Here’s a novel approach to perpetuating discrimination against gays and lesbians: they already have too much power, so let’s not give them any more.
Gay Americans simply have too much political power to be afforded equal rights under the Constitution, according to a brief filed by the state of Ohio asking the Supreme Court to permit that state to continue to practice marriage discrimination. Ohio’s claim comes as part of a greater effort to convince the justices that laws which discriminate again gay men, lesbians and bisexuals should not be treated with skepticism by courts applying the Constitution’s guarantee that everyone shall be afforded “the equal protection of the laws.”
Under this provision of the Constitution, most forms of discrimination are entirely permissible. It is acceptable, for example, for the government to discriminate against unqualified job applicants when making hiring decisions, or to discriminate against people who commit serious crimes in deciding who to incarcerate.
When the government discriminates against groups that have historically been subject to unequal treatment that has little basis in their ability to “perform or contribute to society,” however, the Court applies what is known as “heightened scrutiny” to such discrimination. This is why discrimination on the basis of race or gender is typically not allowed, because racial minorities and women have historically been subject to the kind of irrational discrimination that triggers heightened scrutiny. A major question in the marriage equality litigation now pending before the Supreme Court is whether the nation’s long history of irrational discrimination against gay people also justifies applying such scrutiny to laws that discriminate on the basis of sexual orientation.
Uh, excuse me, but look next door, Ohio. If we were so powerful, Indiana would not only not have passed their RFRA last week, we would have forced the state to do a complete make-over, made the Purdue football team play in tank-tops and short-shorts, replaced the state song with “It’s Raining Men,” and made Birkenstocks the official state shoe.