There’s a fine debate going on in one corner of the blogosphere concerning the legal niceties of gay marriages. The participants? Tony Adragna, Orrin Judd (himself responding to Andrew Sullivan’s book Virtually Normal: An Argument About Homosexuality), Kevin Holtsberry, and Edward Boyd — whose recent post on the subject takes to task Quasipundit for conflating “the general concept that all citizens are deserving of equal protection under the law with the Constitution’s equal protection clause under the 14th Amendment.” The genesis of the debate, it seems, was Tony’s argument v. Louder Fenn on the indefensibility of banning gay marriages. Writes Boyd, however:
[…] Adragna gets hung up on whether there is a right to marriage as if a positive answer to that question means that denying homosexual marriage violates the equal protection clause. He’s wrong. It doesn’t matter whether or not marriage is a right. Driving is clearly a privilege and not a right, but a state still cannot deny drivers licenses to African-Americans. If you don’t want to concede that driving is a privilege, imagine different white and black speed limits, or different tax rates, or different drinking ages for blacks and whites (or for women and men). All of those things would be struck down, but the state can tell 15 year olds that they can’t drive and can tell 20 year olds that they can’t drink.
Why can’t the state make some distinctions and can make others? Because the 14th Amendment doesn’t protect the right to do anything, it only protects the right to be treated the same regardless of your race (and in some cases, gender). It protects certain classes from discrimination. It does not protect behaviors and does not protect all classes. To date, homosexuality has not been included in the same protected status as race or even gender. Moreover, I think that even Adragna would admit that the drafters of the 14th Amendment did not intend for it to apply to homosexuals. Thus, even if marriage is a right, denying homosexuals the right to marry does not violate the equal protection clause.
I’ll admit to not having given the issue much thought before now (beyond a kind of knee-jerk, libertarian-esque, “sure, whatever, let ’em do what they want — so long as I don’t have to pay for it”), so I find this all very fascinating. Having not studied law, either, I find it particularly edifying to witness people with some clear grasp of Constitutional history and contextual nuance argue the finer points of legal interpretation (hermeneutic theory being something I know plenty about). Good stuff.
So, the ball’s in your court then, Tony?
[Update: Louder Fenn re-enters the fray, and Tony responds.
Update 2: Tony responds to Edward Boyd.
Update 3: Zonitic’s Edward Boyd responds / clarifies. Also, see the comments section for additional thoughts / insights.]
Debates like this one can give a Libertarian fits. Neither side gets the real issue here.
Sullivan: “…only the state can grant and recognize marriage.”
Fenn: “…it is not right to give homosexual activity the approbation of the state.”
Marriage is a contract, or covenant, ideally between private entities. Why should marriage need state recognition, when other contractual relationships do not? (save in the case of disputes settled later in the courts) The liberal argument demanding state recognition of gay marriage places the issue in the arena of public debate. This tacitly implies that the right to marry (and the fundamental right to associate freely) depends on the consent of government. Even democratic processes have no business limiting fundamental human rights.
I am frequently vexed by the conservative arguement that various activities should not be legalized, because that would mean the state approves of the activity. When we look to the state for moral guidance it only diminishes the moral authority of other forces in society, like church and family. And it’s always fun to watch conservatives work against the moral authority of church and family. Morality, like human rights, does not depend on the decisions of the state.
All of this gets lost in legal wranglings. “The 14th amendment says this”…”Does not!”
Anyway, it’s fun to watch the debate. Don’t stop now.
Ummm, I suspect the person you’re quoting is horribly confused. The fourteenth amendment has nothing to do with classes of people either by race or sex, it applies to *all* citizens. It says in part –
“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.”
Note the “any person”. Presumably gays qualify as a “person”.
My guess is what they’re thinking of is the Civil Rights Bill, which has been interpreted to protect only certain classes. As far as I know that’s not relevant to the discussion, however.
The driving being a privilege and not a right thing is more than a bit of a red herring. Note that on your own property you can do whatever you want – including drive without a license. Frankly I think that if you followed common law driving would be a right. Rights can be regulated if there’s a clear public interest and can be revoked if you commit a crime. You cannot yell fire in a crowded theater, you cannot buy a gun if you are a felon. The driving is a privilege thing comes down to government wanting as much control as possible and the citizenry being stupid enough to let them have it. It is in the government’s best interest to have as many “privileges” it can control on a whim as possible. Rights are messy and too often inconvenient.
