Strange Love: How I Learned to Stop Worrying and Embrace the Equal Protection Argument for Gay Marriage

By Sullum, Jacob | Reason, November 2010 | Go to article overview

Strange Love: How I Learned to Stop Worrying and Embrace the Equal Protection Argument for Gay Marriage


Sullum, Jacob, Reason


IN AUGUST a federal judge in San Francisco ruled that Proposition 8, California's voter-approved ban on gay marriage, violates the 14th Amendment's command that no state may "deny to any person within its jurisdiction the equal protection of the laws." U.S. District Judge Vaughn Walker concluded that the ban's justification was so weak that it failed even the "rational basis" test, the highly deferential standard used in equal protection cases that do not involve a fundamental right or a "suspect class" such as race (although he also argued that gay marriage bans implicate both).

In addition to social conservatives, critics of the decision included supporters of gay marriage who worry about the damage done by result-oriented jurisprudence, while I share their concerns, this objection to the equal protection argument for gay marriage no longer seems decisive to me.

For one thing, I'm not sure it's possible to prevent a judge's policy preferences from influencing his application of the law in a case like this. No doubt a judge who was more alarmed at the prospect of gay marriage would have reached a conclusion different from Walker's. But wouldn't that judge also be guilty of letting his social views shape his legal analysis?

Furthermore, there is a defensible constitutional argument that the principle of equal protection, which says "all persons similarly situated should be treated alike,' means the government may not discriminate between couples based on sexual preference. Although the people who wrote and ratified the Fifth and 14th amendments never imagined they were guaranteeing equal legal treatment for homosexual couples, that's because the very notion of gay marriage would have been incomprehensible to them.

Treating all married couples equally, without regard to sexual preference, seems like a straightforward application of equal protection to a situation the Framers could not have foreseen, just as they did not foresee television (which is nevertheless protected by the First Amendment) or wiretaps (which are nevertheless governed by the Fourth Amendment). …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Strange Love: How I Learned to Stop Worrying and Embrace the Equal Protection Argument for Gay Marriage
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.