"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.”
The above statement, contained in the 14th Amendment, was added to the U.S. Constitution in 1868, shortly after the conclusion of the Civil War, as a way to provide equal rights to African Americans. The “equal protection clause” was later extended to include women and other historically disadvantaged groups.
Now, nearly 150 years later, that very same amendment serves as the strongest legal case that gay rights proponents can make in arguing that discrimination based on sexual orientation is unconstitutional.
And some of those proponents are card-carrying Republicans.
The unexpected bedfellows include conservative powerhouse attorney Ted Olson, who argues that depriving gay couples of rights afforded to heterosexual couples is simply against the law of the land.
Olson served as U.S. solicitor general under former President George W. Bush and represented that president before the Supreme Court in the 2000 vote-recount case Bush v. Gore.
Shannon Minter, legal director of the National Center for Lesbian Rights, says that having Olson take on the fight against the same-sex marriage ban Proposition 8 in California in 2009 was a huge boon.
“I think having Ted Olson come out so strongly as such an advocate for the gay community has made a huge difference, because he’s one of the most powerful conservative figures in the country,” Minter told Boulder Weekly. “That’s had a big effect. It’s no longer a partisan issue.”
Others point out that Republican presidential candidate and former Utah Gov. Jon Huntsman backs civil unions.
Leading experts like Minter say that one key term that even many conservatives recognize in the 14th Amendment is “any person.”
“It doesn’t say ‘any person except gay people,’” Minter says. “The foundation goes right to the heart of the most important principles in the Constitution, which is equal protection and fundamental rights.”
The Supreme Court has defined certain rights as fundamental over the years, Minter explains, such as the right to privacy and the right to “intimate association” — controlling your closest personal relationships, including choosing your spouse.
“It’s a gradual awakening, but it’s starting to speed up on the part of the public, that gay relationships are real and that gay people want to marry for the same reason that heterosexual people want to marry,” Minter says.
Obama an ally?
Another major advance in the ongoing battle to protect gays from discrimination, Minter says, was President Barack Obama’s decision to declare the Defense of Marriage Act (DOMA) indefensible. DOMA, signed into law by former President Bill Clinton in 1996, defines marriage as being between a man and a woman and says no state can be required to honor a marriage blessed by another state. But in February, Obama announced through Attorney General Eric Holder that the Department of Justice would no longer defend DOMA because Obama feels it is unconstitutional.
Still, not all conservatives have been convinced. The Republican-controlled House of Representatives took up the defense of DOMA, and Minter says the Supreme Court could take up a constitutional challenge to DOMA before the end of Obama’s term.
“That was big,” he says of Obama abandoning the defense of DOMA. “It says a lot about how far our whole country has moved.”
Minter was less enthusiastic about Obama’s June 23 remarks at the LGBT Leadership Council in New York City, in which the president championed the idea that same-sex couples should have every right that heterosexuals enjoy, but seemed to be avoiding the “M” word. Obama has frustrated gay rights activists by embracing civil unions but stopping short of endorsing same-sex marriage, saying his views are “evolving.”
“I really wish he would come out and clearly support marriage equality for gay couples,” Minter says. “He didn’t go far enough. I think he’s a great president and a strong leader, but I really want him to take a stronger stand.”
On the other battle front that could end up with the Supreme Court, the challenge to California’s same-sex marriage ban that Olson is involved in, Minter says it is still unclear whether a district judge’s August 2010 overturning of the ban can be appealed, since the state has refused to defend the ban. That decision — whether an appeal can move forward without state support — now lies with the California Supreme Court, which is expected to hear oral arguments in September.
Minter says he hopes that those justices are not subjected to the same political pressure that judges in similar cases have experienced. For instance, he says, the judges who struck down Iowa’s same-sex marriage ban were subjected to “blatant intimidation tactics” by a right-wing group, and some were recalled.
Meanwhile, on the opposite coast, the New York legislature approved same-sex marriage on June 24, adding a heavyweight state, both in terms of general population and homosexual numbers, to the tally of states that have blessed same-sex marriage.
