In 1967, Chief Justice Earl Warren scribed the unanimous opinion for the U.S. Supreme Court case, Loving v. Virginia. In it, he declared that, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”
If the highest court in the land defining marriage as one of the “basic civil rights of man” doesn’t qualify marriage as a legal right, I don’t know what would.
But here’s the catch: This doesn’t even matter.
Even if marriage were not a right, denying homosexuals the right to marry would still be an infringement upon their rights.
How can this be true?
It’s true because the right being infringed upon in these court cases is not the right to marry—it is the right to equal protection under the law.
This right is explicit: It’s found in the Equal Protection Clause of the 14th Amendment to the Constitution, which declares that, “No state shall … deny to any person within its jurisdiction the equal protection of the laws.”
Laws. Not rights. The federal government can’t unfairly discriminate in its treatment of its citizens, just like the private sector can’t. If you’re interviewing for a job, for instance, you don’t have a right to that job. But you do have a right not to be prohibited from being given that job because of unfair discrimination. Private employers can’t keep a woman from employment solely because she’s black, just like the federal government can’t keep a woman from marrying or voting or obtaining an education (none of which are explicitly stated constitutional rights) solely because she’s black.
So how do we define “unfair discrimination” as opposed to logical, necessary discrimination? This depends on the judgment of the courts, which apply their own moral judgment. This moral judgment, however, is restrained: It is beholden to precedent, and in this case, judicial precedent provides extremely useful guidelines.
Certain indicators let the courts get some idea of whether or not unfair discrimination is occurring. Groups that get the strictest review—meaning groups that have the highest risk of unfair discrimination—are called “suspect classes.” No court that has ever ruled that homosexuals form a suspect class—and are thus deserving of strict scrutiny—has ever ruled against gay marriage.
While there are no formal criteria for suspect classification, the Supreme Court has used the following to declare groups suspect classes: The group is a “discrete and insular” minority; it has been historically discriminated against, or it is subject to prejudice, hostility or stigma; it lacks political power with which to remedy the inequality; it is defined by the trait of being “immutable”—it can’t be changed; and it is not inhibited by its defining characteristic from contributing meaningfully to society.
The first two criteria are obviously true. Homosexuals are a discrete and insular minority, and manifestations of constant and far-reaching discrimination against them are disturbingly prominent no matter one’s moral stance on gay marriage. Even those who declare homosexuality immoral would be hard pressed to read about individuals like Matthew Shepard or Harvey Milk and not admit to a history of discrimination.
The third criterion is trickier, as the broad political support from significant political figures would suggest. But turning those opinions into meaningful action has been called governmental overreach, leaving these figures largely powerless to do anything to combat these legal injustices. Moreover, with laws prohibiting gay marriage in 31 states, clearly the political power remains insignificant in comparison to the scope of the problem.
The last two criteria, however, are the criteria in which the bigotry emerges.
The fact of the matter is that the evidence continues to mount that homosexuality is immutable. Being gay is not an action but a trait that one is born with and thus that cannot be changed. Furthermore, gay people can and do “contribute meaningfully” to society, including raising healthy, well-adjusted children.
Homosexuality is a genetic trait. It is found in many animal species. While the exact mechanisms are unclear, the hereditary link of homosexuality has long been established and accepted as consensus amongst scientists. Even a specific mechanism—epigenetics—has been convincingly identified as its cause.
Similar conviction emerges in the debate about the health of the children of homosexual parents. The oft-cited study from the University of Texas at Austin suggesting negative effects for children with homosexual parents has been severely criticized for poor methodology. For example, the study includes children of stable, same-sex couples and children whose parents divorced after a gay affair in the same category. Meanwhile, the American Academy of Pediatrics recently published a report saying that decades of research on the topic have produced a consensus that children of gay parents “are doing just fine.”
Once we truly see gay people as equals, it does begin to seem incomprehensible to infringe upon their right to be treated equally under the law.
Ellie Schaack is a Trinity sophomore. This is her final column of the semester.
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