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LGBT people too powerful to qualify for Constitutional protection?

The right’s distortion of the US Constitution reached a new low last Friday (10.14.11) when lawyers representing House Speaker John Boehner and other conservative members of Congress filed a brief in San Francico District court arguing that gay people do not deserve legal rights because they are too powerful politically. The former Bush Administration Solicitor General, Paul Clement, filed this strange filing in Golinski v. OPM, one of several challenges to the Defense of Marriage Act (DOMA) underway in federal courts.

I have not yet been able to access the text of the 31-page brief, but according to the San Francisco Chronicle (and the Associated Press), Clement argues that LGBT people do not need legal protection because “Homosexuals have a great deal of political power.”  The Chronicle  reports that the brief asserts “Congress had legitimate reasons for granting marital benefits only to opposite-sex couples – tradition, the “unknown consequences of a novel redefinition of marriage,” and the government’s “interest in maintaining the link between marriage and children.” (See Bob Egelko, “Gays Don’t Need Legal Protections, GOP Argues,” SF Chronicle, October 16, 2011 at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/10/14/BANT1LI0F4.DTL)

Paul D. Clement

Clement’s argument echoes ones made throughout the 1990’s by the anti-gay religious right in their efforts to deprive LGBT people of protection from discrimination in employment, housing and other basic aspects of life — remember the film Gay Rights, Special Rights? Ironically, Clement is being paid by the House Bipartisan Legal Advisory Group to counter DOMA with literally millions of LGBT tax dollars to  deprive LGBT people of their Constitutional rights.

Leave aside the insulting dismissal of the actual, extensive and ongoing experience of real and pervasive discrimination experienced by LGBT people, a legacy acknowledged and tracked in the Department of Justice’s brief in this same case (in July, 2011, in which the Justice Department details the discrimination and persecution that has marked LGBT experience). Let’s just footnote for now the offensive echo of anti-Semitism and racism in this “too-powerful” to need protection argument.  And let’s ignore the delusions that leads Clement to characterize the patchy and contingent gains won by LGBT activists as “a great deal of political power” — has he met any LGBT people living in the real world?

A troubling argument made in the brief is that LGBT people are not entitled to constitutional protection under any standard of review (heightened, intermediate or rational basis) — because of “tradition.”   (The counter argument of the Golinski lawyers and the movement is that DOMA is an unconstitutional law under any standard of equal protection review — and especially under the heightened scrutiny that is warranted in this instance).

Tradition, wrote the sociologist Edward Shils, “in its barest, most elementary sense, means simply…anything which is transmitted or handed down from the past to the present.” (Edward Shils, Tradition (University of Chicago Press, 1981), p. 12).   Yet because a practice or belief has been inherited, even if it is backed by so-called “millennia of moral teaching” (as the Hardwick majority demurred), does not make it constitutional  (as the Lawrence majority concluded), or even ethical.  Arguments grounded on appeals to tradition deserve close scrutiny, not automatic deference.  Anything inherited is subject to interpretation and change by those who inherit the tradition, notes Shils.  Stated another way, to declare that something is a tradition is to admit its mutability.

In a 2011 law review article in the University of Chicago Law Review titled “Tradition As Justification: The Case of Opposite Sex Marriage,” Kim Forde- Mazrui, Professor of Law at the University of Virginia Law School explores the resort to the idea of tradition made in many of the cases defending same-old-sex-marriage. He argues convincingly that the use of “tradition” as a justification for denial of equal protection to LGBT people should itself be regarded with deep suspicion. (See, 78 U. Chicago L Rev 281, Winter 2011).

Professor Forde-Mazrui writes, “Indicia that counsel skepticism toward tradition include its historical use to justify obnoxious laws, its speculative rather than demonstrable utility, its rhetorical appeal, and its manipulability. Additionally, tradition is an especially attractive justification to those defending laws that burden groups toward whom there has been a cultural shift from societal disapproval in the past to a substantial degree of public tolerance today. The result is that tradition tends to emerge as a justification when other potential justifications are either unacceptable, such as outmoded prejudice or stereotype, or unpersuasive, such as justifications based on purported empirical facts or risks that turn out to be erroneous or unsubstantiated.”

Maybe there is a redeeming feature in Clement’s powerful people don’t deserve to be protected argument. By its logic, the US Religious Right should be deprived of access to Constitutional protection under equal protection jurisprudence, because it has demonstrated so much political power. Also under this brief’s logic, the undeniably powerful entities that comprise corporate America, entities recently on a roll in gaining Constitutional protection as “persons”, should also be rendered outside the purview of the Equal Protection Clause of the Constitution. Maybe we can use this argument to repeal Citizen’s United!

This week the Senate Judiciary Committee will hold a mark-up on the bill to repeal DOMA (the so-called  Respect for Marriage Act — I would have preferred a less smarmy title, perhaps the Equal Access to Marriage Act), and the SJC is expected to report it out of Committee.  Over the next few months several key arguments will be held in the DOMA cases.  Advocates — from the left and the right in the LGBT movement — will need to carefully debunk and expose the masked homophobia underlying the bizarre new arguments against LGBT equal protection.  DOMA is indefensible as a status-based classification that violates the rights of millions of people – under any and every standard of constitutional review (and the DOMA cases will prove that).

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