Recent behavior of the Supreme Court's conservative wing shows the persistent danger to the concept of equal protection...
/By Mathew Goldstein/ The vehemence of the dissent by four Supreme Court of the United States Justices against the Obergefell v. Hodges decision on marriage equality appears to be provoked by this decision's reliance on the notion that the US Constitution is to be interpreted as a declaration of broad governing principles instead of a narrow entrenchment of late 18th century governing practices. The recent result of this kind of thinking is a strong tendency in the court’s hard-core conservative faction to discount or deny equal protection.
Interpreting the Constitution as containing declarations of broad governing principles results in the SCOTUS enforcing minority civil rights claims against a sometimes recalcitrant majority, as in Brown v. Board of Education. The four dissenting Justices instead show substantial discomfort with ordering equal protection before the law nationwide for disliked minorities. To avoid that outcome they advocate for interpreting the Constitution to freeze in place the animus towards disliked minorities found in the 18th century laws when the Constitution was written.
The Obergefell v. Hodges dissenters deny, however, that 18th century laws exhibit any animus. Instead, they claim that laws limiting marriage to couples of opposite genders were, and still are, properly justified by a government interest that is narrowly confined to regulating procreation. However, this claim is incoherent and thus should be understood to be an effort to mask their own animus. If regulating procreation is the primary government interest here then why do marriages everywhere remain legally in force after the female completes menopause? Why are mixed gender couples that are known in advance to be incapable of joint procreation always permitted to marry? Why are the marriages of mixed gender couples that are subsequently found to be incapable of joint procreation not routinely annulled? The judges who cite procreation as the primary government interest served by marriage fail to address these questions. The reason for this failure is easy to fathom; it is because they cannot. Marriage is, and always has been, about more than procreation. It is also about jointly raising children (who may have been procreated by a different couple) and about regulating a variety of related financial and social interactions. Today there are approximately one thousand federal benefits and regulations associated with marriage. What are the reasons for denying same-gender couples access to these benefits in the 21st century? No sensible answer is ever given.
The irony of the comatose, “it's the 18th century forever,” approach to Constitutional interpretation, which is often referred to as original intent, is that it is claimed to be rooted in following the historical intent of the founding fathers, yet history does not support it. The 18th-century authors of the Constitution were well-read students of history and philosophy. They were aware that the governing customs and practices of their own time and place, let alone of the 16th century 200 years in their past, were not exemplary. They sometimes criticized popular traditions and mores of their day and believed that they could facilitate future changes for the better. They wrote out specific and detailed instructions when they wanted the law to be fixed and specific and they wrote more general instructions when they preferred that the law be more flexible and broad to support future progress. They understood that the Constitution was being written for a future that would be different from the present in unanticipated ways. They wanted the new Constitution to retain its relevance and be adaptable for future generations.
Interpreting the Constitution to not assert anything that results in upholding standards not yet fully realized in the 18th century is hidebound and cowardly. It is also ahistorical. The authors of the Constitution, and the broad, timeless, principles articulated in the Constitution that they wrote, merit more respect. The Equal Protection clause was added to the Constitution by a 19th-century action (the 14th Amendment) as an additional broad principle that is consistent with the original intent as expressed in the Bill of Rights, and it clearly applies to all citizens of the United States.
Four votes against equal protection is only one vote short of winning and four votes too many.