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way to go, north carolina

May 9, 2012

Apparently the citizens of North Carolina passed a constitutional amendment banning same-sex marriages, civil unions, and domestic partnerships, effectively stripping all same-sex couples of any benefits awarded with those legal partnerships whatsoever, such as the right to be there in the hospital and make important medical decisions for an incapacitated partner, federally protected family leave time to in the event of a partner’s illness, receiving retirement plans and life insurance benefits for a deceased partner, etc.

Way to go, North Carolina. You can proudly say that you, along with 29 other states, have successfully managed to vote away this particular civil right, even though section 1 of the Fourteenth Amendment clearly states that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Ironically, I think this is a perfect example of the ‘tyranny of the majority’ conservatives so often criticize these days when giving sermons on the virtues of limited government and the inherent superiority of a constitutionally limited republic vs. a democracy; and who’d wholeheartedly agree with Thomas Jefferson in any other circumstance that “the majority, oppressing an individual, is guilty of a crime, abuses its strength, and by acting on the law of the strongest breaks up the foundations of society” (Letter to Dupont de Nemours, April 24, 1816).

The Constitution is supposed to prevent a majority of citizens who are united and motivated by a common interest from taking away the rights of the minority of other citizens, as James Madison argued in Federalist No. 10. Marriage is a civil right that should be available to all adult citizens equally; and as such, it shouldn’t be subject to the whims of the majority (or anyone else for that matter) according to the founding principles of the Constitution. But marriage isn’t just a civil right, it’s a legal contract that confers certain privileges, immunities, rights, and benefits to committed couples; and in my mind, denying same-sex couples equal access to those privileges, immunities, rights, and benefits merely because of their sexual orientation and/or gender is as ridiculous and as unconstitutional as denying interracial couples the same thing.

In my opinion, sexual orientation should be considered a ‘suspect category’ in equal protection jurisprudence along with race because they’re similar in that they’re both ‘minorities’ that have at one time or another been unable to effectively use the political process to insure fair treatment from the majority. As Kenneth D. Wald notes in his review of The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection:

What Tocqueville called “majority tyranny” is presumed most likely to be visited upon groups “who suffer from prejudice, are unable to form effective political coalitions, and are often singled out for especially unfavorable treatment by the hostile majority” (26). Laws that target such groups—what later became “suspect” classes—are in principle subject to especially rigorous review under “strict scrutiny” and are unlikely to pass judicial muster. In a series of post-CAROLENE decisions that developed less coherently than any summary can convey, the categories of race, national origin, and alien status were recognized as suspect classifications that would generate strict scrutiny. By contrast, laws that burden other groups are normally upheld with minimal scrutiny and maximum deference to the legislative branch. The Court subsequently created an intermediate category of “quasi-suspect” classes based on gender and legitimacy. Laws that burden such groups receive heightened scrutiny to insure there is some discernible “rational” purpose embedded in them. In practice, the contrast between suspect and quasi-suspect classes has become a distinction without a difference, producing what amounts to a two-tiered system.

Considering the amount of discrimination and unfair legal treatment that gays and lesbians have endured throughout the years, I think sexual orientation deserves to be placed in the same classification as race; and I wholeheartedly believe that laws targeting gays and lesbians should be subject to the same rigorous review under ‘strict scrutiny’ as those targeting race—even more so given that this may also be just a small part of a much larger political strategy designed to divide and discriminate, as evidenced by these unsealed memos from the National Organization for Marriage released by a judge last month (read esp. the section titled “Internationalizing The Marriage Issue: A Pan-American Strategy”).


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One Comment
  1. I found this article interesting, especially considering the recent events in North Carolina and the debate over same-sex marriages in general:

    I should note that while adelphopoiia (literally ‘brother-making’) was never understood by the early Christian church to signify a sexual or ‘consummated’ union between two members of the same sex, the rite itself resembles a traditional wedding ceremony, and joins two same-sex individuals together. From my point of view, same-sex marriages, civil unions, domestic partnerships, etc. are essentially the same thing, albeit a bit more intimate and conferring a number of legal privileges, immunities, rights, and benefits enjoyed by traditionally married couples that adelphopoiia doesn’t in and of itself provide.

    That said, reading more about it, I have hope that more and more socially conservative individuals will eventually come to the opinion that same-sex couples should not only have equal access to the legal benefits and protections heterosexual couples enjoy, but that the idea of two people of the same-sex joining together in some kind of civilly and/or religiously recognized union isn’t an attack on the institution of marriage so much as a logical extension of it in an increasingly secularized (not to mention an increasingly globalized and culturally diverse) world.

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