmark study ushered in a liberalization of how the nation viewed homosexuality. Yet it would still take fifty five years before the nation finally overruled the prohibition against consensual sodomy.[77]

            In 1962 the Model Penal Code was developed by the American Law Institute to promote conformity among the laws of the states.[78] It removed the crime of consensual sodomy while criminalizing solicitation of sodomy.[79] The same year Illinois adopted the recommendations of the American Law Institute and became the first State to decriminalize sodomy between consenting adults of the same sex.[80] Up to the time of the Lawrence[81] decision it was still a felony in several states, with the harshest penalties being found in Idaho where sodomy could earn you life in prison, and then in Michigan where it was an offense punishable by fifteen years behind bars, with repeat offenders receiving life.[82] In 1986 the United State Supreme Court heard Bowers v. Hardwick[83] in which it found Georgia’s policy of criminalizing sodomy between consenting adults when applied to homosexuals was Constitutional. In Bowers the Supreme Court found that the question at hand was whether there was “a fundamental right of homosexuals to engage in sodomy,” and the answer was a resounding no.[84] Over sixteen years later, the Supreme Court once again heard a sodomy case. Lawrence v. Texas[85] specifically overruled the Bowers court and found that there indeed was a liberty interest protected by substantive due process under the Fourteenth Amendment in regards to consensual intimate conduct.[86] In her concurring opinion in Lawrence Justice Sandra Day O’Connor found that rather than a substantive due process question, Lawrence posted an equal protection question as the Texas law was directed at a group instead of an act.[87]

            In an interesting case which came between Bowers and Lawrence, the Seventh Circuit found that when applying Bowers the “Legislature was permitted to legislate in regards to morality… rather then confined to preventing demonstrable harms.[88]” This case poses an interesting question as morality is subjective and shifts with the times.

            Lieutenant Gotthold Frederick Enslin was the first soldier discharged from the United States military for the crime of sodomy.[89] In 1944 the military engaged in a new policy in which servicemen who were found to be homosexual would be given a “Section 8”[90] discharge after examination by a psychiatrist. In 1982 the Department of Defense issued a decree stating that homosexuality was incompatible with military service.[91] In 1992 Naval Officer Allen R. Schindler Jr. was brutally murdered onboard a United States Naval vessel, the murder being motivated by his open homosexuality.[92] This horrific incident prompted then President Bill Clinton to pass a compromise bill which would allow any citizen, regardless of sexual orientation to serve in the military. The new policy was “Don’t Ask, Don’t Tell.”[93] Under “Don’t Ask, Don’t Tell[94]” a servicemen was not to be questioned in regards to his or her sexual orientation, and the servicemen was not to disclose his or her sexual orientation, with the penalty for open homosexuality being discharge from the service.[95] This was policy in the armed forces for over seventeen years; allowing servicemen to serve their country while not allowing those risking their lives around them to truly know who they were. Yet in 2010, President Barack Obama repealed the law, finally ending the centuries of discrimination in the armed forces and allowing homosexuals to serve honestly and openly.[96]

            It can be argued that there have been great strides towards equality since 1778 when Jefferson codified the penalty for sodomy to be castration,[97] yet there is still opposition to equality found in the Federal Legislature[98]  which must be overcome.

VIII. Defense of Marriage Act

            On September 21, 1996 President Bill Clinton signed into law the Defense of Marriage Act[99] whereby the Federal Government would recognize marriage as a union between one man and one woman, and no state would be forced to recognize as a marriage a relationship between two same-sex people regardless of how other states viewed the relationship.[100]

            The Act was enacted for fears that if certain states were to legalize same-sex marriage, then other states would be forced to recognize them due to the Full Faith and Credit Clause of the United States Constitution.[101]

