By Maggie Astor: Subscribe to Maggie's RSS feed
December 3, 2011 9:21 AM EST
At a town hall meeting in Waverly, Iowa, on Wednesday, a high school student asked Michele Bachmann what she would do as president to support and protect the gay community. She responded with the twisted logic that gay Americans already have equal rights, because they are free to marry heterosexually just like anyone else, and that allowing same-sex marriage would actually be giving gay people "special rights."
"They can get married, but they abide by the same law as everyone else," she said. "They can marry a man if they're a woman or they can marry a woman if they're a man. ... They have the same opportunity under the law."
But actually, the Supreme Court rejected that logic nearly 45 years ago.
In the 1967 Loving v. Virginia case, the state of Virginia argued that its anti-miscegenation law did not violate the due process and equal protection clauses of the 14th Amendment because the law was "equally applied," meaning that nobody was allowed to marry someone of the opposite race, and whites and blacks who violated the law received identical punishments.
In other words, every Virginia resident, regardless of race, had the right to marry someone of the same race, and every resident, regardless of race, faced the same punishment if they tried to marry someone of the opposite race -- and therefore, the law was constitutional.
Follow us
Not so fast, the Supreme Court said.
"Because we reject the notion that the mere 'equal application' of a statute containing racial classifications is enough to remove the classifications from the 14th Amendment's proscription of all invidious racial discriminations, we do not accept the state's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose," Chief Justice Earl Warren wrote in the ruling.
That precedent still stands.
If a law discriminates based on racial classifications, it doesn't matter whether it is "equally applied" or not. By the same token, if a law discriminates based on sexual orientation, it doesn't matter whether it is "equally applied," as Bachmann argues.
The only question that matters is whether, like race, sexual orientation constitutes an invidious classification. If it does, then laws that discriminate based on sexual orientation are subject to "heightened scrutiny," and it is not enough for there to be a "rational purpose" behind them, as many conservatives argue when they say that same-sex marriage bans are necessary to protect the "sanctity of marriage." If sexual orientation does not constitute an invidious classification, then the constitutionality of the law would rest on whether it had a demonstrated "rational purpose" -- but still not on whether it was equally applied.
It is for the courts to decide whether sexual orientation is an invidious classification along the lines of race and gender, and it is that question on which the constitutionality of same-sex marriage bans depends. Whether the law is "equally applied" has nothing to do with it, and Bachmann's argument is a fundamental misinterpretation of the 14th Amendment's equal protection guarantee.
Mark Zuckerberg's $6.4 Billion Loss: Value Of Facebook CEO's Stake A Gambler's Nightmare
Tasha Reign Says ‘Super Hot’ Bill Clinton Wanted To Meet Her and Brooklyn Lee, ‘Sympathetic’ For Viral Photo
Larry Flynt Blasts ‘Prudish And Delusional Right Wing’ Over S.E. Cupp Hustler Photo As ‘The View’ Hosts Jump To The Defense
Joe Biden Says He Understood Suicidal Thoughts In Wrenching Speech To Families Of Fallen Troops
Mitt the Bully, Barack the Stoner? Candidates Have Very Different High School StoriesWe value your privacy. Your email address will not be shared.
