Before the recent Irish vote on same-sex marriage fades away in our collective memory, a few things ought to be said. For starters, the Irish have laudably utilized the democratic process to deal with this subject, whatever one thinks of the outcome. That same ability may imminently be taken away from the American people, on the theory that five judges are better positioned and better informed to decide this issue for 300 million people, than those 300 million people ourselves.
Some readers of this blog may claim that the Equal Protection Clause forbids us from handling the issue as the Irish have done, i.e. democratically or through republican legislation. To which my answer is: there are many reasons to reject that claim.
One could start with the fact that intermediate scrutiny does not apply to this sort of classification, because it obviously does not involve discrimination against either men, or against women, as a class. But perhaps the Court could recognize a new suspect class, which brings me to deeper reasons for rejecting the claim.
The EPC plainly does not refer to the "equal protection of equal laws". It would have been very easy for the framers to have included the latter word "equal" had they wanted to. And those who advocate a reading of the EPC that guarantees "protection of equal laws" have never explained why they prefer that formulation to "protection of THE equal laws" which is closer to the actual text.
These points become doubly obvious when you consider that the "protection of equal laws" formulation essentially renders the last three words of the EPC superfluous. The clause could then just as well say that no state shall "deny equal protection to any person within its jurisdiction", which would automatically require equal laws.
This is all elementary textual interpretation, and I hope my friend Mike Ramsey will take a moment to explain why he thinks it is unconvincing, if indeed it is unconvincing. I have only encountered one remotely plausible objection to this elementary analysis, and it is not based at all upon the clause's text but rather upon the consequences of that text.
The objection is this: if we interpret the EPC as allowing unequal laws, then cases like the great Brown v. Board of Education would be impossible. However, that objection can easily be countered by looking, once again, at the clause's text. To the extent that the EPC imposes a limitation upon state laws, that is because the framers deliberately required states to comply with the equal protection of federal laws (i.e. "of THE laws") rather than merely equal protection of the state's own laws (i.e. "of ITS laws"). That wording was a deliberate decision, explicitly discussed repeatedly by the 39th Congress. Looked at in this way, Brown v. Board of Education was entirely justified by the Civil Rights Act of 1866, which was reenacted in 1870 pursuant to the Fourteenth Amendment, and which forbade most (if not all) racial discrimination.
According to the original meaning of the Equal Protection Clause, the American people have no less right than the Irish people to decide the issue of same sex marriage. And on this Memorial Day, I am more than a little concerned that the right of self-government that the founders of this country tried so hard to secure, is being dissolved by people who do not see its central role in our history, and its central role in what has made the country worth fighting for.
Posted at 10:00 PM