Apologies for the delay in posting…
To establish a baseline on discussions like gay marriage, it’s important that we work from the same vocabulary. Here’s my attempt to provide that, in the form of a basic primer on equal protection law in America. Because I’m striving for a balance between comprehensive, technical accuracy and accessibility, I’m sure to go amiss at some point, but I’m always happy to clarify.
To start, the Fourteenth Amendment’s Equal Protection Clause (“[N]or shall any state… deny to any person within its jurisdiction the equal protection of the laws”) potentially covers any situation where the legislature, state or federal, distinguishes between “persons.”
Of course, most legislation classifies. To withdraw from the legislature the tool of classification would be to end the legislature. Acknowledging this difficulty, the default position in equal protection law is deference: if a statute classifies, but is rationally related to a legitimate government interest, the statute shall be sustained. Most legislation receives (and passes) this cursory level of analysis.
As a result, the question when approaching a new equal protection question isn’t “why is the legislature’s act unconstitutional?,” but, rather, “what reason do we have to doubt its constitutionality?” Remember this as we go forward: unless a restrictive statute implicates some “suspect class,” as explained later on, the presumption is that the statute is valid.
History informs the Clause’s further applications. It was drafted to protect newly freed African-Americans from the caprices of a majority bent on instituting de facto slavery and, consequentially, post-Brown v. Board of Education, legislation that classifies on the basis of race shall almost surely fail, unless it is the least restrictive means to accomplish a compelling state interest, and narrowly tailored to that end. Race-based classification is “suspect” — when the legislature classifies on the basis of race, we are justified in being suspicious.
But why is race special? First, race is a trait that is identifiable, and shared at the class level. Because the Equal Protection Clause is concerned with the subordination of individuals based on group status, that the trait confers group status is significant. Second, race is immutable. One is born into a race, and if they can change their appearance, their history remains tied to the race. Third, race rarely if ever actually matters when evaluating an individual’s “value,” and the legislature’s legitimate interest in classifying based on race is therefore quite small. Fourth, and finally, history demonstrates that individuals have often been made to unjustly suffer for their race: history justifies suspicion. Ergo, race is a “suspect classification,” and racial minorities constitute a “protected class,” deserving special protection.
Race isn’t the only “protected class.” Traditionally, classifications based on ethnicity, national origin, and religion are also suspect. Classifications based on gender occupy a middle ground, because gender is often a proxy for significant traits (e.g., ability to become pregnant).
Further, it’s possible to generalize from the traits that make racial minorities “protected” to determine when a new “protected class” should be carved out. Here is where the debate should center on gay marriage: is there a sexuality-race analogy? If so, is it enough to be able to fairly call gay men & women a “protected class”? I will argue “yes” — and so will almost the entire legal academy.
When considering questions of equal protection, remember that the touchstone of equal protection law is group status, not individual action. It’s meaningless to speak of “a group of people who want a cookie” as a protected class, because to classify upon the basis of the shared trait would be, really, to classify on the basis of a shared action. Conduct is only significant in the equal protection context when it merges with status.
Unless you want to talk about the Due Process Clause. Which I don’t.