Guest Blogger

Confirm the Heritage of Equal Protection of the Laws

Filed By Guest Blogger | March 27, 2013 12:30 PM | comments

Filed in: Living, Marriage Equality, Politics
Tags: DOMA, gay rights, marriage equality, Prop 8, Supreme Court

warrenblumenfeld.jpgEditors' Note: Guest blogger Warren J. Blumenfeld is associate professor in the Department of Curriculum and Instruction at Iowa State University in Ames, Iowa.

Ryan T. Anderson, William E. Simon fellow at the Heritage Foundation and co-author of the book What Is the Purpose of Marriage, in an opinion piece appearing online at CNN, wrote that the Supreme Court should not consider and rule on cases involving is the issue of marriage for same-sex couples as they are about to do in two separate cases this term: one to investigate the constitutionality of California's 2008 passage of Proposition 8 limiting marriage in the state to one man and one woman and the other case to judge the constitutionality of federal legislation, the so-called Defense of Marriage Act, which prohibits federal recognition of same-sex marriage.

Anderson not only argues that children do best in families headed by a "biological mother and father" (though most reputable research does not bare this out), but he also contends that by ruling on the issue of marriage for same-sex couples, the Supreme Court would circumvent the democratic process. "The Supreme Court shouldn't truncate the debate and redefine marriage by judicial decree and include same-sex marriage," he wrote. "Rather than cut short democratic deliberation, the court should uphold the constitutional authority of citizens and their elected officials to make decisions about marriage."

Anderson joins a list of conservative politicians and pundits asserting that the issue of marriage for same-sex couples must be left to the individual state legislatures or to the voters to decide because this falls under the category of states rights or "majority rule," and that the national government should not intrude by imposing its will on the states in this matter.

I argue most emphatically that marriage rights in general, and more specifically legalization for same-sex couples, is indeed a federal issue, and that national legislation or a Supreme Court decision must enforce the 14th Amendment of the U.S. Constitution, which mandates that "no state shall...deny to any person within its jurisdiction the equal protection of the laws." Since different-sex couples, upon reaching legal age, are accorded the rights and benefits of marriage, the current 30 states with state constitutional amendments legitimizing marriage only "between a man and a woman" effectively deprive same-sex couples of "equal protection of the laws."

So then, should the civil and human rights of minoritized people be placed up for a vote or left to the discretion of state legislatures? In other words, should the majority determine the rights of minorities?

Take the following cases for example:

If the issue of prohibiting the practice of slavery had not been settled in Lincoln's 1863 Emancipation Proclamation and later codified in the U.S. Constitution, and instead had been left to the individual states or a majority vote, I question whether the states would have uniformly voted on their own to outlaw the practice of slavery, and I indeed believe the practice of legalized slavery would have continued long after the Civil War in some states.

If the issue of school desegregation had not been settled in the 1954 Brown v. Board of Education U.S. Supreme Court decision and later strengthen by the federal Civil Rights Act of 1964, and instead had been left to the individual states or to majority rule, I question whether the states would have uniformly relinquished the practice of de jure racial segregation, and I indeed believe that this practice would remain to this very day in some states.

If the issue of forbidding individuals their Constitutional right to privacy, and specifically the right to contraceptives, had not been decided in 1965 in Griswold v. Connecticut by the U.S. Supreme Court and instead had been left to the discretion of the individual states or to majority rule, I question whether the states or the populous would have guaranteed these rights uniformly throughout the country.

If the issue of prohibiting individuals from different races from engaging in sexual relations (miscegenation) had not been settled in 1967 by the U.S. Supreme Court in Loving v. Virginia and instead had been left to the individual states, I question whether the states would have uniformly relinquished the practice of arresting and incarcerating people of different races found engaging in sexual relations, and I indeed believe that these arrests and incarcerations would remain to this very day in some states. The court declared Virginia's anti-miscegenation statute, the so-called Racial Integrity Act of 1924, unconstitutional, thereby overturning Pace v. Alabama (1883) and ending all race-based legal restrictions on adult consensual sexual activity and marriage throughout the U.S.

If the issue of freedom of speech for grade-school students had not been decided in Tinker v. Des Moines Independent Community School District in 1969 by the U.S. Supreme Court, I question whether the states would have uniformly relinquished the practice of restricting or banning students' First Amendment rights, and I indeed believe that today, students would face severe consequences for expressing their constitutional rights.

If the issues of providing for the reproductive freedoms of women to control their own bodies had not been decided in the 1973 Roe v. Wade U.S. Supreme Court decision, and left to the individual states, I question whether the states would have uniformly relinquished the practice of outlawing and arresting doctors for performing abortions, and I indeed believe the subterranean and dangerous practices of self-induced abortions and procedures performed by amateurs would continue to jeopardize women's health and lives today.

If the issue of consensual adult sexuality, in particular for same-sex couples, had not be legalized in the Lawrence v. Texas 2003 U.S. Supreme Court case overturning Texas's so-called "sodomy law," and thus eliminating similar statutes in 13 other states throughout the country, I indeed believe we would find many of these laws remaining to this very day resulting in arrest and incarceration of anyone found in violation.

These questions once again remind me of the concept of "tyranny of the majority" articulated in the 1830s by Alexis de Tocqueville, French political scientist and diplomat, who traveled across the United States for nine months in 1831-32 conducting research for his epic work, Democracy in America. Though he favored U.S.-style democracy, he found its major limitation was its stifling of independent thought and independent beliefs. In a country that promoted the notion of "majority rule," this effectively silenced minorities. This is a crucial point because in a democracy, without specific guarantees of minority rights, there is a danger of domination or tyranny over others whose ideas, values, and social identities are not accepted by the majority.

Anyone from the Heritage Foundation should know because it is indeed our heritage granted to us by the founders of this country when they provided a mechanism for the protection of minorities against the tyranny of the majority. The checks and balances between the three branches of government - executive, legislative, and judicial - and the authority of national legislation over the individual states have been shown time and again (though of course not perfectly and not without major adjustments and reversal of policy along the way) to offer some form of protection for minority rights and benefits. If we leave these important issues of social justice and social inequality to majority rule and to state legislatures alone, then many of the evils that have plagued this country throughout its history would continue to this very day.

Returning to the issue of marriage for same-sex couples, state laws currently on the books, as well as any proposed national legislation or Supreme Court decisions, will not compel religious institutions to perform religious marriages if they are opposed, for they do and will continue to have an exemption. Religious institutions will continue to set their own standards for conducting marriage ceremonies as they always have, without fear of prosecution if they decide that marriage for same-sex couples falls outside of their teachings.

The current state-by-state patchwork quilt of statutes not only serves to keep same-sex couples in marriage limbo and second-class citizenship status, and deprives us unfairly and inequitably of "equal protection of the laws," but also is costly in terms of time and resources to all parties involved in political educational campaigns, litigation, and in the legislative process. Though I do not hold out much hope that the current Congress will do the right (correct) thing by passing national legislation, I believe and hope the Supreme Court with make marriage equality a reality.

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