            On July 8th, 2010 District Judge Joseph Louis Tauro ruled that section three of DOMA unconstitutional stating “As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that section 3 of DOMA as applied to the Plaintiffs violates the equal protection principles embodied within the Fifth Amendment to the United States Constitution.”[102] This decision was appealed, yet in early 2011 Attorney General Erik Holder announced that the Justice Department would no longer appeal the decision as President Obama agreed that DOMA was indeed unconstitutional in regards to section 3.[103]

            As of March 11, 2011 forty one states prohibit same sex marriage through statute.[104] Five states issue marriage licenses for same sex couples: Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont along with Washington D.C. and the Coquille Indian Tribe in Oregon.[105] Three states acknowledge same-sex marriage, but do not issue marriage licenses: New York, Rhode Island, and Maryland.[106]

            This poses an interesting dilemma for the states, as with the repeal of DOMA[107] it would only follow that the forty one states which do not recognize same-sex marriage would now be forced to recognize such unions through the Full Faith and Credit Clause of the United States Constitution[108]. The Clause declares that the states must respect the “public acts, records, and judicial proceedings of every other state.”[109]

IX. California Proposition 8

            During the November 2008 elections, a ballot initiative and state amendment was passed by the voters which provided “only a marriage between a man and a woman is valid or recognized in California.”[110] Proposition 8 effectively overturned a California Supreme Court decision ruling that same-sex couples have a constitutional right to marry.[111]

            Proposition 8 used the exact same language found in Proposition 22, which was the ordinary statute which was overturned by the California Supreme Court.[112] Some of the common arguments used in support of Proposition 8 were that leaving the constitution unchanged would end up having public schools teaching that homosexuality is ok, and that gays did not have the right to redefine marriage for everyone else. I will not go into the logical fallacies found in these arguments, but will instead focus on the legal reasoning why homosexual marriage is an equal protection issue.

            Perry v. Schwarzenegger[113] found Proposition 8 to be in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment by Chief Judge Vaughn Walker on August 4th 2010, although the Ninth Circuit Court of Appeals stayed the judgment pending appeal.[114]

X. Equality for All

            Throughout the years the Supreme Court has identified several criteria which may deem a group of people a suspect, or quasi-suspect class. The first of the criteria is that the group has been historically discriminated against and has been subject to prejudice and hostility. The second of the criteria is that the group must possess an immutable trait. The third criterion is that the group is powerless to protect themselves through the political process, and is classified as an insular minority. And the final criterion is that that the traits inherent to the group must not inhibit them from contributing meaningfully to society.[115]

It would be difficult to argue that homosexuals have not historically been discriminated against, and been the subject of prejudice and hostility. George Chauncey of Yale University, who specializes in the history of homosexuals described in Perry[116] described how there have been prior government campaigns to “demonize gay people as dangerous sexual deviants and child molesters.”[117] Professor Chauncey went on to analyze the statements of Dr. Tam who stated that if California were not to pass Proposition 8 other states would follow the example and “fall into Satan’s hands.” Tam also went on to claim that with the legalization of gay marriage, the proponents of the “gay agenda” would push to legalize sex with children.[118] Chauncey followed by illustrating how these same messages have been used throughout history to demonize homosexuals.[119] Professor Segura, a political science professor at Stanford University illustrated how no other minority groups including undocumented aliens, had more ballot initiatives with the agenda of restricting homosexuals.[120] Gregory Herek, a Professor from UC Davis went on to analyze how government endorsed stigma such as Proposition 8 lead to social stigma, harassment, and violence against homosexuals.[121] Finally, a brief history of the systematic discrimination towards homosexuals has already been addressed within this writing.

