Strange Love

How I learned to stop worrying and embrace the equal protection argument for gay marriage

In August a federal judge in San Francisco ruled that Proposition 8, California's voter-approved ban on gay marriage, violates the 14th Amendment's command that no state may "deny to any person within its jurisdiction the equal protection of the laws." U.S. District Judge Vaughn Walker concluded that the ban's justification was so weak that it failed even the "rational basis" test, the highly deferential standard used in equal protection cases that do not involve a fundamental right or a "suspect class" such as race (although he also argued that gay marriage bans implicate both).

In addition to social conservatives, critics of the decision included supporters of gay marriage who worry about the damage done by result-oriented jurisprudence. While I share their concerns, this objection to the equal protection argument for gay marriage no longer seems decisive to me.

For one thing, I'm not sure it's possible to prevent a judge's policy preferences from influencing his application of the law in a case like this. No doubt a judge who was more alarmed at the prospect of gay marriage would have reached a conclusion different from Walker's. But wouldn't that judge also be guilty of letting his social views shape his legal analysis?

Furthermore, there is a defensible constitutional argument that the principle of equal protection, which says "all persons similarly situated should be treated alike," means the government may not discriminate between couples based on sexual preference. Although the people who wrote and ratified the Fifth and 14th amendments never imagined they were guaranteeing equal legal treatment for homosexual couples, that's because the very notion of gay marriage would have been incomprehensible to them.

Treating all married couples equally, without regard to sexual preference, seems like a straightforward application of equal protection to a situation the Framers could not have foreseen, just as they did not foresee television (which is nevertheless protected by the First Amendment) or wiretaps (which are nevertheless governed by the Fourth Amendment). Is that view a much bigger leap than using the Equal Protection Clause to overturn bans on interracial marriage, which persisted for a century after the 14th Amendment was ratified?

I would much prefer that the government get out of the business of certifying marriage altogether. But as long as myriad provisions of state and federal law hinge on marital status, the government has to decide which couples qualify, and basic fairness demands that sexual orientation play no role in that determination. What legitimate government interest can possibly justify preventing a veteran's longtime spouse from being buried alongside him, simply because both of them are men? This sort of policy, which a federal judge in Massachusetts overturned on equal protection grounds in July, really is shameful.

I realize opponents of same-sex marriage think they have good reasons for denying gay couples the rights and privileges that straight couples enjoy, and they would argue that homosexuals and heterosexuals are not "similarly situated." But you know what? Screw them. I am tired of defending the constitutional principles that social conservatives use to restrict liberty, because they so rarely return the favor by supporting those same principles when the effect is to expand liberty. When a supposedly principled originalist like Antonin Scalia can endorse a ridiculously broad reading of the Commerce Clause because the case involves pot, why should I stick my neck out by arguing that the original understanding of equal protection precludes its use in gay marriage cases?

If there is a plausible constitutional argument for requiring the government to respect people's rights, as I think there is here, those who value the Constitution as a means of protecting freedom should not be afraid to use it. Without abandoning intellectual honesty or the rule of law, we should prefer to err on the side of liberty. 

Senior Editor Jacob Sullum ([e-mail]) is a nationally syndicated columnist.