In any event, the question of whether or not marriage is a right is highly relevant. But if it is that doesn’t automatically, in and of itself, mean that gay marriage should be legal. Gays can marry *someone*, they’re not denied the right entirely, they simply aren’t allowed to marry who they want. The law is “equal” in that sense, if obscenely stupid. Then again, frankly I don’t think the state should be involved in the concept of marriage one way or the other anyway – not that that stopped me from getting married, of course, but then I never claimed to be consistent
.
Myria
Myria,
Although I was a tad too simplistic, I’m not confused – the equal protection clause of the 14th Amendment itself is silent about race, but it was been interpreted consistently since it’s enactment as relating primarily to issues of discrimination on the basis of race. As I note in my original post, the state can and does make all types of distinctions between persons on the basis or age, ability, vision, residency, felony status, and even gender that are ok. The 14th amendment simply requires that the state have a reason (a very good reason in the case of race) for making the distinction.
I said that my explanation was too simplistic – I’ve tried to rectify some of the shortcomings in a new post – but the shortcoming wasn’t about whether 14th amendment is focused on race. You can disagree with the Supreme Court’s analysis, but I’m right about that one. Under the 14th amendment, racial classifications are subject to strict scrutiny and are presumptively invalid. Other classifications not involving race are not subject to the same level of scrutiny.
From Findlaw –
<a href=”http://supreme.lp.findlaw.com/constitution/amendment14/18.html#1″>http://supreme.lp.findlaw.com/constitution/amendment14/18.html#1</a>
“‘’Persons’’.–In the case in which it was first called upon to interpret this clause, the Court doubted whether ‘’any action of a State not directed by way of discrimination against the [N]egroes as a class, or on account of their race, will ever be held to come within the purview of this provision.’’91 Nonetheless, in deciding the Granger Cases shortly thereafter, the Justices seemingly entertained no doubt that the railroad corporations were entitled to invoke the protection of the clause.92<b>Nine years later, Chief Justice Waite announced from the bench</b> that the Court would not hear argument on the question whether the equal protection clause applied to corporations. ‘’We are all of the opinion that it does.’’93 The word has been given the broadest possible meaning. <b>’’These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality. . .’’94</b> The only qualification is that a municipal corporation cannot invoke the clause against its State.95 “[emphasis mine]
As far as I can find, historical application of the 14th amendment has been quite broad and not limited to protected classes. Much of the case law does center on race, understandably so, but it is not limited to it.
Myria
I think you’ve hit on where the dispute resides, Myra. There is an attempt to assert that the 14th is limited in its application by “legislative intent”, but the legislative language obviously has broader application, and the Court has said so.
I don’t know why I’m having such a time of explaining this point. I’ll try one more time before I give up all together: I concede that the 14th Amendment applies to all persons. I’ve never said otherwise. However, the Supreme Court has said that it applies different standards to laws that treat persons differently depending on what distinctions are made.
If the law involves race, the court applies strict scrutiny – the law must be narrowly tailored to serve a compelling state interest.
If the law involves gender, the court applies moderate scrutiny – the law must be “substantially” related to an “important” state interest.
If the law involves other classifications, the law must have a “rational” relation to a “legitimate” state interest. This last standard passes constitutional scrutiny so often, that law professors make a socratic experiment of making their students try to find a law that isn’t rationally related to a legitimate interest. In <u>Roemer</u>, the court applied the last standard but found that the state’s interest in forbidding homosexual anti-discrimination laws wasn’t legitimate. The Court was uncomfortable with this and spent a lot of text explaining why this was a special case.
So I’ll say it again – the 14th Amendment is really concerned about race (and to a lesser degree, gender). Those are the only laws that will almost always be struck down. Laws involving other types of classification are almost always upheld.
The tougher concept to explain is why the Supreme Court applies this analysis. The short answer is that to do otherwise would mean that the judiciary would have to second guess the legislature’s judgment. In a democracy, responsible courts avoid such an usurpation by the judiciary. For a longer answer, read <u>Democracy and Distrust</u> by John Hart Ely.
The application of different standards of scrutiny is understood. I merely argue that there’s no good reason—except that the Court has always done it—to apply seperate standards scrutiny to cases involving seperate classes of people.
Applying seperate standards to seperate classes of violations—for instance, the infringement of an individual right versus unequal treatment under some statute that doesn’t touch an individual right—OK. But, applying a seperate standard standard of scrutiny simply because one case involves race, where another involves some other distinct class, seems to me to be indefensible. Where an individual right is concerned, the standard should always be “strict scrutiny”.
Read Democracy and Distrust if you have the time. It’s not that long of a book, and you don’t have to be a lawyer to understand it. It makes the argument for judicial restraint much better than I can.