The second criterion looked to when determining if a group is a suspect class is whether the group possesses an immutable trait. An immutable trait is defined as a trait which is unchangeable.[122] In Christian Legal Society v. Martinez,[123] Justice Ginsburg noted homosexuals as an identifiable class. This precedent was used in Perry[124] to argue against the supporters of Proposition 8[125] that homosexuality was behavior based. In 2009 the American Psychological Association wrote that:

Efforts to change sexual orientation are unlikely to be successful and involve some risk of harm, contrary to the claims of SOCE practitioners and advocates. Even though the research and clinical literature demonstrate that same-sex sexual and romantic attractions, feelings, and behaviors are normal and positive variations of human sexuality, regardless of sexual orientation identity, the task force concluded that the population that undergoes SOCE tends to have strongly conservative religious views that lead them to seek to change their sexual orientation. Thus, the appropriate application of affirmative therapeutic interventions for those who seek SOCE involves therapist acceptance, support, and understanding of clients and the facilitation of clients’ active coping, social support, and identity exploration and development, without imposing a specific sexual orientation identity outcome.[126]

            Homosexuality is therefore regarded as a recognizable class by the courts, which modern psychologists recognized as either unchangeable or at best dangerous to attempt to change. This would fit with the Court’s definition of immutable.

            The third criterion for a group to be found to be a suspect class is that it is powerless to protect itself through the political process and is an insular minority. In United States v. Carolene Products Co.,[127] Justice Stone in his famous “footnote 4”[128] outlined what entitled a group to higher scrutiny in judicial review. Footnote 4 outlined certain conditions which when present would call for a higher level of scrutiny when dealing with law or policy directed at a certain group. The first condition is that the policy “On its face violates the constitution.”[129] The second is that the policy “attempts to distort or rig the political process.”[130] And the third is that the policy “Discriminates against minorities, particularly those who lack sufficient numbers or power to seek redress through the political process.”[131] In regards to the first condition, the courts have already declared marriage to be a fundamental right, one which would require the highest level of judicial scrutiny in Loving v. Virginia.[132] This would deem any legislation limiting marriage to be reviewed under strict judicial scrutiny, which would hold that any limitation would be presumed invalid. The Judges of In re Marriage Cases[133] in writing for the majority stated:

Under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.

            The court here identified marriage as fundamental right, which would entitle any policy or law limiting marriage to be analyzed under strict scrutiny. On this the Court in the same decision stated:

Strict scrutiny (…) is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents — like gender, race, and religion — a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.[134]

 The second condition is met as the legislation is being used to distort the political process as Justice Stone wrote “whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”[135] Previously I noted how “demonizing” imagery was used to influence voters to support Proposition 8,[136] which could be seen as nothing less than a distortion of our political process- one step from outright propaganda. The third condition is that the policy “Discriminates against minorities, particularly those who lack sufficient numbers or power to seek redress through the political process.”[137] Dr. Alfred Kinsey identified only 10% of Males, and 5% of females identify as homosexual[138], which would leave this group at the mercy of the will of the masses. This would be the exact definition of an insular and discrete minority which lacks sufficient numbers to seek redress through the political process.

            The final criterion to necessary to have a group found to be a suspect class is that the traits inherent to the group do not inhibit members of said group from contributing meaningfully to society. The only argument for finding homosexuals to be unable to contribute meaningfully in society is the lack of ability for a same-sex couple to produce offspring. In Eisenstadt v. Baird,[139] Justice Brennan writing for the majority stated “”If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”[140] One could easily then infer that if married or unmarried heterosexual couples could choose whether or not to conceive a child, with no attack on the legitimacy of their union, then under the auspices of equal protection that right would extend to homosexuals. Therefore the only trait inherent to the group which could be argued prevents them from contributing at all to society would be rendered moot.

            In writing his opinion for the Court, Judge Vaughn Walker wrote this in regards to the decision:

An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.[141]

            Judge Walker went on to note that the argument was founded upon the traditional views of opposite sex marriage, and on a moral opposition to homosexuality, neither of which is a legal basis for discriminating against the group. He further noted that homosexuality is the exact sort of minority strict scrutiny was designed to protect.[142]

XI. And Example of an Argument Against Equal Protection in Regards to Marriage

            There have been many arguments against granting marriage rights to homosexuals. To list every single argument against marriage rights for homosexuals would take volumes of text, so therefore I shall focus on select arguments which are not grounded in religious doctrine.[143] MIT Doctoral Student Adam Kolasinski makes one of the rare secular arguments:

The debate over whether the state ought to recognize gay marriages has thus far focused on the issue as one of civil rights. Such a treatment is erroneous because state recognition of marriage is not a universal right. States regulate marriage in many ways besides denying men the right to marry men, and women the right to marry women. Roughly half of all states prohibit first cousins from marrying, and all prohibit marriage of closer blood relatives, even if the individuals being married are sterile. In all states, it is illegal to attempt to marry more than one person, or even to pass off more than one person as one’s spouse. Some states restrict the marriage of people suffering from syphilis or other venereal diseases. Homosexuals, therefore, are not the only people to be denied the right to marry the person of their choosing.[144]  

            Kolasinski uses logical fallacies such as the false analogy to compare homosexual relationships to those of incest, polygamy, and those affected by heinous debilitating diseases. One cannot compare incest, which is likely to produce offspring which could contaminate the societal gene pool with mutations and abnormalities to homosexuals who pose no such threat. One cannot compare polygamy to homosexuality either, as marriage has traditionally been defined as the union between two parties.[145] Furthermore, to compare same-sex marriage to that of denying marriage to those infected with disease is repugnant. Same-sex marriage does not pose a threat to the public heath or wellbeing.

            Kolasinski goes on in his conclusion to make statements such as “When the purpose of marriage is procreation, the answer is obvious. If sexual love becomes the primary purpose, the restriction of marriage to couples loses its logical basis, leading to marital chaos.”[146] Here Kolasinski ignores that the courts[147] have already determined that procreation is not the sole purpose of marriage, and does not render a couple unable to contribute to society.[148] Kolasinski also poses another logical fallacy of begging the question. The author concludes that by defining a legitimate marriage as based on “sexual love” it would lead to marital chaos, without any support for the logical jump found within the statement.

            The article authored by Kolasinski[149] is a prime example of the supposed justifications behind denying marriage rights to homosexuals. One does not need to look far in order to find a plethora of reasons against and ridicule for granting equal rights. Yet there has yet to be a credible scientific finding that granting equal rights would harm society in way shape or form. Instead we are left with an eerie reminder of previous discrimination justified for the same reasons.[150]

XII. Conclusion

            In its decision in Loving v. Virginia[151] the Supreme Court of the United States wrote in its majority decision:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”[152]

            The Court here understood that withholding such an important right in society, one that is “fundamental to our very existence and survival”[153] would be “directly subversive of the principle of equality at the heart of the Fourteenth Amendment.”[154]

“Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”[155] Here the Court understands that marriage is a choice of the highest regard, and to infringe upon that right would be against what our Constitution promises in regards to liberty.

The Supreme Court in Loving[156] went on to find that the anti-miscegenation laws were racist and was in effect only to bolster white supremacy. In writing for the majority Justice Warren wrote “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.”[157] Here Justice Warren could find no “legitimate overriding purpose independent of invidious racial discrimination…”[158] This argument lends itself to those who would wonder: what is the reason to bar marriage from homosexuals other than one of prejudice?

Mildred Loving made a rare public statement in 2007 in which she said:

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights. I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.[159]

            This is a prime example of the ever continuing fight for equality, and how the same-sex marriage issue is analogous to the fight the Lovings were forced to endure almost a half century ago. It is time for our nation to stand behind the pillars this nation was founded upon, and deem that all citizens are entitled to equal protection under the laws- not just our heterosexual citizens.

