Equal Protection Or "Social Tradition"

EQUAL PROTECTION OR "SOCIAL TRADITION" The Supreme Court’s Test in the Marriage Cases By Jamie Raskin Tradition is often just the evidence years) died, since DOMA prevents same-sex spouses of silence. –Judith Shklar from inheriting marital property on a tax-free basis, If we had a Supreme Court that cared as much for the liberty and equality of people as it cares for the liberty and equality of corporations, deciding the two cases taken up this Term on the future of marriage discrimination in America would be a piece of cake— wedding cake, to be exact. The Constitution, logic, and precedent are all on the side of equal rights. One case, United States v. Windsor,1 deals with the constitutionality of Section 3 of “DOMA,” the 1996 federal Defense of Marriage Act, Thea Spyer and Edith Windsor Edith Windsor, was forced to pay $363,000 in federal taxes on the a benefit that heterosexual couples, of course, take for estate she inherited after her wife granted. Windsor won a clean victory in the United (and partner of 40 years) died. States Court of Appeal for the Second Circuit, which found that discrimination against gay people triggers Equal Protection “intermediate scrutiny” and that Congress could not demonstrate a valid, much less an important, interest for defining marriage at the federal which provides that the word “marriage” in any federal level so as to exclude from its benefits thousands of law or regulation—including the Social Security actually married couples in the states. Act, the Internal Revenue code, immigration law, and more than 1,000 others—shall apply only to the The other case taken up by the Supreme Court in “legal union of one man and one woman as husband its momentous cert grant of December 7 of last 2 and wife.” This sweeping discrimination means that, year is Hollingsworth v. Perry,4 which tests the although hundreds of thousands of gay and lesbian constitutionality of California’s infamous Proposition Americans have won and exercised the right to marry 8 ballot measure (“Prop Hate,” as it is known on in nine states and the District of Columbia, the rights, the West Coast), which revoked the marriage rights benefits, and duties that they should receive as married that gays and lesbians had enjoyed in the state under people under federal law are categorically withheld a landmark California Supreme Court decision. from them. Under federal law, married couples who are Proposition 8 was voided in a broad pro-marriage gay are treated as legal strangers to one another and as decision handed down by California United States unworthy of the rights enjoyed by other citizens. District Court Judge Vaughn Walker, a decision that was reaffirmed on narrower grounds by the United This discrimination has dramatic consequences. The 3 States Court of Appeals for the Ninth Circuit, which respondent in Windsor, Edith Windsor, was forced essentially found that California may not take away to pay $363,000 in federal taxes on the estate she from its gay citizens the marriage rights that it had inherited after her wife (and romantic partner of 40 1 Windsor v. United States, No. 12-307, 2012 WL 4009654 (2012). previously granted. 2 Defense of Marriage Act, 28 U.S.C. § 1738C, 1 U.S.C. § 7 (1996). 3 Windsor v. United States, No. 12-307, 2012 WL 4009654 (2012). 4 Hollingsworth v. Perry, No.12-144, 2012 WL 3134429 (2012). 2 PEOPLE FOR THE AMERICAN WAY Both cases involve government refusing to recognize The analysis begins with the right to marry, which the equal rights of gay people in married couples. the Supreme Court has declared to be fundamental. With DOMA, Congress denied the same equal The right to marry the person you love is such a basic rights and benefits to gay married people as it offers right and attribute of liberty under the Fourteenth to straight married people, and with Proposition 8, Amendment Due Process Clause that it cannot be California actually revoked the marriage rights of impaired for people who have had multiple divorces, gay people and prohibited the legislature from ever people who left their last spouse in the midst of a restoring that right. The Proposition 8 proponents serious illness, people who are not presently living even sought to use the measure to annul gays’ and up to their child support obligations or never paid at lesbians’ existing marriages without their consent. The all, people living behind bars for having committed discrimination in both cases is plain to see for anyone domestic violence, mass murderers on death row, or with open eyes. people who just met on a television show called Who Wants to Marry a Millionaire—that is, right now so The Question Understood by America’s School long as none of these people is gay. Children— but Not by Some Supreme Court Justices The decision that first established the fundamental character of the right