Four members of the Republican majority tipped the scales.
New York is “a huge domino to fall,” says local constitutional law expert Scott Moss, a University of Colorado associate professor of law.
The arguments for
According to Moss, the legal battle to prevent discrimination against homosexuals can be fought on three main fronts. The first is the equal protection clause of the 14th Amendment, which was at the heart of Romer v. Evans, the 1996 Supreme Court decision striking down Colorado’s anti-gay Amendment 2, the measure that would have barred local governments from treating homosexuals as a protected class.
The second main way to combat discrimination against homosexuals, Moss says, is a Roe v. Wade-type of argument based on protecting a person’s right to sexual privacy. In the 2003 case Lawrence v. Texas, the Supreme Court struck down that state’s sodomy law, ruling that intimate consensual sexual activity is liberty protected under the “due process clause” of the 14th Amendment.
The third front on which the gay-rights battle is being fought is the aforementioned challenge to DOMA — not just whether the federal government has the right to deny marital rights to gay and lesbian couples, but whether states should be required to recognize same-sex marriages from other states.
According to Mindy Barton, legal director for the GLBT Community Center of Colorado, the U.S. Constitution says that, in general, states should honor each others’ laws.
“With DOMA, we’ve opted out of the Full Faith and Credit Clause, and that’s disconcerting,” she says. “We shouldn’t be able to opt out of certain parts of the Constitution. That’s a little troublesome.”
A political casualty
Republicans in Colorado, unlike the conservative examples on both coasts, have not been as open to gay rights.
This spring, State Sen. Pat Steadman, D-Denver, an openly gay Colorado legislator, co-sponsored SB 172, the Colorado Civil Unions Act. After being passed by the Democratically controlled Senate, the bill was killed on March 31 in a 6-5 party-line vote in the Judiciary Committee of the House. (The Republican Party, thanks to its one-person majority in the House, also holds the majority in House committees.)
Steadman told Boulder Weekly that he plans to revive the bill next spring, without many changes. Asked what might make the Republican-dominated House approve it the next time around, he says, “Hopefully they’ll be a year older and a year wiser.”
Still, Colorado has made a few pro-gay strides in the nearly five years since voters approved a state version of DOMA called Amendment 43 — and turned down a measure allowing domestic partnerships. The state now has “designated beneficiary agreements” that can help same-sex couples with estate planning, such as leaving an inheritance to a partner.
“I think a lot has changed in Colorado since 2006,” Barton says.
Steadman says an intellectually sound — but practically questionable — approach would be to get rid of state-sponsored marriage in its entirety and just have marriages declared by churches.
“How did the government get into the marriage business in the first place?” he asks. “It’s bullshit. The government should not be policing marriages. That’s somebody else’s job.”
By some accounts, it is just a matter of time before homosexuals enjoy the same rights — marital or otherwise — as other Americans. Remaining questions include how long it will take, and on which front the national reform will succeed. Will it be Congress or the Supreme Court overturning DOMA in the near future? Or will the tide be turned state by state, until there is overwhelming popular support that sways the federal powers that be?
“The only way Congress or the Supreme Court is going to act is when we get critical mass in the states,” Steadman says. “The tide is really turning. It’s not a matter of if, it’s a matter of when.”
Steadman says it won’t take a majority of states to tip the balance, and he acknowledges that not all states are going to be on board.
“Mississippi and Alabama are not going to be at the forefront of this,” he says.
But Steadman also says there are “some interesting coalitions coming together on this,” citing the Tea Party, which opposes government intrusion into private lives.
Some say the concept of equal rights for homosexuals is as American as motherhood and apple pie.
“We’re talking about equality,” Barton says, noting that even South Africa has honored same-sex marriages for several years. “We’re talking about treating everyone the same.”
“Why did people come to this country in the first place?” Steadman asks. “Because of religious persecution in Europe, right? And people came here to be free and live their lives the way they wanted to live them and pursue their version of happiness.
“So yeah, this is apple pie. This is what we’re all about.”