On August 4th, 2010 the case of Loving v. Virginia[160] was cited by Judge Vaughn Walker in his decision of Perry v. Schwarzenegger[161] in which he invalidated Proposition 8. Here Judge Walker was posed with the same question, the same dilemma the court was asked to decipher in the middle of the twentieth century. Whether or not to grant two people the right to be recognized under the laws of this land as a union, regardless of the prejudices and hostility of the masses. We as a people must look to the past as well as the present, all the while keeping the future generations in mind, to decide whether or not we will practice what our country was founded upon, dictated to the world in our original document, “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”[162]


[1]U.S. Const. amend. XIV

[2] Brown v. Board of Education of Topeka,  347 U.S. 483 (1954)

[3] 29 U.S.C § 206(d)

[4]  Pub. L. 88-352, 78 Stat. 241

[5]  Pub. L. N. 88-38

[6] 42 U.S.C. § 12101

[7] 7 U.S.C. § 8

[8] 347 U.S. 483

[9] 323 U.S. 214, 216

[10] Minersville School District v. Gobitis, 310 U.S. 586 (1940)

[11] West Virginia State Board of Education v. Barnette, 319 U.S. 624

[12] The Anti-Defamation Leauge, About the Klu Klux Klan, (Last visited Mar. 22, 2011).

[13] Furman v. Georgia, 408 U.S. 238 (1972).

[14] Richard C. Dieter, The Death Penalty in Black and White: who lives, who dies, who decides, The Death Penalty Information Center. (Last visited Mar. 22, 2011).

[15] Lynchings by State and Race, 1882-1968. Tuskegee Institute Archives. (Last Visited Mar. 22, 2011).

[16] Richard A. Schwartz, How the Film and Television Blacklists Worked, FIU department of English, 1999. (Last Visited Mar. 22, 2011).

[17] CNN. Beaten Gay Student Dies; murder charges planned, CNN Oct. 12, 1998. (Last Visited Mar 22, 2011).

[18] Cal. Const. Decl. of Rights.  § 7.5

[19] See: CNN. Beaten Gay Student Dies; murder charges planned, CNN Oct. 12, 1998. (Last Visited Mar 22, 2011).

[20] The Anti-Defamation League, Westboro Baptist Church. (Last Visited Mar. 22, 2011).

[21] Westboro Baptist Church, FAQ, Westboro Baptist Church.

[22] Westboro Baptist Church, Perpetual Gospel Memorial to Mathew Shepard, Westboro Baptist Church,

[23] Lawrence v. Texas, 539 U.S. 558 (2003).

[24] Loving v. Virginia, 388 U.S. 1 (1967).

[25] Id.

[26] Finkelman, Paul, John Bingham and the Background to the Fourteenth Amendment. Akron Law Review, Vol. 36, No. 671, 2003. Available at SSRN:

[27] Dread Scott v. Sanford, 60 U.S. 393 (1857).

[28] U.S. Const. amend. XIV

[29] Malloy v. Hogan, 378 U.S. 1 (1964).

[30] Brown v. Board of Education of Topeka,  347 U.S. 483 (1954)

[31] Encyclopedia Britannica, Black Codes. (Last Visited Mar. 23, 2011).

[32] U.S. CONST. amend. XIII

[33] See Encyclopedia Britannica, Black Codes.

[34] Allgeyer v. Louisiana, 165 U.S. 578 (1897).

[35] Lochner v. New York, 198 U.S. 45 (1905).

[36] Adkins v. Children’s Hospital, 261 U.S. 525 (1923).

[37] See Strauder v. West Virginia, 100 U.S. 303 (1880).

[38] Yick Wo v. Hopkins, 118 U.S. 356 (1886).

[39] Buck v. Bell, 274 U.S. 200 (1927).

[40] Plessy v. Ferguson, 163 U.S. 537 (1896).

[41]  Berea College v. Kentucky, 211 U.S. 45 (1908).

[42] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

[43] Id.

[44] Hernandez v. Texas, 347 U.S. 475 (1954).

[45] Ley v. Louisiana, 391 U.S. 68 (1968).

[46] United States v. Virginia, 518 U.S. 515 (1996).

[47] Unable to be changed without exception.

