Equal Protection to the Rescue (?)
We’ve seen that many Supreme Court decisions over the past century protecting unenumerated fundamental rights are based on broad interpretations of general concepts like liberty, privacy, personal autonomy, and dignity. It feels right to say, for example, as Justice Kennedy held in Lawrence v. Texas, that the constitution protects gay and lesbian individuals because
[t]he State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.
But rights founded on loose extrapolation of vague principles are on rocky footing, as we saw in Dobbs. And in his separate Dobbs concurrence, Justice Thomas left no doubt that he has the Court’s substantive due process jurisprudence in his crosshairs.
A rigorous application of the Glucksburg test would seem to doom the gay rights cases, and even endanger Loving v. Virginia, which struck down anti-miscegenation laws because they violate a fundamental right to marry.1
But Loving indicates that there is another Skywalker: equal protection. In fact, the fundamental rights analysis of Loving seems little more than an afterthought, two paragraphs tacked onto the end of the decision, allegedly by Justice Warren personally.
The bulk of the opinion is about how anti-miscegenation laws violate the Fourteenth Amendment’s equal protection clause, which provides that no state may “deny to any person within its jurisdiction the equal protection of the laws,” by discriminating on the basis of race.
Virginia argued that its anti-miscegenation law treated individuals of different races equally: a black person can’t marry a white person and neither can a white person marry a black person. The Court rejected this sophistry. A mixed race marriage was illegal while a racially “pure” marriage was legal. That’s a racial classification which violates equal protection.
In Lawrence, Justice O’Connor wrote a separate concurrence arguing that anti-sodomy laws that apply to only homosexual relationships violate equal protection because they are sex-based classifications.2
And the argument flows naturally to the next proposition: prohibitions on gay marriage are sex based classifications in the same way that anti-miscegenation laws are racial classifications. Formally, the sexes are treated equally: both sexes can marry someone of the opposite sex but not someone of the same sex. But classification of marriages based on sex fails to satisfy equal protection for the same reason that the racial classification of marriages failed in Loving: it’s invidious discrimination.
But what about Roe? Of course, abortion regulations only affect women, but that is because of actual biological differences between the sexes and not governmental classification.
One might still point out that women must be able to control their reproduction in order to be equal members of society with men. As interpreted by this Supreme Court, however, equal protection doctrine does not promise equal outcome, only formally equal treatment by the law. The chips fall where they may. Hence, the constitution is “color-blind” and will not tolerate affirmative action by public institutions.
I expect this court would find that abortion restrictions affect women as a class only incidentally and not because of invidious sex discrimination.3 Equal protection does not encompass any obligation that government level the playing field between men and women. Thus, women have no right to control their reproduction as a matter of equal protection.
Anomalously, Justice Thomas left Loving off of his list of egregiously wrong substantive due process cases. Setting aside blatant hypocrisy and self-interested reasoning, it’s hard to see how Loving is distinguishable from other SDP cases.
A state government could get around this problem by prohibiting all sodomy, instead of only homosexual sodomy. Aside from a fringe of hard right conservative evangelical Christian nags, however, such a law would likely be extremely unpopular with heterosexuals. We the people will defend our fundamental right to butt stuff.