Saturday, March 30, 2013

Equal justice under law

In last week’s oral arguments on the infamous Defense [sic] of Marriage Act (DOMA) before the US Supreme Court, Chief Justice Roberts seemed to suggest that LGBT people were politically powerful.

This matters because of what’s called “heightened scrutiny”, which concerns the equal protection provisions of the US Constitution, especially as it pertains to the political powerlessness of minorities. The standard has always been about historic powerlessness, not current events, but Richard Socarides had this to say in the New Yorker about the supposed political power of LGBT Americans:
“…going directly to Chief Justice Roberts’s point about the success gay-rights advocates had in last year’s election—winning ballot initiatives in Maine, Maryland, Minnesota, and Washington—I hardly think having to raise tens of millions of dollars to obtain your rights, when they are free to everyone else, would suggest a lot of political power in the first instance. It’s more like good survival skills and ingenuity.”
And talking about how historically LGBT people have suffered from discrimination at the hands of the majority, he pointed out that DOMA was passed in 1996, a time when LGBT people obviously didn’t have political power. He also noted:
“Proposition 8, California’s anti-gay-marriage ballot initiative, was passed not in 1978, or even 1998, but in 2008. And in May 2012—less than a year ago—voters in North Carolina approved a state-constitutional amendment banning gay marriage. Rob Portman is still the only sitting Republican senator to express his support. He didn’t have to fall over any of his colleagues.”


“Just because a group is able to marshal its resources to undertake what is essentially a Herculean effort to protect itself, in a very limited and targeted way, does not mean it is unworthy of constitutional defense. Or think of it this way: just because the gay teen-agers on ‘Glee’ are accepted, well-adjusted, loved by their peers, and able to kiss on television without consequence in their fictionalized reality does not mean that a poor, young, gay teen-ager living in the red-state South is not having a hard time of it. It doesn’t mean that he doesn’t deserve a day in court.”
I think those are important points, especially because it highlights the fact that some recent political successes for LGBT people doesn’t change the fact that LGBT have suffered from historic oppression and political powerlessness. That is precisely the context in which DOMA was first passed in 1996: The intent of Congress to deliberately target LGBT people for discrimination back then is indisputable.

So, I think it’s obvious that DOMA must be struck down or the equal protection provisions of the Constitution mean nothing. Recent political victories for LGBT people don’t change that fact—or erase the historic discrimination that led to DOMA in the first place.

Equal justice under law, and all that.


Roger Green said...

Those minorities are ultra powerful. Didn't Scalia talk about racial entitlements?

Jon Stewart on the Daily Show eviscerated some of the justices' arguments this week particularly well. I was also fascinated when someone (Roberts?) took a shot at Obama. If Obama didn't believe in DOMA, why did he not just decide it was unconstitutional? Because, ultimately, that's YOUR job, SCOTUS!

Arthur (AmeriNZ) said...

Yep, it IS their job. And they also ought to know that heightened scrutiny applies to historic injustice. Sometimes I think that some of the Justices don't even know what their job is supposed to be!