[48] Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)

[49] Citizens for Equal Protection v. Brunning, 455 290 F.Supp.2d 1004 (D.Neb. 2003)

[50] See Citizens for Equal Protection v. Brunning, 455 F.3d 859 (8th Cir. 2006)

[51] Craig v. Boren, 429 U.S. 190 (1976)

[52] Reed v. Campbell, 476 U.S. 852 (1986)

[53] Romer v. Evans, 517 U.S. 630 (1996)

[54] See United States v. Carolene Products Co., 304 U.S. 144 (1938) at footnote 4.

[55] Chuck Stewart. Homosexuality and the law: a dictionary. Chuck Stewart Publishing. 2001. Pg. 185.

[56] Griswold v. Connecticut, 381 U.S. 479 (1965)

[57] Loving v. Virginia, 388 U.S. 1 (1967)

[58] United States v. Guest, 383 U.S. 745 (1966)

[59] 10 U.S.C. § 654(b)

[60] Id.

[61] For the purposes of this article, I shall focus on the 1,100 rights conferred by the federal government.

[62] Religious Tolerance . Org. Legal and Economic benefits of marriage. (Last visited Mar. 29, 2011)

[63] Caleb T. Maupin, The lonely death of Lisa Pond, Workers World, Oct. 8, 2009, (Last Visited Mar. 30 2011)

[64] Sarah Taylor-Spangenberg, Same sex partner denied visitation rights, Zelda Lily, May 23, 2009, (Last Visited Mar. 30 2011)

[65] Fed. R. Evid. 501 (1999)

[66] Id.

[67] Id.

[68] Alicia A. Caldwell, Same Sex Couples Denied Immigration Benefits by U.S., Huffington Post, Mar. 30, 2011, (Last Visited Mar. 30 2011)

[69] 8 U.S.C. § 1151

[70] Id.

[71] In Louisiana homosexuals are protected through the Prevention from Dating Violence Act. See La. Rev. Stat. Ann. § 46.2151 (2006)

[72] Michelle Auliova, Note, Outing Domestic Violence: Affording Appropriate Protections to Gay

and Lesbian Victims, 42 Fam. Ct. Rev. 162 (2004)

[73] Thomas Jefferson, A Bill for Proportioning Crimes and Punishments 1778 Papers 2:492–504

[74] Id.

[75] Alfred Kinsey, Sexual Behavior in the Human Male, Saunders 1948.

[76] Id.

[77] Lawrence v. Texas, 539 U.S. 558 (2003)

[78] Paul H. Robinson et al., An introduction to the Model Penal Code, University of Michigan Law School, 1999

[79] Id.

[80] Margot Canaday, We Colonials: Sodomy Laws in America, The Nation, 1998.

[81] Lawrence v. Texas, 539 U.S. 558 (2003)

[82] Margot Canaday, We Colonials: Sodomy Laws in America, The Nation, 1998.

[83] Bowers v. Hardwick, 478 U.S. 186 (1986)

[84] Id.

[85] Lawrence v. Texas, 539 U.S. 558 (2003)

[86] Id.

[87] Id.

[88] Milner v. Apfel, 148 F.3d 812 (7th Cir. 1998)

[89] Gregory Herek, Lesbians and Gay Men in the U.S. Military: Historical Background “Don’t Ask, Don’t Tell Revisited”. Lesbians and Gay Men in the U.S. Military: Historical Background. Retrieved 2010-06-03.

[90] A Section 8 discharge is a medical discharge for servicemen mentally unfit for service.

[91] D.O.D Dir. 1332.14

[92] “Uniform Discrimination: The “Don’t Ask, Don’t Tell” Policy of the U.S. Military, section V. Discharges of Gay And lesbian Servicemembers”, Human Rights Watch, January 2003, (Last Visited Mar 30, 2011)

[93] 10 U.S.C. § 654(b)

[94] Further DADT

[95] 10 U.S.C. § 654(b)

[96] H.R. 2965 § 4023

[97] Thomas Jefferson, A Bill for Proportioning Crimes and Punishments 1778 Papers 2:492–504

[98] 28 U.S.C. § 1738C

[99] 28 U.S.C. § 1738C (further DOMA)

[100] Id.

