Third Party & Independents Archives

The Boundaries of Equal Protection Jurisprudence and Gay Marriage

I am here in Massachusetts for the summer, so I am in the middle of a rather important event- the first state-sanctioned gay marriages are happening today. First, if allowing gay marriage was on the ballot, I would vote for such a measure (although if another option was to devolve marriage into a private-religious practice and allow civil unions for everyone, I would support that over any other measure). Yet, allowing gay marriage was never adopted by the people of Massachusetts, unless you count the following provision adopted in 1780 by a deeply religious people who would never have approved of gay marriage:

“Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.”
The Massachusetts Supreme Court determined that the above words mean that nothing short of gay marriage is required under the Massachusetts constitution, regardless of what the current residents of Massachusetts think of the issue.

On one view, the Court has served exactly the function it is supposed to in a democracy limited by a constitution- it has upheld the principles of equality enshrined in the constitution against popular prejudice, ensuring that the rights of the minority, as well as the majority, are protected. To those who do see denying gay marriage as a violation of equal protection, this decision would seem to be correct and worthy of celebrating. Yet, it is not so simple.

Equal protection is not so narrowly confined. To begin with, any equal protection reasoning that requires gay marriage will necessarily require polygamy (all an opponent of polygamy would be able to do is play the same definitional games that gay marriage opponents play today). But this is not all- granting courts the broad latitude to decide that a practice long-enshrine violates equal protection gives them very broad powers because almost anything can reasonably be seen in equal protection terms. To see the completely pliability of the concept of equal protection, think about the argument that defenders of the Massachusetts Supreme Court make that the Court was only interpreting the Massachusetts constitution. It is clear that the reason, the ONLY reason, why the Massachusetts constitution “requires” gay marriage while the United States one does not is because there are more pro-gay marriage judges on the Massachusetts Supreme Court at this moment then there are on United States Supreme Court. I am not saying that either one is right- just pointing out an obviously observation.

Here is an example of equal protection reasoning that may better illustrate the dangers of allowing the judiciary to have free reign as to the meaning of equal protection. I believe that having a graduated income tax is as much a violation of equal protection of the law as banning gay marriage- and if I were a judge with the same lack of respect of the decision of the majority on such issues as the Massachusetts Supreme Court, I would strike down these laws. This argument may seem foreign on its face- but recall the $103,000 speeding ticket that a rich Nokia Exec. received in Finland based upon a graduated speeding ticket ticket system. Even the Finish, far less sympathetic to wealth that the U.S., were outraged at this, and the ticket was struck down to $5,245. I fail to see how taxing people based upon a graduated system in terms of speeding tickets is any more a violation of equal protection than taxing their income based upon the exact same formula. In both cases, the law is purposefully not treating people equally, making those of a higher income pay geometrically more for no better reason than they make more. Moreover, it is perhaps an even more plausible reading of the Massachusetts constitution that graduated income taxation is unconstitutional, as the right to “equally” possess property in the state is explicitly protected (whereas marriage is only protected by implication) . How would you feel about a Court who struck down the graduated income tax as unconstitutional? Would you feel disenfranchised?

The point of the above example was to show you what equal protection can (and perhaps should) be stretched to if we follow out all the logical implication of the promise of equal protection of the law that the various constitutions in the United States guarantee. It is true that if equal protection is not merely a hollow concept, courts need to strike down laws that violate it- or at least some such laws. The key example of this sort of decision was the Brown v. Board of Education decision, where a 9-0 supreme court declared that separate but equal violated the equal protection clause of the constitution. There is obviously a delicate balancing act that a court needs to take- I seriously wonder if a heavy-handed 4-3 decision in a divided state takes that balance into proper account.

So we have gay marriage today in Massachusetts and the sky is not falling- straight people’s marriages are no worse- and there is no wrath from the heavens. In short, there are some mad opponent of this decision, some happy proponents, and some extremely happy individuals who finally feel that the state recognizes them as equal members of society. In a vacuum, it seems worth it. Yet, if the United States Supreme Court gets some new members and decides to strike down something liberals love (say, affirmative action or various social programs that privilege certain economically “disadvantaged” groups over others), don’t cry “judicial overreaching” because you have conceded the courts a far greater power to tell us what equal protection truly means. I am not saying it’s not a legitimate choice, but its one that needs to be done consciously.

Posted by Misha Tseytlin at May 17, 2004 10:27 AM