A favorite argument of same-sex-marriage advocates is the idea that the gay-marriage movement is the intellectual heir to the Civil Rights movement of the mid-20th century. The implications of this argument are severe. The idea that people who oppose the legalization of gay marriage are morally equivalent to the blatant racists who supported segregation is both erroneous and harmful.
The main legal argument in favor of the movement toward integration was that the Equal Protection clause of the Fourteenth Amendment made it unconstitutional for states to enact segregationist policies. I would say that the equal-protection argument does not apply to same-sex marriage. While states may decide to legalize gay marriage, they also might decide to ban gay marriage. I am not arguing that states should ban gay marriage; rather, I am stating that they have the right to ban gay marriage. The distinction is vital.
The Civil Rights movement achieved perhaps its most resounding victory in the famous 1954 Supreme Court decision Brown v. Board of Education. In this landmark case, the Court ruled, unanimously, that states did not have the right to establish separate public schools for black and for white students. “Separate educational facilities are inherently unequal,” the Court stated in its opinion. This segregation was found to be in violation of the Equal Protection Clause.
The legal argument in favor of same-sex-marriage legalization follows the thread of the Brown v. Board opinion. Although many states have legalized gay marriage, 35 states have instituted gay-marriage bans, and few of these Republican-leaning states are likely to overturn these bans in the near future. Therefore, in order to achieve widespread legalization of gay marriage, the courts could be a viable option. The legal argument is essentially that states that establish laws distinguishing between opposite-sex unions and same-sex unions are not in compliance with the Fourteenth Amendment because in separating gay unions and straight unions, they are declaring gay relationships to be inferior.
In my opinion, this argument does not hold up under closer legal examination. First, the goal of the Brown v. Board opinion was integration. This is not the case for the issue of gay marriage. As Martha Minow, a professor at Harvard Law School, states in a 2010 article, the goal of the gay-marriage legalization movement is “organizing the official recognition for intimate partnerships.” The analogy between the Civil Rights movement and the gay marriage movement is therefore awkward and forced.
Additionally, it should be noted that the Court, in Brown v. Board, based its “separate but equal” ruling largely on the fact that the schools actually were unequal. The facilities for black children were far inferior to the facilities for white children. Importantly, the decision had nothing to do with perceived notions of psychological inferiority. As current Supreme Court Justice Clarence Thomas writes in his 1995 opinion on Missouri v. Jenkins, “segregation was not unconstitutional because it might have caused psychological feelings of inferiority.” Had the educational facilities for blacks and whites actually been equivalent in the 1950s, it is conceivable that the Supreme Court would have ruled differently on Brown v. Board. Clearly, segregation is morally reprehensible. Legally under our constitution, though, the issue becomes more complex. It is the same with gay marriage: although some moral arguments may favor the legalization of gay marriage, there seems to be a legal justification for state bans on same-sex marriage.
The argument in favor the constitutionality of gay marriage relies on the premise that “separate but equal” institutions are inherently unequal. But, as Thomas writes in his Missouri v. Jenkins opinion, “psychological injury or benefit is irrelevant,” and thus in order to prove that “separate but equal” really is unequal, the court must rely on evidence beyond notions of psychological inferiority. Feelings of psychological inferiority are impossible to quantify or define or fairly rule on. Therefore, I would argue that if a state were to legalize civil unions for same-sex couples that are equivalent in everything but name to straight marriage, this would be constitutional, and would not violate the Equal Protection Clause of the Fourteenth Amendment. Many will wonder why, at this point in time, states do not simply legalize gay marriage. It is a valid point. Perhaps they should. My only point is that states perhaps have a legal justification not to grant marriages to gay couples, and that the Brown v. Board analogy is not perfect.
Again, it is vital to appreciate that I am not arguing in favor of same-sex marriage bans. I am simply pointing out that states probably have the constitutional right to disallow gay marriage, provided that gay couples in civil unions are given equivalent benefits to married straight couples. My opinion on the constitutionality of this issue has little to do with my opinion on whether or not states should legalize gay marriage. Frankly, I am not sure whether or not states should legalize it. But whatever the answer, states do have options. It may or may not be morally right for a state to ban gay marriage, but it is legally admissible.
John Connolly is a Viewpoint columnist for The Cavalier Daily._
Read More
EDITORIAL: Celebrating and reflecting on The Cavalier Daily’s independence
By Editorial Board | 4 hours agoOur independence grants us the ability to ask the hard questions and to say what University representatives cannot.
ARRAS: U.Va. must revise the Sexual Assault Prevention Training module
By Aoife Arras | YesterdayIn addition to its failures in interactivity, the module lacks details specific to the University and discusses key concepts in universal terms.
EDITORIAL: Pedestrian safety is an institutional imperative
By Editorial Board | 3 days agoAmid a national crisis of pedestrian safety, Charlottesville and the University are also struggling to properly maintain pedestrian safety.