to marry is the celebrated A third grader sent me a crayon drawing of two hearts Loving v. Virginia,5 which struck down the criminal with the scrawled caption “Why can’t two people who convictions and sentences of Virginians Mildred and love each other get married?” Richard Loving for the act of getting married. Mildred was African-American and Native American, and This is the central question raised by both cases. It can be understood by America’s elementary school The decision that first established the children—and, in fact, it is understood far better by fundamental character of the right America’s elementary school children than by the conservative Justices on the Court. to marry is the celebrated Loving v. Virginia, which struck down the But the question has a perfectly logical constitutional criminal convictions and sentences answer: they can get married. Everything that we of Mildred and Richard Loving for the act of getting married. Richard was white; they had married in the District of Columbia before returning to the Old Dominion. The Lovings were arrested at home and prosecuted under Virginia’s Racial Integrity Act of 1924, which made it a crime punishable by a year in prison for a white person to marry a “colored” person and vice versa. For a unanimous Court, Chief Justice Earl Warren struck the law down, holding that, Mildred and Richard Loving “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival . ”6 The anti-miscegenation law know about Due Process and Equal Protection—not violated both Due Process and Equal Protection by just common sense—tells us that it violates the rights stripping citizens of their right to marry the person of of gay and lesbian Americans when government denies their choice and enshrining “White Supremacy” as the them an equal opportunity to marry their partners and gateway principle of the marriage institution. denies to them and their families all the benefits and 5 Loving v. Virginia, 388 U.S. 1 (1967). rights of marriage. 6 Id. at 12. THE SUPREME COURt’s tesT IN THE MARRIAGE CASES 3 marriage discrimination against the gay community not only carves up the laws to target a whole class of citizens for second-class treatment, denying them The Supreme Court has been emphatic that legislation and enactments motivated by anti-gay animus, however camouflaged, cannot withstand even the lowest level of Equal Protection scrutiny. more than a thousand rights, benefits, and privileges that accompany marriage, but sends a discriminatory, Chief Justice Earl Warren stigmatizing message about gay people generally. According to Warren, the fundamental right of two people to choose to marry could not be nullified Some conservatives think that they win the argument because of the state’s desire to uphold a single kind over marriage discrimination by pointing out that of officially approved union or because of its desire classifications based on sexual orientation do not to denigrate a whole class of people based on their trigger the same heightened scrutiny under the presumed inferiority. Chief Justice Warren wrote: Equal Protection Clause as racial classifications do. But they miss two essential points. The first is that To deny this fundamental freedom on burdens placed on the right to marry do trigger strict so unsupportable a basis as the racial scrutiny, meaning that the government in such cases classifications embodied in these statutes, must demonstrate that its imposition on marriage classifications so directly subversive of the rights serves a compelling purpose and does so using principle of equality at the heart of the the least restrictive means available. Second, and Fourteenth Amendment, is surely to deprive even more importantly, the Supreme Court has been all citizens of liberty without due process of emphatic that legislation and enactments motivated law. The Fourteenth Amendment requires by anti-gay animus, however camouflaged, cannot that the freedom of choice to marry not be withstand even the lowest level of Equal Protection restricted by invidious racial discrimination. scrutiny, the mere “rational basis” test that applies to Under our Constitution, the freedom to marry, ordinary legislation. Thus, even using rational basis or not marry a person of another race resides scrutiny, it is simply not a rational purpose of a law with the individual and cannot be infringed by 7 to harm gay people, to denigrate their equality, or to the State. isolate them from everyone else. If a state conducted a lottery today and randomly The key case establishing this principle was Romer stripped five percent of the population of its right to v. Evans,8 a pivotal 6-3 decision in which Justice wed, everyone would agree that this policy violates the Kennedy emerged as a major voice on the Court, fundamental right of citizens to marry.

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