Getting “Equal Protection” Right

More than nine years ago, I wrote:

What “equal protection” really means is this:

Any law that is otherwise constitutional is a valid law, which must be applied equally to all persons.

As long as that law is applied equally to all persons, it is irrelevant if the application of the law happens to lead to unequal outcomes for various identifiable groups of persons….

Four years later, I added this about the decision of federal district judge Vaughn Walker in the case of Perry v. Schwarzenegger (later Hollingsworth v. Perry):

Judge Walker goes on to address equal protection:

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”…

Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, Proposition 8 targets them specifically due to sex. Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

The circularity of Judge Walker’s reasoning with respect to equal protection begins much earlier in his decision, where he writes that

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

But the right to marry, historically, has been the right to choose a spouse of the opposite sex, not merely to choose a spouse. Judge Walker even acknowledges that fact, inadvertently, when he puts aside “relative gender composition,” as if it were a mere trifle and not central to a social tradition that dates back millennia and should not be swept aside casually by a judge because he finds it “irrational,” on the basis of spurious social science. Walker then says that “gender is not relevant,” thus circularly assuming that which is to be proved. As if in support of that assertion he asserts, laughably, that “gender restrictions … were never part of the historical core of the institution of marriage.”

In sum, Judge Walker approaches the constitutional matter of equal protection by assuming that gays have the right to marry. Given that assumption, it is easy to assert that Proposition 8 amounts to a denial of equal protection for gays who seek to marry….

I have never doubted the correctness of my interpretation of “equal protection,” but I’m glad to see it supported by a constitutional scholar. This is from Andrew Hyman’s post, “A Comment in Response to Dale Carpenter Regarding Equal Protection,” at The Originalism Blog (November 23, 2014):

Mike Ramsey recently quoted Professor Dale Carpenter as follows: “The Equal Protection Clause is a self-conscious repudiation of exclusion and hierarchy supported by nothing more than ancient practice.”  Perhaps it would have been wise if the clause really said that, but I don’t think it was written that way…. As I understand it, this clause of the Constitution does not endorse unreasonable exclusion and hierarchy, but neither does it authorize the federal judiciary to make such reasonableness determinations all by itself….

[L]et us consider what a few legal luminaries have had to say about the original meaning of this clause of our Constitution….  Professor Laurence Tribe says that “the Constitution lacks a textual basis for much of what is commonly attributed to the very notion of ‘the equal protection of the laws’….[which] was taken to mean less than ‘the protection of equal laws.’”  As far as I am aware, Professor Steven Calabresi has not altered his view that, “the Equal Protection Clause says nothing about equality in the making or implementing of equal laws.” According to Professor Kermit Roosevelt, “the most natural reading of ‘equal protection of the laws’ probably takes it to be about application or enforcement, rather than content.”… Others could be added to the list, which should at least give pause to anyone who suggests, as Professor Carpenter does, that the U.S. Supreme Court was actually given power in 1868 to strike down whatever governmental classifications that it deems unreasonable and/or hierarchical….

So where did Professor Carpenter’s notion come from?  It is certainly not original to him, so where did it originate?  As best I can tell, the historical source most commonly cited for this idea is the speech of Senator Jacob Howard introducing the Fourteenth Amendment in the Senate, in 1866.  According to the Congressional Globe, he said: “This abolishes all class legislation in the states, and does away with the injustice of subjecting one caste of persons to a code not applicable to another.”  Don’t get me wrong, these are excellent sentiments to guide legislative action, but if Howard was correct then the Supreme Court could legitimately (though unwisely) characterize virtually any legislative classification as verboten, whether it be a law that imposes special burdens or disabilities upon kleptomaniacs, or children, or police officers, or what have you….

Exactly. By the “logic” of Dale Carpenter, Judge Vaughan Walker, and their legalistic ilk, it is unconstitutional to discriminate on any basis. Thus no one should be found unfit for a particular job (that saves Carpenter and Walker); no one should be found unfit for admission to a university; there should be no minimum age at which one is permitted to drink, drive, wed, or join the armed forces; there should be no prohibition of marriage between siblings; churches should be required to ordain atheists; and on and on.

Above all — by the same “logic” — the laws should not have any basis in morality. Because the imposition of morality results in “discrimination” against persons who cheat, beat, steal from, rape, and murder other persons.

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Related posts:
“Equal Protection” and Homosexual “Marriage”
Perry v. Schwarzenegger, Due Process, and Equal Protection
Murder Is Constitutional
Posner the Fatuous