[101] U.S. Const. Art. IV § 1

[102] Gill et. al. v. Office of Personal Management, 699 F.Supp.2d. 374 (D.Mass., 2010)

[103] Mark Ambinder, Obama won’t go to court over Defense of Marriage Act, National Journal, Feb. 23, 2011.

[104] States, Freedom to Marry. (Last Visited Mar. 31, 2011)

[105] Id.

[106] Id.

[107] 28 U.S.C. § 1738C

[108] U.S. Const. Art. IV § 1

[109] Id.

[110] Cal. Const. § 7.5 Dec. of Rights

[111] In re Marriage Cases, 43. Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384 (2008)

[112] Id.

[113] Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)

[114] Id.

[115] See Pub.L. 88-352, 78 Stat. 241, 29 U.S.C. 8 § 206(d), 42 U.S.C. 126

[116] Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)

[117] Shannon Minter, Perry v. Schwarzenegger Proceedings, Day 2, Pam’s House Blend, Jan. 12, 2010.

[118] Id.

[119] Id.

[120] Gerry Shih, Same-Sex Marriage Case, Day 5: Children, New York Times, Jan. 15, 2010.

[121] Shannon Minter, Perry v. Schwarzenegger Proceedings, Day 2, Pam’s House Blend, Jan. 12, 2010.

[122] Lyng v. Castillo, 477 U.S. 635 (1986)

[123] Christian Legal Society v. Martinez, 561 U.S. ___, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010)

[124] Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)

[125] Cal. Const. § 7.5 Dec. of Rights

[126] American Psychological Association, Appropriate Therapeutic-Responses to Sexual Orientation, 2008. Available at  (Last Visited Apr. 2, 2011)

[127] United States v. Carolene Products Co., 304 U.S. 144 (1938)

[128] Id.

[129] Id.

[130] Id.

[131] Id.

[132] Loving v. Virginia, 388 U.S. 1 (1967)

[133] In re Marriage Cases, 43. Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384 (2008)

[134] Id.

[135] United States v. Carolene Products Co., 304 U.S. 144 (1938)

[136] Shannon Minter, Perry v. Schwarzenegger Proceedings, Day 2, Pam’s House Blend, Jan. 12, 2010.

[137] United States v. Carolene Products Co., 304 U.S. 144 (1938)

[138] Alfred Kinsey, Sexual Behavior in the Human Male, Saunders 1948.

[139] Eisenstadt v. Baird, 405 U.S. 438 (1972)

[140] Id.

[141] Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)

[142] Id.

[143] The 1st Amendment to the United States Constitution renders religious reasons against same-sex marriage moot.

[144] Adam Kolasinski, The Secular Case Against Gay Marriage, The Tech, Feb. 17, 2004.

[145] The author does not ignore the fact that marriage has traditionally been the union between one man and one woman, yet argues that in this case tradition is in violation of the equal protection under the law, while denying the right of polygamy is not.

[146] Adam Kolasinski, The Secular Case Against Gay Marriage, The Tech, Feb. 17, 2004.

[147] Once again, the author does not ignore the fact the Kolasinski does not intend to produce a legal argument.

[148] Eisenstadt v. Baird, 405 U.S. 438 (1972)

[149] Adam Kolasinski, The Secular Case Against Gay Marriage, The Tech, Feb. 17, 2004.

[150] Loving v. Virginia, 388 U.S. 1 (1967)

[151] Id.

[152] Id.

[153] Id.

[154] Id.

[155] Id.

[156] Id.

[157] Id.

[158] Id.

[159] Mildred Loving, Loving for All, the 40th anniversary of the Loving v. Virginia announcement. (Last Visited Apr. 2, 2011)

[160] Loving v. Virginia, 388 U.S. 1 (1967)

[161] Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)

[162] U.S. Declaration of Ind. at Preamble.

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